Robert Downey v. Pennsylvania Department of Cor

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 19-2248
______________

ROBERT DOWNEY,
Appellant

v.

PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
SUPERINTENDENT WAYMART SCI;
PAUL DELROSSO, Deputy Superintendent for Centralized
Services;
DO DAVID TOMAZIC, Medical Director;
PA-C JESSICA ASHBY; OD KATHLEEN GAYNOR;
PA-C JENNIFER VILLIANO; PA-C TOM LYONS;
PA-C JANAN LOOMIS; WEXFORD HEALTH SOURCES
INC; CORRECT CARE SOLUTIONS
_____________

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-17-cv-00143)
Magistrate Judge: Honorable Karoline Mehalchick
______________

Argued on March 25, 2020
______________
 Before: JORDAN, RESTREPO, and FUENTES, Circuit
Judges.

(Opinion Filed: August 03, 2020)

Clifford A. Rieders
Corey J. Mowrey [Argued]
Rieders, Travis, Humphrey, Waters & Dohrmann
161 West Third Street
Williamsport, PA 17701

Counsel for Appellant

Josh Shapiro
Sean A. Kirkpatrick [Argued]
Office of Attorney General of Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, PA 17120

Counsel for Appellees Pennsylvania Department of
Corrections, Superintendent Waymart SCI, and Paul
DelRosso

Caitlin J. Goodrich
Kenneth D. Powell, Jr. [Argued]
Weber Gallagher
2000 Market Street, 13th Floor
Philadelphia, PA 19103

Counsel for Appellees Correct Care Solutions, David
Tomazic, DO, Jessica Ashby, PA-C, Jennifer Villiano,
PA-C, and Janan Loomis, PA-C

2
 ______________

OPINION OF THE COURT
______________

RESTREPO, Circuit Judge.

Robert Downey has long struggled with glaucoma,
which can lead to blindness if left uncontrolled. His condition
worsened while he was imprisoned. As a result, doctors
recommended that Downey have surgery expeditiously to save
his eyesight. But nothing happened for almost a year—even
though he repeatedly reached out to staff at the prison.
Ultimately, surgery came too late and Downey is now blind.

Downey sued various defendants for monetary
damages, among other relief. The District Court granted
summary judgment against Downey, concluding that he failed
to exhaust available administrative remedies as required by the
Prison Litigation Reform Act (“PLRA”). We disagree and hold
that his claims for monetary relief are not procedurally
defaulted. However, we will affirm dismissal of Downey’s
claims against the Pennsylvania Department of Corrections
and its officials on state sovereign immunity grounds, even
though that defense was not raised before the District Court.
Accordingly, we will reverse the District Court’s order in part,
affirm in part, and remand for further proceedings.

I.

Downey was incarcerated from September 24, 2013 to
January 26, 2017. He served most of his prison term at the State
Correctional Institution at Waymart, Pennsylvania (“SCI

3
Waymart”). When he first entered prison, he used eyedrops to
treat glaucoma. On December 22, 2014, Dr. Richard Roth, an
ophthalmologist at Eye Care Specialists, evaluated Downey.
He thought Downey “may need surgical intervention” due to
elevated eye pressure. App. 1113.

The following day, SCI Waymart’s medical director,
Dr. David Tomazic, evaluated Downey’s condition. He
concluded that Downey’s severe glaucoma required urgent
care and approved Dr. Roth’s request for a follow-up
consultation. The consultation took place on January 26, 2015.
Dr. Roth ordered a surgical consultation with Dr. Robert
Szulborski, another ophthalmologist at Eye Care Specialists,
because the pressure in Downey’s eyes remained extremely
elevated. One day later, Dr. Tomazic approved the order for a
surgical consultation because Downey’s “severe bilateral
glaucoma” required “urgent care.” App. 1334.

It took nearly two months for the surgical consultation
to take place. Dr. Szulborski saw Downey on March 18, 2015,
concluding that Downey’s right eye required an emergency
procedure in one to two weeks to save his vision. Dr. Tomazic
quickly approved the procedure. Despite Downey’s well-
documented rapidly deteriorating vision, however, no progress
was made towards scheduling his surgery for the next nine
months.

