prohibition against cruel and unusual punishment. The Eighth Amendment as the constitutional basis for section 1983 actions was recognized by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). Prior to Estelle, actions were usually predicated on either the Eighth or Fourteenth Amendment. In attempting to distinguish constitutional violations from torts, 134 some courts emphasized the defendants' wrongful intent, 135 while others appeared to be concerned with adequate treatment. Some cases denied relief unless a showing of exceptional circumstances could be made. 136 In Estelle, the prisoner-plaintiff received a back injury while on his work assignment when a bale of cotton fell on him. Plaintiff was initially examined and returned to work but then was re-examined, prescribed a painkiller, and permitted to remain in his cell. During a three month span he was seen by medical personnel on seventeen occasions and was treated for his back injury, high blood pressure, heart problems. and The Supreme Court noted that the government has an obligation to provide medical care for those it is punishing by incarceration; that denial of medical care causes pain and suffering inconsistent with contemporary standards of decency, and then concluded 134. Robinson v. Jordan, 494 F.2d 793 (5th Cir. 1974); Kauffman v. Johnston, 454 F.2d 264 (3d Cir. 1972); Nettles v. Rundle, 453 F.2d 889 (3d Cir. 1971); Johnson v. Prasse, 450 F.2d 946 (3d Cir. 1971); Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970). 135. Robinson v. Jordan, 494 F.2d 793 (5th Cir. 1974) (refusal to order x-rays and other clinical tests coupled with insulting slur on plaintiff's race); Kauffman v. Johnston, 454 F.2d 264 (3d Cir. 1972) (allegation of malice); Newsome v. Sielaff, 374 F. Supp. 1189 (E.D. Pa. 1974) (deliberate denial of necessary medical treatment); Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) (deliberate indifference). also Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976) (decided after Estelle) 136. Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974); Patmore v. Carlson, 392 F.Supp. 737 (E.D. Ill. 1975); Shields v. Kunkel, 442 F.2d 409 (9th Cir. 1971). that deliberate indifference to serious medical needs of prisoners constitutes a violation of the Eighth Amend ment: [D]eliberate indifference to serious medical care or intentionally inter- evidenced, deliberate indifference to a prisoner's serious illness of injury states a cause of action under $ 1983. 429 U.S. at 104-05, 97 S. Ct. at 290, 50 L. Ed. 2d at 260. The deliberate indifference standard, however, was clarified by the Court to include only "wanton infliction of unnecessary pain" and not an accident or inadvertent failure: Thus, a complaint that a physician 429 U.S. at 106, 97 S. Ct. at 292, 50 L.Ed.2d at 261. In applying this standard to the facts, the Supreme Court concluded that a cognizable claim for relief was not stated. Even if liberal standards in construing the complaint were applied, 137 the majority read the complaint as one based on inadequate medical treatment: the failure to provide additional diagnostic techniques, such as x-ray. The Court noted that at most medical malpractice was being alleged against the doctor. The Court, however, remanded for a determination of whether a cause of action was stated against other prison officials. On remand, 554 F.2d 653 (5th Cir. 1977), the court of appeals subsequently determined that no claim was stated against the director and the wardens since there was no evidence indicating they showed deliberate indifference by interfering with plaintiff's treatment. The court felt that the complaint was based on the theory of respondeat superior which is not actionable under section 1983. Justice Stevens, in his dissent, felt that the complaint did show indifference by the failure to treat the injury promptly and the conduct of the prison staff in placing him in solitary, denying him access to a doctor, and interfering with his treatment. This was sufficient, he believed, to constitute a complaint challenging the entire prison medical system. Justice Stevens also objected to the standard applied by the court, believing that the subjective motivation standard for determining whether the punishment was cruel and unusual was erroneous. He felt the violation of the constitutional standard must turn on the character of the punishment and not the motivation behind it. While this may well be appropriate in determining the type of remedy required, he reasoned, it is not relevant to the standard for determining a constitutional violation. b. Claim of Inadequate Medical Treatment When a prisoner alleges, as in Estelle, that medical treatment was given, but is inadequate, it is usually difficult to recover since the complaint must allege more than malpractice, negligence, or difference in professional opinion. Generally, if the records indicate that some medical treatment was given, summary judgment 137. See Section VI supra. will be granted for the defendant. 