Fill and Sign the Response Motion Dismiss Form

IN THE CIRCUIT COURT OF       COUNTY, MISSISSIPPI       PLAINTIFF VS. NO.             ,       , AND       , DEFENDANTS RESPONSE TO DEFENDANT'S MOTION TO DISMISS COMES NOW, the Plaintiff, pro se, and files this Response to the Defendants' Motion to Dismiss filed pursuant to MCA Section 47 - 5 - 805, and as cause for this Response, Plaintiff respectfully submits the following, to - wit: I. The defendants have requested that this Honorable Court stay the instant cause to allow Plaintiff the opportunity to exhaust any available administrative remedies. II. Plaintiff contends that the Defendants request for stay in the instant cause is not well founded, an should be denied for the following reasons: 1. Miss. Code Section 47 - 5 - 803(2) makes the Administrative Remedy Program applicable to any complaint which "falls under the purview of the Administrative Remedy review procedure." Since the complaint in this case requests "       " and the remedy program adopted by the       has no provisions for awarding "       ", the complaint in this case does not fall within the purview of the procedure adopted by the       and such procedure is therefore inapplicable. It would be useless to require plaintiff to execute a procedure which cannot offer or provide him/her with the relief which he/she seeks. See e.g., Patsy v. Board of Regents of State of Fla., 102 5. Ct. 2557 (1982). 2. Further, the mentioned Administrative Review Procedures available at the       are illegal and a product of criminal conspiracy, fraud, and deception. Miss. Code Section 47 - 5 - 801 authorizes the Mississippi Department of Corrections to adopt Administrative Review Procedures. However, those procedures must be in substantial compliance with 42 USCS Section 1997, the "Civil Rights of Institutionalized Persons Act," or CRIPA, and part 40 of Title 28, Code of Federal Regulations. In order to be in substantial compliance, the program must contain, among other things, the following provisions: a) Provisions allowing review of the final Administrative decision by an outside Entity or unbiased body; b) Provisions providing for       participation in the review of, consideration of and decision-making process of the program. The       are actually not in substantial compliance with the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. Section 1997(e), in that: 1. There are no provisions in the Procedures for independent review of the disposition of grievances, including alleged reprisals, by a person or other entity not under the direct supervision or direct supervision or direct control of the institution. 2. Plaintiff and other       affected by the procedures did not participate in the formulation, operation, and assessment of the mentioned Procedures. Further, the mentioned Administrative Remedy Procedures have not been submitted to nor have they been approved by the United States Attorney General; despite the fact that United States Attorney General's approval is a necessary prerequisite to certification by the District Court. See e.g., Lewis v. Meyer, 815 F.2d 43 (7th Cir. 1987). CONCLUSION It is true that MCA Section 47 - 05 - 805 provides that the Court may consider Plaintiff's failure to utilize the Administrative Review Procedure as a factor in deciding whether the case may proceed. However, premises considered, the Defendants request that this Honorable Court dismiss the case at bar pursuant to MCA Section 47 - 05 - 805 is not well taken, and in fact just plain ludicrous. Respectfully submitted, _______________________________________       Attorney for       Of Counsel:                         Telephone:       MSB #       Attorney for