During an emergency consultation on December 2,
2015, Dr. Daniel Lutz, an ophthalmologist at Eye Care
Specialists, recommended “surgical intervention to preserve
remaining vision.” App. 1091–95. Dr. Lutz explained at a
deposition that Downey needed surgery “[a]s soon as humanly
possible . . . [w]ithin a week or two.” App. 1355. Downey

4
finally had surgery on his left eye on December 16, 2015 and
his right eye on February 2, 2016. But the surgeries occurred
too late to save his vision.

Surgery was delayed for nearly one year through no
fault of Downey’s. He attended numerous sick calls between
April 15 and October 28, 2015 and filed inmate staff request
forms on July 9 and November 29, 2015 to check on the status
of the surgery and reiterate the symptoms he was experiencing.
Downey may have also submitted additional request forms in
May 2015 and on October 28, 2015.

Approximately one year later, Downey sought legal
redress for the long delay. He did not undergo the formal
grievance procedure specified in the Pennsylvania Department
of Corrections’ Inmate Handbook. Instead, he filed a complaint
against the Pennsylvania Department of Corrections; Jack
Sommers, the Superintendent of SCI Waymart; and Paul
DelRosso, the Deputy Superintendent for Centralized Services
at SCI Waymart (collectively, “DOC Defendants”). He also
named certain medical personnel in the complaint, including
Dr. Tomazic; PA-C Jessica Ashby; PA-C Jennifer Villiano;
PA-C Janan Loomis; and Correct Care Solutions, which
provides medical services at SCI Waymart (collectively,
“Medical Defendants”).1

One day later, which happens to be the day he was
released from prison, Downey filed a first amended complaint
(“FAC”). On June 1, 2017, he filed a second amended

1
Over the course of the litigation, three Medical
Defendants were dismissed by stipulation: Wexford Health
Sources, Inc., OD Kathleen Gaynor, and PA-C Tom Lyons.

5
complaint (“SAC”). Downey claims that Medical Defendants
and DOC Defendants (collectively, “Defendants”) violated his
Eighth Amendment rights pursuant to 42 U.S.C. §§ 1983 and
1988. He also claims violations of his rights under
Pennsylvania state law.2

Medical Defendants filed a motion for summary
judgment on December 27, 2018 and DOC Defendants did the
same on January 28, 2019. The District Court granted
Defendants’ motions for summary judgment and declined to
exercise supplemental jurisdiction over Downey’s state law
claims, holding that he failed to exhaust his administrative
remedies because he did not satisfy the prison’s grievance
requirements.3 Downey v. Pa. Dep’t of Corr., No. 1:17-CV-
143, 2019 WL 2161692, at *6–7 (M.D. Pa. May 17, 2019). The
Court noted that “[t]he exhaustion requirements of the PLRA
continue to apply even if a plaintiff files an amended complaint
after being released from prison.” Id. at *4. In dicta, the District
Court rejected the notion that Downey’s condition was so

2
Upon consent of the parties, this case was reassigned
from Judge William W. Caldwell to Magistrate Judge Karoline
Mehalchick pursuant to 28 U.S.C. § 636(c). We refer to the
Magistrate Judge as the District Court throughout this opinion.
3
The District Court also concluded that Downey’s
claims for injunctive and declaratory relief are moot because
he is no longer incarcerated. Downey does not raise these
claims in his briefs and thus waived challenging the District
Court’s ruling. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.
1993) (stating that an appellant’s failure to raise and brief an
issue results in “abandon[ment] and waiv[er] [of] that issue on
appeal and it need not be addressed”).

6
urgent that the grievance procedures were inapplicable to his
claims. Id. at *6 n.2. Downey timely filed a notice of appeal.

II.

The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1343. This Court has jurisdiction under 28
U.S.C. § 1291.

Federal Rule of Civil Procedure 56(a) empowers district
courts to grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” We review
the grant of summary judgment de novo and “draw all
reasonable inferences in favor of the nonmoving party.” Hardy
v. Shaikh, 959 F.3d 578, 581 n.1 (3d Cir. 2020). We apply the
same standard of review to the District Court’s “determination
of a failure to exhaust, and we accept the [District Court’s]
factual conclusions unless clearly erroneous.” Id. at 584–85
(alteration in original) (internal quotation marks and citation
omitted).

