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September 22, 2005.

ROBERT MORRIS, ET AL., Defendants.

The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge


William E. Foster, Sr., an inmate presently confined at the Mahanoy State Correctional Institution, Frackville, Pennsylvania (SCI-Mahanoy), initiated this pro se civil rights action pursuant to 42 U.S.C. § 1983. By Order dated July 22, 2004, this Court granted Plaintiff leave to file an amended complaint which identified John/Jane Doe Defendants which were named in the original complaint.

Named as Defendants in Plaintiff's subsequently filed amended complaint (Doc. 82) are Franklin County, Pennsylvania; the Borough of Chambersburg and former Mayor Robert Morris, as well as current Mayor Thomas L. Newcomer; the Franklin County Prison, ex-Warden Ray Rosenberry and eight (8) members of the prison Board of Trustees.*fn1 The Plaintiff is also proceeding against the Honorable Douglas W. Herman of the Franklin County Court of Common Pleas.

  Plaintiff describes himself as being a partial paraplegic and "wheelchair bound individual."*fn2 Doc. 82, ¶ 15. Foster states that he was transferred from the handicapped accessible SCI-Mahanoy to the Franklin County Prison on or about October 18, 1999. He alleges that the Defendants had full knowledge that he was wheelchair bound and that the prison was not in compliance with the Americans with Disabilities Act (ADA). Therefore, he contends that Defendants were deliberately indifferent to his medical and physical needs in that they failed to provide handicapped accessible accommodations at the Franklin County Prison.

  Plaintiff adds that his wheelchair would not fit into his cell and the toilet and shower lacked grab bars. Furthermore, Foster allegedly fell on November 1, 1999 while trying to use the shower and was thereafter forced to use the sink in his cell as his sole means of bathing.

  The amended complaint adds that since Defendants were aware that the prison was not handicapped accessible, their failure to relocate Plaintiff to a prison having handicapped accessible facilities likewise constituted deliberate indifference. Foster also contends that Defendants' alleged actions violated the ADA and he includes pendent state law tort claims. His amended complaint seeks injunctive and declaratory relief as well as compensatory and punitive damages.

  Presently pending are two motions for summary judgment filed by the Defendants. See Docs. 87 & 90. Both motions raise identical arguments. The motions have been briefed and are ripe for consideration.


  Defendants claim entitlement to an entry of summary judgment on the grounds that Plaintiff's amended complaint is barred by the applicable statute of limitations. Alternatively, they argue that Foster failed to exhaust his available administrative remedies.

  Standard of Review

  Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]he standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). . . ."
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, (1986).

  The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The moving party can discharge that burden by "`showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 106 S.Ct. at 2553 and 2554. Once the moving party has satisfied its burden, the nonmoving party must present "affirmative evidence" to defeat the motion, consisting of verified or documented materials. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Issues of fact are "genuine only if a reasonable jury, considering the evidence presented could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988). Only disputes over facts that might ...

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