                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2008

Perkins v. Schwappach
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1139




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"Perkins v. Schwappach" (2008). 2008 Decisions. Paper 666.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-1139
                                      ___________

                                  EMMITT PERKINS,

                                                      Appellant

                                            v.

                                 SCHWAPPACH,
                            Correctional Officer Sergeant
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                                (D.C. No. 07-cv-02124)
                    District Judge: Honorable Michael M. Baylson
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 31, 2008

               Before: AMBRO, FUENTES and FISHER, Circuit Judges

                                (Filed: August 12, 2008)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Emmitt Perkins, a Pennsylvania state prisoner proceeding pro se, appeals from the

District Court’s order dismissing his complaint and denying his motion for the
appointment of counsel. We will affirm in part, reverse in part, vacate in part, and

remand for further proceedings.

                                              I.

       Perkins filed suit against a corrections officer (Schwappach) under 42 U.S.C.

§ 1983. According to Perkins’s allegations, which must be taken as true for present

purposes, he is a 68-year-old diabetic and requires insulin and other medication. On the

morning of December 25, 2006, he began losing feeling in his arms and experiencing

numbness in his fingertips, which was a sign of diabetic sugar imbalance. (Compl. ¶ 11.)

He was allowed out of his housing unit to obtain a blood sugar count and insulin, as well

as a medicine called Gipzide. (Id. ¶¶ 9, 15.) Perkins “requires [this medication] in order

to live,” and without it faces “diabetic complications and death.” (Id. ¶ 9.) He had with

him a “blue dispensary medical pass,” which is given to inmates to show corrections

officers and “obtain passage to the dispensary for medical treatment . . . without delay.”

(Id. ¶ 11.) He also was wearing a “medical alert” bracelet on each wrist “to demonstrate

that he is in serious need of medical attention.” (Id. ¶ 12.)

       Schwappach, however, prevented Perkins from obtaining his medication. Perkins

alleges that Schwappach did this “deliberately” (id. ¶ 6), and with “deliberate indifference

to his medical needs” (¶¶ 23, 24(k)). According to Perkins, when he was on his way to

the “med/line,” Schwappach first “confronted [him] with hostility” and “targeted” him by

telling him, though not any of the other 30 inmates also headed there, that “the med/line



                                              2
was over, . . . which wasn’t true.” (Id. ¶ 13.) Schwappach then “debate[d] with [Perkins]

about whether he needed his medication right then and there,” “debated with [Perkins]

whether [he] was faking the seriousness of needing the medication,” and finally “refused

to honor [Perkins’s] medical alert bracelets, and did not honor [his] dispensary blue

medical access pass. All the time [Perkins’s] medical situation was fast deteriorating.”

(Id. ¶ 16.)

       Schwappach ultimately ordered Perkins to return to his cell without his

medication. (Id. ¶ 18.) After Perkins complied, he had to be “rushed to the prison

dispensary” for “emergency . . . attention” because his blood-sugar level “had risen to an

out-of-control level of 555.” (Id. ¶ 19.) Perkins alleges that he nearly died because of the

incident. (Id. ¶¶ 6, 22.) He filed grievances, and prison officials, though they denied

monetary compensation, did not dispute that the incident had occurred. (Id. ¶ 22.)

Perkins seeks monetary damages from Schwappach.

       Perkins filed his complaint in Pennsylvania state court, but Schwappach removed

it to federal court and filed a motion to dismiss under Rule 12(b)(6). Perkins requested

counsel in a motion for an extension of time to respond to the motion to dismiss, then

later filed a brief in support of his motion for counsel. By order entered December 20,

2007, the District Court dismissed the complaint with prejudice and without granting

Perkins leave to amend. It also denied Perkins’s motion for counsel without discussion,




                                             3
noting only that “[t]he Court has considered, but will deny” the motion. Perkins timely

appealed.1

                                              II.

       The District Court properly construed Perkins’s complaint to assert both an Eighth

Amendment claim and violations of Pennsylvania state law. The District Court dismissed

Perkins’s state-law claims as barred by sovereign immunity, and we will affirm that

aspect of its ruling for the reasons explained by the District Court. We believe, however,

that Perkins adequately alleged an Eighth Amendment claim for deliberate indifference to

his serious medical needs. To state such a claim, a plaintiff must plead “(i) a serious

medical need, and (ii) acts or omissions by prison officials that indicate deliberate

indifference to that need.” Natale v. Camden Cty. Corr. Fac., 318 F.3d 575, 582 (3d Cir.