III.

Downey challenges the District Court’s dismissal of his
claims for monetary damages. He argues that the District Court
erred when it held that he failed to exhaust his administrative
remedies under the PLRA. Alternatively, he posits that he was
not required to exhaust because he was no longer incarcerated
when he filed the SAC. Defendants dispute these points, and in
addition, DOC Defendants raise state sovereign immunity as a
defense for the first time.

7
 We agree that the District Court erroneously concluded
that Downey procedurally defaulted his monetary damages
claims. But we also agree that state sovereign immunity
prohibits Downey’s suit as to DOC Defendants. Therefore, we
will affirm in part, reverse in part, and remand to the District
Court for further proceedings.

A.

Prisoners seeking to challenge the conditions of their
confinement are subject to the PLRA, which mandates
exhaustion of all available administrative remedies before
bringing a lawsuit. 42 U.S.C. § 1997e(a). Exhaustion is a
threshold requirement that district courts must consider.
Woodford v. Ngo, 548 U.S. 81, 88 (2006); Rinaldi v. United
States, 904 F.3d 257, 265 (3d Cir. 2018). Failure to exhaust is
an affirmative defense that the defendant must plead and prove.
Jones v. Bock, 549 U.S. 199, 216 (2007); Rinaldi, 904 F.3d at
268.

The PLRA requires proper exhaustion, meaning
“complet[ing] the administrative review process in accordance
with the applicable procedural rules.” Woodford, 548 U.S. at
88. These procedural rules are supplied by the individual
prisons. Jones, 549 U.S. at 218 (“[I]t is the prison’s
requirements, and not the PLRA, that define the boundaries of
proper exhaustion.”); Spruill v. Gillis, 372 F.3d 218, 222 (3d
Cir. 2004) (determining whether “a prisoner has ‘properly’
exhausted a claim . . . is made by evaluating the prisoner’s
compliance with the prison’s administrative regulations
governing inmate grievances”).

8
 There is one exception to the mandatory exhaustion
requirement: administrative remedies must be available to the
prisoner. Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (“An
inmate . . . must exhaust available remedies, but need not
exhaust unavailable ones.”). An administrative remedy is
unavailable when it “operates as a simple dead end[,] . . . is so
opaque that it becomes, practically speaking, incapable of use,
or when prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Shifflett v. Korszniak, 934
F.3d 356, 365 (3d Cir. 2019) (internal quotation marks
omitted). Both the Supreme Court and this Court have rejected
judge-made exceptions to the PLRA. See, e.g., Ross, 136 S. Ct.
at 1856–58 (rejecting a “special circumstances” exception);
Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000) (noting that the
PLRA “completely precludes a futility exception”).

The PLRA is intended to reduce the number of meritless
inmate lawsuits challenging prison conditions. See Woodford,
548 U.S. at 93–94. Its stringent requirements aim to
accomplish this by returning “control of the inmate grievance
process to prison administrators,” encouraging the
“development of an administrative record, and perhaps
settlements, within the inmate grievance process,” and
reducing “the burden on the federal courts by erecting barriers
to frivolous prisoner lawsuits.” Spruill, 372 F.3d at 230. Just as
inmates must properly exhaust administrative remedies per the
prison’s grievance procedures, prison officials must strictly
comply with their own policies. Shifflett, 934 F.3d at 367
(“[W]e hold that [the PLRA] requires strict compliance by
prison officials with their own policies.”). But “[w]hen an
administrative process is susceptible [to] multiple reasonable

9
interpretations, . . . the inmate should err on the side of
exhaustion.” Ross, 136 S. Ct. at 1859.

B.

We now turn to the “policies of the prison in question”
during Downey’s incarceration. Shifflett, 934 F.3d at 364. The
Pennsylvania Department of Corrections’ 2013 Inmate
Handbook sets forth the relevant procedures for inmates to file
a grievance. Inmates are required to file a form, describing the
incident, within fifteen working days to the Facility Grievance
Coordinator, who generally must respond in fifteen working
days.4 If the prisoner receives an unfavorable response, he or
she must then file an appeal to the Facility Manager within
fifteen working days. If the grievance is again denied, the
inmate has fifteen working days from the date of the Facility
Manager’s decision to appeal to the Secretary’s Office of
Inmate Grievances and Appeals for final review. The
Secretary’s Office must respond within thirty working days. In
its entirety, the grievance process can take upwards of five
months.

