Jamal Gaines v. Los Angeles County Sheriffs Department et al

Filing 43

ORDER TO SHOW CAUSE by Magistrate Judge Paul L. Abrams. Accordingly, defendants are ordered to show cause no later than April 3, 2015, why the MTD should not bedenied without prejudice. *See Order for details.* (es)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES-GENERAL
Case No. CV 14-7755-MWF (PLA)
Title:

Date March 19, 2015

Jamal Gaines v. Los Angeles County Sheriff's Department, et al.
G U.S. DISTRICT JUDGE

PRESENT: THE HONORABLE

Christianna Howard
Deputy Clerk

PAUL L. ABRAMS

: MAGISTRATE JUDGE

N/A
Court Reporter / Recorder

ATTORNEYS PRESENT FOR PLAINTIFF:

ATTORNEYS PRESENT FOR DEFENDANTS:

NONE
PROCEEDINGS:

N/A
Tape No.

NONE
(ORDER TO SHOW CAUSE)

The Court is in receipt of the Motion to Dismiss (“MTD”) filed on March 17, 2015, by defendants Doctor Tay
S. Kim and Sergeant Yolando Palomo (“defendants”). (Dkt. No. 41). The Motion to Dismiss is based in part
on defendants’ contention that petitioner has not exhausted his administrative remedies. (MTD at 3, 4-8 (citing
Wyatt v. Terhune, 315 F.3d 1108 (2001)).
On April 3, 2014, Wyatt was overruled by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), which held that
summary judgment, not an unenumerated motion under Rule 12(b) of the Federal Rules of Civil Procedure, is
the appropriate procedural device for determination of whether administrative remedies have been exhausted
under the Prison Litigation Reform Act. Albino, 747 F.3d at 1168.
Accordingly, defendants are ordered to show cause no later than April 3, 2015, why the MTD should not be
denied without prejudice.
cc:

Jamal Gaines, pro se
Grayr Berberyan, Esq.

Initials of Deputy Clerk

CV-90 (06/04)

CIVIL MINUTES - GENERAL

ch

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