Thus, M. Lin's cause of action fails on the issue of mootness. Additionally, of the six members whom were denied visitation privileges, five of them have had sons which whom were formerly incarcerated at MCF, but now have been released. The son of the sixth MOM member asserting denial of visitation privileges died after his release from MCF. Thus, all of the six members of MOM claims will fail as a result of mootness.
C. RIPENESS
AUTHORITY
The controversy must be ripe for decision; ripeness bars consideration of claims before they have fully developed. A case may be dismissed as unripe where a statute has never been enforced and there is no real threat that it ever will be. Poe v. Ullman, 367 U.S. 497 (1961). In this case, the Prison Litigation Reform Act was ultimately unsuccessful, among a myriad of other failed legislation. Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1586-87 (2003) (It would be equally appropriate to talk about a "deluge' of inmate requests for food);
Thomas v. Woolum, 337 F.3d 720, 722 (6th Cir. 2003) (The PLRA's text does not condition access to the federal courts on satisfying the procedures and timelines of prison administrators.");
Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998) (holding that once the prisoner exhausts his administrative remedies, he can refile the action in federal court even if the time limit had run on his grievance.
ARGUMENT
As many legal scholars have indicated, and cases have demonstrated, that there were numerous problems concerning the applicability of the provisions of the PLRA.
Porter v. Nussle, 534 U.S. 516, 525 (2002) (determining what the term "prison conditions" meant under 1997e (a)); Kermit Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The Consequence of Procedural Error, 52 Emory L.J. 1771, 1773-74 (2003) (discussing the scope of the exhaustion requirement and Congress's silence on the consequences of procedural missteps in the course of exhaustion);
Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004) (rejecting the total exhaustion doctrine), cert. denied, 73 U.S.L.W. 3513 (U.S. Feb. 28, 2005) (No. 04-668). In the cause of action presented, there has never been a statute which has been enforced in such situations as the one illustrated above. Thus, the Plaintiffs cause of action also fails on the issue of ripeness.
II. FEDERAL STATUTORY CLAIM
PRISON LITIGATION REFORM ACT (42 U.S.C. 1997e)
AUTHORITY
The Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321-66 (1996) (codified as amended in scattered sections of 18, 28, and 42 U.S.C.), was designed to reduce the quantity and improve the quality of prisoner suits.
Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e (a), 42 U.S.C. 1997e (a) (2000) provides that no action shall be brought with respect to prison conditions under 42 U.S.C. 1983 (2000), 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 (42 U.S.C. 1997e (a)). The doctrine of exhaustion of administrative remedies, like the related doctrines of finality and ripeness, govern the timing of lawsuits in federal courts.
McCarthy v. Madigan, 503 U.S. 140, 144 (1992). Exhaustion is applicable to all inmate suits about prison life, whether the suit is about general circumstances or particular episodes, regardless of what the alleged wrong is.
Porter v. Nussle, 534 U.S. At 532. The exhaustion requirement is not absolute, however, but is an affirmative defense that must be pled or it will be waived.
Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004);
Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001);
Perez v. Wisc. Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999).
Each state provides inmates with such administrative remedies, with the exhaustion requirements generally following a similar pattern. N.Y. Comp. Codes R. & Regs. tit. 7, 701.7 (2001). Typically, when a prisoner brings a complaint under 1983, he will allege multiple constitutional violations.
Ross, 365 F.3d at 1183. If all claims are unexhausted, the complaint is generally dismissed without prejudice until the required procedures are invoked. Section 1997e (a) does not specify how detailed a prisoner's grievance must be in order to satisfy exhaustion.
Johnson v. Johnson, 385 F.3d 503, 516 (5th Cir. 2004). Courts...
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