United States District Court, E.D. California
ORDER FOLLOWING TELEPHONIC HEARING HELD ON JULY 1,
2016 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT BASED ON FAILURE TO EXHAUST (ECF No. 50.)
Darden (“Plaintiff”), a state prisoner proceeding
pro se, filed this civil rights action pursuant to
42 U.S.C. § 1983 on June 21, 2012. (ECF No. 1.) The case
now proceeds on the First Amended Complaint filed on February
11, 2013, against defendant Dr. Scott H. Driscoll
(“Defendant”), for inadequate medical care in
violation of the Eighth Amendment. (ECF No.
parties to this action have consented to Magistrate Judge
jurisdiction pursuant to 28 U.S.C. Â§ 636(c). (ECF Nos. 39,
69.) Therefore, the undersigned shall conduct any and all
further proceedings in this action, including trial and final
discovery deadline for this case, established by the
Court’s Discovery and Scheduling Order issued on
September 24, 2015, expired on May 24, 2016, and the deadline
for filing dispositive motions shall expire on August 4,
2016. On March 24, 2016, Defendant filed a motion for summary
judgment based on Plaintiff’s failure to exhaust
administrative remedies before filing suit. (ECF No. 50.) On
May 11, 2016, Plaintiff filed an opposition to the motion.
(ECF No. 66.) On May 18, 2016, Defendant filed a reply to the
opposition. (ECF No. 71.)
19, 2016, Plaintiff filed three motions for issuance of
subpoenas. (ECF Nos. 72, 73, 74.)
JULY 1, 2016 TELEPHONIC HEARING
1, 2016 at 10:00 a.m., a telephonic hearing was held before
Magistrate Judge Erica P. Grosjean to hear oral argument on
Defendant’s motion for summary judgment and to discuss
the status of this case. Plaintiff appeared telephonically on
her own behalf, and Nicole M. Jaffee of Donnelly, Nelson,
Depolo & Murray appeared telephonically on behalf of
Defendant’s Motion for Summary Judgment (ECF No.
March 24, 2016, Defendant filed a motion for summary judgment
based on Plaintiff’s failure to exhaust administrative
remedies before filing suit, under 42 U.S.C. § 1997e(a).
The Court heard oral argument at the July 1, 2016 hearing.
was no dispute that Plaintiff failed to file an
administrative appeal against Defendant Dr. Driscoll using
the prison’s appeal process. Plaintiff argued that
administrative remedies were not available to her at the
prison because Defendant was an outside doctor not employed
at the prison. Plaintiff asserted that two of her prior
appeals against outside doctors were denied on the basis that
the prison has no jurisdiction to hear appeals against
outside doctors. Plaintiff also asserted that Kathy Cane, an
appeals coordinator at the prison, told her that the
prison’s appeals process was not available for
grievances against outside doctors. Defendant argued that
Plaintiff failed to exhaust her remedies because she did not
use the process available at the prison for her grievance
against Dr. Driscoll.
oral argument, defense counsel confirmed that the prison
grievance procedure does not address outside doctors as part
of its jurisdiction.
consideration of the parties’ arguments and evidence,
and for reasons stated on the record, the Court denied the
motion for summary judgment pursuant to the Ross v.
Status of Discovery
Plaintiff’s Motions for ...