Small v. Whittick, No. 11-2378 (3d Cir. 2013)
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Small, a New Jersey state prisoner, is paraplegic and confined to a wheelchair. He filed suit under 42 U.S.C. 1983, asserting 14 incidents involving use of excessive force, denial of medical treatment, and confiscation of his personal wheelchair and its replacement with one without leg rests. He claims that without his personal chair he was unable to brush his teeth, shower, and sometimes left to lie for days in his own excrement. The district court dismissed for failure to exhaust administrative remedies by filing grievances, as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. 1997e(a). The Third Circuit affirmed in part, holding that a judge may resolve factual disputes relevant to the exhaustion issue without participation of a jury and that that Small knew of, and was able to access, the prison’s grievance procedures, but that Small did adequately exhaust remedies with respect to two incidents.
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