(PC) Brookins v. Dwivedi

Opinion

BARRY L. BROOKINS, 1:18-cv-00645-DAD-GSA-PC

Plaintiff, ORDER DENYING PLAINTIFF’S SECOND MOTION TO COMPEL AS PREMATURE vs. (ECF No. 61.)

Defendant.

Barry L. Brookins (“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 Complaint filed on May 10, 2019, against sole defendant Dr. Rajendra Dwivedi (“Defendant”) for failing to provide adequate medical care in violation of the Eighth Amendment. (ECF No. 1.) On June 4, 2020, Plaintiff filed a motion to compel admissions and responses to interrogatories. (ECF No. 61.) This is Plaintiff’s second motion to compel.1 Plaintiff’s motion shall again be denied as premature. Plaintiff is reminded that discovery in this case has not yet been opened. When this case is ready for discovery the court will issue a 1 Plaintiff filed the first motion to compel on May 21, 2020, and the motion was denied as premature on May 26, 2020. (ECF Nos. 59, 60.) scheduling order opening discovery. Discovery will not be opened until after Defendant has filed an answer to the complaint.2 Therefore, it is not time for discovery in this case and Plaintiff’s motion to compel shall be denied. Plaintiff should not send Defendant discovery requests until after discovery has been opened. Plaintiff requests the court to compel responses by Defendant because “set one of admissions and interrogatories [have] been stonewalled, thwarted [and] rebuffed by the Defendant [preventing] the Plaintiff [from] mak[ing] a defense for summary judgment.” (ECF No. 61.) As discussed above, Defendant is not obligated to provide any responses to Plaintiff’s discovery requests until after discovery has been opened. For these reasons, Plaintiff’s motion to compel shall be denied as premature, without prejudice to renewal of the motion after discovery has been opened. Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to compel, filed on June 4, 2020, is DENIED as premature, without prejudice. IT IS SO ORDERED.

Dated: June 5, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

2 Defendant Dwivedi filed a motion to dismiss on March 6, 2020. (ECF No. 46.) Under Rule 12(a)(4), the filing of Defendant’s motion to dismiss extends the time for Defendant to file an answer until after the motion to dismiss has been resolved. Fed. R. Civ. P. 12(a)(4); See Hernandez v. Avis Budget Group, Inc., 1:17-cv- 00211-DAD-EPG, 2018 WL 10323280 (E.D. Cal. November 2, 2018).