Howard v. Gonzales

Filing 61

ORDER Setting Evidentiary Hearing, signed by Magistrate Judge Dennis L. Beck on 1/27/15. Evidentiary Hearing set for 4/15/2015 at 10:00 AM in Courtroom 6 (DLB) before Magistrate Judge Dennis L. Beck. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY HOWARD,

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Plaintiff,

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vs.
G. GONZALES,
Defendant.

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1:12cv00487 LJO DLB PC
ORDER SETTING
EVIDENTIARY HEARING
Date: April 15, 2015
Time: 10:00 a.m.
The Honorable Dennis L. Beck, Courtroom 6

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Plaintiff Timothy Howard (“Plaintiff”), a state prisoner proceeding pro se and in forma
pauperis, filed this civil rights action on March 30, 2012. He filed a First Amended Complaint
on June 27, 2014.

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Defendant filed a motion for summary judgment based on exhaustion on August 21,

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2014. On January 23, 2015, the District Court adopted the Magistrate Judge’s Findings and

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Recommendations. Defendant’s motion for summary judgment was granted as to Plaintiff’s

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claims that Defendant (1) refused to file his grievances; and (2) denied medical care on

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December 22, 2009, and these claims were dismissed without prejudice.

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Defendant’s motion was denied as to Plaintiff’s claim of retaliation, and the Court
referred the matter back to the Magistrate Judge for further proceedings on the exhaustion issue.

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In Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014), the Ninth Circuit held that where

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a genuine dispute of material fact exists, the issue should be resolved by the judge “at the very

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beginning of the litigation.”

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Accordingly, the Court SETS an evidentiary hearing before the Honorable Dennis L.

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Beck, United States Magistrate Judge, to decide the disputed issues of fact relating to the
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exhaustion of Plaintiff’s retaliation claim. The hearing will be held on April 15, 2015, at 10:00
a.m., in Courtroom 6, Seventh Floor of the United States Courthouse in Fresno, California. The
hearing will commence and be completed that afternoon, and will be limited to the issue of
whether Plaintiff’s January 8, 2010, appeal exhausted his retaliation claim.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

January 27, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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