(PC) Cortinas v. Vasquez

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA LARRY WILLIAM CORTINAS, Case No. 1:19-cv-00367-NONE-SKO (PC) 12 Plaintiff, ORDER SETTING EVIDENTIARY HEARING ON EXHAUSTION OF 13 v. ADMINISTRATIVE REMEDIES VASQUEZ, et al., Date: March 17, 2022 Time: 10:00 a.m.

15 Defendants.

ORDER GRANTING PLAINTIFF’S 16 MOTION FOR LEAVE TO CONDUCT LIMITED DISCOVERY (Doc. 69) 19 Defendants move for summary judgment on the grounds that Plaintiff failed to exhaust administrative remedies prior to filing suit. (Doc. 61.) The Court finds that material disputes of fact exist regarding whether administrative remedies were available to Plaintiff, see Ross v. Blake, 578 U.S. 632, 642-644 (2016), Andres v. Marshall, 867 F.3d 1076, 1078-79 (9th Cir. 2017), Rupe v. Beard, No. 2:08-cv-02454-EFS, 2013 WL 2458398, at *14-15 (E.D. Cal. 2013), and that an evidentiary hearing is necessary to resolve the disputes, see Albino v. Baca, 747 F.3d 1162, 1170- 71 (9th Cir. 2014).

26 Accordingly, the Court ORDERS: 27 1. An evidentiary hearing on the issue of exhaustion of administrative remedies is SET 1 and documentary evidence on whether the appeals office of California State Prison, 2 Corcoran, provided Plaintiff with notice(s) of the delay in processing his 3 administrative appeal (Log. No. CSPC-7-18-02210) at the second level of review, see 4 Defs.’ Statement of Undisputed Facts ¶ 5 (Doc. 61-2 at 2), Mendez Decl. Ex. D (Doc.

5 61-4 at 17-28).

6 2. The evidentiary hearing will be held over Zoom videoconference. Defense counsel 7 shall arrange for Plaintiff’s participation. Prior to the hearing, counsel shall contact the 8 undersigned’s courtroom deputy at [email protected] to request the 9 Zoom videoconference connection information. The Court will issue a writ of habeas 10 corpus ad testificandum, as appropriate.

11 3. No later than February 18, 2022, defense counsel shall confer with Plaintiff to 12 determine whether either side will seek to admit documentary evidence at the hearing.

13 If either side wishes to do so, the party shall identify the documents and provide 14 copies of them to the opponent by February 25, 2022, unless the opponent already has 15 copies of the documents.

16 4. The parties shall agree on exhibit numbers to assign to their documentary evidence, 17 with Plaintiff’s exhibits identified as “Plaintiff’s Exhibit” followed by a number, and 18 Defendants’ exhibits identified as “Defense Exhibit” followed by a number. The 19 parties may also mark exhibits as “Joint Exhibit” followed by a number, if both sides 20 will rely upon the exhibits. Objections to the evidence, if any, must be made during 21 the hearing or they are waived.

22 5. No later than March 10, 2022, defense counsel shall lodge an exhibit list detailing the 23 documentary evidence (with applicable exhibit numbers) that both sides will seek to 24 introduce at the hearing, as well as copies of the evidence, by email to 25 [email protected]. Following the hearing, counsel shall file an exhibit 26 list of all the documentary evidence admitted at the hearing.1 The Court appreciates that these orders place an extra burden on defense counsel. However, because Plaintiff lacks 1 6. Plaintiff’s motion for leave to conduct limited discovery (Doc. 69) is GRANTED.

2 Between the date of this order and February 18, 2022, the parties may conduct 3 discovery on the issue of whether the appeals office of California State Prison, 4 Corcoran, provided Plaintiff with notice(s) of the delay in processing his 5 administrative appeal (Log. No. CSPC-7-18-02210) at the second level of review.

IT IS SO ORDERED.

8 Dated: December 1, 2021 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE