Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:08-cv-00204-SLR

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Filed 06/16/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CHARLES AUSTIN, Plaintiffs v. CORRECTIONAL MEDICAL SERVICES, INC., et al , Defendants. : : : : : : : : :

Civil Action No.: ______________ JURY TRIAL DEMANDED

1:08-cv-204

DEFENDANT, CORRECTIONAL MEDICAL SERVICES, INC.'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) ______________________________________________________________________________

Daniel A. Griffith, Esquire Attorney Bar ID No. 4209 WHITEFORD TAYLOR & PRESTON, LLC 1220 Market Street, Suite 608 Wilmington, DE 19801 (302) 482-8754 Attorneys for Defendant, Correctional Medical Services, Inc. Dated: June 16, 2008

Case 1:08-cv-00204-SLR

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Defendant, Correctional Medical Services, Inc., by and through its counsel, Whiteford Taylor & Preston, LLC, hereby moves for the dismissal of the Plaintiff's Complaint as to it and in support thereof avers as follows: 1. Plaintiff is an inmate of the Howard R. Young Correctional Institution who filed this action to redress allegedly inadequate medical care received while incarcerated. Movant, Correctional Medical Services, Inc. ("CMS") is alleged and in the Complaint to have provided health care services to the inmate pursuant to a contract between CMS and the Delaware Department of Corrections ("DOC"). 2. As against CMS, Plaintiff's Complaint is structured as follows: the inmate has pled (1) a federal claim under 42 U.S.C. §1983 for failure to provide constitutionally adequate medical care in violation of the Eighth Amendment to the United States Constitution and (2) a claim for medical negligence under state law 18 Del.C. §6801. 3. With respect to Plaintiff's claim under 42 U.S.C. §1983, Plaintiff correctly asserts that CMS was acting "under color of law" pursuant to its contract with the State of Delaware when undertaking its medical treatment of the Plaintiff. This is natural since such an allegation is necessary to support the 42 U.S.C. §1983 claim. 4. This Court has repeatedly held, however, that those retained by the State of Delaware to provide medical treatment for inmates are immune from 42 U.S.C. §1983 liability by virtue of the Eleventh Amendment to the United States Constitution. See, Abraham v. State of Delaware Department of Corrections, et al., 2007 U.S. Dist. LEXIS 89411 (D. Del.) (decided and filed December 4, 2007); Castillo v. Civigenics Program, et al., 2006 U.S. Dist. LEXIS 21992 (D. Del.) (decided March 31, 2006); Hamilton et al. v. Civigenics, et al., 2005 U.S. Dist. LEXIS 2625 (D. Del.) (decided February 22, 2005).

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5. Similarly, Plaintiff cannot maintain their state law medical malpractice claim against CMS in this Court. See, Hamilton et al. v. Civigenics, et al, supra. 6. In short, as a state actor providing medical services for the State of Delaware "under color of State law", CMS is immune from liability for both Plaintiff's 42 U.S.C. §1983 claims. Plaintiff's state law medical negligence claims cannot proceed in this Court. Consequently, Plaintiff's Complaint must be dismissed as to CMS for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). 7. Movant refers the Court to its Opening Brief in Support of Motion to Dismiss Plaintiff's Complaint filed simultaneously herewith. WHEREFORE, Defendant, Correctional Medical Services, Inc. respectfully requests that this Honorable Court dismiss Plaintiff's Complaint as to it for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). WHITEFORD TAYLOR PRESTON, LLC

/s/ Daniel A. Griffith Daniel A. Griffith, Esquire (No. 4209) 1220 Market Street, Suite 608 Wilmington, DE 19801 (302) 482-8754

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CHARLES AUSTIN, Plaintiffs v. CORRECTIONAL MEDICAL SERVICES, INC., et al , Defendants. : : : : : : : : :

Civil Action No.: 1:08-cv-204 JURY TRIAL DEMANDED

NOTICE OF SERVICE I, Daniel A. Griffith, Esquire hereby certifies that on this 16th day of June, 2008, a copy of the foregoing Defendant, Correctional Medical Services, Inc.'s Motion to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) was electronically delivered via e-file to Joseph M. Bernstein, Esquire 800 North King Street Suite 302 Wilmington, DE 19801 Bruce L. Hudson, Esquire 800 North King Street Suite 302 Wilmington, DE 19801

/s/ Daniel A. Griffith Daniel A. Griffith, Esquire