decided: February 28, 1980.
ORVILLE E. SPICER, APPELLANT
GARY J. HILTON, DR. CHARLES DUGANN, E. CALVIN NEUBERT, DONALD TUCKER, G. DE PAOLIS, J. L. WILLIAMS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, AND THE STATE OF NEW JERSEY, STATE OF NEW JERSEY, APPELLEE
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 76-2046)
Before Gibbons, Higginbotham and Sloviter, Circuit Judges.
Opinion OF THE COURT
This appeal has been filed by a New Jersey state prisoner from the denial by the trial court of an injunction that would require the state to provide him with specialized medical treatment necessitated in part by mistreatment and inaction of state officials. The district court held that the requested relief was barred by the Eleventh Amendment.
We are urged by appellant to make the first judicial determination that the Eleventh Amendment does not immunize a state from federal suit brought on a cause of action arising directly under the Fourteenth Amendment and seeking prospective injunctive relief. Alternatively appellant asks us to remand to the district court so that plaintiff may sue the proper responsible state official in his/her representative capacity in order to achieve the requested injunctive relief.
The underlying facts in this case present a deplorable picture of the serious effects which can attend indifference to and disregard of a prisoner's medical needs. Appellant, a prisoner at Trenton State Prison (TSP) from June 1971 until August 1977, evinced circulatory problems in his left leg in October 1971. At least by August 1974 the symptoms indicated chronic arterial insufficiency of the lower legs, heels and feet, primarily on the left side. "Treatment during this period was neither consistent with vascular disease nor especially beneficial to plaintiff's condition." (All material in quotations in this section is from findings of the trial court.)
In September 1975 a podiatrist prescribed a pair of soft leather Wellington boots which alleviated appellant's problems to some degree, and which were found to have been appropriate therapy for his condition. In December 1975, a vascular surgeon recommended that an arteriogram be performed because an examination indicated the likelihood that appellant suffered from vascular disease of an advanced degree. The medical director of the prison hospital failed to authorize an arteriogram.
On October 18, 1976, a prison guard confiscated appellant's boots because they were ten inches tall and exceeded the six-inch height limit for inmates' footwear, although appellant advised the guard that the boots were medically prescribed and that appellant had no other footwear except socks. The shoes offered to appellant as a replacement a week to ten days later did not fit, and appellant thereafter wore socks, went barefoot, or wore very thin foam rubber slippers furnished by the prison "which wore out rapidly on the cold concrete and steel floors" while he walked the three blocks distance to work.
When appellant's boots were returned on November 8, 1976, they were shortened to conform with the six-inch height regulation, but in that condition rubbed his shins as he walked, creating gouges or sores. Because of the abrasive effect on his lower extremity, he discontinued wearing them. Eleven months after the vascular surgeon had recommended an arteriogram, one was arranged, but even then only because appellant had discovered the physician's letter and confronted the medical director with it. The arteriogram performed on November 23, 1976, was followed by a left lumbar sympathectomy in order to increase the blood flow to the affected area. This operation was moderately successful, but appellant's circulatory problems intensified upon his return to TSP, primarily because he had developed wet gangrene of the little toe on his left foot. "The seizure of the boots, and the failure of the prison administration to provide adequate alternative footwear at any time after October 18, 1976, thereby exposing plaintiff's left lower extremity to extreme cold, was a substantial factor in the deterioration of his condition."
As a result of the wet gangrene, appellant was subjected to four progressive amputations of his left foot beginning in January 1977 culminating in a transmetatarsal amputation of his left foot in July 1977. Among the factors which necessitated the multiple operations was "the inadequacy of the medical care plaintiff received upon his return to the prison hospital after each operation," such as being required to walk on his fresh wound without a wheelchair and with only the aid of crutches. In August 1977 appellant was transferred to Clinton Correctional Institute (Clinton).
While at TSP, and even before the amputations, appellant filed a pro se action on October 26, 1976 against prison officials, alleging a violation of his Eighth and Fourteenth Amendment rights due to failure to receive adequate medical treatment. After a year of fruitless preliminary proceedings, appellant requested and was assigned private counsel on January 18, 1978. On March 15, 1978 an amended complaint was filed, which added a second count and New Jersey as a defendant.