138 Prior to Estelle, in the absence of exceptional circumstances, courts were reluctant to intervene in matters which they felt were within the discretion of prison officials, 139 and only a clear allegation of the abuse of this discretion would elevate the claim to constitutional proportions. 140 As a result of Estelle, it is now clear that a prisoner is constitutionally entitled to necessary medical care for severe and obvious injuries; however, the problem of determining under what circumstances relief is appropriate was not specifically addressed by the Court. Therefore, pre-Estelle cases based on the Eighth Amendment which used the same standards as those announced in Estelle are still relevant. 141 138. See Section VIII, E supra. 139. Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970); Granville v. Hunt, 411 F.2d 9 (5th Cir. 1969); Haggerty v. Wainwright, 427 F.2d 1137 (5th Cir. 1970); Patmore v. Carlson, 392 F.Supp. 737 (E.D. Ill. 1975). See also note 136 supra. 140. Henderson v. Thrower, 497 F.2d 125 (5th Cir. 1974) (pro se complaint may be dismissed for failure to state a claim in absence of allegation that misconduct was an abuse of discretion); Seward v. Hutto, 525 F.2d 1024 (8th Cir. 1975) (in absence of allegations of misconduct or intentional neglect, decision as to what is necessary and proper treatment should be left to prison physician). 141. The Supreme Court noted at 429 U.S. 106 n. 14, 97 S.Ct. 292 n. 14, 50 L.Ed.2d 261 n. 14, that the following cases were in essential accord with Estelle, although terminology varied: Page v. Sharpe, 487 F.2d 567, 569 (1st Cir. 1973); Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974) ("deliberate indifference"); Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970); Russell v. Sheffer, 528 F.2d 319 (4th Cir. 1975); Newman v. Alabama, 503 F.2d 1320, 1330 n. 14 (5th Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 ("callous indifference"); Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1975), cert. denied sub nom. Thomas v. Cannon, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974); Wilbron v. Hutto, 509 F.2d 621, 622 (8th Cir. 1975) ("deliberate indifference"); Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970); Dewell v. Lawson, 489 F.2d 877, 881-82 (10th Cir. 1974). Since these cases were premised on reasoning A complaint was held actionable in Runnels v. Rosendale, 499 F.2d 733 (9th Cir. 1974), where plaintiff alleged he was given a hemorrhoidectomy without his consent and denied analgesics for pain after the operation. The district court granted summary judgment for the defendant, finding that there was only a difference in opinion as to mode of treatment. However, the court of appeals reversed, stating that the withholding of the painkillers constituted a deliberate infliction of pain. A plaintiff who was awaiting trial claimed that the doctor misdiagnosed severe rectal pains as hemorrhoids in Robinson v. Jordan, 494 F.2d 793 (5th Cir. 1974). Three months later, the condition was diagnosed as advanced rectal cancer and a colostomy was performed. On his initial visit the plaintiff, who rejected digital examination as too painful, was refused a request for an x-ray, coupled with an insulting racial slur. The doctor provided only rectal suppositories which did not alleviate the suffering. Plaintiff claimed that he plead guilty to a murder charge in order to get out of that particular jail so he could receive treatment. The court of appeals reversed the district court which dismissed the pro se complaint without a hearing, and held that the prisoner was entitled to an evidentiary hearing. A complaint based on inadequate medical treatment stated a claim in Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974), where the court of appeals reversed the district court's determination that no claim was stated. Plaintiff, who had a portion of his ear cut off in an altercation with a fellow inmate, brought suit against prison doctors who merely stitched the remaining stump of his ear and not the severed portion. Immediately thereafter he was placed in solitary confinement for twenty-two days without receiving any medication. He later required six plastic surgery operations. Although the defendant argued that the complaint stated a difference of opinion over medical judgment and did not reach constitutional proportions, the court stated: in accord with Estelle, they are still good authority for indicating the type of factual situation which is actionable. |