Spicer v. Hilton

• Decision Date: 28 February 1980
• Docket Number: No. 79-1996,79-1996
• Citation: 618 F.2d 232
• Parties: Orville E. SPICER, Appellant, v. Gary J. HILTON, Dr. Charles Dugann, E. Calvin Neubert, Donald Tucker, G. DePaolis, J. L. Williams, Individually and in their official capacities, and the State of New Jersey, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 232

618 F.2d 232

Orville E. SPICER, Appellant, v. Gary J. HILTON, Dr. Charles Dugann, E. Calvin Neubert, Donald Tucker, G. DePaolis, J. L. Williams,

Individually and in their official

capacities, and the State of

New Jersey, Appellees.

No. 79-1996.

United States Court of Appeals, Third Circuit.

Argued Nov. 13, 1979.

Decided Feb. 28, 1980.

William E. Staehle (argued), Sweeney, Bozonelis, Staehle & Woodward, Chatham, N. J., for appellant.

John J. Degnan, Atty. Gen. of New Jersey, George W. Fisher (argued), Deputy Atty. Gen., Erminie L. Conley, Asst. Atty. Gen., Trenton, N. J., of counsel, for appellees.

Before GIBBONS, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

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.

II. Facts

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 "(s)eizure 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.

III. Discussion

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 Chisolm 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 ¹ 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...