Opinion
No. CIV S-05-2336 GEB KJM P.
October 20, 2008
ORDER
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. He has filed a motion to compel defendants Kanan, Kofoed and Traquina to respond to plaintiff's discovery requests. Defendants have opposed the request. Traquina and Kofoed note that the motion to compel was filed before the forty-five period in which to comply with the requests; Kanan notes that she had filed a motion to dismiss, which relieves her of the responsibility to engage in discovery until the motion is resolved. Defendants' positions are well-taken.
In his motion, plaintiff avers that he mailed the discovery requests on June 30, 2008. Under the terms of this court's discovery order (docket no. 42), discovery responses are due forty-five days after the request is served. Docket No. 42 ¶ 2. The motion, filed August 11, 2008, is premature. Moreover, in their opposition, defendants state they have complied with plaintiff's discovery requests; plaintiff has not disputed this assertion.
Under the terms of this court's order directing service, discovery shall not proceed until a defendant files an answer, which triggers the filing of a discovery order. Docket No. 37, ¶ 7. Defendant Kanan has filed a motion to dismiss, not an answer. A discovery order shall issue as to defendant Kanan, if necessary, after the resolution of the motion to dismiss.
IT IS THEREFORE ORDERED that plaintiff's motion to compel discovery (docket no. 47) is denied.