United States Court of Appeals, Third Circuit

571 F.
2d 158
Kermit WEST, Appellant,

v.
Paul W. KEVE, in his capacity as Director of the Division of
Adult Corrections of the State of Delaware and
Raymond Anderson, in his capacity as
Superintendent of Delaware
Correctional Center.
No. 76-2397.
United States Court of Appeals, Third Circuit.

Submitted under Local Rule 12(6) Nov. 28, 1977.
Decided Feb. 15, 1978.
William C. Anderson, Community Legal Aid Society, Inc., Wilmington,

Del., for appellant.
Keith A. Trostle, Deputy Atty. Gen., Wilmington, Del., for appellees.
Before GIBBONS and VAN DUSEN, Circuit Judges, and FISHER,
District Judge.*
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
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 defendants 1 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.
3
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
6
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:
9
"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. . . .
10 fact that the allegedly unconstitutional acts of the defendants were done in the
"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.)
11
12
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.
13
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.

14
14
"The defense of sovereignty is waived and cannot and will not be asserted as to any
15
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."
16
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.
17
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.
18
The judgment of the district court will be reversed and the case remanded for
action consistent with this opinion.
Honorable Clarkson S. Fisher, United States District Judge for the District of
New Jersey, sitting by designation
Defendant Paul W. Keve's correct title, according to defendants' Answer, P 3, is

Acting Commissioner of Corrections. The district court stated that he was the
Director of the Division of Adult Corrections of the State of Delaware.
Defendant Raymond Anderson is Superintendent of the Delaware Correctional
Center
42 U.S.C. 1983 provides:

"Every person who, under color of any statute, ordinance, regulation, custom or
usage, of any State or Territory, subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress."
The Eighth Amendment's prohibition of cruel and unusual punishment applies

to the states pursuant to the Fourteenth Amendment. Robinson v. California,
370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962)
We must decide this appeal without benefit of a brief for defendants.

Defendants' brief was due on January 14, 1977. As of that date, defendants had
neither filed a brief nor a motion to extend time for filing. On March 14, 1977,
April 6, 1977, and May 2, 1977, counsel for plaintiff wrote to counsel for
defendants, requesting him either to file a brief or to advise the court that no
brief would be filed. Counsel for the defendants did not answer the March and
April letters, but on May 5, 1977, answered the May letter, stating that a brief
would be filed by May 15, 1977. No brief was filed. On June 2, 1977, counsel
for plaintiff wrote counsel for defendants, advising him that unless he filed a
brief by June 10, 1977, counsel for plaintiff would request the court to decide
the appeal on the basis of plaintiff's brief. This letter was never answered. On
June 16, 1977, plaintiff submitted Appellant's Motion To Deem Appellees'
Brief Waived and For Decision on the Basis of Appellant's Brief. Counsel for
defendants did not object to or respond to this motion. On June 29, 1977, the
motion was granted
4a The better practice in cases such as this, relying on "indifference to serious
medical needs" (Estelle, supra at 104, 97 S.Ct. 285), is to be specific
concerning the medical conditions involved. It is noted that this complaint,
filed in December 1975, predated Estelle.
This case is distinguishable from our decision in Gittlemacker v. Prasse, 428

F.2d 1 (3d Cir. 1970), which affirmed a dismissal of a complaint that the
prisoner's Eighth Amendment rights had been violated due to inadequate
medical care. In Gittlemacker the "appellants' claim amount(ed) to no more
than an averment that the facilities at (the prison) are inferior to those at
Philadelphia . . . ." Id. at 6. In contrast, here the complaint alleges a deliberate
denial of recommended treatment
Since the district court dismissed the case by reading the complaint and record
as claiming that plaintiff might not get adequate post-operative care, rather than
reading them, as we do, as claiming that plaintiff was not getting such care, the
court made no finding of fact that plaintiff was receiving adequate postoperative care. However, the court strongly implied that the plaintiff was
receiving adequate treatment. West v. Keve, No. 76-61, slip op. at 4, n.3
(D.Del., Sept. 7, 1976), reproduced at A24. This view was based on a May 28,
1976, letter from the superintendent of the prison to plaintiff's counsel. Docket
entry 9, exhibit A, reproduced at A17. However, in his letter of August 5, 1976,
plaintiff claimed that he was not getting proper post-operative medical care.
Docket entry 9, exhibit B, reproduced at A18-19. Plaintiff should have the
opportunity to prove the claims in this letter at trial. To be entitled to relief for a
violation of his Eighth Amendment rights, the plaintiff must prove that his
medical needs were "serious." Estelle, supra, 429 U.S. at 104, 97 S.Ct. 285.
This is an issue of fact that must be determined on remand. See Hampton v.
Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976), where this court
had before it a full trial record. The seriousness of the plaintiff's medical needs
must be gauged in light of the fact that he is serving a life sentence and cannot
be expected to delay medical treatment until his release from prison
The Eleventh Amendment provides:

"The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State."
It has been interpreted to prohibit suits against a state by its own citizens.
Edelman, supra, 415 U.S. at 662-63, 94 S.Ct. 1347.
For example, in Edelman the Court stated:

"(T)he rule has evolved that a suit by private parties seeking to impose a
liability which must be paid from public funds in the state treasury is barred by
the Eleventh Amendment."
Id. 415 U.S. at 663, 94 S.Ct. at 1356 (emphasis supplied).
"The funds to satisfy the award in this case must inevitably come from the
general revenues of the State of Illinois, . . ."
Id. at 665, 94 S.Ct. at 1356 (emphasis supplied).

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571 F.

Kermit WEST, Appellant,

United States Court of Appeals, Third Circuit.

William C. Anderson, Community Legal Aid Society, Inc., Wilmington,

This appeal concerns an alleged violation of a state prisoner's Eighth

Plaintiff is a state prisoner serving a life sentence in the Delaware Correctional

In reviewing the dismissal of the complaint, we construe the allegations in the

A state is under a duty to provide adequate medical care to those it is punishing

officials and it requires the prisoner's medical needs to be serious. The

We conclude that whether plaintiff is being denied adequate post-operative

If the complaint in this case is read narrowly and technically, it can be

" 6511. Defense of sovereignty prohibited.

In Kardon v. Hall, 406 F.Supp. 4 (D.Del.1975), the only case discussing

Defendant Paul W. Keve's correct title, according to defendants' Answer, P 3, is

42 U.S.C. 1983 provides:

The Eighth Amendment's prohibition of cruel and unusual punishment applies

We must decide this appeal without benefit of a brief for defendants.

This case is distinguishable from our decision in Gittlemacker v. Prasse, 428

The Eleventh Amendment provides:

For example, in Edelman the Court stated:

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