Free Motion to Dismiss Counts/Claims - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Tel: (602) 263-7324 Fax: (602) 200-7837 [email protected] Attorneys for Defendants Garcia and Miles

6 7 8 9 Carlos Arthur Powell, 10 Plaintiff, 11 12 13 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Garcia and Miles Now come Defendants, by and through counsel, and hereby move the Court to dismiss Plaintiff's Second Amended Complaint since Plaintiff has failed to exhaust his administrative remedies. A Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED this 22nd day of December 2005. JONES, SKELTON & HOCHULI, P.L.C. v. F. Garcia (Asst. Warden), C. Miles (Unit Manager/Bravo) E. Scalet (Ins. Inv.) Todd Mohn (DHO Hearing Officer) MOTION TO DISMISS NO. CIV 03-1819 PHX-JAT (LOA) UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Case 2:03-cv-01819-JAT

Document 154

Filed 12/22/2005

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MEMORANDUM OF POINTS AND AUTHORITIES The Prison Litigation Reform Act ("PLRA") requires that inmates exhaust the administrative remedies available to them before filing a lawsuit. Pursuant to 42 U.S.C. § 1997e(a): No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 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. The exhaustion requirement promotes important interests: "(1) deference to Congress' decision that independent administrative tribunals, not courts, should serve as the initial forum for dispute resolution; (2) respect for administrative autonomy by minimizing unnecessary judicial intervention; and (3) judicial economy by resolving com plaints or setting forth findings of fact." Terrell v. Brewer, 935 F.2d 1015, 1019 (9 th Cir. 1991). Exhaustion, "applies to all inmate suits about prison life... ." Porter v. Nussle, 534 U.S. 516, 152 L. Ed 2d 12, 122 S Ct. 983, (2002), without regard to the availability of an administrative remedy. Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819, 149 L. Ed 2d 958 (2001). A Prisoner's failure to exhaust his administrative remedies requires dismissal of the case. Plaintiff filed no grievances concerning claims of being labeled a snitch. This claim was a grievable matter. Plaintiff is to follow established grievance procedures at the facility in order to exhaust his adm inistrative remedies. All inmates, including Plaintiff, are informed of the grievance

procedures upon arrival at the facility. In this case, Plaintiff failed to file grievances related to his claim. /// 2

Case 2:03-cv-01819-JAT

Document 154

Filed 12/22/2005

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The PLRA requires that inmates exhaust administrative remedies before filing a lawsuit. Plaintiff has not done so here. Therefore, Plaintiff's claim must be dismissed. For the foregoing reasons, Defendants respectfully requests this Court to dismiss all claims in Plaintiff's Complaint. RESPECTFULLY SUBMITTED this 22 nd day of December 2005. JONES, SKELTON & HOCHULI, P.L.C.

By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Garcia and Miles ORIGINAL of the foregoing electronically filed this 22 nd day of December 2005, with: Richard W eare, Clerk U NITED S TATES D ISTRICT C OURT COPY of the foregoing mailed this 22nd day December 2005, to: The Honorable James A. Teilborg U NITED S TATES D ISTRICT C OURT 401 W est Washington Phoenix, Arizona 85003 COPY of the foregoing faxed this 22nd day December 2005, to: Office of the Pro Se Staff Attorney 602-322-7289 /// /// /// /// 3

Case 2:03-cv-01819-JAT

Document 154

Filed 12/22/2005

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COPY of the foregoing mailed this 22 nd day of December 2005, to: Carlos Powell, #10090-023 D/U235 FCI-1 V ICTORVILLE P. O. Box 5300 Adelanto, California 92301-5300 Plaintiff Pro Se

s/Dianne Clark 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1569624_1

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Case 2:03-cv-01819-JAT