Warner v. Cate et al

Filing 66

ORDER Setting Evidentiary Hearing signed by Magistrate Judge Michael J. Seng on 06/09/2015. Statement due: 7/31/2015; Evidentiary Hearing set for 8/14/2015 at 10:00 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,

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Plaintiff,

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CASE NO. 1:12-cv-01146-LJO-MJS (PC)
ORDER SETTING EVIDENTIARY
HEARING

v.
MATTHEW L. CATE, et al.,

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Date: August 14, 2015
Time: 10:00 a.m., Courtroom 6 (MJS)

Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action brought

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pursuant to 42 U.S.C. § 1983. The action proceeds against Defendants Walker, Davis,1

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Prokop, Spralding, and Fellows on Plaintiff’s Eighth Amendment failure to protect claim.

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Defendants filed a motion for summary judgment based on Plaintiff’s failure to

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exhaust administrative remedies. (ECF No. 41.) On June 9, 2015, the District Court

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adopted the Magistrate Judge’s Findings and Recommendations to deny the motion.

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(ECF No. 65.) The matter was referred back to the Magistrate Judge for further

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proceedings on the issue of exhaustion.

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Accordingly, the Court HEREBY SETS an evidentiary hearing before the

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Honorable Michael J. Seng, United States Magistrate Judge, to decide the disputed

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issues of fact relating to the exhaustion of Plaintiff’s claims. The hearing will be held on

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August 14, 2015, at 10:00 a.m., in Courtroom 6, Seventh Floor of the United States

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District Court in Fresno, California. The hearing will commence and be completed that

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Formerly Defendant D. McGaha.

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day, and will be limited to the issue of whether Plaintiff is excused from the Prison

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Litigation Reform Act’s exhaustion requirement because administrative remedies were

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“effectively unavailable.”

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More specifically, the parties should be prepared to present evidence as to the
following:


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Whether Plaintiff’s Appeal No. PVSP-O-12-00872 was improperly rejected

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based on Plaintiff’s failure to allege a material adverse effect on his

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welfare;


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Whether Plaintiff's Appeal Nos. RJD-B-12-00796 and RJD-B-12-01098
were improperly cancelled as untimely; and



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Whether Plaintiff had a reasonable, good faith belief that the administrative
appeals process was effectively unavailable to him.

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In preparation for the hearing, it is HEREBY ORDERED that, no later than July

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17, 2015, the parties shall confer regarding the witnesses to be called and evidence to

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be presented at the hearing. No later than July 31, 2015, defense counsel shall file a

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statement setting forth the witnesses to be called and documents to be presented at the

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hearing. Defense counsel shall provide a courtesy copy of all exhibits to be used at the

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hearing to Judge Seng’s chambers no later than July 31, 2015.

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IT IS SO ORDERED.
Dated:

June 9, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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