Opinion
ORDER DENYING WITHOUT PREJUDICE DEFENDANTS' EX PARTE APPLICATION FOR PROTECTIVE ORDER STAYING DISCOVERY [Doc. # 20]
CATHY ANN BENCIVENGO, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se , filed this action under 42 U.S.C. § 1983. Defendants filed an ex parte application seeking a stay of discovery. For the reasons that follow, the ex parte application is denied without prejudice as premature.
Plaintiff filed this action on May 25, 2007. On June 12, 2007, Plaintiff was granted an in forma pauperis status. On August 28, 2007, Defendants filed a motion for an order revoking Plaintiff's in forma pauperis status under 28 U.S.C. § 1915(g) and requiring him to pay a filing fee. The motion is set for hearing on October 5, 2007. On September 25, 2007, Plaintiff served on two Defendants a set of twenty five interrogatories for each.
Defendants seek to stay discovery pending a ruling on the motion for revocation of Plaintiff's in forma pauperis status. Under 28 U.S.C. § 1915(g), a prisoner may not obtain this status if three or more of his previous actions have been dismissed as frivolous, malicious, or failing to state a claim, "unless the prisoner is under imminent danger of serious physical injury." Id . In his opposition to Defendants' motion, Plaintiff does not dispute that he has at least three prior "strikes." He challenges the constitutionality of the statute. Plaintiff also acknowledges that he would not be able to pay the filing fee. Defendants argue that it is likely that their motion will be granted and the case will effectively be over.
At this stage of the litigation any discovery requests, as well a stay of discovery, are premature. "[A] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)." Fed.R.Civ.P. Rule 26(d). There is no indication that the parties have had a Rule 26(f) meeting in this case. Defendants filed an Answer on September 4, 2007. This Court scheduled a Case Management Conference for October 19, 2007. In a § 1983 case, a Rule 26(f) conference usually takes place after the Case Management Conference.
Accordingly, no stay of discovery is imposed at this time. Plaintiff's interrogatories have been served prematurely. Defendants have no obligation to respond to Plaintiff's interrogatories prior to the Rule 26(f) meeting. The interrogatories shall be deemed served as of the date of the Rule 26(f) meeting once such meeting occurs, unless ordered otherwise by the Court.
IT IS SO ORDERED.