The complaint contained two federal counts and two common law counts. The first federal count, brought pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, alleged that plaintiff was subjected to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. The second count, at issue here, seeks relief against the State of New Jersey alone and is based directly on the Fourteenth Amendment; jurisdiction is predicated on 28 U.S.C. § 1331.
After a three day trial without a jury, on February 8, 1979 the court entered Finding of Facts and Conclusions of Law holding that appellant had proven a deprivation of his constitutional rights by one of the individual defendants, Williams, a prison guard, acting under color of state law. The Court found that "seizure of the boots, which was done intentionally and with knowledge of the role they played in Spicer's medical care, denied him a prescribed course of treatment for a serious medical problem. Williams' conscious act violated plaintiff's Eighth Amendment right to be free of cruel and unusual punishment and renders him liable under § 1983." The court considered that appellant did have a pre-existing physical condition which contributed in part to the extent and gravity of his injury, and therefore assessed damages in favor of plaintiff and against defendant Williams on Count I of the complaint to be $50,000 which included compensation for temporary and permanent disability and severe pain and suffering. The court found that plaintiff had not proven the requisite knowledge and deliberateness as to the other individual defendants.
On the basis of these findings the court, on February 22, 1979, entered judgment in favor of plaintiff against defendant Williams in the amount of $50,000 and awarded plaintiff attorney's fees and costs of $13,196.15 against the defendant State of New Jersey. The monetary awards have been paid by the State of New Jersey. The court dismissed Count I against all other defendants and dismissed all state law claims against all of the defendants. The order retained jurisdiction and reserved decision on plaintiff's second count against the State of New Jersey alleging an action directly under the Fourteenth Amendment.
The open question of New Jersey's liability directly under the Fourteenth Amendment to provide plaintiff with specialized medical care was the subject of a prior order of February 15, 1979, in which the court noted "that this issue may be settled by negotiation of the parties" and therefore ordered that the Clerk of the Court should administratively terminate the action on his records subject to the right of the parties to reopen the action within sixty days, at which time the court undertook to render a decision on that issue.
On April 16, 1979, plaintiff, pursuant to Fed.R.Civ.P. 60(b), moved for an order reopening the action. Pursuant to Count II, plaintiff sought an injunction directing the state to provide him with needed medical treatment. The trial court, in an opinion filed May 30, 1979, followed by an Order of June 4, 1979, dismissed this remaining count. Relying on Supreme Court pronouncements upholding the "continued vitality" of the Eleventh Amendment, the court held that a suit for prospective injunctive relief brought directly under the Fourteenth Amendment and naming the state as a defendant is barred by the Eleventh Amendment. It is this novel question that appellant would have us decide.
Any step through the looking glass of the Eleventh Amendment leads to a wonderland of judicially created and perpetuated fiction and paradox. It was adopted in 1798 as a consequence of the decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L. Ed. 440 (1793), sustaining a money judgment against the state of Georgia by an out-of-state creditor. Its explicit language covering only suits commenced or prosecuted against a state by citizens of another state or country*fn1 has been extended to protect a state from suits brought by its own citizens as well. Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890). It does not preclude suit against a state by the United States, Employees of the Department v. Department of Public Health & Welfare, 411 U.S. 279, 286, 93 S. Ct. 1614, 36 L. Ed. 2d 251 (1973); United States v. Mississippi, 380 U.S. 128, 140-41, 85 S. Ct. 808, 13 L. Ed. 2d 717 (1965), nor a suit against a state by another state, even when the requested relief is for a monetary judgment. South Dakota v. North Carolina, 192 U.S. 286, 315-21, 24 S. Ct. 269, 48 L. Ed. 448 (1904).
Although scholarly debate on the origins and scope of the Eleventh Amendment still rages,*fn2 it is undisputed that the Amendment operates to bar award of a monetary judgment directly against the state, Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S. Ct. 347, 89 L. Ed. 389 (1945). This court has read the Edelman decision as closing the door on any money award from the state treasury, whether the claim arises under state law, under federal law made binding upon the states by virtue of the supremacy clause, or under the Fourteenth Amendment directly. Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 42-43 n.7 (1974), vacated and remanded on other grounds, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975); accord, O'Neill v. Pennsylvania, 459 F.2d 1 (3d Cir. 1972) (per curiam).
At the same time, "damages against individual defendants are a permissible remedy in some circumstances notwithstanding the fact that they hold public office. Myers v. Anderson, 238 U.S. 368, 35 S. Ct. 932, 59 L. Ed. 1349 (1915). See generally Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Moor v. County of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973)." Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S. Ct. 1683, 1687, 40 L. Ed. 2d 90 (1974). However, a monetary award indistinguishable from one against the state itself is prohibited by the Eleventh Amendment even when the suit is filed against nominal state officials. Edelman v. Jordan, supra.
Suits for injunctive relief stand on an entirely different footing. In an unbroken line of authority extending back over 70 years, prospective equitable relief has been issued where state officials were the nominal defendants although in fact the states were the real parties in interest. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908); accord, Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979); Vecchione v. Wohlgemuth, 558 F.2d 150, 156 (3d Cir.), cert. denied, Beal v. Vecchione, 434 U.S. 943, 98 S. Ct. 439, 54 L. Ed. 2d 304 (1977) ("We recognize that for eleventh amendment purposes the Ex parte Young type suit is a legal fiction, and that as a practical matter the . . . injunction (does) bind the Commonwealth."); Rochester v. White, 503 F.2d 263 (3d Cir. 1974); Savage v. Pennsylvania, 475 F. Supp. 524 (E.D.Pa.1979).
This court recently noted the distinction between equitable and monetary relief under the Eleventh Amendment. In Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir. 1979), we rejected the contention of the Commonwealth defendants that the Eleventh Amendment barred the prospective relief ordered because it would entail the expenditure of Commonwealth funds. We stated there:
All of the relief ordered here is prospective. We have told the Commonwealth before that (Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974)) "quite explicitly left intact the authority of federal courts to enter prospective decrees having fiscal consequences to a state treasury as the necessary result of compliance." Vecchione v. Wohlgemuth, 558 F.2d 150, 158 (3d Cir.), cert. denied, Beal v. Vecchione, 434 U.S. 943, 98 S. Ct. 439, 54 L. Ed. 2d 304 (1977). We have not changed our minds on that question.
At 109. Last year, the Court in Quern v. Jordan, supra, held that a federal court could order state officials to mail notice to class members regarding their potential entitlement to past welfare benefits. Because the relief was "properly viewed as ancillary to the prospective relief already ordered by the court", 440 U.S. at 349, 99 S. Ct. at 1149, it was not barred by the Eleventh Amendment.
The following language by the Court in that case is of particular significance to the claim sub judice :
The distinction between that relief permissible under the doctrine of Ex parte Young and that found barred in Edelman was the difference between prospective relief on one hand and retrospective relief on the other.
Id. at 337, 99 S. Ct. at 1143 (footnote omitted).
We are asked to end the legal fiction of Ex parte Young and to hold that federal courts may entertain suits brought under the Fourteenth Amendment seeking prospective injunctive relief directly from the states. We note that this contention has been rejected in the context of suits brought under section 1983. In Alabama v. Pugh, 438 U.S. 781, 98 S. Ct. 3057, 57 L. Ed. 2d 1114 (1978) (per curiam), prison inmates in an action filed pursuant to 42 U.S.C. § 1983 succeeded in obtaining an injunction against the state of Alabama, the Alabama Board of Corrections, and several prison officials prescribing measures to eradicate cruel and unusual punishment in the Alabama prison system. Although the injunction was concededly proper as to all of the other parties, the Supreme Court held its issuance against the state and Board of Corrections was barred by the Eleventh Amendment unless Alabama consented to the filing of the suit. The decision the following year in Quern v. Jordan sustaining injunctive relief when state officers were the named defendants made it apparent that the distinction between suits directly against the state and those against its officials would continue to be maintained in equitable actions as well as damage actions.
Thus, were the requested relief of specialized medical care directed to appropriate state officials, rather than the state eo nomine, the district court would be free to entertain it, and there is ample basis in the record on which such an injunction could be found appropriate. In its opinion of February 8, 1979, after the amputations and after appellant had been transferred from TSP, the court found:
Plaintiff has not been receiving medical treatment for his acute vascular insufficiency, which still poses grave problems to his health. Spicer should be seen by a vascular specialist every three months, and a physiatrist should be employed to design an appropriate appliance for his stump.
In its later opinion of May 30, 1979, the court again noted: "Were a responsible state official a named defendant, a legitimate ground for the requested injunction would be to insure that no unconstitutional conduct occurred in the future."*fn3
Appellant contends that this claim can be brought directly against the state notwithstanding Alabama v. Pugh, because this count arises directly under the Fourteenth Amendment. In Alabama v. Pugh the suit was brought pursuant to 42 U.S.C. § 1983 and the Court was bound by its earlier decision in Edelman v. Jordan that Congress did not intend, by the passage of section 1983, to sweep away the immunity of the states, a holding reaffirmed last term in Quern v. Jordan, 440 U.S. at 341, 99 S. Ct. 1139, 59 L. Ed. 2d 358. At the same time, the majority opinion in Quern v. Jordan recognized that Congress has the power to deprive the states of their immunity, if the intent to do so can be divined:
In Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614, the Court found present in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the "threshold fact of congressional authorization" to sue the State as employer, because the statute made explicit reference to the availability of a private action against state and local governments in the event of the Equal Employment Opportunity Commission or the Attorney General failed to bring suit or effect a conciliation agreement. 427 U.S. at 448 n. 1, 449 n. 2, 452, 96 S. Ct. at 2667 n. 1; . . . In Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522, decided just last Term, the Court held that in enacting the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, Congress intended to override the Eleventh Amendment immunity of the States and authorize fee awards payable by the States when their officials are sued in their official capacities. 437 U.S., at 693-694, 98 S. Ct. at 2575-76.
Id. at 344, 99 S. Ct. at 1147. Therefore, holdings that Congress can abrogate the states' Eleventh Amendment immunity with legislation enforcing the Fourteenth Amendment may harbinge the conclusion that the states themselves, in ratifying the Fourteenth Amendment, surrendered their Eleventh Amendment sovereign immunity from suits filed directly under the Fourteenth Amendment*fn4 and which seek merely prospective relief.*fn5 In view of our disposition of this appeal on another basis, we need not intimate any view of this contention, except to note that it cannot be summarily rejected. See Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 Colum.L.Rev. 1413, 1455-64 (1975).
Thus, the substantiality of the constitutional issue which is raised by the trial court's dismissal of the Count II claim seeking prospective medical care is evident. However, it is well established that courts have a duty to avoid passing upon a constitutional question if the case may be disposed of on some other ground. Hagans v. Lavine, 415 U.S. 528, 543, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S. Ct. 466, 80 L. Ed. 688 (1935) (Brandeis concurring); Burton v. United States, 196 U.S. 283, 295, 25 S. Ct. 243, 49 L. Ed. 482 (1905). The need for a cause of action arising under the Constitution and seeking injunctive relief against the state directly rather than against a responsible state official in his/her representative capacity may at times prove compelling. An instance may arise in which responsibility for the unconstitutional practice is so diffused through a governmental entity that it cannot be attributed to particular individuals. See Levin, The Section 1983 Municipal Immunity Doctrine, 65 Geo.L.J. 1483, 1502 n.76 (1977). That does not appear to be the case here. Appellant can achieve the same relief he seeks under the Fourteenth Amendment if he is permitted to amend his complaint to substitute the proper responsible state official in a suit pursuant to section 1983 seeking prospective injunctive relief. Consequently there are strong policy reasons to be served if this can be accomplished.
