|||UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
897 F.2d 103
|||filed: February 23, 1990.
|||NORWOOD L. WHITE, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED,
NORWOOD L. WHITE, DANIEL SABB, EMILIO BAEZ NAZARIO AND CALVIN MERLE ROGERS,
JOHN J. NAPOLEON
|||On Appeal from the United States District Court for the District of New
Jersey, D.C. Civil No. 88-04497.
|||FREDRIC J. GROSS (Argued), Mount Ephraim, New Jersey, Attorney for Appellants.
|||RONALD L. BOLLHEIMER (Argued), Deputy Attorney General, PETER N. PERRETTI,
JR., Attorney General of New Jersey, Trenton, New Jersey, Attorneys for
|||Becker, Cowen and Seitz, Circuit Judges
OF THE COURT
|||COWEN, Circuit Judge.
|||Norwood L. White, Emilio Baez Nazario, Calvin Merle Rogers and Daniel
Sabb appeal from an order of the district court dismissing their complaint
pursuant to Fed.R.Civ.P. 12(b)(6). We will reverse in part and affirm in
|||White, Nazario, Rogers and Sabb are prisoners within the New Jersey prison
system. On October 18, 1988, White filed a complaint against John J. Napoleon,
a prison physician, on behalf of himself and others similarly situated.
The complaint alleged that Dr. Napoleon had mistreated White and other prisoners
so as to violate the Eighth Amendment, the Fourteenth Amendment and various
provisions of state law. White sought to enjoin Dr. Napoleon from continuing
to treat prisoners in the New Jersey prison system and to obtain damages
for injuries suffered as a result of Dr. Napoleon's conduct. The action
was predicated on 42 U.S.C. § 1983 and provisions of state law.
|||White moved for preliminary injunctive relief and for certification of
the plaintiff class. Dr. Napoleon moved for summary judgment. The district
court denied preliminary relief and dismissed without prejudice the motions
for class certification and summary judgment.
|||Thereafter, White filed an amended complaint. It reiterated White's allegations
and added new allegations by additional plaintiffs Nazario, Rogers and Sabb.
The amended complaint is extremely factually detailed, containing 162 paragraphs.
|||Dr. Napoleon moved to dismiss the amended complaint pursuant to Fed.R.Civ.P.
12(b)(6). By order dated June 7, 1989, the district court granted the motion
to dismiss. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982).
|||Since Dr. Napoleon filed no answer and the dismissal was solely on the
basis of the facts alleged, we look only to the facts alleged by appellants
to determine whether dismissal was warranted. The allegations of the amended
complaint and all reasonable inferences that can be drawn therefrom must
be accepted as true and viewed in the light most favorable to the appellants.
Sturm v. Clark,
835 F.2d 1009,
1011 (3d Cir. 1987).
|||White alleges he has suffered from a chronic, painful ear infection since
1977. Prison physicians first attempted to treat the infection with ear
drops, antibiotics and frequent cleaning. None of the treatments was effective
and those that required putting liquid in the ear caused extreme pain. Eventually,
the Department of Corrections retained a specialist, who instructed White
to avoid getting water in his ears while taking showers. When White experienced
itching, a rash or flaking tissue, White would be given Valisone ointment.
This method successfully controlled White's ear infection for years.
|||When White was transferred to Bayside State Prison, Dr. Napoleon conducted
an intake interview. White explained that the Valisone he had been given
at his previous place of incarceration had been confiscated. He asked that
the doctor leave standing orders to treat White's ear with Valisone. Without
examining White or reviewing his medical records, Dr. Napoleon said he would
not let plaintiff have Valisone and that "they only gave it to you
there to shut you up," or words to that effect. After that, White's
ear infection became active and uncontrolled, causing him pain and loss
|||Dr. Napoleon continued refusing to administer Valisone. Instead, he insisted
on trying each of the treatments that had proven unsuccessful and painful
before. When White protested that his prior doctors had tried these methods
without success, Dr. Napoleon responded that he would see for himself. He
continued to order frequent washing of White's ear, although it caused White
great pain and was contraindicated by his prior medical history.
|||On one occasion, Dr. Napoleon said he was going to treat White's ear with
Debrox. Debrox is a mild cleansing solution, but White, who is allergic
to penicillin, feared Debrox might contain penicillin and asked to read
the label. The doctor explained the solution would clean the ear and refused
to let White know the ingredients. Dr. Napoleon stated that White would
have to accept treatment with Debrox or receive no treatment at all. Because
Dr. Napoleon refused to let him know the ingredients, White refused to be
treated with Debrox.
|||Dr. Napoleon filed disciplinary charges against White for refusing to
cooperate in a prescribed course of treatment. White was acquitted of the
charges after a prison courtline hearing.*fn1
|||As time passed, the hearing loss and pain in his ear increased, so that
White eventually agreed to treatment with Debrox. White alleges that Dr.
