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Gonzales v. Alameida

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 7, 2008

FRANK GONZALES, PLAINTIFF,
v.
E. ALAMEIDA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER RE MOTION

(DOC 28)

This action was dismissed pursuant to an order entered on May 16, 2008. That order adopted the findings and recommendation of the Magistrate Judge that this action be dismissed for Plaintiff's failure to prosecute. The recommendation was based upon Plaintiff's failure to file an amended complaint in compliance with the June 28, 2007, order dismissing the original complaint with leave to amend.

On July 24, 2008, an order was entered, granting Plaintiff's motion for reconsideration. The District Court noted that on April 16, 2008, Plaintiff filed a request to propound discovery in which he asserts the need to be able to conduct discovery in order to file the amended complaint. This action was remanded to the Magistrate Judge for the purpose of ruling on the motion for discovery.

The original complaint was dismissed on the ground that Plaintiff had failed to allege facts sufficient to state a claim for relief. Specifically, the statement of claim consisted of a single paragraph indicating that Plaintiff's sister was "abused" while in the custody of the California Department of Corrections and Rehabilitation. Plaintiff appeared to allege that, due to the practices of the CDCR, his sister was "killed upon her discharge." In the order dismissing the complaint, Plaintiff was specifically advised that he failed to address his standing to bring a claim on behalf of his sister.

In his request for discovery, Plaintiff seeks discovery in order to "ascertain the identity of all culprits in events leading up to the demise of his biological sister and in which to ascertain the factual circumstances precipitating her death." Plaintiff does not further specify the discovery that he seeks.

Plaintiff is advised that the purpose of discovery is to obtain the following types of information:

1. The identities of all witnesses whom the opposing party believes possess relevant information.

2. All documents that the opposing party believes support its claims or defenses.

3. Information regarding the computation of damages sought by the opposing party.

4. Information available only from uncooperative non-parties.

5. Documents which the opposing party believes would detract from its case.

6. Impeachment material in the possession of the opposing party.

Plaintiff fails to identify any specific information he seeks. Plaintiff may not conduct wide-ranging discovery in order to ascertain the basic facts of his case. Plaintiff has not alleged any facts indicating the he is entitled to relief under 42 U.S.C. § 1983. Plaintiff has not charged any of the named defendants with conduct that subjects them to liability for any injury to Plaintiff under section 1983.

Generally, discovery proceedings take place only after the defendant has been served.

However, courts may allow limited discovery after the complaint has been filed to permit the plaintiff to learn identifying facts necessary to permit service on the defendant. There are no such issues in this case. It appears that Plaintiff is seeking information concerning the death of his sister. Plaintiff may not avail himself of discovery in order to investigate his case. Once Plaintiff has filed a complaint that alleges facts sufficient to state a claim for relief, the court will direct service of process upon such defendants. The purpose of discovery is noted above. The court finds that Plaintiff does not fit the narrow circumstance for pre-service discovery - a particular defendant that he can not identify.

Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion for discovery is denied. IT IS FURTHER ORDERED that Plaintiff shall show cause, within thirty days, why this action should not be dismissed for failure to prosecute.

IT IS SO ORDERED.

20080807

© 1992-2008 VersusLaw Inc.



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