Hearns v. Gonzales
ORDER Setting Evidentiary Hearing, signed by Magistrate Judge Michael J. Seng on 3/13/17. Evidentiary Hearing set for 5/26/2017 at 09:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. (Gonzalez, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CASE NO. 1:14-cv-01177-DAD-MJS (PC)
ORDER SETTING EVIDENTIARY
R. GONZALES, et al.,
Date: May 26, 2017
Time: 9:30 a.m., Courtroom 6 (MJS)
Plaintiff is a state prisoner proceeding pro se in this civil rights action brought
pursuant to 42 U.S.C. § 1983. The action proceeds against Defendants Rosa Gonzales
and Sergeant Olsen on Plaintiff’s First Amendment retaliation, Fourteenth Amendment
Equal Protection, and state tort conversion claims.
Defendants filed a motion for summary judgment based on Plaintiff’s failure to
exhaust administrative remedies. (ECF No. 38.) On March 10, 2017, the District Court
adopted the Magistrate Judge’s Findings and Recommendations to deny the motion.
(ECF No. 67.) The matter was referred back to the Magistrate Judge for further
proceedings on the issue of exhaustion.
Accordingly, the Court HEREBY SETS an evidentiary hearing before the
Honorable Michael J. Seng, United States Magistrate Judge, to decide the disputed
issues of fact relating to the exhaustion of Plaintiff’s claims. The hearing will be held on
May 26, 2017, at 9:30 a.m., in Courtroom 6, Seventh Floor of the United States District
Court in Fresno, California. The hearing will commence and be completed that day, and
will be limited to the issue of whether Plaintiff is excused from the Prison Litigation
Reform Act’s exhaustion requirement because administrative remedies were “effectively
More specifically, the parties should be prepared to present evidence as to the
Whether Plaintiff’s Appeal No. VSP-D-13-02232 was timely and properly
resubmitted on October 1, 2013 after it was cancelled on September 30,
Whether Appeals Coordinators failed to respond to or otherwise process
Plaintiff’s resubmitted Appeal No. VSP-D-13-02232;
Whether prison officials failed to respond to or otherwise process Plaintiff’s
October 27, 2013 and November 24, 2013 CDCR Forms 22 inquiring
about the status of resubmitted Appeal No. VSP-D-13-02232; and
Whether Plaintiff had a reasonable, good faith belief that the administrative
appeals process was effectively unavailable to him.
In preparation for the hearing, it is HEREBY ORDERED that, no later than April
26, 2017, the parties shall confer regarding the witnesses to be called and evidence to
be presented at the hearing. No later than May 10, 2017, defense counsel shall file a
statement setting forth the witnesses to be called and documents to be presented.
Defense counsel shall provide a courtesy copy of all exhibits to be used at the hearing to
Plaintiff and to Judge Seng’s chambers no later than May 10, 2017.
IT IS SO ORDERED.
March 13, 2017
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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