Napoleon left the solution in White's ear for forty minutes, far longer
than sound medical practice contemplates, for the express purpose of inflicting
pain. The treatment was, in fact, extremely painful. The amended complaint
further alleges that Dr. Napoleon refuses to allow White to see a specialist
in order to continue to inflict pain and conceal his own misconduct.
|||Emilio Baez Nazario has suffered epileptic seizures since 1970. Until
he came under Dr. Napoleon's care, he received Epitol, which limited the
frequency of seizures to at most three times in a year. When he was transferred
to Bayside State Prison, Dr. Napoleon told Nazario that the prison did not
use Epitol and prescribed Dilantin instead.
|||In the following nine months, Nazario alleges he suffered dozens of seizures,
many far more severe than those he experienced with Epitol. Nazario also
alleges that Dilantin gave him a distressing narcotic high, made him nervous
and caused his hands to shake. Nazario reported these unsatisfactory results
to Dr. Napoleon and requested Epitol. Dr. Napoleon refused, continued Nazario
on Dilantin and in addition prescribed phenobarbital. Nazario continues
to have frequent epileptic seizures and Dr. Napoleon continues to refuse
to provide Epitol. Nazario alleges that Dr. Napoleon deliberately refuses
to treat him with Epitol, knowingly causing him needless suffering from
seizures and the resultant pain and risk of physical injury.
|||Calvin Merle Rogers suffers from recurrent growths just below the skin.
The growths sometimes intrude into muscle tissue, causing pain during flexion.
In 1986, one of the growths was surgically removed from his back because
of the pain it was causing.
|||Since Rogers arrived at Bayside State Prison, he has complained to Dr.
Napoleon about these growths. In particular, Rogers has one growth near
the base of his spine that makes prolonged sitting painful. Another growth
in his arm causes Rogers pain at his work assignment, which involves heavy
|||The growths cause at most a slight swelling of the skin, and consequently
are not obvious to the eye. The growths, however, are readily apparent upon
palpation. Rogers alleges that Dr. Napoleon insists he cannot see the growths
and refuses to palpate the affected areas. Consequently Dr. Napoleon refuses
to give Rogers any treatment for the growths and will not order a change
to work that does not involve lifting. Rogers alleges that Dr. Napoleon's
actions reflect a deliberate, intentional and sadistic refusal to treat
his serious medical needs.
|||Rogers also has numerous skin blemishes, some of which change color from
red to brown over time. He is afraid they may be cancerous or pre-cancerous.
Rogers asked Dr. Napoleon to examine the blemishes. Without anything more
than a very casual look, Dr. Napoleon said, "I don't do cosmetic surgery,"
or words to that effect. Dr. Napoleon's actions, Rogers alleges, have caused
him to suffer emotional distress, prevented him from making informed decisions
about his own medical welfare and may put him at increased risk of cancer.
|||Daniel Sabb has a history of carbunculosis on his buttocks and legs. The
condition first appeared in late 1985, when he was sent to St. Francis Hospital
in Trenton to have a severe boil lanced. During the next year and one half,
Sabb's condition grew worse and the carbuncles spread. Treatment by the
prison dermatologist, including antibiotics, did not help. In October 1987,
Sabb spent one month at St. Francis Hospital's State Prison Ward, where
he was tested and had more than fifty carbuncles lanced. St. Francis physicians
concluded that Sabb had an exotic condition and obtained permission to have
him transferred to the hospital at the University of Medicine and Dentistry
in Newark, New Jersey. There an immunologist, Dr. Beilory, treated Sabb's
condition with Tolectin and Maalox, the latter a precaution against the
substantial risk of peptic ulcer associated with Tolectin. Beilory's prescription
specified "no substitution" for Tolectin.
|||Sabb was returned to Bayside, then transferred to a halfway house and
then Northern State Prison. At each of the latter institutions, he received
Tolectin and Maalox. Thereafter, he was returned to Bayside State Prison
and came under Dr. Napoleon's care. He sought Tolectin from Dr. Napoleon
and explained the history of his problem and its treatment. The doctor told
Sabb that Tolectin was not available and would not be ordered. Notwithstanding
the specialist Beilory's "no substitution" order, Dr. Napoleon
nevertheless substituted a different medication, Anaprox.
|||On January 6, 1989, Sabb saw Dr. Beilory for a monthly visit and explained
that Dr. Napoleon was substituting Anaprox for Tolectin. Dr. Beilory called
the Bayside infirmary, spoke to a physician other than Dr. Napoleon, explained
that Sabb must receive Tolectin and obtained a promise that it would be
ordered. On or about January 10, Dr. Napoleon put the order for Tolectin
on hold and had Sabb scheduled for an appointment with him. On January 11,
Dr. Napoleon informed Sabb that he would continue to substitute Anaprox
for Tolectin. Sabb then "prevailed on third parties to intercede,"
in what manner is unclear, in order to obtain Tolectin. Dr. Napoleon then
agreed to give Sabb Tolectin, but refused to give him Maalox, as Dr. Beilory
prescribed. Sabb alleges that Dr. Napoleon's sadistic and deliberate indifference
to his serious medical needs has caused him needless anxiety, recklessly
interfered with a specialist-prescribed regimen and intentionally and needlessly
put him at a substantially increased risk of peptic ulcer.
|||The amended complaint also contains allegations regarding unnamed class
members. It is alleged, for example, that one prisoner complained he could
not feel anything in his hands; that Dr. Napoleon had the prisoner hold
his hands behind his back and lit a book of matches to them. The resulting
burns were allegedly too severe to be treated at Bayside.
|||It is alleged that one of Dr. Napoleon's patients arrived at Bayside with
a recommendation from a physician at the Metropolitan Correctional Center
in New York that an inguinal hernia be repaired without delay. The patient
told Dr. Napoleon of his need for surgery upon arrival, but Dr. Napoleon,
without even palpating the abdomen, stated he could find no hernia and dismissed
the patient. Another physician examined the patient later and, finding a
very severe hernia, ordered immediate surgery.
|||Another patient allegedly suffered from severe impetigo for eight months
without close examination, laboratory testing or effective treatment. Dr.
Napoleon told the prisoner his problems were "all in your head."
The prisoner was transferred to another facility that promptly refused to
accept him because of his impetigo.
|||Dr. Napoleon allegedly has withheld medication needed to control a prisoner's
blood pressure for no medical reason whatsoever.
|||The doctor allegedly has refused decongestants to a prisoner with severe
sinus problems, taunting him with suggestions to "blow your nose"
and "move to Arizona."
|||He has allegedly denied any medication except Tylenol to a prisoner with
emphysema and arthritis.
|||Dr. Napoleon allegedly refused a prisoner hospitalization following a
|||Mere medical malpractice cannot give rise to a violation of the Eighth
Amendment. Estelle v. Gamble,
429 U.S. 97,
50 L. Ed. 2d 251,
97 S. Ct. 285
(1976). Only "unnecessary and wanton infliction of pain," Estelle,
429 U.S. at 103
(quoting Gregg v. Georgia,
428 U.S. 153,
49 L. Ed. 2d 859,
96 S. Ct. 2909
(1976)) or "deliberate indifference to the serious medical needs"
of prisoners, id., are sufficiently egregious to rise to the level of a
|||What separates this complaint from ordinary allegations of medical malpractice
are (1) allegations that the doctor intended to inflict pain on prisoners
without any medical justification and (2) the sheer number of specific instances
in which the doctor allegedly insisted on continuing courses of treatment
that the doctor knew were painful, ineffective or entailed substantial risk
of serious harm to the prisoners.
|||White, for example, specifically alleges that when he finally agreed to
treatment with Debrox, Dr. Napoleon left Debrox in White's ear for forty
minutes, "maliciously, and for the purpose of causing [White] pain."
He alleges there was no medical justification for using Debrox in this manner.
It is also alleged that one prisoner complained he could not feel anything
in his hands; that Napoleon had the prisoner hold his hands behind his back
and lit a book of matches to them, causing severe burns. These allegations,
if true, would show that Dr. Napoleon has wantonly inflicted unnecessary
pain on prisoners, in violation of the Eighth Amendment.
|||Other allegations would demonstrate that Dr. Napoleon was deliberately
indifferent to prisoners' serious medical needs. Sabb, for example, alleges
that Dr. Napoleon refuses to provide him with Maalox, intentionally and
needlessly putting him at a substantially increased risk of peptic ulcer.
Taking as true the allegation that Sabb's risk of peptic ulcer is substantially
increased, the alleged conduct is sufficient to show a deliberate indifference
to serious medical needs. Deliberate indifference may be demonstrated as
well by allegations that Dr. Napoleon refused a prisoner hospitalization
following a heart attack and withheld medication needed to control a prisoner's
blood pressure for no medical reason.
|||The amended complaint alleges many instances of medical misconduct. Although
"an inadvertent failure to provide adequate medical care cannot be
said to constitute 'an unnecessary and wanton infliction of pain' or 'to
be repugnant to the conscience of mankind,'" Estelle,
429 U.S. at 105-06,
the amended complaint does not allege a mere isolated episode of inadvertence,
but persistent conduct in the face of resultant pain and risk of permanent
injury. From this one reasonably may infer that the doctor is either intentionally
inflicting pain on the prisoners or is deliberately indifferent to their
medical needs. See Bishop v. Stoneman,
508 F.2d 1224,
1226 (2d Cir. 1974). We find this sufficient to state a violation of the
Eighth Amendment and a concomitant right to relief under 42 U.S.C. § 1983.
|||Of course, the prisoners may have insufficient evidence to show the doctor
intended to inflict pain or was deliberately indifferent to their needs.
The doctor may come forward with evidence to the contrary. All we hold at
this juncture is that the plaintiffs have made the bare showing in the allegations
of the amended complaint required to survive a motion to dismiss under Fed.R.Civ.P.
|||White, Nazario and Sabb advance another theory supporting their claims
of cruel and unusual punishment. They rely on Martinez v. Mancusi,
443 F.2d 921
(2d Cir. 1970), which held that prison authorities and prison doctors violate
the Eighth Amendment when they deliberately ignore the express orders of
a prisoner's prior physician. The Supreme Court cited Martinez with approval
in Estelle v. Gamble:
|||[Deliberate] indifference to serious medical needs of prisoners constitutes
the "unnecessary and wanton infliction of pain," proscribed by
the Eighth Amendment. This is true whether the indifference is manifested
by prison doctors in their response to the prisoners' needs, [citing cases]
or by prison guards in intentionally denying or delaying access to medical
care [citing cases] or intentionally interfering with the treatment once
prescribed. [citing Martinez ]
429 U.S. at 104
(citations omitted, emphasis added). Intentional interference with prescribed
treatment, as in Martinez, is thus one of several methods of showing deliberate
indifference to serious medical needs. To some degree, this appears to conflict
with the well-established rule that mere disagreements over medical judgment
do not state Eighth Amendment claims. See Bowring v. Godwin,
551 F.2d 44,
48 (4th Cir. 1977); Massey v. Hutto,
545 F.2d 45,
46 (8th Cir. 1976); United States ex rel. Hyde v. McGinnis,
429 F.2d 864,
867-68 (2d Cir. 1970). If a plaintiff's disagreement with a doctor's professional
judgment does not state a violation of the Eighth Amendment, then certainly
no claim is stated when a doctor disagrees with the professional judgment
of another doctor. There may, for example, be several acceptable ways to
treat an illness.
|||Martinez was not a case of mere disagreement over acceptable treatment.
The plaintiff and prisoner, Martinez, suffered infantile paralysis of his
right leg. He underwent surgery on the leg in 1969. The surgeons who performed
the operation directed that for the operation to succeed, the prisoner must
remain flat on his back, move the leg as little as possible and be given
demerol and morphine as long as he was in pain. Shortly after the operation,
the prison warden ordered Martinez transferred back to prison. Guards removed
him from the hospital without obtaining a discharge, forcing him to walk
out in handcuffs. He was taken to the prison hospital, where a prison doctor
discharged him after one day. Martinez was given nothing for his pain and
was forced to move his leg and stand up to receive meals, with the result
that the operation failed. The Court of Appeals for the Second Circuit held
the complaint stated a cause of action under the Eighth Amendment and section
|||The alleged conduct of the prison authorities in removing him from the
hospital before he was ready to be moved, despite the surgeons' orders and
without obtaining a discharge, was more than "mere negligence."
If proven, it would constitute deliberate indifference to, and defiance
of, the express instructions of the operating surgeons and the hospital
443 F.2d at 924.
The court repeated that "deliberate indifference to, and defiance of,
explicit medical instructions, resulting in serious and obvious injuries"
stated a violation of constitutional rights.
443 F.2d at 925.
|||Not all plaintiffs here allege facts analogous to the Martinez case. For
example, by itself, Dr. Napoleon's decision to give Nazario Dilantin instead
of Epitol is not actionable. The amended complaint does not allege that
a prior doctor ordered treatment with Epitol exclusively, or that the prior
doctor indicated Nazario's treatment would fail if Epitol was withheld.
What may state a cause of action is Dr. Napoleon's persistence in using
Dilantin, or Dilantin plus phenobarbital, after Nazario told him that his
seizures had increased in violence and frequency. A jury might conclude
from this that Napoleon is indifferent to Nazario's serious medical needs.
|||Whether White states a claim for deliberate indifference in accordance
with Martinez is a close question. White does not allege that his prior
physician ordered Valisone, exclusively, for White's ear condition. He does
not allege that the doctor found White's treatment would fail if Valisone
was withheld. He does allege, however, that Valisone was the only the treatment
that in fact was effective; that the treatments tried by Dr. Napoleon had
failed in the past and succeeded only in inflicting pain. Dr. Napoleon may
have had valid medical reasons for trying the treatments that had failed
before. The amended complaint, however, fairly read, alleges he had no such
reasons. Taking all inferences in the light most favorable to White, we
conclude that White states a claim of deliberate indifference to serious
medical needs in accordance with Martinez and Estelle. It must be emphasized,
however, that Dr. Napoleon may not be held liable if he attempted ear washing
because, in his judgment, White would benefit. If the doctor's judgment
is ultimately shown to be mistaken, at most what would be proved is medical
malpractice, not an Eighth Amendment violation. As noted earlier in the
opinion, however, White clearly has a cause of action under the Eighth Amendment
based on allegations that Napoleon used Debrox solely to inflict pain and
for no valid medical purpose.
|||Sabb's allegations, in some ways, most closely approximate the facts of
Martinez. According to the amended complaint, Dr. Napoleon deliberately
and arbitrarily refused to give Sabb Tolectin for his recurrent boils, despite
Dr. Beilory's express order of "no substitution." Dr. Napoleon
substituted Anaprox. Sabb's allegations squarely fall within the cause of
action alleged in paragraph 153(d) of the amended complaint:
|||Napoleon . . . arbitrarily and maliciously or recklessly [interfered]
with modalities of treatment prescribed by other physicians, including specialists,
even though these modalities of treatment had proven satisfactory. . . .
|||The amended complaint, fairly read, suggests that the doctor deliberately
treated Sabb with an inappropriate drug for no valid reason. This is sufficient
to state a claim for deliberate indifference to serious medical needs. The
amended complaint does not allege that the boils grew worse as a result;
it does allege, however, that Sabb suffered anxiety. We are not prepared
to hold that inflicting mental anxiety alone cannot constitute cruel and
unusual punishment. Cf. Rhodes v. Robinson,
612 F.2d 766,
772 (3d Cir. 1976) (stating in dictum, "we cannot find [plaintiff's]
claim insufficient because it alleges emotional rather than physical harm.
Emotional distress can produce injury of the same severe magnitude as occurred
in cases of physical harm . . . ."). Sabb's allegations are sufficient
to state a claim under the Eighth Amendment. What damages, if any, flow
from the alleged conduct is an issue for later proceedings. As noted above,
Sabb also has a cause of action under the Eighth Amendment based on allegations
that Dr. Napoleon intentionally and needlessly exposed him to a risk of
peptic ulcer by refusing to provide Maalox.
|||The district court dismissed a separate claim arising from the filing
of disciplinary charges. The amended complaint alleges that Dr. Napoleon
filed charges against White for refusing treatment for his ear infection.
According to the amended complaint, when Dr. Napoleon first proposed treatment
with Debrox ear drops, White "refused to be treated with Debrox because
[Dr.] Napoleon would neither tell him its ingredients nor let him see the
label." Amended Complaint para. 45. White alleges he is allergic to
penicillin and that he feared Debrox contained that drug. He alleges that
Dr. Napoleon arbitrarily refused to tell him the ingredients of Debrox,
knowing that White had "an absolute right to make informed decisions
as to whether to accept or reject any particular medical treatment."
He alleges that Napoleon filed disciplinary charges against him in retaliation
for exercising his right to refuse treatment. He further alleges Dr. Napoleon
did so maliciously and in order to chill other prisoners' right to refuse
|||The district court treated White's claim as one based on procedural due
process. Noting that White had been exonerated of the disciplinary charges
filed by Dr. Napoleon at a prison courtline hearing, the district court
reasoned that White had received all the process due and, thus, stated no
violation of rights secured by the Constitution.
|||The district court erred in failing to consider the further issue of White's
substantive due process right to be free from retaliation for exercising
his constitutional right to be informed of the treatment he was about to
receive. The Due Process clause of the Fourteenth Amendment substantively
protects certain fundamental rights. Among these are the right to be free
from unjustified intrusions into the body, Ingraham v. Wright,
430 U.S. 651,
51 L. Ed. 2d 711,
97 S. Ct. 1401
(1977), the related right to refuse unwanted medical treatment, Rennie v.
