Fratus v. Peterson et al

Filing 177

ORDER, signed by District Judge Roslyn O. Silver on 12/12/14: Evidentiary Hearing set for 1/30/2015 at 02:00 PM, Arizona time, in Courtroom 3 before District Judge Roslyn O. Silver. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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John Fratus,
Plaintiff,

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vs.

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Sergeant Peterson, et al.,
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Defendants.
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No. CV-08-1500-ROS
ORDER

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Plaintiff John Fratus claims he was assaulted by prison guards on January 10, 2007.

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Defendants filed a motion for summary judgment arguing Plaintiff did not exhaust his

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administrative remedies regarding that incident. In their reply, however, Defendants

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“concede that Plaintiff’s opposition raises a factual dispute concerning whether the

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administrative process was available to him.” (Doc. 175 at 2). Therefore, the motion for

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summary judgment will be denied and an evidentiary hearing scheduled. See Albino v. Baca,

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747 F.3d 1162, 1170-71 (9th Cir. 2014) (“[D]isputed factual questions relevant to exhaustion

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should be decided by the judge, in the same manner a judge rather than a jury decides

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disputed factual questions relevant to jurisdiction and venue.”). At that hearing, the parties

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will be required to present testimony and any other evidence addressing whether the

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administrative process was available to Plaintiff.

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Accordingly,

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IT IS ORDERED the Motion for Summary Judgment (Doc. 171) is DENIED.

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IT IS FURTHER ORDERED an evidentiary hearing is set for January 30, 2015 at

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2:00 p.m., Arizona time, in Courtroom #3, Seventh Floor of the United States Courthouse,

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2500 Tulare Street, Fresno, California.

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teleconference with Judge Silver sitting in Phoenix, Arizona. A writ securing attendance of

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Plaintiff shall issue separately.

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The hearing will be conducted by video

IT IS FURTHER ORDERED no later than January 5, 2015 the parties shall

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confer regarding the witnesses to be called and evidence to be presented at the hearing.

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No later than January 16, 2015 defense counsel shall file a joint statement setting forth the

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witnesses to be called and documents to be presented at the hearing. Defense counsel

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shall provide a courtesy copy of all exhibits to be used at the hearing to Judge Silver’s

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chambers no later than January 22, 2015.

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DATED this 12th day of December, 2014.

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