Filed: Jan. 08, 2019
Latest Update: Jan. 08, 2019
Summary: ORDER SETTING EVIDENTIARY HEARING AND RELATED DEADLINES AND DENYING PLAINTIFF'S MOTION TO PRESENT WITNESSES, WITHOUT PREJUDICE (ECF NOS. 69 & 71) ERICA P. GROSJEAN , Magistrate Judge . On October 26, 2018, defendant Rodriguez filed a motion for summary judgment on the ground that Plaintiff failed to properly exhaust his available administrative remedies. (ECF No. 51). Plaintiff filed an opposition (ECF No. 57), defendant Rodriguez filed a reply (ECF No. 61), and Plaintiff (without requesti
Summary: ORDER SETTING EVIDENTIARY HEARING AND RELATED DEADLINES AND DENYING PLAINTIFF'S MOTION TO PRESENT WITNESSES, WITHOUT PREJUDICE (ECF NOS. 69 & 71) ERICA P. GROSJEAN , Magistrate Judge . On October 26, 2018, defendant Rodriguez filed a motion for summary judgment on the ground that Plaintiff failed to properly exhaust his available administrative remedies. (ECF No. 51). Plaintiff filed an opposition (ECF No. 57), defendant Rodriguez filed a reply (ECF No. 61), and Plaintiff (without requestin..
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ORDER SETTING EVIDENTIARY HEARING AND RELATED DEADLINES AND DENYING PLAINTIFF'S MOTION TO PRESENT WITNESSES, WITHOUT PREJUDICE
(ECF NOS. 69 & 71)
ERICA P. GROSJEAN, Magistrate Judge.
On October 26, 2018, defendant Rodriguez filed a motion for summary judgment on the ground that Plaintiff failed to properly exhaust his available administrative remedies. (ECF No. 51). Plaintiff filed an opposition (ECF No. 57), defendant Rodriguez filed a reply (ECF No. 61), and Plaintiff (without requesting permission) filed a surreply (ECF No. 63). On December 19, 2018, the Court held a hearing on the motion.
After reviewing the evidence, the Court determined that an Albino evidentiary hearing is necessary. (ECF No. 69). Accordingly, an evidentiary hearing on the issue of exhaustion of administrative remedies will be scheduled for March 27, 2019, at 11:00 a.m.
Plaintiff will be given until February 8, 2019, to file a motion for the attendance of witnesses.1 The motion should be entitled "Motion for Attendance of Witnesses." The motion must: (1) state the name, address, and prison identification number (if any) of each witness Plaintiff wants to call;2 (2) explain what relevant information each witness has, and how that witness has personal knowledge of the relevant information; and (3) state whether each such witness is willing to voluntarily testify.3
Defendant Rodriguez will be given until February 22, 2019, to file his opposition, if any, to the Motion for Attendance of Witnesses. In his opposition (or separately, if he has no opposition to the motion), defendant Rodriguez should state whether he would prefer a video conference appearance for any inmate witnesses, and if so, whether the inmate witnesses' institution of confinement can accommodate a video conference appearance.
The Court notes that the evidentiary hearing is related only to the issue of exhaustion of administrative remedies. Accordingly, Plaintiff should only ask for the attendance of witnesses that have information relevant to the issue of exhaustion (which includes the issue of the availability of administrative remedies).
In accordance with the above, IT IS HEREBY ORDERED that:
1. An Albino evidentiary hearing is set before Magistrate Judge Erica P. Grosjean on March 27, 2019, at 11:00 a.m., at the Robert E. Coyle Federal Courthouse, 2500 Tulare Street, Fresno, CA 93721, in Courtroom #10;
2. Plaintiff's motion to present witnesses is denied without prejudice;
3. Plaintiff has until February 8, 2019, to file a Motion for Attendance of Witnesses;
4. Defendant Rodriguez has until February 22, 2019, to file his opposition, if any, to the Motion for Attendance of Witnesses. In his opposition (or separately, if he has no opposition to the motion), defendant Rodriguez should state whether he would prefer a video conference appearance for any inmate witnesses, and if so, whether the inmate witnesses' institution of confinement can accommodate video conference appearances;
5. The parties have until February 22, 2019, to file and serve their respective witness lists (which should include the name and title of each witness they may call);
6. The parties have until February 22, 2019, to file and serve their respective exhibit lists (these lists do not need to include evidence that was submitted in support of, or in opposition to, defendant Rodriguez's motion for summary judgment); and
7. When issuing its findings and recommendations after the evidentiary hearing on the relevant disputes of fact, the Court will only consider evidence that was introduced at the evidentiary hearing.
IT IS SO ORDERED.
