                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Askew v. Jones" (2005). 2005 Decisions. Paper 121.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/121


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                   NOT PRECEDENTIAL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
