Kermit West, Appellant, v. Paul W. Keve, in His Capacity As Director of the Division Ofadult Corrections of the State of Delaware Andraymond Anderson, in His Capacity Assuperintendent of Delawarecorrectional Center, 571 F.2d 158 (3d Cir. 1978)

This appeal concerns an alleged violation of a state prisoner's Eighth Amendment right against cruel and unusual punishment by withholding adequate medical care from him.

Plaintiff is a state prisoner serving a life sentence in the Delaware Correctional Center. Medical examinations of the plaintiff in August and October 1974 disclosed that he was suffering from chronic venous stasis and severe varicose veins in the lower right leg, a periosteal thickening, and localized irregular periosteal thickening of the right medial malleolus (ankle joint). Surgery was recommended to correct this condition. Plaintiff requested such surgery, but it was not available at the prison hospital and the defendants¹  allegedly refused to permit him to obtain the treatment at a private hospital. On February 6, 1976, plaintiff filed a suit pursuant to 42 U.S.C. § 1983,²  alleging that defendants, acting under color of state law, had violated his Eighth Amendment rights by inflicting cruel and unusual punishment in denying him medical treatment.³  The suit sought damages and an order compelling the defendants to provide or cause to be provided the recommended medical treatment. In their answer to the complaint, defendants included affirmative defenses and concluded with this language: " . . . defendants having fully answered the complaint demand that it be dismissed with costs on the plaintiff" (A13). On March 11, 1976, approximately 17 months after it was recommended, surgery was performed.

The district court sua sponte sought memoranda on whether the claim for injunctive relief was moot and whether the claim for damages was barred by the Eleventh Amendment. The court then dismissed the complaint insofar as plaintiff sought an order compelling medical treatment on the ground that the March 11 operation rendered this issue moot. The plaintiff contended that the case was still viable because post-operative treatment was required, but the court rejected this contention on the ground that it was a claim based on a hypothetical or abstract injury which may or may not occur and thus did not state a "case or controversy" as required by Article III of the United States Constitution. Plaintiff also contended that he had a claim for money damages against the defendants for delaying the operation for 17 months. The district court dismissed the complaint insofar as it sought damages on the ground that the Eleventh Amendment bars an award of damages against state officials sued in their official capacities.

In reviewing the dismissal of the complaint, we construe the allegations in the complaint favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 234, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). We hold that dismissal of the complaint was improper at this stage of the litigation and reverse the judgment and remand the case for further proceedings.⁴ 

A state is under a duty to provide adequate medical care to those it is punishing by incarceration, and, although the constitutional standard for adequate medical treatment has not been fully developed, Neisser, Is There A Doctor In The Joint? The Search For Constitutional Standards For Prison Health Care, 63 Va. L. Rev. 921, 950 (1977), the Supreme Court has stated that "deliberate indifference to serious medical needs of prisoners" violates the Eighth Amendment proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). This standard is two-pronged. It requires deliberate indifference on the part of prison officials and it requires the prisoner's medical needs to be serious. The complaint clearly alleges facts meeting the deliberate indifference test. As to the seriousness of the need for medical treatment, the complaint alleges that the plaintiff was suffering great pain before the operation, and documents provided pursuant to a request by the district court alleged that the plaintiff continued to suffer pain after the operation and that problems had developed because of two hard knots in his leg (docket entry 9, exhibit B, reproduced at A18-19). We need not make a judgment about the seriousness of the medical needs here since this will be for the determination of the district court on remand, and the district court will have expert medical testimony available if necessary.^4a

The complaint alleges that the defendants denied the plaintiff recommended medical treatment and prays that the court compel defendants to allow the plaintiff to undergo the operation and "order defendants to provide such medical treatment as may be necessary to preserve the health and well being of the plaintiff . . . ." (A3). Therefore, the complaint avers that the plaintiff has been denied medical treatment generally and, although the denial of the operation was the primary concern, the complaint, as supplemented by documents requested by the district court (docket entry 7, Civ. No. 76-61) and supplied pursuant to such request by plaintiff's counsel (docket entry 9, exhibit B, reproduced at A18-19), alleges a denial of post-operative treatment. The record establishes that the operation has been performed, but it does not establish that the plaintiff is being provided with adequate post-operative treatment. The plaintiff claims that he is being denied proper post-operative care, that he is having pain in his leg, that he has not been allowed to see the doctor who performed the operation, and that he has not been given medication for the pain. Id. Deliberate indifference to serious medical needs, resulting in either a denial of recommended post-operative treatment or a denial of access to a physician capable of evaluating the need for post-operative treatment, violates the constitutional standard enunciated in Estelle. See also Neisser, Va. L. Rev., supra at 950-973. Although the plaintiff has been provided with aspirin, this may not constitute adequate medical care. If "deliberate indifference caused an easier and less efficacious treatment" to be provided, the defendants have violated the plaintiff's Eighth Amendment rights by failing to provide adequate medical care. Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974). See Estelle, supra, 429 U.S. at 104, 97 S. Ct. 285.⁵ 

We conclude that whether plaintiff is being denied adequate post-operative care due to deliberate indifference to his serious medical needs as alleged is a material issue of fact which must be resolved on remand.⁶  Insofar as plaintiff seeks injunctive relief, the case is not moot and there is a "case or controversy." Therefore, the claim for injunctive relief was improperly dismissed.

