Opinion
1:23-cv-00167-BAM (PC)
02-22-2023
DESMOND PRYER, Plaintiff, v. ALLISON, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO CONDUCT LIMITED DISCOVERY AS PREMATURE (ECF No. 8)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Plaintiff Desmond Pryer (“Plaintiff”') is a state prisoner proceeding pro se in this civil rights action under 42 U.S.C. § 1983. This action was removed by Defendants Allison and Bott from Kings County Superior Court on February 3, 2023. (ECF No. 1.)
Plaintiff's complaint was screened on February 17, 2023, and the Court directed Plaintiff to file an amended complaint or a notice of voluntary dismissal within thirty days. (ECF No. 7.) Plaintiff's response is currently due on or before March 22, 2023. (Id.)
Currently before the Court is Plaintiff's Ex Parte Application to Conduct Limited Discovery, filed February 21, 2023. (ECF No. 8.) Plaintiff requests that the Court authorize him to conduct limited discovery only for the purpose of identifying Doe Defendants and where they may be served. (Id.)
Defendants have not yet had an opportunity to file a response, but the Court finds a response unnecessary. The motion is deemed submitted. Local Rule 230(1).
Plaintiff's motion for discovery is premature and is denied without prejudice. The Court has screened the complaint and found that it does not yet state cognizable claims. Plaintiff's first amended complaint or notice of voluntary dismissal are currently due. If Plaintiff chooses to file a first amended complaint, the Court must screen the first amended complaint to determine whether it is subject to dismissal or whether the action should proceed to discovery on Plaintiff's claims. 28 U.S.C. § 1915(e)(2)(B)(ii) (“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted.”)
Although Defendants Allison and Bott are appearing in this action, the Court has not yet determined if Plaintiff states cognizable claims against them or any other defendants. If Plaintiff files a first amended complaint, it will be screened in due course, and if it is found to state any cognizable claims against any defendants, Plaintiff will have the opportunity to provide the Court with further information as to the identities and locations of any Doe defendants.
Accordingly, Plaintiff's ex parte application to conduct limited discovery, (ECF No. 8), is HEREBY DENIED, without prejudice, as premature.
IT IS SO ORDERED.