2003). Perkins adequately pleaded each element here.2



       1
         We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
dismissal of the complaint de novo. See Phillips v. County of Allegheny, 515 F.3d 224,
230 (3d Cir. 2008). In conducting that review, we “‘accept all allegations as true,
construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief.’”
Id. (citation omitted). Although the “‘factual allegations must be enough to raise a right
to relief above the speculative level,’” id. at 234 (citation omitted), complaints filed pro se
must be liberally construed, see Erickson v. Pardus, – U.S. – , 127 S. Ct. 2197, 2200
(2007). We review the denial of a motion for the appointment of counsel for abuse of
discretion. See Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002).
       2
       We also note that, even if Perkins’s allegations had not been sufficient, we see
nothing that inevitably would have rendered futile any amendment of his complaint.
Accordingly, the District Court should have given him leave to amend before dismissing
the complaint with prejudice. See Phillips, 515 F.3d at 245.

                                              4
       First, Perkins alleges that he is diabetic and requires insulin and other medication

to prevent death and other complications. He further alleges that, as a result of the denial

of medication, he required emergency treatment and almost died. The District Court

assumed without deciding that Perkins adequately alleged a serious medical need. On

appeal, Schwappach argues that Perkins failed to do so because, although diabetes in the

abstract may constitute a serious medical need, the focus must be on the specific

deprivation that Perkins alleges, which Schwappach characterizes as a relatively brief

interruption in an otherwise-adequate course of treatment. See Smith v. Carpenter, 316

F.3d 178, 185 (2d Cir. 2003). This argument, however, ignores Perkins’s allegations that

he almost died as a result of that interruption and required emergency treatment. At this

stage of the proceeding, those allegations are sufficient to allege that he was experiencing

a serious medical need.

       Second, Perkins also adequately alleged that Schwappach acted with deliberate

indifference. Deliberate indifference requires a showing that “the official ‘knows of and

disregards an excessive risk to inmate health or safety.’” Natale, 318 F.3d at 582 (quoting

Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The official must be “aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists” and

must also “draw the inference.” Id. The District Court concluded that Perkins failed to

plead this element because he “does not allege that Schwappach was subjectively aware

of any substantial risk of serious harm to Perkins when he prevented him from going to



                                             5
the dispensary.” (Mem. at 4.) We believe, however, that this element can fairly be

inferred from Perkins’s allegations. Perkins alleges, for example, that Schwappach

deliberately singled him out, treated him with hostility, falsely told him that the

“med/line” was closed, and refused to allow him to obtain his medication despite his

presentation of a blue medical pass that is given to inmates to “obtain passage to the

dispensary for medical treatment . . . without delay.” (Compl. ¶ 11.) Construing these

allegations liberally, we believe they adequately allege deliberate indifference.3

       Perkins also challenges the District Court’s denial of his motion for counsel, a

ruling that Schwappach does not defend on appeal. In Tabron v. Grace, 6 F.3d 147, 158

(3d Cir. 1993), we set forth the framework within which courts in this Circuit must

evaluate motions for counsel. Courts initially must determine whether the plaintiff’s

claim has arguable merit and then, if it does, evaluate six non-exclusive factors addressed




       3
        The District Court cited two reasons for its conclusion to the contrary, but each
represents the application of too stringent a standard at the Rule 12(b)(6) stage. First, the
District Court concluded that the complaint suggests that Schwappach was not aware of
Perkins’s medical needs because “Schwappach told Perkins he thought Perkins was
faking,” which “suggests that Schwappach subjectively thought Perkins was fine.”
(Mem. at 4.) In reaching this conclusion, the District Court drew inferences in favor of
Schwappach, not Perkins. Second, the District Court concluded that Perkins did not
allege he “manifested outward signs of serious illness when he was heading to the
dispensary,” and thus had alleged nothing that might have put Schwappach on notice of a
“risk of serious harm.” (Id. at 4-5.) Perkins, however, tried to get medication and
presented Schwappach with a medical pass and his medical alert bracelets. Although we
of course express no opinion on the ultimate issue, those allegations might ultimately
allow Perkins to prove that Schwappach actually thought that Perkins had a serious
medical need.

                                              6
primarily to the plaintiff’s ability to litigate that claim. See id. at 155-57. We later

provided further guidance on the application of these factors to prisoners asserting claims

based on inadequate medical care. See Montgomery, 294 F.3d at 498-505; Parham v.

Johnson, 126 F.3d 454, 458-60 (3d Cir. 1997).

       In this case, the District Court did not explain why it denied Perkins’s motion for

counsel, so we are unable to determine the basis on which it exercised its discretion. For

the reasons explained above, we believe that Perkins’s Eighth Amendment claim has

arguable merit. Accordingly, on remand, the District Court is directed to re-evaluate

Perkins’s motion for counsel in light of this ruling and the principles set forth in Tabron,

Montgomery and Parham.

       For the foregoing reasons, we will affirm the District Court’s dismissal of

Perkins’s state-law claims, reverse the District Court’s dismissal of Perkins’s Eighth

Amendment claim, and vacate the District Court’s denial of Perkins’s motion for the

appointment of counsel.




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