653 F.2d 836,
844 (3d Cir. 1981), and, as we decide today, the right to sufficient information
to intelligently exercise those rights. Retaliation for the exercise of
constitutionally protected rights is itself a violation of rights secured
by the Constitution actionable under section 1983. Cf. Milhouse v. Carlson,
652 F.2d 371,
373-74 (3d Cir. 1981) (retaliation for exercising right to petition for
redress of grievances states a cause of action for damages arising under
|||To succeed in a retaliation claim, White must allege that Dr. Napoleon
retaliated against him for exercising a constitutionally protected right.
White claims a right to know the ingredients of a medication proposed for
use in his treatment and a constitutional right to refuse treatment if he
is not properly informed. The claim raises several novel questions that
have not previously been addressed.
|||In Rennie v. Klein,
653 F.2d 836,
843-44 (3d Cir. 1981), remanded,
458 U.S. 1119,
73 L. Ed. 2d 1381,
102 S. Ct. 3506
(1982), on remand,
720 F.2d 266
(3d Cir. 1983), we recognized that persons who have been involuntarily committed
to a mental institution have a qualified right to refuse anti-psychotic
medication. The right is protected substantively by the Due Process clause
of the Fourteenth Amendment. It is derived from each person's fundamental
right to be free from unjustified intrusions on personal security. Rennie
653 F.2d at 844.
Other Courts of Appeals have acknowledged the existence of a constitutional
right to refuse treatment, although they differ on the source of the right.
See United States v. Watson,
893 F.2d 970
(8th Cir. 1990) United States v. Charters,
829 F.2d 479,
487-94 (4th Cir. 1987), rehearing en banc,
863 F.2d 302,
305-06 (1988) (due process right of person involuntarily committed to mental
hospital); Bee v. Greaves,
744 F.2d 1387,
1392-94 (10th Cir.) (pre-trial detainee suffering from schizophrenia has
a due process right to refuse treatment with anti-psychotic drugs), cert.
469 U.S. 1214,
84 L. Ed. 2d 334,
105 S. Ct. 1187
(1984). Rennie recognized, however, that a mental patient's right to refuse
treatment is not absolute. The State, as part of its police power, has a
strong interest in protecting society against those who are dangerous to
themselves or others. It also has an interest, as parens patriae, in protecting
a citizen's interests when the citizen is incapable of protecting those
interests himself. Rennie,
720 F.2d at 273
(Seitz, C.J. concurring). These interests justify involuntary commitment
of incompetent or dangerous persons. They also justify treatment of committed
persons. Id. The Rennie court recognized, in consonance with the Supreme
Court's decision in Youngberg v. Romeo,
457 U.S. 307,
73 L. Ed. 2d 28,
102 S. Ct. 2452
(1982), that decisions about the proper course of treatment for the mentally
ill are complex ones requiring the professional judgment of the institution's
720 F.2d at 273
(Seitz, C.J. concurring). In balancing the individual's interest in personal
security against the State's interest in protecting the patient, his fellow
patients and society at large, our Court adopted the following standard:
authorities may administer anti-psychotic drugs to an unwilling patient
only where the decision is a product of the authorities' professional judgment.
720 F.2d at 269,
274. A decision of the institution's staff is presumed valid unless it is
shown to be "a substantial departure from accepted professional judgment,
practice or standards." Id.
|||The right recognized in Rennie has not been extended in this Circuit to
convicted prison inmates.*fn2
Prisoners may well suffer a greater loss of liberty than persons involuntarily
committed to mental institutions because prisoners' confinement is intended
to punish as well as to rehabilitate. Cf. Youngberg v. Romeo,
457 U.S. at 321-22.
It is settled, however, that prison inmates retain those constitutional
rights that are not inconsistent with their status as prisoners or with
the legitimate penological objectives of the corrections system. Turner
482 U.S. 78,
107 S. Ct. 2254,
96 L. Ed. 2d 64
(1987) (quoting Pell v. Procunier,
417 U.S. 817,
41 L. Ed. 2d 495,
94 S. Ct. 2800
(1974)). In addition to punishment and rehabilitation of prisoners, prison
authorities have a legitimate interest in maintaining safety and security
within the prison. Turner v. Safley,
482 U.S. 78,
107 S. Ct. 2254,
96 L. Ed. 2d 64
(1987). The State, therefore, has many of the same interests in treating
prisoners as it has in treating those who are involuntarily committed to
mental institutions. Just as it does for mental patients, the State must
provide food, clothing, shelter and medical treatment for inmates; it must
also provide secure and safe conditions of confinement to protect society
from the prisoners and the prisoners from one another.
