Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-13-2005
Askew v. Jones
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3900
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3900
RICCI ASKEW,
Appellant
v.
N JONES, PLFD. D.O. #15611;
K CONNORS, PLFD. P.O. #10409;
P ESPOSITO, PLFD. P.O. #11286
SHIFT COMMANDER ON THE SCENE SGT.
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 04-cv-00029
(Honorable William G. Bassler)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 7, 2005
Before: SCIRICA, Chief Judge, FISHER and ALDISERT Circuit Judges
(Filed: December 13, 2005 )
OPINION OF THE COURT
PER CURIAM.
Ricci Askew filed this civil rights action pro se, pursuant to 42 U.S.C. § 1983 in
the United States District Court for the District of New Jersey, alleging that Appellees
violated his constitutional rights when they were deliberately indifferent to his serious
medical needs.1 Appellees, who are Plainfield, New Jersey, police officers, arrested
Askew after responding to the scene of a fight in which he was involved. In his
complaint, Askew asserts that Appellees ignored his repeated requests for medical
attention for injuries he sustained during the fight and delayed the medical treatment that
he ultimately received. He also alleges that Appellees verbally harassed him throughout
the arrest process. Askew seeks both reimbursement for his medical costs and monetary
damages.
Before Appellees had answered, the District Court dismissed Askew’s complaint
sua sponte for failure to state a claim upon which relief may be granted, pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Askew did not appeal from this dismissal
order. Instead, he wrote to the District Court on January 21, 2004, expressing
dissatisfaction with the outcome and requesting information on how to re-open his case.
Six months later, having received no response, Askew filed a document captioned
“Motion for Reconsideration Due to Assignment Judge’s Plain Error,” which the District
Court construed as a motion for reconsideration under Federal Rule of Civil Procedure
1
As the parties are familiar with the facts, we recite them here only as necessary to our
discussion.
2
59(e) and denied. Askew’s appeal from this denial order is presently before us, as is his
motion for summary reversal.2
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We
have appellate jurisdiction under 28 U.S.C. § 1291. Although Askew did not formally
caption it as such, we liberally construe his January 21 st letter as a timely motion for
reconsideration under Rule 59(e).3 See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). As the District Court did not
dispose of it explicitly, this motion remained pending until it was implicitly denied by the
District Court’s denial of Rule 59(e) relief on August 30, 2004. Askew’s timely appeal
from that denial brings up for review the District Court’s order of dismissal. See Federal
Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir. 1986).
Our review of the District Court’s dismissal for failure to state a claim under 28
U.S.C. § 1915(e)(2)(B)(ii) is plenary, and “we must accept as true the factual allegations
in the complaint and all reasonable inferences that can be drawn therefrom.” See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000) (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d
Cir. 1996)). To state an Eighth Amendment claim based on Appellees’ intentional delay
in providing him medical treatment, Askew must allege that Appellees were deliberately
2
Appellees have notified this Court that they will not be participating in the appeal.
3
Askew’s letter was docketed as filed on January 30, 2004 but was dated January 21,
2004. As Askew was incarcerated when he mailed it, we consider the motion to be filed
within Rule 59(e)’s ten-day time limit. See Houston v. Lack, 487 U.S. 266, 270 (1988).
3
indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-105
(1976); Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1988). Denial or delay of
reasonable requests for medical treatment can constitute deliberate indifference. See
Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir.
1987). Askew can demonstrate “deliberate indifference” by showing that Appellees were
“aware of facts from which the inference can be drawn that a substantial risk of serious
harm exists and [that they] also [drew] the inference.” See Farmer v. Brennan, 511 U.S.
825, 837 (1994). However, Askew cannot rely solely on respondeat superior as a theory
of liability; rather, he must show personal involvement by Appellees by alleging personal
direction, actual knowledge, or acquiescence. See Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988).
The complaint asserts that Askew told Appellees Esposito and Connors that he felt
dizzy from having been assaulted with a brick and needed medical attention. Askew
contends that Esposito and Connors did not merely ignore his requests for medical
attention, but explicitly refused them, telling him that he did not need to see a doctor and
cursing at him. Askew claims that he was left in the back seat of the squad car, bleeding
heavily and fading in and out of consciousness, and that Appellees would not allow him
to receive medical treatment from an emergency medical vehicle at the scene of his arrest.
The complaint further alleges that while en route to police headquarters, Appellees did a
“U-turn” to return to the scene, continuing to ignore his requests for medical attention and
4
further delaying the treatment he eventually received. He claims that he was taken to the
hospital only after he had lost consciousness in the police booking area. Once at the
hospital, he received nine staples to his head, X-rays, and other treatment totaling $3,000.
Askew asserts that Appellee Connors knew about the head injury because he referred to it
in his incident report and that the remaining Appellees knew of his injury because blood
was visibly “leaking” from the back of his head.
On appeal, Askew argues that the District Court penalized him for adhering to
Federal Rule of Civil Procedure 8(a)(2)’s requirement of providing only a “short and
plain statement” of his claim. Askew contends that the District Court confused his
brevity at the complaint stage with “frivolousness” and that his pro se complaint should
have been liberally construed. Alternatively, Askew asserts that he should have been
given an opportunity to amend the complaint to expand its allegations, in light of the fact
that Appellees had not yet answered.4 After review, we believe that Askew’s complaint
was prematurely dismissed. See Fed. R. Civ. P. 8(a)(2). We acknowledge the District
Court’s duty to screen prisoners’ in forma pauperis complaints pursuant to the Prison
4
Contrary to Askew’s implication, his complaint was dismissed not as “frivolous”
under 28 U.S.C. § 1915(e)(2)(b)(i) but for failure to state a claim under
§ 1915(e)(2)(b)(ii). While this distinction does not alter the fact of dismissal, it supports
Askew’s argument regarding allowance of amendment. Unlike frivolous complaints,
amendment of which would perforce be futile, in forma pauperis plaintiffs whose
complaints are dismissed for failure to state a claim under § 1915(e)(2)(b)(ii) should
generally be granted leave to amend. See Grayson v. Mayview State Hospital, 293 F.3d
103, 114 (3d Cir. 2002).
5
Litigation Reform Act.5 Nonetheless, Askew’s complaint conforms to the notice-
pleading standard for pro se civil rights complaints. See Alston v. Parker, 363 F.3d 229,
234 (3d Cir. 2004) (internal citation omitted); Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993). Although we agree with
the District Court that Askew’s verbal harassment claim is not actionable under § 1983,
see, e.g., Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9 th Cir. 1987), Askew’s complaint
states a cognizable Eighth Amendment claim of deliberate indifference to a serious
medical need.6 See Monmouth County at 346-47; Estelle at 104. Accordingly, we vacate
the judgment of the District Court and remand with instructions that Askew’s complaint
be reinstated and Appellees be ordered to answer. Appellant’s motion for summary
reversal is denied as moot.
5
Although not incarcerated when the alleged incidents occurred or, apparently, at
present, Askew was incarcerated when he filed the complaint. Therefore, the District
Court properly screened the complaint pursuant to § 1915A. See Abdul-Akbar v.
McKelvie, 239 F.3d 307, 314 (3d Cir. 2001).
6
As noted by the District Court, at the time the underlying events occurred, Askew was
properly considered a pretrial detainee rather than a prisoner. However, medical claims
of the type at issue here are governed by the same “deliberate indifference” standard.
See, e.g., Hubbard v. Taylor, 399 F.3d 150, 166 n.22 (3d Cir. 2005).
6