Marques Butler v. Brazelton et al

Filing 44

ORDER Setting Evidentiary Hearing 17 , signed by Magistrate Judge Erica P. Grosjean on 4/21/17:Evidentiary Hearing set for 6/16/2017 at 12:30 PM in Courtroom 10 (EPG) before Magistrate Judge Erica P. Grosjean. (Hellings, J)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 MARQUES BUTLER, 9 10 11 12 1:14-cv-01220-DAD-EPG (PC) Plaintiff, ORDER SETTING EVIDENTIARY HEARING (ECF NO. 17) v. R. BOOZER, et al., Defendants. 13 14 On April 19, 2017, the Court held a hearing on Defendants’ motion for summary 15 judgment for failure to exhaust administrative remedies. Plaintiff Marques Butler telephonically 16 appeared on his own behalf. Counsel Gabrielle DeSantis-Nield telephonically appeared on behalf 17 of defendant S. Espino. 18 defendants except defendant S. Espino. After hearing arguments, as well as reviewing the briefs 19 and the evidence, the Court has determined that there is a dispute of fact and that an Albino 20 evidentiary hearing is necessary. See Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). Counsel Cassandra Shryock personally appeared on behalf of all 21 As discussed at the hearing, the parties should be prepared to present evidence regarding 22 what occurred during Plaintiff’s interview that led to the cancelation of Plaintiff’s appeal (appeal 23 log no. PVSP-12-02350). 24 regarding Plaintiff’s appeal of the cancellation of the appeal with appeal log no. PVSP-12-02350. Additionally, the parties should be prepared to put on evidence 25 The parties do not need to present evidence regarding the following factual allegations, 26 which the Court regards as undisputed: 1) That the California Department of Corrections and 27 Rehabilitation (“CDCR”) has an administrative appeals system for prisoners’ complaints, 28 1 1 described in the California Code of Regulations, Title 15, Section 3084, et seq.; 2) That California 2 Code of Regulations, Title 15, section 3084.1(a) provides that any inmate may appeal any 3 departmental decision, action, condition, or policy which they can demonstrate as having an 4 adverse effect upon their welfare; 3) That there are three levels of review required for inmates to 5 complete in order to exhaust administrative remedies; 4) That grievances classified as “staff 6 complaints” bypass the first level of review and are initially reviewed at the second level; and 5) 7 That a final review and decision by the Chief of the Office of Appeals, also known as the “third 8 level” or Director’s level of appeal, exhausts the inmate’s administrative remedies. 9 In accordance with the above, IT IS HEREBY ORDERED that an Albino evidentiary 10 hearing is set before Magistrate Judge Erica P. Grosjean on June 16, 2017, at 12:30 p.m., at the 11 Robert E. Coyle Federal Courthouse, 2500 Tulare Street, Fresno, CA 93721, in Courtroom #10. 12 13 14 IT IS SO ORDERED. Dated: April 21, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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