Crooks v. Nix, 872 F.2d 800 (8th Cir. 1989)

LAY, Chief Judge.

This is an appeal from an Iowa state prisoner, serving a life term, who in the

admission of the State suffers from one of the most severe ailments of all custodial inmates, to-wit, chronic granulocytic leukemia. The prisoner filed a pro se 42 U.S. C. § 1983 complaint on May 6, 1985, alleging the defendants demonstrated deliberate indifference to a serious medical need by denying him a bone marrow transplant on the grounds that the cost was too great and by failing to provide him with adequate or proper pain medication. After appointment of counsel and discovery, the district court granted the motion for summary judgment filed on behalf of the State defendants, Crispus C. Nix, Warden of the Iowa State Penitentiary, and Harold Farrier, the Director of the Iowa Department of Corrections. This order was entered on February 2, 1988.

The district court found that the plaintiff’s claim for damages and treatment was barred under § 1983 since the named defendants, i.e., the warden and the correctional director, could not be liable for the alleged wrongful treatment under the doctrine of respondeat superior. We of course have no disagreement with the abstract doctrine that agency principles cannot govern the defendants’ liability under § 1983. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). However, we feel this over-simplifies plaintiff’s pro se complaint and fails as well to provide the broad, liberal reading to a prisoner complaint required under Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). As the Supreme Court unanimously held in Haines, a pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears “ ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. at 520-21, 92 S.Ct. at 596 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). See also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976).

Plaintiff’s pro se complaint named as defendants: Nix, the Warden, Farrier, the Director of Corrections, and the Iowa City Medical Center in Iowa City, Iowa. Examination of the pleadings show that the “Iowa City Medical Center” is the University of Iowa Hospital (University Hospital), whose doctors, under contract with the Iowa Department of Corrections, furnish physician services to the prison and who have provided diagnostic treatment and care to the plaintiff.1 Plaintiff’s complaint indicated he was refused a bone marrow transplant in April, 1984. It alleged he was refused proper medication for pain or a transfer to a facility where he could get proper treatment. The complaint also alleged that the disease has affected his hearing and eyesight. Furthermore, in answers to interrogatories propounded by the defendants, plaintiff was even more specific as to the defendants’ alleged medical indifference.2 Finally, plaintiff also filed a

more complete affidavit in response to the defendants’ summary judgment motion.3

In their pleadings defendants state they have no personal control over the staff at the University Hospital. Additionally, defendants’ pleadings state that they have delegated the care and treatment of prisoners at this penitentiary to Correction Medical Services (CMS), an independent contractor.

The district court found that the complaint merely reflected a difference of opinion concerning medical treatment and therefore held that defendants had not subjected plaintiff to cruel and unusual punishment. The district court acknowledged that a prison official who fails to exercise control over actions of subordinates may be liable. Nonetheless the district court ruled that in the present situation, because defendants had no direct personal control over CMS or the staff of the University Hospital, “[e]ven if plaintiff had been the victim of a deliberate indifference to a serious medical need defendants could not be held liable for constitutional wrongs committed by others.”

In passing on a summary judgment motion the court is required to view the entire record to determine whether there exists a rationally based factual dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). We find such a factual dispute exists over the defendants’ alleged refusal to provide adequate or proper pain medication to the plaintiff. Cf. Lair v. Oglesby, 859 F.2d 605 (8th Cir.1988) (genuine issue of material fact existed as to whether prison psychiatrist, after receiving notice of adverse reactions by inmate to prescribed drug, continued to prescribe, order or permit additional injections of the same drug to the inmate). There is no affidavit filed by any physician or medical director which contradicts plaintiff’s need for pain medication. Defendants’ reports from the University Hospital do not rule out such medication. On the contrary, Dr. Macfarlane’s letter of January 14, 1985, simply stated, “[h]e should receive no medications containing Aspirin.” On February 20, 1985, Macfarlane noted plaintiff’s steadily rising white blood count (WBC) and pain in his upper left quadrant causing difficulty at night when lying on his left side and stated that “[w]e plan to initiate [8 mg. of] Busulfan [daily] in view of increased WBC and painful spleen.” On March 6, 1985, Macfarlane noted “achiness” of leg bones and that “[t]he patient is to [be] observe[d] closely for petechiae, bleeding, fever, chills, sweats or other evidence of possible toxicity.”

