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Nevada Summary Judgment for Non-Exhaustion Reversed

The Nevada Supreme Court reversed a lower court's grant of summary judgment on a former
prisoner's suit for failing to exhaust administrative remedies.

Nevada Department of Corrections (NDOC) prisoner George Simmons was brutally beaten by
another prisoner on April 14, 1997. He sustained a broken jaw, fractured vertebrae ... [and]
clavicle, and soft tissue swelling around the brain. He was comatose for six weeks. Upon
regaining consciousness, Simmons was returned to prison.

On April 6, 1998, Simmons was paroled and admitted to Nevada Community Enrichment
Program (NCEP) -- a rehabilitation center that specializes in treating patients who have suffered
neurological trauma -- where he relearned how to speak, ... walk, and ... redevelop his motor

On May 13, 1999 Simmons brought suit against prison officials in state court, alleging
negligence related to the assault. He later added another tort claim and a federal civil rights

The trial court granted the Defendant's motion for summary judgment because Simmons failed
to exhaust administrative remedies as required by Nevada law and the Prison Litigation Reform
Act (PLRA) before filing suit.

The Supreme Court noted that Nevada Revised Statute (NRS) 41.0322(1) requires current and
former prisoners to exhaust administrative remedies before filing suit against NDOC, and
209.243(1) requires that administrative remedies be pursued within six months. NRS 41.0322(3)
requires dismissal of any unexhausted actions.

The Court found that the statutory provision is not jurisdictional. Under 41.0322(2), filing an
administrative claim is not a condition precedent to filing suit in the district court. Therefore,
the Court reversed summary judgment on Simmonss state law claims and remand[ed] to the
district court to consider whether the doctrine of equitable tolling excuses Simmons' failure to
file an administrative claim and to exhaust his administrative remedies.

The Court also reversed summary judgment for failure to exhaust as required by the PLRA. The
Court found, as others before it consistently have, that the PLRA applies only to people who are
prisoners when they file their legal action. Simmons was a former prisoner and, therefore, the
PLRA exhaustion requirement was inapplicable. See: Simmons v. State of Nevada, et al., Nevada
Supreme Court, Case No. 42137, July 11, 2005. This decision is unpublished, it is available on
PLNs website.

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Related legal case

Simmons v. State of Nevada