Villareal v. County of Fresno

Filing 37

ORDER REGARDING Procedures Related to Evidentiary Hearing on Exhaustion, signed by Magistrate Judge Erica P. Grosjean on 6/30/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELAINE K. VILLAREAL,

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Plaintiff,

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v.
COUNTY OF FRESNO,

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Case No. 1:15-cv-01410-EPG (PC)
ORDER REGARDING PROCEDURES
RELATED TO EVIDENTIARY HEARING
ON EXHAUSTION
EVIDENTIARY HEARING SCHEDULED
FOR SEPTEMBER 12, 2017, AT 10:00 A.M.

Defendant.

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This order relates to the evidentiary hearing to be held on September 12, 2017, at 10:00

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a.m. on the issue of exhaustion of administrative remedies. See Albino v. Baca, 747 F.3d 1162,

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1170 (9th Cir. 2014).

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As discussed in the Court’s order dated June 30, 2017 (ECF No. 36), the Court will hear
evidence regarding the following issues:

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The jail’s requirements for exhausting administrative remedies.

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Whether Plaintiff complied with those requirements prior to filing the complaint on
September 17, 2015.

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2015, including the subject matter addressed in any such grievances.

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Plaintiff’s filing of grievances, or attempts to file grievances, before September 17,

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Whether the jail’s administrative grievance procedures were “available” before
Plaintiff filed her complaint.1 The critical time period for this question is prior to the

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Ross v. Blake, 136 S.Ct. 1850, 1860 (2016) (An administrative procedure is unavailable “when prison
administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation,
or intimidation.”).

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filing of Plaintiff’s complaint.

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interference with filing grievances after the filing of the complaint, it must have

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sufficient relevance to the issue of the availability of those procedures to Plaintiff

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before filing the complaint.

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Although the Court will hear evidence regarding

Whether prison officials responded to Plaintiff’s pre-complaint grievances in a
reasonable time.2

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The Court will issue a writ to have Plaintiff transported to the hearing. Defendant is

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responsible for bringing and presenting its own witnesses and evidence regarding its defense.

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Additionally, any unincarerated witness may appear voluntarily without further order by coming

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to the Courthouse at the date and time set for the hearing,

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Plaintiff will be given until July 19, 2017, to file a motion for the attendance of witnesses

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to the extent that she wants the Court to compel witnesses to attend or to arrange for their

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attendance via the issuance of writs. The witnesses must have relevant evidence regarding the

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issues described above. The motion should be entitled “Motion for Attendance of Witnesses.”

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The motion must: (1) state the name, address, and prison identification number (if any) of each

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witness Plaintiff wants to call; (2) explain what relevant information each witness has, and how

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that witness has personal knowledge of the relevant information; and (3) state whether each such

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witness is willing to voluntarily testify.3

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Defendant will be given until July 26, 2017, to file its opposition, if any, to the motion. In

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Andres v. Marshall, 854 F.3d 1103, 1105 (9th Cir. 2017) (“When prison officials fail to respond to a
prisoner’s grievance within a reasonable time, the prisoner is deemed to have exhausted available administrative
remedies within the meaning of the PLRA.”).
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Note that if a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, the
witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the party seeking the witness’s presence
must tender an appropriate sum of money for the witness. Id. In the case of an unincarcerated witness, the
appropriate sum of money is the daily witness fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821.
If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who refuse to testify
voluntarily, Plaintiff must first notify the Court in writing of the name and location of each unincarcerated witness.
The Court will calculate the travel expense for each unincarcerated witness and notify Plaintiff of the amount(s).
Plaintiff must then, for each witness, submit a money order made payable to the witness for the full amount of the
witness’s travel expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the
unincarcerated witness by the United States Marshal unless the money order is tendered to the Court. Because no
statute authorizes the use of public funds for these expenses in civil cases, the tendering of witness fees and travel
expenses is required even if Plaintiff was granted leave to proceed in forma pauperis.

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its opposition (or separately, if Defendant has no opposition to the motion), Defendant should

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state whether it will arrange for the appearance of any witnesses that are in Defendant’s employ,

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specify which witnesses, if any, it will arrange the appearance for, and state whether it would

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prefer (and can accommodate) a video conference appearance for any inmate witnesses.

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In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff has until July 19, 2017, to file a motion for the attendance of

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witnesses.

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2. Defendant has until July 26, 2017, to file its opposition, if any, to the motion.

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In its opposition (or separately, if Defendant has no opposition to the motion),

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Defendant should state whether it will arrange for the appearance of any

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witnesses that are in Defendant’s employ, specify which witnesses, if any, it

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will arrange the appearance for, and state whether it would prefer (and can

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accommodate) a video conference appearance for any inmate witnesses.

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IT IS SO ORDERED.
Dated:

June 30, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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