Equal protection-based claims.

Some challenges to segregation have been based on the loss of opportunities for isolated prisoners to participate in and take advantage of programs that are offered to other inmates. Typically, defendants have argued that they have a rational reason for their policies, enough to sustain them under a rational relationship analysis. These cases may also make claims under § 504 and the ADA. For the most part, the prisoners’ equal protection claims are unsuccessful, as courts defer to administrative decisions of the facility administrators.

A challenge to mandatory testing or segregation on the basis of a due process violation is predicated on a claim that the prison officials’ policies have violated a liberty interest that arises either under the Constitution or under state law. Although the scope of these liberty interests is narrow, courts have held, for example, that prisoners have due process rights in conjunction with their removal from the general population for disciplinary reasons.    ^{(See footnote 28)}  Also, in Vitek v. Jones, the Supreme Court held that because of the stigma that attached and the possibility of mandatory treatment, a prisoner’s transfer to a mental hospital implicated constitutional liberty interests.    ^{(See footnote 29)}  The Constitution requires less due process in the case of administrative segregation, although in limited situations state law may create a more protected interest.    ^{(See footnote 30)} 

Courts have also found liberty interests in the refusing certain medical treatment. Indeed, a prisoner "possesses a significant liberty interest in avoiding the unwanted administration of” mental health treatment,

   ^{(See footnote 31)}  or, for that matter, any other type of medical treatment.   ^{(See footnote 32)}  These rights, however, are subject to clear limitations.   ^{(See footnote 33)} 

Accordingly, some courts have sustained claims by segregated inmates that they had acquired a liberty interest from a prison regulation or handbook and, therefore, that a due process right was violated when they were segregated. Other courts have found that due process rights are not implicated by segregation of prisoners with HIV or AIDS.

The court in    ^{(See footnote 34)}  declined to dismiss claims by a detainee who was HIV-positive that by placing him in seclusion without providing a reason, jail officials denied him a right to due process derived from a prison regulation. While segregated, the detainee claimed he was denied access to court, to the law library, to church, and to recreation facilities. The court explained that the detainee was entitled to know if AIDS was the true reason for his segregation, so that he might challenge the conditions of such confinement, if indeed reasons for challenge existed. This case was decided before the Supreme Court’s decision in Sandin,   ^{(See footnote 35)}  however.

Likewise, also pre-Sandin, another New York federal court, relying in part on Vitek v. Jones, awarded judgment to a former inmate, holding that by incarcerating her in a segregated section of the facility, the defendants violated the inmate's right of due process under the Fourteenth Amendment, since a handbook and certain regulations for the facility conferred a liberty interest to be placed in the general population absent a proper finding that she needed to be segregated.    ^{(See footnote 36)}  The facility’s medical policy and procedure manual provided that housing decisions will not be made solely on the basis of an individual's HIV status. Since no finding of the need for segregation had ever been made, the inmate’s due process rights were violated.

Even prior to the Supreme Court’s limiting opinion in Sandin, a number of courts declined to find that inmates segregated because of an HIV-positive status acquired a liberty interest from a prison regulation. For example, the Eighth Circuit has held that prison regulations did not create any liberty interest that would preclude a federal prisoner’s isolation in an AIDS unit without a hearing.    ^{(See footnote 37)}  The court found that the segregation was medically directed, and not the result of a discretionary administrative decision. The administrative detention regulations, the court explained, did not apply to medical determinations regarding isolation and segregation. Similarly, a federal court in Maryland held that isolation of prisoners suspected to be HIV-positive was a medical decision to which due process protections do not apply.    ^{(See footnote 38)} 

The Sixth Circuit, in Hansard v. Barrett, rejected a claim of a due process violation brought by segregated homosexual inmates who were denied the opportunity to earn good time credits by participating on work details.    ^{(See footnote 39)}  The court found no liberty interest created by prison regulations.

4. Claims under the Eight Amendment.

The Eighth Amendment protects convicted prisoners from cruel and unusual punishment.    ^{(See footnote 40)}  The scope and history of the constitutional prohibition has been recounted in several Supreme Court opinions and the Court has held that medical care is among the conditions of confinement that are subject to judicial review under the Amendment.   ^{(See footnote 41)} 

According to these opinions, the primary concern of the drafters of the Constitution was to prohibit tortures and other barbarous methods of punishment though the Amendment also "proscribes more than physically barbarous punishments."   ^{(See footnote 42)}  In fact, the Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency against which penal measures are evaluated. In analyzing whether a prison policy or practice offends the Eight Amendment, a court must consider the seriousness of the deprivation and whether the inmate is being deprived the minimal civilized measure of life necessities. In the case of medical care, the deprivation must be serious.   ^{(See footnote 43)}  This determination is made in the context of prison conditions by ascertaining whether an official acted with "deliberate indifference" to the inmates' health or safety.   ^{(See footnote 44)} 

