Opinion
1:17-cv-00605-LJO-GSA-PC
12-02-2019
JAMES BOWELL, Plaintiff, v. F. MONTOYA, et al., Defendants.
ORDER OF CLARIFICATION
(ECF No. 57.) ORDER VACATING DISCOVERY AND SCHEDULING ORDER ISSUED ON NOVEMBER 8, 2019
(ECF No. 55.)
I. BACKGROUND
James Bowell ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's First Amended Complaint, filed on May 3, 2018, against defendants Montoya and Carter for violation of due process under the Fourteenth Amendment, and against defendants Killmer and Lopez for conspiracy to place Plaintiff at risk of serious harm, and additionally for failure to protect Plaintiff under the Eighth Amendment. (ECF No. 16.)
On October 25, 2018, the court issued an order dismissing all other claims and defendants from this case, for Plaintiff's failure to state a claim. (ECF No. 20.) --------
On November 27, 2019, Defendants filed a request for clarification regarding the court's Discovery and Scheduling Order issued on November 8, 2019. (ECF No. 57.)
II. DEFENDANTS' REQUEST FOR CLARIFICATION
Defendants request clarification as to whether the 120-day stay of discovery, ordered by the court on October 18, 2019, remains in effect.
Defendants correctly state that on October 18, 2019, the court granted Plaintiff "one hundred-twenty days from the date of service of this order before discovery is opened in this case;" i.e., until February 15, 2020. (ECF No. 52 at 2.) However, on November 8, 2019, the court issued a Discovery and Scheduling Order which sets out deadlines for the parties, including a discovery deadline, but does not address the stay on discovery. (ECF No. 55.)
As clarification, the court acknowledges that the Discovery and Scheduling Order should not have been issued in this case on November 8, 2019. The 120-day stay of discovery granted to Plaintiff on October 18, 2019, remains in effect. The court shall vacate the Discovery and Scheduling Order and issue a new scheduling order after the 120-day stay of discovery has ended.
III. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Defendants' request for clarification, filed on November 27, 2019, is granted by this order;IT IS SO ORDERED.
2. The 120-day stay of discovery granted to Plaintiff on October 18, 2019, remains in effect;
3. The court's Discovery and Scheduling Order, issued on November 8, 2019, is VACATED from the record; and
4. The court shall issue a new Discovery and Scheduling order after the 120-day stay of discovery has ended.
Dated: December 2 , 2019
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE