Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:04-cv-00328-SLR

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Filed 08/31/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ERNEST A. CRUMP, JR., Plaintiff, v. STAN TAYLOR, THOMAS CARROLL, CORRECTIONAL MEDICAL SERVICES, DAVID DUNINGTON, MICHAEL BRYANT, JOHN DOE #3, JANE DOE #1 and JOHN DOE #4, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

Civ. No. 04-328 SLR

JURY TRIAL DEMANDED

MOTION OF DEFENDANT, CORRECTIONAL MEDICAL SERVICES, TO DISMISS PLAINTIFF'S COMPLAINT1 Defendant, Correctional Medical Services, ("CMS"), through its undersigned counsel, hereby respectfully moves this Honorable Court to enter the attached Order, dismissing plaintiff's Complaint with prejudice and, in support thereof, avers as follows: 1. Plaintiff filed a Complaint in this matter on May 21, 2004 alleging violations of his Eighth

Amendment Rights under 42 U.S.C. §1983. An Amended Complaint was filed on July 9, 2004. A copy of plaintiff's Amended Complaint is attached hereto as Exhibit "A". 2. Plaintiff's Complaint alleges violations of his constitutional rights during his confinement in a

"RAM ROOM" at the institutional hospital from August 30, 2002 through September 3, 2002. Plaintiff's Complaint, Statement of Claim. 3. CMS was the medical services provider in Delaware's prisons from July 1, 2000 through June

30, 2002 and has resumed being the health care provider to Delaware's prisons as of July 1, 2005. The period of

Correctional Medical Services waives its right to file an Opening Brief and submits this Motion in lieu thereof pursuant to Local Rule 7.1.2. However, Correctional Medical Services reserves the right to file a Reply Brief.

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Case 1:04-cv-00328-SLR

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time of the harm alleged in plaintiff's Complaint occurred during a time when CMS was not the healthcare provider at Plaintiff's place of incarceration. 4. The entity which allegedly committed the constitutional violations claimed by Plaintiff was

therefore an entity other than CMS. 5. Plaintiff's claims against CMS should be dismissed pursuant to Federal Rule of Civil Procedure

12 (b)(6) for failure to state any claim upon which relief can be granted. WHEREFORE, defendant, Correctional Medical Services, Inc., moves this Honorable Court to dismiss all claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6).

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: /s/ Kevin J. Connors KEVIN J. CONNORS, ESQ. DE Bar ID: 2135 1220 North Market Street, 5th Fl. P.O. Box 8888 Wilmington, DE 19899-8888 Attorney for Defendant, Correctional Medical Services

DATED: August 31, 2005
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Case 1:04-cv-00328-SLR

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Filed 08/31/2005

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CERTIFICATION OF SERVICE I hereby certify that I have served upon all persons listed below a true and correct copy of the MOTION OF DEFENDANT, CORRECTIONAL MEDICAL SERVICES, INC., TO DISMISS PLAINTIFF'S COMPLAINT, in the above-captioned matter this date by regular mail. Ernest A. Crump, Jr. SBI No. 00149221 Delaware Department of Corrections 1181 Paddock Road Smyrna, DE 19977

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: /s/ Kevin J. Connors KEVIN J. CONNORS, ESQ. DE Bar ID: 2135 1220 North Market Street, 5th Fl. P.O. Box 8888 Wilmington, DE 19899-8888 Attorney for Defendant, Correctional Medical Services

DATED: August 31, 2005
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