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, )

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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.

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