Montgomery v. Sanchez et al

Filing 66

ORDER GRANTING 58 Motion, signed by Chief Judge Ralph R. Beistline on 3/11/2015. (Marrujo, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DWAYNE S. MONTGOMERY,
Case No. 1:13-cv-00247-RRB
Plaintiff,
ORDER GRANTING MOTION
AT DOCKET 58

vs.
I. SANCHEZ, et al.,
Defendants.

At Docket 58 Defendants S. W. Duncan and H. B. Smith moved for an evidentiary
hearing to on the disputed factual issues related to exhaustion. Defendant I. Sanchez has
joined that motion.1 The pending motion responds to the Court’s prior Order Denying
Motion to Dismiss Complaint.2 Accordingly, for good cause shown, the Motion for
Evidentiary Hearing to Resolve Disputed Factual Issues Related to Exhaustion at
Docket 58 is GRANTED.
1.

The Court will hold an evidentiary hearing on Defendant’s Motion to Dismiss

the Complaint at Docket 17 for failure to exhaust administrative remedies on the first date
set for trial in this matter prior to empaneling the jury.
2.

Not later than forty-nine (49) days prior to the date set for trial in the trial

setting order to be issued by the Court, Defendants S. W. Duncan, H. B. Smith, and I.
Sanchez must serve and file:
1

Docket 59.

2

Docket 49.

ORDER GRANTING MOTION AT DOCKET 58
Montgomery v Sanchez, 1:13-cv-00247-RRB – 1

(a) a list of all witnesses by name and occupation or title, expected to be
called at the hearing, including the a short description of the testimony expected to be
elicited from each such witness;
(b) an exhibit list, including copies of all exhibits expected to be introduced;
(c) the declaration(s) or affidavit(s) of person(s) who are not expected to be
called as witness(es) at the hearing; and
(d) a memorandum of law, not to exceed ten (10) pages, setting forth the
points and authorities relied upon.
3.

Not later than twenty-eight (28) days prior to the date set for trial in the trial

setting order to be issued by the Court, Plaintiff Dwayne S. Montgomery must serve and
file:
(a) a list of all witnesses by name and occupation or title, expected to be
called at the hearing, including the a short description of the testimony expected to be
elicited from each such witness;
(b) an exhibit list, including copies of all exhibits expected to be introduced;
(c) the declaration(s) or affidavit(s) of person(s) not expected to be called as
witness(es) at the hearing;
(d) all objections to the admission of any exhibit identified by Defendants or
testimonial evidence proffered by declaration or affidavit—any objection not so raised
will be deemed waived; and
(e) a memorandum of law, not to exceed ten (10) pages, setting forth the
points and authorities relied upon.

ORDER GRANTING MOTION AT DOCKET 58
Montgomery v Sanchez, 1:13-cv-00247-RRB – 2

4.

Not later than fourteen (14) days prior to the date set for trial in the trial

setting order to be issued by the Court, Defendants S. W. Duncan, H. B. Smith, and I.
Sanchez must serve and file:
(a) a list of all rebuttal witnesses by name and occupation or title, expected
to be called at the hearing, including the a short description of the testimony expected to
be elicited from each such witness; and
(b) any objections to the admission of any exhibit identified by Plaintiff or
testimonial evidence proffered by declaration or affidavit—any objection not so raised
will be deemed waived.
5.

Anything in this Order to the contrary notwithstanding, any document offered

into evidence may be authenticated by the declaration or affidavit of the originator or
custodian of the record.3 It is not necessary that the originator or custodian of the record
be present to testify in person. All exhibits that are accompanied by the declaration or
affidavit of the originator or custodian of the record will be admitted into evidence except
to the extent the exhibit is not otherwise admissible under the Federal Rules of Evidence.
Plaintiff is reminded that he bears the burden of proof by competent, relevant
evidence that he was prevented by circumstances beyond his control from
exhausting his administrative remedy.
IT IS SO ORDERED this 11th day of March, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

3

See, e.g.,Fed. R. Evid. 901(b)(1), 902(4), (11).

ORDER GRANTING MOTION AT DOCKET 58
Montgomery v Sanchez, 1:13-cv-00247-RRB – 3