Opinion
Jamal Gaines, Plaintiff, Pro se, Corcoran, CA.
For Dr Tay S. Kim, Medical Provider, individual capacity, also known as, Doctor Kim, Sgt. Yolanda M Palomo, individual capacity, also known as, Sgt. Pomero, Defendants: Grayr Berberyan, Fuentes and McNally, Glendale, CA.
Present: THE HONORABLE PAUL L. ABRAMS, UNITED STATES MAGISTRATE JUDGE.
PROCEEDINGS: (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.