These general grievance procedures do not apply to
every situation. Rather than going through the formal
grievance process, the Inmate Handbook clarifies that inmates
“should speak to the nearest staff person as soon as possible”
when facing emergency situations. App. 337. The DC-ADM
804 policy effective May 1, 2015 adds that:

4
Per the DC-ADM 804 Inmate Grievance System
Policy effective May 1, 2015, working days are equivalent to
business days and exclude state holidays.

10
 The Inmate Grievance System is intended to deal
with a wide range of issues, procedures, or events
that may be of concern to an inmate. It is not
meant to address incidents of an urgent or
emergency nature including allegations of sexual
abuse. . . . When faced with an incident of an
urgent or emergency nature, the inmate shall
contact the nearest staff member for immediate
assistance.5

App. 280. In other words, a prisoner dealing with an
emergency, or an urgent situation, is not bound by the ordinary
procedures specified in the grievance policy. Instead, he or she
only needs to alert the closest staff person.

As we recognized in Spruill, our analysis of a prison’s
grievance policy is “essentially a matter of statutory
construction.” 372 F.3d at 232. We start with the policy’s plain
language and ordinary meaning. See Idahoan Fresh v.
Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998)
(“[E]very exercise of statutory interpretation begins with [the]
plain language. . . . Where the statutory language is plain and
unambiguous, further inquiry is not required . . . .”). “We look
to dictionary definitions to determine the ordinary meaning of
a word.” United States v. Husmann, 765 F.3d 169, 173 (3d Cir.
2014). The key phrase of the DC-ADM 804 policy is:
“incidents of an urgent or emergency nature.” App. 280. An
emergency is “[a] sudden and serious event . . . that calls for

5
Another version of the DC-ADM 804 policy was in
effect from May 1, 2014 to April 30, 2015, but that version
contains identical language regarding urgent or emergency
situations.

11
immediate action” and “[a]n urgent need for relief or help.”
Emergency, Black’s Law Dictionary (11th ed. 2019). Urgent
means “calling for or demanding immediate attention.”
Urgent, Merriam-Webster Unabridged,
https://unabridged.merriam-webster.com/unabridged/urgent
(last visited July 3, 2020). An emergency or an urgent issue is
one that requires immediate attention.

The record is replete with documents and testimony
making clear that Downey’s severe glaucoma was so urgent
that it required immediate care to prevent permanent vision
loss. Dr. Tomazic and Dr. Szulborski both characterized
Downey’s condition as “urgent” during their depositions and
the latter thought Downey needed surgery in one to two weeks
at the March 18, 2015 visit. Notes prepared after the December
2, 2015 consult emphasized that Downey needed an
appointment “stat/now”6 for surgery “to prevent blindness.”
App. 1587–89. Because surgery was not scheduled
immediately as the doctors recommended, Downey is now
blind in both eyes. In this urgent situation, all that the grievance
system required Downey to do was to “contact the nearest staff
member for immediate assistance,” App. 280, which is what he
did repeatedly.

Defendants raise several arguments in support of their
position that the normal grievance procedures set forth in DC-
ADM 804 still apply to Downey. They quibble with Downey’s
contention that his condition was urgent. Medical Defendants

6
Janan Loomis, a physician assistant, explained during
a deposition that the “stat/now” notation is used to trigger a
“fast track way . . . if you’re very concerned or if you have
concerns.” App. 2063.

12
go so far as limiting the exemption to individuals suffering
conditions like a heart attack or stroke that demand immediate
treatment. To bolster this argument, Defendants stress that this
Court does not recognize a futility exception to the PLRA
based on an emergency or an urgent circumstance.

Defendants’ attempt to downplay the urgency of
Downey’s condition is unavailing. They conflate the prison
and providers’ obvious lack of urgency in providing medical
treatment with a purported lack of urgency associated with
Downey’s rapidly deteriorating condition. Further, nothing in
the Inmate Handbook or the DC-ADM 804 policy instructed
Downey to file a formal grievance once the harm was
complete, i.e., once the urgency ceased because the delay in
care already left him blind. To the contrary, according to the
DC-ADM 804 policy, the typical grievance process does not
apply to inmates faced with “incidents of an urgent or
emergency nature.” App. 280 (instructing prisoners to contact
the closest staff member because “[t]he Inmate Grievance
System . . . is not meant to address” those situations); see also
App. 337 (“For an emergency, you should speak to the nearest
staff person as soon as possible.”). Though Defendants
correctly assert that we do not recognize a futility exception to
exhaustion, our analysis is drawn from the prison’s policies
“rather than from any free-standing federal law.” Shifflett, 934
F.3d at 364. The Inmate Handbook and DC-ADM 804 policy
exempted inmates facing an urgent situation from the typical
grievance procedures, and Downey’s condition clearly met that
exemption.

Next, Defendants posit that Downey was required to
grieve his claims to pursue monetary damages even if his
condition was urgent. They point to language in DC-ADM 804

13
providing that an inmate who “desires compensation or other
legal relief normally available from a court . . . must request
the specific relief sought in his/her initial grievance.” App.
281. Again, this provision is inapplicable to Downey because
he was not required to submit a grievance due to the urgency
of his situation. Neither the Inmate Handbook nor DC-ADM
804 suggests that a prisoner faced with an urgent situation must
nonetheless file a grievance if seeking monetary damages. Cf.
Spruill, 372 F.3d at 234 (“Nothing in the Grievance System
Policy would have put [the plaintiff] on notice that he had to
ask for monetary damages—or any particular relief at all.”).

The grievance procedures are clear. Individuals dealing
with urgent situations are not required to file a grievance.
Downey’s rapidly deteriorating vision as a result of severe
glaucoma clearly constituted an urgent condition necessitating
immediate care. We hold that, under the prison’s own
grievance policies, Downey was exempt from the typical
grievance steps.

C.

The District Court limited its consideration of the
exemption to one footnote that is dicta. See Downey, 2019 WL
2161692, at *6 n.2 (stating that “it is not necessary to reach the
issue of whether Downey’s situation was ‘urgent or
emergent’”). Instead, the Court focused on Downey’s failure
to file a grievance while imprisoned, concluding that it was
immaterial that Downey filed an amended complaint after he
was released. See id. at *4 & n.1. Since then, our Court has
addressed whether an amended or a supplemental complaint
filed post-incarceration cures a former inmate’s failure to
exhaust administrative remedies while imprisoned. In Garrett

14
v. Wexford Health, 938 F.3d 69 (3d Cir. 2019), we answered in
the affirmative, so long as the amended or supplemental
complaint relates back to the initial complaint. Although
Downey complied with his obligation under the prison’s
grievance procedures, we will briefly discuss Garrett to
provide guidance to district courts on amended and
supplemental complaints filed post-incarceration.

In Garrett, the plaintiff failed to exhaust available
administrative remedies before filing a complaint. Id. at 76.
After he was released from custody, he then filed an amended
complaint. Id. 78–79. Although the initial complaint was
defective because he did not satisfy the exhaustion
requirement, we concluded that “[w]hen he filed the [third
amended complaint], [he] was no longer a prisoner and
therefore was not subject to the PLRA’s administrative
exhaustion requirement.” Id. at 84. “[B]ecause it relates back
to the original complaint, the [third amended complaint] cures
the original filing defect.”7 Id. We vacated the dismissal of the
plaintiff’s claims for failure to exhaust and remanded to the
district court. Id. at 96.

Medical Defendants raise several arguments to limit the
import of Garrett: (1) all of Downey’s claims arise from the
same transaction or occurrence since he did not add any new
claims, facts, or parties to his SAC; (2) none of Downey’s

7
Per Federal Rule of Civil Procedure 15(c)(1)(B), an
amended complaint relates back when “the amendment asserts
a claim or defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the original
pleading.”

