Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:07-cv-00070-SLR

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

PATRICIA A. SIMPSON,

) ) Plaintiffs, ) v. ) ) CORRECTIONAL MEDICAL SERVICES, ) ) Defendants. ) ------------------------------------------------------

Case No. 007-070 SLR JURY TRIAL DEMANDED

DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AS REQUIRED BY 42 U.S.C. § 1997e(a) Defendant Correctional Medical Services ("CMS"), by and through its undersigned counsel of record, hereby moves for the entry of an order in the form attached hereto dismissing with prejudice the above-captioned action for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). In support of this Motion, CMS states as follows: FACTS 1. On February 7, 2007, Plaintiff initiated the above-captioned action by filing her

Complaint alleging civil rights violations under 42 U.S.C. §1983. (D.I. 2). Plaintiff's Complaint was drafted on a form titled "To Be Used By a Prisoner in Filing a Complaint Under the Civil Rights Act, 42 U.S.C. §1983". Id. When Plaintiff completed Section II of that form, she

indicated that the facility in which she was incarcerated had a prisoner grievance procedure, and that she did not present the facts relating to her complaint in the state prisoner grievance procedure. Her explanation for failing to do so was that she "Didn't know all procedures. I put in Medical Slips and so forth ­ that's all that can be done until?" (D.I. 2 at 2) 2. On September 12, 2007, Plaintiff wrote to notify the Court of her new address, which

indicated that she had been released from custody.

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3.

CMS was served on January 28, 2008. ARGUMENT

4.

The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought

with respect to prison conditions under section 1983 or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516, 532 (2002) ( "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."). 5. In her Complaint, Plaintiff admits that she did not make use of the prison's grievance

procedure, but states that failure was because she "didn't know all the procedures". However, she was aware that there was a grievance process, as she so indicated when she placed an "x" in the appropriate box on the form. In addition, all new inmates at Baylor are given an orientation pursuant to the outline included here as Exhibit "A". That outline clearly includes the grievance process. At orientation, each new inmate is also given a handbook, which clearly discussed access to medical services and the grievance process. Exhibit "B" at 8. Plaintiff was clearly aware that there was a grievance process. She simply did not use it. Therefore, the Complaint must be dismissed. 6. Even if Plaintiff was previously unaware of the prison grievance system, she certainly

knew or was put on notice when she completed the complaint form. Had she inquired at that point, she could have completed the steps necessary to exhaust her administrative remedies before filing her Complaint. Because the events of which she complained took place in the fall of 2005, she was under no pressure to file for fear of running afoul of the statute of limitations.

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WHEREFORE, for the foregoing reasons, Defendant Correctional Medical Services respectfully requests entry of an order in the form attached hereto dismissing the Plaintiff's Complaint. BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant Correctional Medical Services, Inc. Date: February 19, 2008

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

PATRICIA A. SIMPSON,

) ) Plaintiffs, ) v. ) ) CORRECTIONAL MEDICAL SERVICES, ) ) Defendants. ) ------------------------------------------------------

Case No. 007-070 SLR JURY TRIAL DEMANDED

ORDER AND NOW, this day of , 2008 the Court having considered

defendant Correctional Medical Services' Motion to Dismiss for Failure to Exhaust Administrative Remedies as Required by 42 U.S.C. § 1997e(a), and all opposition thereto, it is hereby ordered that the Motion is Granted. The above-captioned action is dismissed.

The Honorable Sue L. Robinson

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CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 19th day of February 2008, the foregoing Defendant's Motion to Dismiss for Failure to Exhaust Administrative Remedies as Required by 42 U.S.C. § 1997(e)(a) was filed via CM/ECF and served First Class Mail upon the following:

Ms. Patricia A. Simpson 1919 West 8th Street Wilmington, DE 19805

/s/ James E. Drnec James E. Drnec, Esquire (#3789)