For this reason, it is not illogical that the PLRA applies to injunctive relief, but that its exhaustion and physical injury provisions do not apply to meritorious claims filed by persons who are no longer prisoners or incarcerated at the time of filing their cases. 43 to apply here, Section 1997e(e) would not bar plaintiffs’ “ability to recover compensatory damages for actual injury, nominal or punitive damages, or injunctive and declaratory relief.” Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002); see also Kelsey, 2005 WL 1972557, at *10.

Therefore, plaintiff failed to exhaust her administrative remedies with respect to the claims premised on her “Tracker” designation. Accordingly, for the reasons set forth above, plaintiff’s entire action must be dismissed, pursuant to 42 U.S.C. § 1997e(a). The Court need not reach the remaining issues raised in this motion with respect to the claims raised herein, but can do so to the extent of dismissing particular claims with prejudice.3

VII. CONCLUSION Because Plaintiff can establish no genuine issue of material fact disputing that (1) Plaintiff did not endure any Constitutional violation; (2) Municipal and Corporate defendants did not have a policy or custom which was the proximate cause of any Constitutional Violation; (3) Plaintiff’s claims are time barred; (4) Plaintiff’s failure to disclose testimony relating to the proximate causation of his alleges injuries bars any recovery under 42 U.S.C. § 1997e(e); and, (5) as a matter of law, Plaintiff is not entitled to recover punitive damages, Defendants District of Columbia, CCA and TransCor respectfully request their Motion for Summary Judgment be granted and Plaintiff’s claims dismissed with prejudice. 163 SOF ¶¶ 8, 13.

See Exhibit E, ¶ 13. The PLRA is clear that a Youth must exhaust all “available” remedies prior to filing a claim under federal law. 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001). As the Supreme Court has emphasized, “it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”

And under the PLRA, fees “shall not be awarded, except to the extent that” the fee was directly and reasonably incurred in proving a violation of the plaintiff’s rights, and either the amount is proportionate to the relief ordered, or alternatively, the fee is “directly and reasonably incurred in enforcing the relief. 42 U.S.C. § 1997e(d)(1). The statute provides in relevant part: In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under section 1988 of this title, such fees shall not be awarded except to the extent that - (A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and (B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief order for the violation.

Plaintiff has failed to meet this requirement. WHEREFORE, premises considered, Defendants respectfully request that Plaintiff’s claims be dismissed pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. Respectfully submitted, JAMES T. JACKS UNITED STATES ATTORNEY /s/ E. SCOTT FROST E. SCOTT FROST Defendants’ Motion to Dismiss Plaintiff Smith’s Complaint - Page 7 Case 1:09-cv-00235-C Document 132 Filed 11/02/10 Page 7 of 8 PageID 741 Assistant United States Attorney Texas State Bar No. 07488080 1205 Texas Avenue, Suite 700 Lubbock, Texas 79401 Tel: 806.

See, e.g., O'Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1061-63 (9th Cir. 2007); Scott v. Goord, No. 01Civ.0847(LTS)(AJP), 2004 WL 2403853, at *7 (S.D.N.Y. Oct. 27, 2007). These regulations are “precisely the sort of pre-litigation process contemplated by the [Porter v.] Nussle Court, and section 1997e clearly applies the exhaustion of remedies mandate to the ADA and Rehabilitation Act as ‘other Federal law.’” Id. Plaintiff has not filed any complaints through DOJ’s EEO Office and thus not exhausted his administrative remedies.6 See App’x at 1-2 (Declaration of Mina Raskin). Plaintiff’s Amended Complaint should be dismissed for failure to exhaust all available administrative remedies under the PLRA because Plaintiff has not filed his allegations with the Director of EEO for the DOJ alleging discrimination. Even assuming proper venue and exhaustion of administrative remedies, Plaintiff’s third cause of action still fails. The allegations in his Amended Complaint amount to complaints about medical care related to his post-operative treatment following the removal of his larynx and the availability of medical devices. See, e.g., Amended Complaint at ¶2 (“denied Mr. Hitchins adequate and effective medical treatment and intentionally discriminated against him” ... “retal

The PLRA requires inmate litigants to exhaust all available administrative remedies before filing an action under any federal law. Porter v. Nussle, 534 U.S. 516, 524 (2002); 42 U.S.C. § 1997e(a) (“no action shall be brought with respect to prison conditions under section 1983 of this title, 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”). That requirement is “mandatory” and a “prerequisite” to filing an action.

See, e.g., Howard v. Hill, 2005 WL 3105832, at *1, 156 F. App’x 886 (9th Cir., Nov. 21, 2005) (unpublished) (holding that a prisoner who had been told he would not receive responses to his grievances had no remedy available); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (“We believe that a remedy that prison officials prevent a prisoner from ‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a). . .”); Beltran v. O’Mara, 405 F.Supp.2d 140, 154 (D.N.H. 2005)

If properly brought as an action under 42 U.S.C. § 1983, plaintiffs’ challenges to parole policies and decisions dating back more than 20 years are barred by plaintiffs’ failure to bring this action within the applicable three-year limitations period. The plaintiffs’ claims against Commissioner Corcoran are also barred by their failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Even if the merits of plaintiffs’ claims were to be considered by the Court, the allegations of the complaint make clear that they have had multiple opportunities to demonstrate that they merit early release, and continue to have such opportunities, as required by the Supreme Court’s cases. Moreover, the undisputed facts make clear that, contrary to the plaintiffs’ assertions, procedures put into place by Maryland authorities to determine inmate suitability for early release from prison, while also considering whether such release is consistent with public safety, have resulted in the parole releases of prisoners sentenced to life imprisonment, including prisoners who committed crimes as juveniles. Consistent with the Supreme Court’s determination that juveniles “are constitutionally different from adults,” Montgomery, 136 U.S. at 733 (quotation omitted), the defendants have promulgated new policies that expressly provide for the Maryland Parole Commission to consid