West v. Keve

• Decision Date: 11 June 1982
• Docket Number: Civ. A. No. 76-61.
• Citation: 541 F. Supp. 534
• Parties: Kermit WEST, Plaintiff, v. Paul W. KEVE and Raymond W. Anderson, Defendants.
• Court: U.S. District Court — District of Delaware

541 F. Supp. 534

Kermit WEST, Plaintiff, v. Paul W. KEVE and Raymond W. Anderson, Defendants.

Civ. A. No. 76-61.

United States District Court, D. Delaware.

June 11, 1982.

Brian J. Hartman, Community Legal Aid Society, Inc., Wilmington, Del., Of Counsel —William Anderson, of Anderson, Converse & Fennick, York, Pa., for plaintiff.

John J. Polk, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for defendants.

OPINION

CALEB M. WRIGHT, Senior District Judge.

I. INTRODUCTION

A. Procedural History

Plaintiff Kermit West, a prisoner in the Delaware Correctional Center (DCC), brought suit against defendants Paul W. Keve and Raymond Anderson in February, 1976, alleging violations of his civil rights and of his Eighth Amendment right to protection from cruel and unusual punishment. He brought this action under 42 U.S.C. § 1983. The suit was dismissed upon findings that the requested elective surgery had been performed and that the plea for damages was barred by the Eleventh Amendment. Plaintiff appealed the dismissal and the Third Circuit reversed and remanded to this Court for findings not inconsistent with its opinion. West v. Keve, 571 F.2d 158 (3d Cir. 1978).

The district court's original dismissal construed the complaint not to state a claim against Keve and Anderson in their individual capacities. The circuit court's opinion, however, indicated that if read along with other elements of the record, "the complaint stated facts constituting a damage claim against the defendants in their individual capacities." 571 F.2d at 163. Consequently, this Court has before it issues of Eleventh Amendment immunity and waiver, whether the defendants are liable in their individual capacities, and whether the delay in scheduling West's operation constituted "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976). The issue of whether West was denied adequate post-operative care, 571 F.2d at 162, was dropped by agreement of the parties.

B. Factual Background

In the late summer and early fall of 1974, medical examinations of plaintiff West indicated that he was suffering from a moderate to severe case of varicose veins in the lower portion of his right leg. His condition was complicated by the presence of an ulcer or open sore on the leg in the same area as was generally swollen from the chronic venous stasis. West suffered considerable, though varying, amounts of pain throughout the period from August, 1974, to March 11, 1976, when surgery was performed to alleviate the condition. Surgery was first recommended in October, 1974, but the examining physician noted that elective surgery for DCC inmates was temporarily precluded by the lack of state funds. Surgery for West was neither scheduled nor performed at that time.

On June 20, 1975, the Community Legal Aid Society, counsel for West, wrote to defendant Keve in his capacity as an official of the DCC,¹ and informed him of West's complaint about delayed medical treatment. The letter indicated that West was willing to pay for the surgery. Keve referred the matter to Anderson, the Superintendent of the DCC.² Anderson, in turn, requested that Nurse Mary O'Meara, not a defendant in this action, monitor West's condition and report to him. Testimony by both Keve and Anderson indicates that this was the typical pattern of delegation at DCC for non-emergency medical care during the 1975-76 period. (T-8-9, 80-85). There was no full-time doctor at DCC during the period and the goal of improving medical care at DCC was a concern of both Anderson and Keve. (T-73, 88).

Nurse O'Meara did not report back to Anderson and neither he nor Keve took any steps to follow-up on West's case until October 10, 1975, after receiving a second letter from West's attorney.³ The letter, which both Anderson and Keve received, threatened suit if the operation was not scheduled by October 24, 1975. Anderson directed O'Meara to schedule the operation. Keve asked his administrative assistant, Milton Horton, to oversee scheduling the operation. Horton wrote to West's attorney on October 29, 1975. In his letter, Horton acknowledged the possibility of a civil suit but stated that DCC's best efforts would not permit it to meet the deadline West's attorney had set.

This suit was filed on February 9, 1976. West's surgery was scheduled for February 25, 1976, but was postponed because West's EKG was abnormal. The surgery was finally performed March 11, 1976.

