Carbajal et al v. Morrissey et al

Filing 315

ORDER denying 303 Motion for a Progression Order by Judge Philip A. Brimmer on 11/27/2017. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03231-PAB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
ANDREW KEEFER, in his individual capacity,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
Entered by Judge Philip A. Brimmer
This matter is before the Court on plaintiff’s Motion for a Progression Order
[Docket No. 303], wherein plaintiff seeks a ruling on defendant’s motion for summary
judgment [Docket No. 293]. Docket No. 303 at 1. After the filing of plaintiff’s motion,
the Court issued an order granting in part and denying in part defendant’s motion for
summary judgment. Docket No. 305. The Court found that, although the exhaustion
requirement under the Prison Litigation Reform Act applies to this case, there is a
genuine issue of material fact as to whether plaintiff has exhausted administrative
remedies. Docket No. 305 at 11, 13-14. As stated in the Order, q uestions related to
exhaustion are not triable to a jury. See Lee v. Willey, 789 F.3d 673, 678 (6th Cir.
2015); Albino v. Baca, 747 F.3d 1162, 1170-71 (9th Cir. 2014). According ly, the Court
has set a half-day evidentiary hearing on the issue of exhaustion for February 23, 2018.
See Docket No. 314. The case will only be set for trial when and if the exhaustion issue
is resolved in plaintiff’s favor. See Albino, 747 F.3d at 1171 (if court holds that plaintiff
has exhausted administrative remedies, “the case may proceed to the merits”). It is
therefore
ORDERED that the Motion for a Progression Order [Docket No. 303] is DENIED
without prejudice.
DATED November 27, 2017.