15
claims were dismissed by the District Court; and (3) Downey
did not initiate the grievance process while Garrett simply did
not complete it.8

We consider each argument in turn. Medical
Defendants’ first argument is based on a misreading of Garrett.
In that case, the plaintiff filed a third amended complaint after
he was released from prison. Garrett, 938 F.3d at 78. This
Court held that the PLRA’s exhaustion requirement did not
apply because his third amended complaint arose from the
same transaction or occurrence as his initial complaint. Id. at
83–84. Similarly, in this case, Downey’s SAC arises from the
same transaction or occurrence as his initial complaint because

8
In addition, DOC Defendants urge us to stay applying
Garrett because the defendants in the case filed a petition for
certiorari. The Supreme Court has since denied certiorari.
Wexford Health v. Garrett, 140 S. Ct. 1611 (2020).
Alternatively, Medical Defendants suggest that we adopt the
Tenth Circuit’s approach in May v. Segovia, 929 F.3d 1223
(10th Cir. 2019). The Tenth Circuit concluded that the
applicability of the PLRA’s exhaustion requirement is
determined by referring to the plaintiff’s status as a prisoner at
the time of the initial complaint. See id. at 1228–29 (“The
amended complaint, as the operative complaint, supersedes the
original complaint’s allegations but not its timing.”) (emphasis
in original). We decline to adopt the Tenth Circuit’s approach
because we are bound by Garrett. See Reich v. D.M. Sabia Co.,
90 F.3d 854, 858 (3d Cir. 1996) (noting that “a panel of this
court is bound by, and lacks authority to overrule, a published
decision of a prior panel”).

16
he sets forth identical facts and nearly the same claims. Garrett
squarely fits the facts presented in this case.

Next, neither Garrett nor Rule 15 requires that an
amended complaint follow the dismissal of the previous
complaint in order for the former to cure the latter’s defects.
Instead, Garrett reflects the liberal approach we take when
considering amended complaints intended to cure defects in
initial pleadings—as Downey’s SAC was meant to do here. See
id. at 82.

Lastly, Medical Defendants attempt to distinguish the
plaintiff’s failure to complete the grievance procedures in
Garrett from Downey’s failure to begin the process. That is a
distinction without a difference. Rather than being limited to
situations where plaintiffs file a grievance but do not fully
exhaust their administrative remedies, Garrett took a broader
approach focusing on completion. See id. at 84 (noting that the
plaintiff’s initial complaint was defective because he failed to
“complet[e] the prison grievance process then in effect”). The
fact that Downey did not file an initial grievance is irrelevant.
All that matters is that he was no longer incarcerated when he
filed the SAC and that it relates back to his initial complaint.

Both because he satisfies the urgency exemption and
because he filed the SAC, which relates back to his original
complaint, after he was released from custody, Downey was
not subject to the Pennsylvania Department of Corrections’
usual grievance procedures. Therefore, the District Court erred
when it concluded that Downey’s claims for damages are

17
procedurally defaulted for failure to exhaust his administrative
remedies.

D.

DOC Defendants raise an additional issue. They claim
that Eleventh Amendment state sovereign immunity bars
Downey’s claims against them. In response, Downey argues
that sovereign immunity is not properly before this Court
because DOC Defendants waived the defense. We agree with
DOC Defendants and will affirm the District Court’s order to
the extent that it dismissed Downey’s claims against them.9

Although DOC Defendants did not claim sovereign
immunity in their summary judgment motion, “it has been well
settled . . . that the Eleventh Amendment defense sufficiently
partakes of the nature of a jurisdictional bar so that it need not
be raised in the trial court.” Edelman v. Jordan, 415 U.S. 651,
677–78 (1974). Further, we may affirm the judgment on any
grounds supported by the record, including those not reached
by the District Court. Oss Nokalva, Inc. v. Eur. Space Agency,
617 F.3d 756, 761 (3d Cir. 2010).

It is well established that lawsuits seeking retrospective
relief by private persons against a state, state officials, and state
entities are generally prohibited. See, e.g., Regents of the Univ.
of Cal. v. Doe, 519 U.S. 425, 429 (1997) (stating that “[i]t has
long been settled” that the Eleventh Amendment applies to
“not only actions in which a State is actually named as the

9
As such, we need not address DOC Defendants’
argument that they are entitled to summary judgment as to
Downey’s Eighth Amendment claims.

