Free Answering Brief in Opposition - District Court of Delaware - Delaware

» g, = Case 1:04-cv—O1334-KAJ Document 34 Filed O3/28/2006 Page 1 of 4 ’
IN THE UNITED STATES DISTRICT COURT U
FOR THE DISTRICT OF DELAWARE
_ DONALD JORDAN, et al. p )
_ Plaintiff, f C.A. No. 021-01334-KAJ
B )
V. _` ) JURY TRIAL DEMANDED
STATE OF DELAWARE, et al g C ii.- Q ' '"`i ""``` ` ‘‘DD-;
Defendants. ) i U
PLAINTIEEE JORDON'S OPPOSITION TO DEFEND ZBZUUG
I §g$;E[2g§A&g.D1;.;1g!:1;gé .M.D,' AND SUSAN RICKARD Q
_ DIS H! O DELAWAFIE Q
Plaintiff Donald J. Jordon, opposes defendants motion to dismiss on F'. Scar f" O
following grounds:
gv l. _PiLaintiff.iDonald J. Jordon, on behalf of themselves and all others
similary situated, pro se, for declaratory and injunctive relief against FCM
- Defendants. Plaintiff and plaintiff class claims arise out of the inadequate
medical care provided them while incarcerated in various DDOC prison facilities
throughout the state. U
2. The heart of his complaint is that the defendants have been, and
continue to be, in violation of the prohibition on cruel unusual punishment ns;
in that, by policy, custom and- practice, they are deliberately indifferent
plaintifiss.'; serious medical needs by failing to provide adequate testing and
treatment Tia§oef.thea?1.§;Hepatdtis C Virus ("HCV") . Without the testing and treatment :r;rr‘:··,. ;¤l
herein requested, plaintiff and those similanqz situated suffer an increase risk
of, and actual grave illness and/or death as the result of undected and untreated i
HCV infection. i
3. In the "FCM" Defendants" Motion to Dismiss, there is a serious of
deficiencies in their Motion to Dismiss: C
4. On or about lO/O5/O4, Plaintiff lfiled a prose complaint alleging
inadequatéemedi‘.caiL¤~>&dareFfor Hepatitis C Virus. (D.I. 2) "FCM" Defendants were

. _ · Case 1:04-cv—O1334-KAJ Document 34 Filed O3/28/2006 Page20f4 ‘
-2-*r ‘
same on 8/24/05, answer due l0/24/05., (12.1. 12, 13) On 10/13/05, Notice or
appearance by Dana Michele on behalf of Roberta F. Burns and Susan Rickards were
a entered on lO/24/05. ‘(D.I.20) ,
¤5. On l/27/2006, Plaintiff apply for default judgment by way of motion
and affidavit, based on "FCM" Defendants failure to answer or defend undernthe
Federal Rules of Civil Procedure, Rule l2(a)(l)(a) which require the Defendants'&~
answer to be served without 6O days after being properly notice. "FCM" Defendants
never filed an opposition to the default motion by the plaintiff. Nor, was there
any motion for extension of time file by "FCM" Defendants. This matter has not
been resolved by the Court, and ”FCM" Defendants has made no mention in their
motion to dismiss. P
6. Plaintiff have exhausted administrative remedies pursuant to 42 U.S.C §
l997e(a). Copies of these Final, Step III, grievance denials are attached as
Exhibit l.
7. Plaintiff was»diagnosed wibh=HCV h1%§£§;Z%Exhibit "2")
_ 8. "FCM" Defendants have failed to follow their own protocol in regards
to properly completing the required Checklist HCV Treatment forms. (Exhibit "3“)
9. In spite of his elevated ALT levels and his requests before filing his
civil righbs action, plaintiff has been unlawfully denied referral for liver biopsy
P and evaluation for treatment.
lO. In the "FCM" Defendants’ Motion to Dismiss, defendant Burns has included
an affidavit as Exhibit “3" that is unsigned and un—notarized. This document should
not be rely upon by this Court in any conclusion of this matter.
ll. Ferhtha above reasons, Plaintiff Donald J. Jordon, respectfully requests
that motion to dismiss at this stage is premature and should be dismiss.
·» &/W
na . o on.

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