|||We hold that convicted prisoners, like involuntarily committed mental
patients, retain a limited right to refuse treatment and a related right
to be informed of the proposed treatment and viable alternatives. The scope
of the right to refuse treatment, however, must be circumscribed by legitimate
countervailing State interests. Given the similarity of the State's interests
in the administration of mental hospitals and prisons, the limitation on
a prisoner's right of refusal should be similar to the limitation on the
right of an involuntarily committed mental patient. Accordingly, a prison
may compel a prisoner to accept treatment when prison officials, in the
exercise of professional judgment, deem it necessary to carry out valid
medical or penological objectives. As in the case of mental institution
authorities, the judgment of prison authorities will be presumed valid unless
it is shown to be such a substantial departure from accepted professional
judgment, practice or standards as to demonstrate that the person responsible
actually did not base the decision on such judgment. Cf. Youngberg v. Romeo,
457 U.S. at 323;
720 F.2d at 274.
|||A prisoner's right to refuse treatment is useless without knowledge of
the proposed treatment. Prisoners have a right to such information as is
reasonably necessary to make an informed decision to accept or reject proposed
treatment, as well as a reasonable explanation of the viable alternative
treatments that can be made available in a prison setting. We recognize
that prison doctors' task in communicating with their patients may be difficult.
Prisoners' questions may range from reasonable to obstructionist. Prisoners
may not bring treatment to a halt, insisting on answers to questions that
are unreasonable, time-wasting or intended to turn the doctor-patient relationship
into a battle for control over treatment.
|||Like the right to refuse treatment, a prisoner's right to know must be
balanced against valid State interests. One such interest is in providing
for the basic needs of inmates--food, shelter, clothing and medical care.
The medical care of prison inmates is entrusted to prison doctors, to whose
judgment and training courts owe substantial deference. Courts are ill-equipped
to specify the medical information that must be provided to prison patients.
As in the case of forced treatment of mental patients, courts must exercise
a limited form of review. A prison doctor's decision to refuse to answer
an inmate's questions about treatment will be presumed valid unless it is
such a substantial departure from professional judgment, practice or standards
as to demonstrate that the doctor did not base the decision on such a judgment.
In exercising judgment, however, the doctor must consider a prisoner's reasonable
need to make an informed decision to accept or reject treatment, as well
as his need to know any viable alternatives that can be made available in
|||According to the amended complaint, White is allergic to penicillin. For
allergic persons, treatment with penicillin may have serious, perhaps life-threatening,
consequences. White thus had a reasonable need, and therefore a right, to
know whether the proposed treatment contained penicillin. Dr. Napoleon refused
to answer White's question and instituted disciplinary proceedings against
him for refusing treatment. Drawing all inferences in White's favor, the
amended complaint discloses no reason, medical, penological or otherwise,
for Dr. Napoleon's refusal to answer White's questions, nor for his attempt
to discipline White for refusing treatment without explanation. Rather,
the amended complaint alleges that Dr. Napoleon's only purpose was "to
require prisoners to accept whatever treatment Napoleon sadistically [chose]
to offer." From the amended complaint, one may fairly infer that Dr.
Napoleon's refusal to provide White with information was so far outside
the realm of professional judgment as to demonstrate that Dr. Napoleon was
not exercising professional judgment at all. In view of the doctor's refusal
to tell White whether Debrox contained a potentially harmful drug, White
had a right to refuse treatment protected by the Due Process clause of the
Fourteenth Amendment. He may not be sanctioned for exercising that right.
|||White's allegations are sufficient to withstand a motion to dismiss. This
does not foreclose the possibility that on a motion for summary judgment,
White will be unable to substantiate the allegations of the amended complaint,
or that Dr. Napoleon will provide valid reasons for withholding information
|||We note briefly that there is a general allegation in paragraph 162 of
the amended complaint that Napoleon "interfered with each patient's
enjoyment of the right to make or withhold informed consent to proposed
medical treatment." In White's case, the basis alleged for this cause
of action is Napoleon's refusal to tell him the ingredients of Debrox and
the subsequent filing of disciplinary charges. As we indicated above, White's
claim should be treated as a claim based on the substantive due process
right to refuse treatment. Calvin Merle Rogers also alleges Dr. Napoleon
interfered with his right to make informed decisions about his treatment.