18
defendant, but also certain actions against state agents and
instrumentalities”); P.R. Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 146 (1993) (“[Eleventh Amendment
immunity] does not permit judgments against state officers
declaring that they violated federal law in the past . . . .”).

There are several important aspects of state sovereign
immunity relevant to this appeal. First, Eleventh Amendment
immunity bars actions for retroactive relief against state
officers acting in their official capacity. Kentucky v. Graham,
473 U.S. 159, 169 (1985). To determine whether a plaintiff
sued state officials in their official capacity, “we first look to
the complaints and the course of proceedings.” Melo v. Hafer,
912 F.2d 628, 635 (3d Cir. 1990), aff’d, 502 U.S. 21 (1991)
(internal quotation marks omitted). Second, a state may waive
the defense by consenting to be sued. Koslow v. Pennsylvania,
302 F.3d 161, 168 (3d Cir. 2002). Third, Congress may also
abrogate state sovereign immunity pursuant to its power to
enforce the Fourteenth Amendment. Id.

Downey seeks monetary damages against the
Pennsylvania Department of Corrections and two DOC
officials, Superintendent Jack Sommers and Deputy
Superintendent Paul DelRosso. The Pennsylvania Department
of Corrections is undoubtedly a state instrumentality and its
officials are state agents. See 71 Pa. Stat. and Cons. Stat. Ann.
§ 61. Moreover, Sommers and DelRosso were not directly
involved or even aware of the long delay in surgery until
immediately before it was scheduled. They were named in the

19
complaint because of their positions—and were thus sued in
their official capacity.10

The two exceptions to state sovereign immunity do not
apply. Downey claims that the Commonwealth of
Pennsylvania waived the defense pursuant to title 42, section
8522(b)(2) of the Pennsylvania Statutes and Consolidated
Statutes, which waives sovereign immunity for damages
caused by medical professional liability. But Downey
overlooks a separate provision in Pennsylvania law making
clear that any waivers to sovereign immunity do not apply to
lawsuits in federal court. 42 Pa. Stat. and Cons. Stat. Ann. §
8521(b) (“Nothing contained in this subchapter shall be
construed to waive the immunity of the Commonwealth from
suit in Federal courts guaranteed by the Eleventh Amendment
. . . . ”). Pennsylvania has not waived its sovereign immunity
defense in federal court.

Further, Congress did not abrogate Eleventh
Amendment immunity via § 1983. Quern v. Jordan, 440 U.S.
332, 345 (1979) (concluding that the history and language of §
1983 indicate that Congress did not intend to make states liable

10
At oral argument, Downey conceded that he is suing
Sommers and DelRosso in their official capacity. He added
that this is a Monell claim against DOC Defendants premised
on the policies and procedures in place. That does not help
Downey get around DOC Defendants’ Eleventh Amendment
defense because liability under Monell is limited to
municipalities. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690 n.54 (1978) (“Our holding today is, of course, limited to
local government units which are not considered part of the
State for Eleventh Amendment purposes.”).

20
under the statute). Notably, the Supreme Court came to the
opposite conclusion with respect to § 1988 in Hutto v. Finney,
437 U.S. 678, 693–694 (1978), however, this claim still fails
because the Eleventh Amendment bars the § 1983 action.
Graham, 473 U.S. at 165 (“[W]here a defendant has not been
prevailed against, either because of legal immunity or on the
merits, § 1988 does not authorize a fee award against that
defendant.”). Thus, state sovereign immunity prohibits
Downey’s claims against DOC Defendants.

In sum, we conclude that Downey’s claims for
monetary relief are not procedurally defaulted. We will reverse
the District Court’s grant of Medical Defendants’ motion for
summary judgment. But because DOC Defendants are immune
from Downey’s claims for retrospective relief under the
Eleventh Amendment, we will affirm summary judgment in
their favor.

IV.

For the foregoing reasons, we will affirm in part and
reverse in part the order of the District Court and remand the
case for further proceedings consistent with this opinion.

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