BUCHANAN v. GEORGE W. HILL CORRECTIONAL FACILITY et al
Filing
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MEMORANDUM OPINION. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 2/20/18. 2/21/18 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF, E-MAILED.(er, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHAWN C. BUCHANAN
v.
CORRECTION OFFICER F. KWANING
: CIVIL ACTION
:
: NO. 17-cv-251
:
:
MEMORANDUM OPINION
SCHMEHL, J. /s/ JLS
Date: February 20, 2018
Pro se plaintiff filed this civil rights action while he was confined at SCI
Graterford. He has brought this action under 42 U.S.C. § 1983, claiming that while he
was incarcerated at the George W. Hill Correctional Facility (“George Hill”), he was
subjected to excessive force by defendant Correctional Officer F. Kwaning in violation of
the Eighth Amendment. Presently before the Court is the motion of defendant F.
Kwaning to dismiss for failure to state a claim and for failing to exhaust his
administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). For
the reasons that follow, the motion is denied.
In his Complaint, plaintiff alleges, inter alia, that:
I was on the phone at chow, had permission by the CO who
was working the block. This CO [Kwaning] was not working
the block and told me to get off. I did and he started cursing
at me and I stopped turned around to tell him to show
respect that’s when he punched me in the face several
times.
(ECF 1, p. 3.)
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Plaintiff has attached to his Complaint a copy of the Formal
Disciplinary Report of the altercation written by F. Kwaning. According to
Kwaning,
On the above date and time, I ordered the above mentioned
inmate to get off the block phone and continue to eat his
chow. The above mentioned inmate became hostile and
begun issuing verbal attacks on me. I issued verbal
command to the inmate to discontinue his verbal attack but
he refused and instead invaded my space. I stepped back
and created about two arms length but the inmate continued
to invade my space and suddenly punched me in the nose. I
delivered some strikes to the inmate facial area. Additional
staff arrived and restrained the inmate off the block. I
observed red blood in my nose after the incident.
(ECF 1, p. 9.)
Defendant first argues that since plaintiff attached to his Complaint a copy
of the defendant’s Formal Disciplinary Report, plaintiff has in effect admitted to
defendant’s version of the altercation and therefore failed to state a claim for excessive
force. The Court reminds defendant that plaintiff is a pro se prisoner and therefore he
will not be held to the same rigorous pleading standards as an attorney would be. There
obvious are two versions of the altercation which need to be flushed out in discovery.
Defendant may file a motion for summary judgment after discovery is completed.
Defendant also argues that this case must be dismissed because plaintiff
has failed to exhaust his administrative remedies. Under the PLRA, inmates may not file
a lawsuit relating to prison conditions until they have exhausted “such administrative
remedies as are available.” 42 U.S.C. 1997e(a). Failure to exhaust administrative
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remedies is an affirmative defense that must be proven by the defendant. Brown v.
Croak, 312 F.3d 109, 111 (3d Cir. 2002).
In his Complaint, plaintiff admits that he did not file a grievance concerning
the alleged assault by F. Kwaning, but claims he was repeatedly “denied grievance” by
prison officials at George Hill, apparently because they refused to provide him with the
proper grievance form. If a prisoner has failed to file a grievance because prison
officials denied him the necessary grievance forms, the prisoner lacks “available”
administrative remedies under the PLRA. Miller v. Horn, 318 F. 3d 523, 529 (3d Cir.
2003). See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (A remedy is unavailable
if prison officials fail to provide inmates with the forms necessary to file an administrative
grievance “or otherwise use affirmative misconduct to prevent a prisoner from
exhausting” his or her administrative remedies.) Since the record is unclear as to the
availability of the grievance system to plaintiff, the motion to dismiss on exhaustion
grounds is also denied.
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