ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
BEFORE: GIBBONS and GARTH, Circuit Judges, and TEITELBAUM, District Judge*fn*
Charles David Hurd, an inmate at the Gander Hill Prison in Wilmington, Delaware, appeals from an order of the district court, approving the recommendation of a magistrate that his complaint against officer Romeo, a prison guard, be dismissed without issuance of process. Following his appeal from that order, this court appointed counsel for Hurd. We reverse.
Hurd's pro se complaint was prepared on a printed form furnished by the district court for pro se actions under 42 U.S.C. § 1983 (1982). A portion of that form contains questions about institutional grievance procedures. Hurd's answers disclosed that his grievance against officer Romeo produced no relief.
The form also contains a section captioned "Statement of Claim." The instruction for this section reads:
State here as briefly as possible the facts of your case. Describe how each defendant is involved. Include also the names of other persons involved, dates, and places. Do not give any legal arguments or cite any cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Use as much space as you need. Attach extra sheet if necessary.
Following this instruction, the form has space for six lines of handwriting. In that space Hurd wrote:
Excessive unnecessary force was used against Hurd by guard Romeo. Romeo pushed and shoved me while Hurd was walking toward his cell. Romeo jumped in Hurd's face twice. He grabbed my shirt and almost torn [sic] shirt off. Then he tripped me knocking me down, and got me in a headlock. He threatened to break my neck and the force he was using he was actually trying to break my neck in the headlock. Then guards locked me down for trying to defend myself.
Because the six lines provided on the form under "Statement of Claim" were insufficient, Hurd alleged in the margin:
It's almost if the state has a contract out against Hurd as you should be able to see certain guards are ...