The factual basis alleged for the claim is Dr. Napoleon's refusal to tell
Rogers whether the blemishes on his skin were cancerous. Rogers' claim is,
in reality, a claim that Napoleon deliberately ignored a potentially serious
medical problem deserving proper diagnosis. Thus, it should be treated as
a claim based on the Eighth Amendment as interpreted by Estelle v. Gamble.*fn4
As for Nazario and Sabb, neither alleges facts that would support a claim
under paragraph 162, and thus their claims under this paragraph were properly
|||We will reverse in part and affirm in part the district court's judgment
dismissing the amended complaint. We will reverse dismissal of all plaintiffs'
Eighth Amendment claims. We will reverse the dismissal of White's claim
of retaliation for exercising his substantive due process right to refuse
treatment. We will affirm the dismissal of the "informed consent"
claims as to Nazario and Sabb, but reverse as to White and Rogers. These
should be treated, in White's case, as part of his right to refuse treatment
claim, and in Rogers' case, as part of a claim based on deliberate indifference
to serious medical needs. Because the case remains properly in federal court,
the district court should also consider the plaintiffs' pendent state claims.
Costs taxed against appellee.
|||SEITZ, Circuit Judge, concurring.
|||It is most regrettable, in my view, that this court is confronted in this
delicate area with the necessity of formulating important legal principles
in the isolated setting on an appeal from an order dismissing a complaint
for failure to state a claim. I believe the court would agree that it would
have been far preferable that these principles be formulated in light of
an adversarily developed record. Since that course seems unavailable to
us, I note my general agreement with the court.
|||As to part IV of the opinion of the court, I write separately to make
clear my basic constitutional position on one area of medical treatment
of prisoners. I agree with the court that prisoners are entitled to sufficient
disclosures by prison doctors to enable them to decide whether to undergo
the treatment or use the prescribed medication and that such an entitlement
is entitled to constitutional protection because of their incarcerated status.
I also believe an informed and competent prisoner is constitutionally free,
based on a liberty interest, to reject treatment and medication as a general
rule. This so because no countervailing state interest is implicated.
|||I do not think the allegations of this complaint raise any issue as to
the right of the state to impose medication or other treatment on a prisoner
against his or her will when the prisoner's condition may, medically speaking,
impose a threat to the prison community. In such a situation, different
constitutional concerns would be implicated.
|||With these understandings, I concur in the opinion of the court.
is a word used throughout the amended complaint. From the pleadings and
the context in which it is used, we understand that it refers to the disciplinary
hearing held in prison.
|||*fn2 The Court of
Appeals for the Eighth Circuit has recently held that convicted federal
prisoners possess a qualified due process right to refuse unwanted treatment
with anti-psychotic drugs. United States v. Watson,
893 F.2d 970
(8th Cir. 1990).
|||*fn3 We reject White's
specious attempt to cast his refusal to be treated in terms of a political
protest protected by the First Amendment. There is no allegation in the
complaint that White's refusal was intended to communicate his dissatisfaction
with his treatment, nor do we think his act is sufficiently imbued with
elements of communication to fall within the scope of the First Amendment.
Spence v. Washington,
418 U.S. 405,
41 L. Ed. 2d 842,
94 S. Ct. 2727
|||*fn4 Although both
White's and Rogers' allegations speak in terms of "a right to make
informed decisions" and "informed consent," they cannot in
fairness be read to state a claim based on the tort doctrine of informed
That tort is, in reality, a form of professional negligence. See Restatement
(Second) of Torts § 892B, comment i at 375 (1979). Typically, plaintiffs
in these actions allege that a doctor negligently failed to disclose all
the risks associated with an operation, that the plaintiff consented to
the operation and was injured as a result. The correct legal standard
governing these cases, according to the Restatement, is whether the doctor,
in advising the patient, exercised the skill and knowledge normally possessed
by members of his profession in good standing in similar communities.
Restatement (Second) of Torts § 299A (1979). Neither White nor Rogers
allege that Napoleon was negligent. On the contrary, they charge that
he deliberately and maliciously withheld information. Nor do they allege
that they consented to a medical procedure in ignorance and were injured
as a result. Rogers was never treated. White refused treatment. Rogers'
"informed consent" claim is in reality a charge of deliberate
indifference to his serious medical needs, based on the Eighth Amendment.
White's claim is part and parcel of his claim based on the right to refuse
treatment. There is, therefore, no need to consider whether torts of informed
consent are actionable under section 1983. Under Paul v. Davis,
424 U.S. 693,
47 L. Ed. 2d 405,
96 S. Ct. 1155
(1976) and Daniels v. Williams,
474 U.S. 327,
88 L. Ed. 2d 662,
106 S. Ct. 662
(1986), certain torts do not rise to the level of constitutional violations.
We do not resolve whether torts of informed consent fall within the rule
of these cases.
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