The State’s primary defense, and the basis for its summary judgment motion, was that these particular defendants cannot be liable for the constitutional wrongs of the independent contractors because of the doctrine of respondeat superior. We think this blanket defense fails to adequately respond to plaintiff's claim of improper treatment.

Even though defendants have contracted with CMS to furnish medical services this does not provide absolute immunity against a prisoner’s claim where prison policies are alleged to contribute to the denial of proper medical and dental care. Obviously if the alleged denial of medical care was based on an alleged wrongful diagnostic judgment of a physician, the warden or prison director, lacking professional medical expertise, would not be liable on agency principles for any constitutional wrong. This is true even though the independent

contractors or physicians are acting under “color of state law.” Cf. West v. Atkins, — U.S. -, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). On the other hand, as plaintiff points out, although the doctrine of respon-deat superior does not apply to § 1983 cases, a § 1983 claimant may maintain a theory of direct liability against a prison or other official if that official fails to properly train, supervise, direct or control the actions of a subordinate who causes the injury. Hahn v. McLey, 737 F.2d 771, 773 (8th Cir.1984); Pearl v. Dobbs, 649 F.2d 608, 609 (8th Cir.1981).

Where a prisoner needs medical treatment prison officials are under a constitutional duty to see that it is furnished. Estelle v. Gamble, 429 U.S. at 103, 97 S.Ct. at 290. Although these particular defendants might not be responsible for money damages for wrongful treatment by a state doctor, they are subject to an equitable decree that treatment be furnished where needed. Furthermore where the duty to furnish treatment is unfulfilled, the mere contracting of services with an independent contractor does not immunize the State from liability for damages in failing to provide a prisoner with the opportunity for such treatment. West v. Atkins, 108 S.Ct. at 2259. On the contrary, “[cjontracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights.” Id.

We think the plaintiff’s pleadings sufficiently allege inadequate prison policies or medical supervision which, if true, would result in these defendants being held liable just as if they had refused to deliver those services themselves. The duty to provide such services lies within the statutory4 and constitutional obligations of the named defendants. In this sense the defendants have a nondelegable duty to provide medical care when needed.5 Construing the present pro se complaint in a broad and remedial manner we find plaintiff has demonstrated the existence of a factual dispute as to defendants’ liability sufficient to overcome defendants’ motion for summary judgment.

We would agree that plaintiff has not produced any medical opinion, at least on the present record, that he was in need of a bone marrow transplant. Thus, instead of there being a difference of opinion, we find there exists no evidence of such need other than plaintiff’s own uncorroborated statement. This allegation alone is not sufficient to support plaintiff's claim.

Since we are remanding plaintiff’s other claim, we note that the last medical report from the University Hospital the district court received appears to have been in 1985. We think it was incumbent on the district court to have obtained an updated report on the plaintiff’s need for medical treatment as of 1988 before it ruled on the summary judgment. Thus, a more current report should be supplied by the treating physicians before the district court resolves the remaining issues on remand. We deem this proper on remand, even though we hold that the district court properly ruled in dismissing plaintiff’s claim for damages

as to the need for a bone transplant. As we discussed, plaintiffs claim is stated in both legal and equitable form. He seeks future treatment, as well as damages for past denial of treatment. In doing so, however, we emphasize that plaintiff, to make a cognizable § 1983 claim, must allege more than medical malpractice; a prisoner must allege a constitutional violation of “deliberate indifference to a serious medical need.” Estelle v. Gamble, 429 U.S. at 104, 97 S.Ct. at 291.

Thus, we affirm the district court's dismissal of plaintiffs claim of deliberate indifference to serious medical needs based on the need for a bone marrow transplant. However, we reverse and remand for further proceedings plaintiffs claim of deliberate indifference to serious medical needs based on failure to provide adequate or proper pain medication.