Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware

Case 1:06-cv-00736-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RAYMOND L. BRUTON, Plaintiff, v. DIRECTOR JAY SYLVESTER, et al. Defendant. ) ) ) ) ) ) ) ) )

C.A. No.: 06-736- SLR

TRIAL BY JURY OF SIX DEMANDED

DEFENDANT JAY SYLVESTER'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)

Defendant, Jay Sylvester, by and through his undersigned counsel hereby files this Motion to Dismiss and in support thereof avers as follows: 1. Pro Se inmate Plaintiff Bruton filed the instant complaint on December 4,

2006 setting forth claims of purported violations of his civil rights while incarcerated at the Howard R. Young Correctional Institution. A true and correct copy of Plaintiff's Complaint is attached hereto marked Exhibit "A". 2. Following the Court's review of Plaintiff's Complaint, on April 11, 2007, the

Court issued a Memorandum Order dismissing all claims against all defendants, except Jay Sylvester, the Moving Defendant herein. 3. A review of Plaintiff's Complaint appears to make claims against Defendant

Sylvester, the Director of the Key Program, but only referencing Mr. Sylvester once in his Complaint ­ for the proposition that Mr. Sylvester `blamed' the Department of Corrections for the exercise schedule. Even taking a liberal view of the pro se complaint, there does not appear to be any other specific allegations against Mr. Sylvester. See, Complaint as Exhibit

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"A". 4. As interpreted by Defendants, Plaintiff appears to make claims for purported

violations of his Eighth and Fourteenth Amendment Rights. See, Complaint as Exhibit "A". 5. Plaintiff's alleged claims for purported violations of his Eighth Amendment

Rights stem from a lack of exercise, leading to adverse effects upon his health and medical condition. Accordingly, Defendant will address both the purported lack of exercise and deliberate indifference to his medical needs. 6. Based upon the facts as alleged in Plaintiff's Complaint, his claims are

insufficient to support an Eighth Amendment Violation for lack of exercise, and therefore, his claims should be dismissed, as a matter of law. 7. Based upon the facts as alleged in Plaintiff's Complaint, his claims are

insufficient to support an Eighth Amendment Violation for deliberate indifference to medical needs, and therefore, his claims should be dismissed, as a matter of law. 8. Plaintiff has failed to set forth sufficient facts to support purported violations

of his Fourteenth Amendment Rights, for either a substantive or procedural due process claim. Accordingly, Plaintiff's claims should be dismissed, as matter of law. 9. In order to bring a claim for purported civil rights violations, a prisoner must

first exhaust all administrative remedies, including appeals thereof, before bringing a claim. 10. Plaintiff failed to exhaust his administrative remedies, and therefore, his

claims must be dismissed, as a matter of law. 11. Plaintiff's claims against Defendant Sylvester in his supervisory capacity fail,

as a matter of law.

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WHEREFORE, Defendant Jay Sylvester requests that Plaintiff's Complaint be dismissed, as a matter of law.

Reger Rizzo Kavulich & Darnall LLP

By:

/s/ Rochelle Libid Gumapac Rochelle Libid Gumapac, Esquire Bar I.D. No. 4866 Suite 202 1001 Jefferson Street Wilmington, DE 19801 (302) 652-3611 (phone) (302) 652-3620 (fax) [email protected] Attorneys for Defendant, Jay Sylvester

Dated: June 15, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RAYMOND L. BRUTON, Plaintiff, v. DIRECTOR JAY SYLVESTER, et al. Defendant. ) ) ) ) ) ) ) ) )

C.A. No.: 06-736- SLR

TRIAL BY JURY OF SIX DEMANDED

ORDER AND NOW, this ____ day of __________, 2007, upon consideration of Defendant Sylvester's Motion to Dismiss and Plaintiff's response thereto, if any, it is hereby ORDERED and DECREED that said Motion is GRANTED and Plaintiff's Complaint is dismissed, with prejudice.

By The Court:

____________________________________ J.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RAYMOND L. BRUTON, Plaintiff, v. DIRECTOR JAY SYLVESTER, et al. Defendant. ) ) ) ) ) ) ) ) )

C.A. No.: 06-736- SLR

TRIAL BY JURY OF SIX DEMANDED

CERTIFICATE OF SERVICE I, Rochelle Gumapac, Esquire hereby certify that on the 15th day of June 2007 a true and correct copy of Defendant Sylvester's Motion to Dismiss was electronically filed and served via first class mail, postage prepaid, upon: Raymond L. Bruton SBI #069025 Unit 2-Q-21 H.R.Y.C.I. PO Box 9561 Wilmington, DE 19809 Reger Rizzo Kavulich & Darnall LLP By: /s/ Rochelle Libid Gumapac Rochelle Libid Gumapac, Esquire Bar I.D. No. 4866 Suite 202 1001 Jefferson Street Wilmington, DE 19801 (302) 652-3611 (phone) (302) 652-3620 (fax) [email protected] Attorneys for Defendant Jay Sylvester

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