II. ELEVENTH AMENDMENT IMMUNITY

The Third Circuit's opinion remanding this case requires this Court to determine whether 18 Del.C. § 6511⁴ constitutes a waiver of the state's Eleventh Amendment immunity. The circuit court did not have before it evidence of liability insurance of the type mentioned in § 6511 and did not decide whether the existence of such insurance would constitute a waiver.⁵

In his initial opinion dismissing the suit on Eleventh Amendment grounds, Judge Latchum cited Kardon v. Hall, 406 F.Supp. 4 (D.Del.1975) and relied upon the standard for finding state waiver of Eleventh Amendment immunity developed in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Edelman, the Supreme Court stated:

In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver 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."

415 U.S. at 673, 94 S.Ct. at 1360-61 quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909). In remanding this case, the Third Circuit's 1978 opinion suggested that the basic reason for the Edelman standard was to protect state treasuries. "The rationale for construing a waiver narrowly is to protect the state treasury, and when a state is insured against the loss from a claim, that rationale is attenuated." 571 F.2d at 164. The Third Circuit went on to suggest that if insurance existed in this case, there might be reason to apply a standard of analysis somewhat different from that adopted in Kardon, supra, where an award of damages would have directly invaded the Delaware treasury.

There is no doubt either that a principal goal of the Eleventh Amendment is to protect state treasuries⁶ or that by purchasing insurance and paying premiums, a state legislature in effect "liquidates" its damages and greatly mitigates, if not eliminates, the relationship between any given damage award and the state treasury. It is equally clear, however, that the Eleventh Amendment codifies a relationship between sovereigns—the United States and the individual state governments. A waiver of sovereign immunity is not necessarily a simultaneous waiver of Eleventh Amendment immunity. Kennecott Copper Corp. v. State Tax Comm., 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946); Skehan v. Board of Trustees of Bloomsburg State College, 669 F.2d 142 (3d Cir. 1982); Pagano v. Hadley, 535 F.Supp. 92 (D.Del., 1982). There is not only the question of whether a state's treasury may be invaded, but whether, in consenting to suit, a sovereign state has consented to submit to damages awards levied by courts other than those of its own creation.

The Supreme Court has indicated that there must be a clear declaration of a state's intention to submit its problems to the courts of the United States. Edelman, supra; Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944). In Daye v. Commonwealth of Pennsylvania, 483 F.2d 294, 298 (3d Cir. 1973), cert. denied 416 U.S. 946, 94 S.Ct. 1956, 40 L.Ed.2d 298 (1974), the Third Circuit indicated that "the conclusion by a court that there has been an Eleventh Amendment waiver will not be lightly inferred" and "that when a waiver does take place it must be clear and unequivocal." In Skehan, supra, the circuit court's most recent guidance on the issue of Eleventh Amendment waiver, the court stated approvingly:

This rule of clear and express waiver has been consistently applied in cases in which a state has consented to suit in its own courts by statute; absent a clear declaration of a state's consent to a similar suit against itself in federal court, such consent has not been inferred. The situation here is analogous.⁷

The Court will apply this standard to 18 Del.C. § 6511.

Section 6511 of Title 18 of the Delaware Code⁸ waives the "defense of sovereignty" as to any risk covered by the state insurance program. See Pagano v. Hadley, supra; Hedrick v. Blake, 531 F.Supp. 156 (D.Del.1982); Pajewski v. Perry, 363 A.2d 429 (Del.Supr.1976). There is no legislative history available relevant to the debate or passage of the section, so courts' interpretations are necessarily confined to the text of the statute. While it is not implausible to regard the phrase "defense of sovereignty" as encompassing more than simply common law or, in the case of Delaware, state constitutional⁹ sovereign immunity, for the Court to find a waiver of Eleventh Amendment immunity, the legislature must have demonstrated its intent more clearly than through the use of such a phrase.

In the face of the likely intent of the legislature to waive only the defense of sovereign immunity, the clause "the defense of sovereignty is waived" fails to meet the "clear declaration" standard required by Skehan, supra. Accord Pagano, supra. Where denial of the federal forum is unlikely to leave plaintiff without a court in which to pursue his claim,¹⁰ there is even more reason to conclude that the intent underlying § 6511 is to waive only the state's sovereign immunity. Delaware has not waived its Eleventh Amendment immunity from suit in this Court.¹¹

The Eleventh Amendment bars this action against the State and against defendants Keve and Anderson in their official capacities. The Court now considers the liability of Keve and Anderson as...