Windham v. Marin et al

Filing 141

ORDER Setting Evidentiary Hearing on the Issue of Exhaustion, signed by Magistrate Judge Barbara A. McAuliffe on 3/21/18. Evidentiary Hearing set for 5/10/2018 at 10:00 AM in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe. (Gonzalez, R)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES W. WINDHAM, 12 13 14 15 Plaintiff, v. MARIN, et al., Defendants. Case No. 1:14-cv-01636-DAD-BAM (PC) ORDER SETTING EVIDENTIARY HEARING ON THE ISSUE OF EXHAUSTION Date: Thursday, May 10, 2018 Time: 10:00 a.m. Location: Courtroom 8 (BAM) 16 17 Plaintiff Charles W. Windham (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 19 Plaintiff’s Eighth Amendment claims of excessive use of force against Defendants Marin, Uribe, 20 Rasley, Contreras, Capano, and Rubio, and for deliberate indifference to serious medical needs 21 against Defendants Navarro, Morales, Marin, and Shiver. 22 On September 2, 2015, Defendants filed a motion for summary judgment based on 23 Plaintiff’s failure to exhaust administrative remedies. (ECF No. 49.) On March 7, 2018, 24 following a protracted discovery dispute, the assigned District Judge adopted the findings and 25 recommendations to deny the motion, subject to an evidentiary hearing being held in order to 26 resolve factual disputes concerning exhaustion. (ECF No. 138.) 27 28 On March 21, 2018, the Court held a telephonic conference regarding the setting of an evidentiary hearing on the issue of exhaustion of administrative remedies, pursuant to Albino v. 1 1 Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). Plaintiff Charles W. Windham appeared on his own 2 behalf. Counsel James Wilson telephonically appeared on behalf of Defendants. 3 4 Accordingly, it is HEREBY ORDERED as follows: 1. An evidentiary hearing is SET before the undersigned to decide the disputed issues of fact 5 relating to the exhaustion of Plaintiff’s claims, as stated in this Court’s Findings and 6 Recommendations regarding Defendants’ Motion for Summary Judgment for Failure to 7 Exhaust Administrative Remedies (ECF NO. 136); 8 2. The hearing will be held on Thursday, May 10, 2018, at 10:00 a.m., in Courtroom 8, 9 Sixth Floor of the United States District Court in Fresno, California. The hearing will 10 commence and be completed that day, and will be limited to the issue of whether Plaintiff 11 is excused from the Prison Litigation Reform Act’s exhaustion requirement because 12 administrative remedies were “effectively unavailable;” 13 3. In preparation for the hearing, no later than April 13, 2018, the parties SHALL meet and 14 confer, by telephone or in person, regarding the witnesses to be called and the evidence to 15 be presented at the hearing; 16 17 18 19 4. No later than April 13, 2018, defense counsel shall file a statement setting forth the witnesses and documents Defendants intend to present at the hearing; 5. No later than April 27, 2018, Plaintiff shall file a statement setting forth the witnesses and documents Plaintiff intends to present at the hearing; 20 a. For any witness, not listed by Defendants, that Plaintiff wishes to testify at the 21 hearing, Plaintiff SHALL make an offer of proof as to the anticipated content of 22 the testimony and how it is relevant to the issue of whether administrative 23 remedies were effectively unavailable, as specifically related to Plaintiff; and 24 6. A separate order and writ of habeas corpus ad testificandum for Plaintiff will be issued. 25 26 27 IT IS SO ORDERED. Dated: /s/ Barbara March 21, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?