Although, absent waiver, the Eleventh Amendment bars damage suits against a state or against state officials in their official capacities when damages will have to be paid with state funds, Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Sarteschi v. Burlein, 508 F.2d 110 (3d Cir. 1975); Rochester v. White, 503 F.2d 263 (3d Cir. 1974),⁷  it does not bar a damage suit against state officials in their individual capacities. Scheuer, supra; Sarteschi, supra; Rochester, supra at 263 n.12a. In Sarteschi, supra at 113, we stated:

"The Supreme Court has accommodated both the Eleventh Amendment and the civil rights provisions, such as 42 U.S.C. § 1983, by prohibiting suits which seek to collect money judgments from the state treasury, while allowing suits which . . . seek personal money judgments against state officials as damages for unconstitutional deprivations. . . .

"The fact that the allegedly unconstitutional acts of the defendants were done in the defendants' official capacities, and that the relief sought would require official action on the part of those defendants who are still members or employees of the Commission, does not affect the district court's jurisdiction."

(Footnote omitted.)

If the complaint in this case is read narrowly and technically, it can be concluded that the defendants were being sued only in their official capacities. However, the complaint states facts constituting a damage claim against the defendants in their individual capacities. We must construe the complaint favorably to the plaintiff, Scheuer, supra, 416 U.S. at 234, 94 S. Ct. 1683, and "as to do substantial justice." F.R.Civ.P. 8(f). Accordingly, we hold that the complaint, as supplemented by docket entry 9, supra, states a claim for damages against the defendants in their individual capacities. If the plaintiff proves that the defendants either delayed the operation or withheld adequate post-operative treatment or evaluation due to their "deliberate indifference to (his) serious medical needs," Estelle, supra, 429 U.S. at 104, 97 S. Ct. at 291, the defendants will be liable for damages for violating his Eighth Amendment rights. Therefore, the damage claim was improperly dismissed.

The damage claim was also improperly dismissed insofar as it sought damages against the defendants in their official capacities, or, in effect, damages against the state. A state may waive its Eleventh Amendment immunity, Edelman, supra, 415 U.S. at 673, 94 S. Ct. 1347, and plaintiff contends that Delaware has done so by enactment of Del.Code tit. 18, § 6511 (1974), which provides:

" § 6511. Defense of sovereignty prohibited.

"The defense of sovereignty is waived and cannot and will not be asserted as to any risk or loss covered by the state insurance coverage program, whether same be covered by commercially procured insurance or by self-insurance, and every commercially procured insurance contract shall contain a provision to this effect, where appropriate."

In Kardon v. Hall, 406 F. Supp. 4 (D. Del. 1975), the only case discussing whether § 6511 constitutes a waiver of the Eleventh Amendment, the court held that this statute waives only sovereign immunity against suit in state court but not Eleventh Amendment immunity against suit in federal court. Although the Delaware statutory scheme does not specify the procedure to be used in suing the state nor provide that the state courts have exclusive jurisdiction in such suits, the court in Kardon reached its conclusion by interpreting the statute narrowly in reliance on Edelman's statement that waiver will be found "only where stated 'by the most express language or by such overwhelming implications from the text as (will) leave no room for any other reasonable construction.' " Edelman, supra, 415 U.S. at 673, 94 S. Ct. at 1361, quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S. Ct. 458, 53 L. Ed. 742 (1909). In neither Kardon nor Edelman, however, had the state procured insurance to cover the loss. The rationale for construing a waiver narrowly is to protect the state treasury,⁸  and when a state is insured against the loss from a claim, that rationale is attenuated. Therefore, although a state's insurance coverage does not necessarily imply a waiver of the Eleventh Amendment, the reasoning of Kardon may be inapposite in this case. The record does not disclose whether or not Delaware is insured against loss from the type of claim made here. Therefore, we decline to decide whether Delaware has waived its Eleventh Amendment immunity, and we remand the case to the district court to determine if this type of loss is insured and, if so, whether Eleventh Amendment immunity has been waived.

The Supreme Court of Delaware has held that since Del.Code tit. 18, § 6502 (1974) directs the Delaware Insurance Coverage Determination Committee to insure any type of risk to which the state may be exposed, sovereign immunity is presumptively waived and the burden is on the state to prove that there is no coverage and to explain why there is no coverage. Pajewski v. Perry, 363 A.2d 429, 436 (Del.1976). Therefore, on remand to determine whether there is insurance coverage, it will be presumed for purposes of Delaware law that there is coverage and the defendants will have the burden of proving there is not.

The judgment of the district court will be reversed and the case remanded for action consistent with this opinion.