Cato v. Silva et al

Filing 38

ORDER Setting Evidentiary Hearing On Issue Of Exhaustion Of Administrative Remedies, signed by Magistrate Judge Stanley A. Boone on 1/7/2016.( Designation of Expert Witnesses due by 2/8/2016, Evidentiary Hearing set for 2/17/2016 at 11:00 AM in Courtroom 9 (SAB) before Magistrate Judge Stanley A. Boone) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES CATO, JR.,

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Plaintiff,
v.
D. DUMONT,

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Defendant.

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Case No.: 1:14-cv-00564-LJO-SAB (PC)
ORDER SETTING EVIDENTIARY HEARING
ON ISSUE OF EXHAUSTION OF
ADMINISTRATIVE REMEDIES
Date: February 17, 2016, at 11:00 a.m., in
Courtroom 9 (SAB)

Plaintiff James Cato, Jr. is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
This action is proceeding against Defendant Dumont for retaliation in violation of the First
Amendment.
Defendant filed a motion for summary judgment based on Plaintiff’s failure to exhaust the

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administrative remedies. (ECF No. 36.) On January 6, 2016, the assigned district judge adopted the

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findings and recommendations to deny the motion. (ECF No. 37.) The matter was referred back to

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the undersigned for further proceedings on the issue of exhaustion.

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Accordingly, the Court HEREBY SETS an evidentiary hearing before the undersigned to

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decide the disputed issues of fact relating to the exhaustion of Plaintiff’s claim. The hearing will be

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held on Wednesday, February 17, 2016, at 11:00 a.m., in Courtroom 9, Sixth Floor of the United

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States District Court in Fresno, California. The hearing will commence and be completed that day,
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and will be limited to the issue of whether Plaintiff is excused from the Prison Litigation Reform Act’s

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exhaustion requirement because administrative remedies were “effectively unable.” The limited issue

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to be determined at the hearing is whether Plaintiff submitted an inmate grievance on August 23, 2012,

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but never received a response.

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In preparation for the hearing, it is HEREBY ORDERED that, no later than February 1, 2016,

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the parties shall confer regarding the witnesses to be called and the evidence to be presented at the

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hearing. No later than February 8, 2016, defense counsel shall file a statement setting forth the

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witnesses to be called and the documents to be presented at the hearing. The parties shall be prepared

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to submit exhibits in proper form at the evidentiary hearing, with proper foundation. The original and

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three copies of all exhibits, along with exhibit lists, shall be submitted to Courtroom Deputy Mamie

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Hernandez no later than February 8, 2016.3 Plaintiff=s exhibits shall be pre-marked using numbers

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beginning with 1 (e.g., 1, 2, etc.). Defendant’s exhibits must be pre-marked using letters beginning

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with A (e.g., A, B, C…AA, BB, CC…AAA, BBB, CCC, etc.). A separate order and writ of habeas

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corpus ad testificandum with issue in due course.

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IT IS SO ORDERED.

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Dated:

January 7, 2016
UNITED STATES MAGISTRATE JUDGE

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Original for the Courtroom Deputy, one copy for the undersigned, one copy for the witness stand,
one copy for the opposing side.
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