At the oral argument in the trial court on the propriety of issuance of the requested injunction against the state, appellant's counsel suggested that he would be glad to substitute the appropriate state official for the state of New Jersey as defendant in this litigation if the state supplied him with the name of the appropriate official. He also stated that the state has failed to do so on the ground it was "not really sure who the appropriate official would be anyway." No further action was taken to amend the complaint in that regard because the trial court dismissed the action on the Eleventh Amendment basis. In his appeal to this court, appellant has claimed in the alternative that the state should be required to substitute the responsible official against whom relief could issue. At the oral argument in this court, the state's counsel suggested that the Superintendent of the Clinton facility where appellant is presently located or the Commissioner of the Department of Corrections might be appropriate officials to be substituted.
We note that no written motion to amend under Rule 15, Fed.R.Civ.Proc. has been filed in this case. Under ordinary circumstances, this court will not remand a case for proceedings which have not been the subject of a prior request. Under the circumstances of this case, such a remand is warranted.*fn6
As we previously noted, the "general rule, based upon overriding policy considerations, is to avoid constitutional issues unless essential to the decision of a case." Gavin v. Peoples Natural Gas Co., 613 F.2d 482 at 484 (3d Cir. 1980). The compulsion to avoid premature constitutional decisions is so strong that this court has previously held that it supersedes even our customary concern with orderly presentation of issues. In Allen v. Aytch, 535 F.2d 817, 819-20 (3d Cir. 1976), this court remanded a prisoner's civil rights action which had been decided on a constitutional issue in the district court in order that the prisoner could be heard on nonconstitutional issues raised for the first time on appeal. We stated:
It is well established that federal courts will not pass upon a constitutional question if the issue presented in a case may be adjudicated on a nonconstitutional ground. (footnote omitted). That is also true where, as here, the nonconstitutional basis for the decision was neither raised in the pleadings nor ruled upon by the lower court. The Supreme Court has on several occasions even applied the doctrine when the nonconstitutional ground was not presented by the parties but was first noticed by the Court itself. (The court referred to Rosenberg v. Fleuti, 374 U.S. 449, 83 S. Ct. 1804, 10 L. Ed. 2d 1000 (1963); Neese v. Southern Railway Co., 350 U.S. 77, 76 S. Ct. 131, 100 L. Ed. 60 (1955) (per curiam); Peters v. Hobby, 349 U.S. 331, 75 S. Ct. 790, 99 L. Ed. 1129 (1955) and Mackey v. Mendoza-Martinez, 362 U.S. 384, 80 S. Ct. 785, 4 L. Ed. 2d 812 (1960) (per curiam).)
The court continued:
After oral argument in Mendoza-Martinez, the Court sua sponte asked the parties to brief the nonconstitutional question that would make decision on the constitutional issue unnecessary, and then remanded the case with permission to the parties to amend the pleadings to include the nonconstitutional question. . . .
The teaching of these Supreme Court decisions is that we must resolve Allen's appeal by relying on the nonconstitutional claims that he has presented in this Court, even though they were not raised before, if by so doing we may avoid deciding the constitutional questions set forth in his complaint.
Id. at 820-21 (footnote omitted).
Although we will remand this case for further proceedings to give the appellant an opportunity to make an appropriate request for amendment of the complaint so that the request for an injunction can be heard on the merits, we intimate no view as to whether such an injunction would be proper. The state has argued on appeal that there is no basis for the entry of such an order, particularly now that appellant has been transferred to Clinton. This argument should be addressed to the trial judge who is thoroughly familiar with this case, which he has handled throughout with patience and sensitivity.
Finally, we understand that the state has retreated from the position in its brief that the trial court would have no power to direct it to divulge the name of an appropriate official to be substituted as defendant.*fn7 Appellant's counsel has claimed that appellant's concern about retribution by such an official would be obviated if the name of the defendant were supplied by the state itself. We accept the representation of the state that appellant will not be transferred as a result of this litigation, but in light of the factual findings by the trial court on the underlying claim and the litigation behavior of the Attorney General's office previously adverted to, we believe that the appellant's request that the state be directed to name the appropriate official who could enforce an injunction if one were issued is not unreasonable.
For the foregoing reasons the judgment of the district court will be vacated and the cause will be remanded for further proceedings consistent with this opinion.