Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:06-cv-00349-GMS

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Filed 08/09/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THOMAS R. MILLER, Plaintiff, v. DR. MAGGIE BAILEY, CMS, and FIRST CORRECTIONAL MEDICAL, INC., Defendants. : : : : : : : : : : :

C.A. No. 06-349 GMS

DEFENDANT CMS'S MOTION FOR ENTRY OF ORDER DISMISSING ALL CLAIMS AGAINST CMS Defendant Correctional Medical Services, Inc. ("CMS"), by and through its undersigned counsel of record, hereby moves for entry of an Order in the form attached hereto dismissing with prejudice all Plaintiff's claims against CMS. In support of its motion, CMS states as follows: Facts and Procedural Posture 1. On May 22, 2006, Plaintiff initiated the above-captioned action by filing his

Complaint alleging he was "overmedicated" as a result of medical negligence (D.I. 2). Plaintiff failed to file with his Complaint an affidavit of merit as required by 18 Del. C. § 6853. 2. On August 6, 2006 Plaintiff filed his Petition for Memorandum of Law, again

alleging medical negligence resulting from overmedication, but filed no affidavit of merit with it (D.I. 10). 3. On January 3, 2007, Plaintiff moved to Amend Pleading on Civil Complaint to

add First Correctional Medical, Inc. ("FCM") as a defendant (D.I. 17). On May 3, 2007,

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Plaintiff filed a second Amended Complaint against FCM alleging inadequate and improper medical care. (D.I. 22) No affidavit of merit was filed with either pleading. This Amended Complaint also requested the Court "strike" Plaintiff's "request for nominal and special damages on the prayer for relief of the Complaint Memorandum of Law" (sic) (D.I. 22 at 2). On May 9, 2007, the Court granted that motion (D.I. 23). 4. On June 18, 2007, defendant CMS filed its Answer to the Complaint, the Petition

for Memorandum of Law and Amended Complaint (D.I. 26) denying, inter alia, any and all allegations of medical negligence and causation, and raising as a defense Plaintiff's failure timely to comply with 18 Del. C. § 6853 by not filing an affidavit of merit. 5. On August 2, 2007 CMS moved to dismiss all State law claims of medical

negligence. (D.I. 35). 6. On August 8, 2007, Plaintiff wrote to the Court requesting that all his claims

against CMS be dismissed as the acts that form the basis of his pleadings occurred prior to CMS's status as contractor to the Delaware State Prison System. (D.I. 39) WHEREFORE, for the foregoing reasons, Defendant CMS respectfully requests entry of an Order in the form attached hereto dismissing with prejudice all of Plaintiff's claims against CMS. BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant CMS Date: August 9, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THOMAS R. MILLER, Plaintiff, v. DR. MAGGIE BAILEY, CMS, and FIRST CORRECTIONAL MEDICAL, INC., Defendants. : : : : : : : : : : : ORDER AND NOW, this day of August, 2007, the Court having considered

C.A. No. 06-349 GMS

Defendant CMS's Motion for Entry of an Order Dismissing All Claims Against CMS, and all opposition thereto, it is hereby ORDERED that the Motion is GRANTED. All claims against CMS in the above-captioned action are dismissed with prejudice.

J.

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CERTIFICATE OF SERVICE

I, James E. Drnec, hereby certify that on this date, I served on the parties below in the manner indicated, copies of the Defendant CMS's Motion for Entry of Order Dismissing All Claims Against CMS.

VIA FIRST CLASS MAIL Mr. Thomas R. Miller #144108 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ James E. Drnec James E. Drnec Dated: August 9, 2007