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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES W. WINDHAM,

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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)

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Plaintiff Charles W. Windham (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s Eighth Amendment claims of excessive use of force against Defendants Marin, Uribe,

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Rasley, Contreras, Capano, and Rubio, and for deliberate indifference to serious medical needs

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against Defendants Navarro, Morales, Marin, and Shiver.

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On September 2, 2015, Defendants filed a motion for summary judgment based on

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Plaintiff’s failure to exhaust administrative remedies. (ECF No. 49.) On March 7, 2018,

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following a protracted discovery dispute, the assigned District Judge adopted the findings and

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recommendations to deny the motion, subject to an evidentiary hearing being held in order to

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resolve factual disputes concerning exhaustion. (ECF No. 138.)

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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.
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Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). Plaintiff Charles W. Windham appeared on his own

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behalf. Counsel James Wilson telephonically appeared on behalf of Defendants.

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Accordingly, it is HEREBY ORDERED as follows:
1. An evidentiary hearing is SET before the undersigned to decide the disputed issues of fact

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relating to the exhaustion of Plaintiff’s claims, as stated in this Court’s Findings and

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Recommendations regarding Defendants’ Motion for Summary Judgment for Failure to

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Exhaust Administrative Remedies (ECF NO. 136);

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2. The hearing will be held on Thursday, May 10, 2018, at 10:00 a.m., in Courtroom 8,

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Sixth Floor of the United States District Court in Fresno, California. The hearing will

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commence and be completed that day, and will be limited to the issue of whether Plaintiff

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is excused from the Prison Litigation Reform Act’s exhaustion requirement because

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administrative remedies were “effectively unavailable;”

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3. In preparation for the hearing, no later than April 13, 2018, the parties SHALL meet and

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confer, by telephone or in person, regarding the witnesses to be called and the evidence to

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be presented at the hearing;

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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;

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a. For any witness, not listed by Defendants, that Plaintiff wishes to testify at the

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hearing, Plaintiff SHALL make an offer of proof as to the anticipated content of

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the testimony and how it is relevant to the issue of whether administrative

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remedies were effectively unavailable, as specifically related to Plaintiff; and

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6. A separate order and writ of habeas corpus ad testificandum for Plaintiff will be issued.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

March 21, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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