United States Third Circuit

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Small v. Whittick, 11-2378

Dismissal of plaintiff-inmate's civil rights action alleging incidents that included the use of excessive force, the denial of medical treatment, and the confiscation of his personal wheelchair and its replacement with one without leg rests, is: 1) affirmed in part, where judges may resolve factual disputes relevant to the exhaustion issue without the participation of a jury, and accordingly, the district court did not err by acting as the fact finder because exhaustion constitutes a preliminary issue for which no right to a jury trial exists; 2) affirmed in part, where as to certain grievances, the district court correctly concluded that plaintiff's efforts were not substantially compliant with defendant's grievance procedures; but 3) vacated and remanded in part as to the grievances arising from the incidents of June 18, 2005 and June 28, 2005, where the district court erred in concluding that that substantial compliance with defendants' procedures requires appealing non-decisions.

Appellate Information

  • Decided 08/26/2013
  • Published 08/26/2013

Judges

  • BARRY

Court

  • United States Third Circuit

Counsel

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