Quiroga v. Medical Service Doctor et al

Filing 55

ORDER on Plaintiff's Motions "To Prove Exhaustion of Administrative Remedies" 41 , 43 , signed by Magistrate Judge Jennifer L. Thurston on 9/2/17: Motions are DISREGARDED. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MONICO J. QUIROGA, III,
Plaintiff,

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Case No. 1:15-cv-01871-LJO-JLT (PC)
ORDER ON PLAINTIFF’S MOTIONS “TO
PROVE EXHAUSTION OF REMEDIES”

v.

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(Docs. 41, 43)
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Dr. HASTA,
Defendant.

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Plaintiff has filed two motions seeking to prove he exhausted administrative remedies, in
compliance with 42 U.S.C. § 1997e(a), prior to initiating this action. (Docs. 41, 43.) However,
the failure to exhaust is an affirmative defense which Defendant bears the burden of raising and
proving on summary judgment. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino v. Baca, 747
F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 403 (2014). Defendant has not
moved for summary judgment on exhaustion issues and the deadline for him to do so lapsed on
July 5, 2017.1 (Doc. 36.) Plaintiff’s exhaustion efforts need not be addressed until called into

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It appears from Defendant’s responses to Plaintiff’s discovery motions that the evidence of Plaintiff’s exhaustion
efforts is being subpoenaed. (See Doc. 52.) If documents produced in response to the subpoena raise a question as to
the sufficiency of Plaintiff’s compliance with the PLRA, Defendant will be required to show good cause to modify
the Discovery and Scheduling Order to file a motion for summary judgment for exhaustion purposes. If that occurs,
Plaintiff will be provided with the legal requirements and allowed to file an opposition. Woods v. Carey, Nos. 0915548, 09-16113, 2012 WL 262 6912 (9th Cir. Jul. 6, 2012), Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), Rand
v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

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question by Defendant.2
Accordingly, the Court ORDERS that Plaintiff’s motions to prove exhaustion of

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administrative remedies in compliance with 42 U.S.C. § 1997e(a), (Docs. 41, 43), are

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DISREGARDED.3

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IT IS SO ORDERED.
Dated:

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September 2, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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It is also noteworthy that, though Plaintiff filed motions, he did not submit copies of any of his grievances on the
issues in this action upon which findings as to the sufficiency of his efforts and availability of administrative
remedies might be made.
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Not determination is made as to the sufficiency of Plaintiff’s exhaustion efforts or the availability of administrative
remedies.

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