APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE district of delaware/ (D.C. Civil No. 76-61).
Gibbons and Van Dusen, Circuit Judges, and Fisher, District Judge.*fn*
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*fn1 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,*fn2 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.*fn3 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, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (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.*fn4
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, 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.*fn4a
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 at 104.*fn5
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.*fn6 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, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Sarteschi v. Burlein, 508 F.2d 110 (3d Cir. 1975); Rochester v. White, 503 F.2d 263 (3d Cir. 1974),*fn7 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 ...