Therefore, in an Eighth Amendment case, a prisoner must allege, first, a sufficiently serious deprivation and, second, that officials acted with a sufficiently culpable state of mind. In analyzing claims, courts consider both the objective component whether the wrongdoing was "harmful enough" to implicate the Eighth Amendment and the subjective component whether the officials acted with a sufficiently culpable state of mind.   ^{(See footnote 45)} 

In Harris v. Thigpen,   ^{(See footnote 46)}  the court held, among other things, that although the Eighth Amendment guaranteed the inmates' right to adequate medical care, the inadequacies in the treatment offered HIV-positive prisoners did not amount to deliberate indifference to the prisoners' serious medical or psychiatric needs. The court held that the Constitution is violated only when the prison medical care is “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.”    ^{(See footnote 47)}  While the evidence presented by the plaintiffs might establish inadequate treatment for some of the prisoners, the cases at most evidenced isolated incidences of medical malpractice.

Given the standard, Eight Amendment-based challenges to segregation or mandatory testing, not surprisingly, are often not successful. In Cordero v. Coughlin,   ^{(See footnote 48)}  the court held that the segregation of the prisoners from the general inmate population, and the consequent lack of social, recreational and rehabilitative opportunities for the prisoners, did not amount to cruel and unusual punishment. Likewise, a court denied a female inmate with HIV’s request for an injunction prohibiting her continued confinement in isolation at a medical center because she had failed to show a likelihood of success on her Eighth Amendment claims.    ^{(See footnote 49)}  The court concluded that isolation from the general population was a reasonable medical approach in the best interest of the inmate and of the rest of the prisoners. The prison officials’ treatment was no so cruel as to constitute deliberate indifference to the inmate's medical needs.

Taking a quite different approach, a pretrial detainee with HIV was unsuccessful in claiming an Eight Amendment violation because the prison did not segregate him from the general population, thereby exposing him to harm.    ^{(See footnote 50)} 

    5. Claims under § 504 and the ADA.

Some plaintiffs have used § 504 and the Americans with Disabilities Act as the bases of claims that as individuals with qualifying disabilities, segregation is a form of discrimination. Courts have applied § 504 to prisons and jails if they receive federal funds and if the prisoner plaintiffs can demonstrate that they are “handicapped” and “otherwise qualified” for the program in question.    ^{(See footnote 51)}  The Supreme Court held that the ADA applies to prisons in Pennsylvania Department of Corrections v. Yeskey.   ^{(See footnote 52)} 

In an earlier decision in Roe v. Fauver,   ^{(See footnote 53)} the court denied the defendants’ motion for summary judgment on the plaintiffs claim that the segregation of the inmates in special AIDS units within the state prison system violated § 504.

    However, in Onishea v. Hopper,   ^{(See footnote 54)}  the Eleventh Circuit en banc held that the administrative segregation of all HIV-positive prisoners did not violate the Rehabilitation Act. According to the National Prison Project of the ACLU Foundation, “Alabama is the only state in the country that forbids HIV-positive prisoners from participating with other prisoners in any programs.”    ^{(See footnote 55)}  The Onishea opinion is one of a series in a longstanding case challenging these policies. Despite the sweeping uniqueness of the Alabama policy, the court, reviewing findings of the district court and a lengthy trial record, affirmed findings that a significant risk of HIV transmission existed for any prison program in which HIV-positive inmates sought participation. The court held, therefore, that the district court was had not erred in finding that a prisoner with HIV was not an "individual with a disability" under the act since the definition excluded an individual with a currently contagious disease or infection who would constitute a direct threat to the health or safety of other individuals.    ^{(See footnote 56)}  The court held that the prisoner was a significant risk to others, even though the odds of transmission were admittedly small. The appellate court also affirmed the lower court’s findings that integrated prison programs would create a risk of violence and, that segregation of HIV-positive inmates was not an exaggerated response to the risk. In addition the court held that it was proper to consider the cost of hiring of additional guards to deter high-risk behavior in determining whether that was a reasonable accommodation.    ^{(See footnote 57)}  Finally, the court held that the trial court’s finding that hiring additional staff would impose an undue burden was not clearly erroneous.

In another § 504 case, Gates v. Rowland,    ^{(See footnote 58)}  the Ninth Circuit reversed a district court's order that authorities to allow HIV-infected inmates the opportunity to work in food service jobs. The appellate court held that prison officials had legitimate penological concerns, arising not from their own concern about transmission through food, but rather from other inmates' perception of how the virus might be transmitted. The officials argued, and the court found it reasonable, that the other inmates would erroneously perceive a threat regardless of scientific research or medical pronouncements to the contrary. Consequently, there might be violent actions against the inmates with or perceived to have the virus.

A California district court has distinguished Gates in holding that an inmate who was HIV-positive and his wife, who was also HIV-positive, had stated a claim in their complaint that that prison officials’ refusal to permit them to participate in the prison's conjugal visits program violated both the ADA and § 504.    ^{(See footnote 59)}  The court was not convinced by the prison officials’ argument that other prisoners might be incited to violence if they had to use the visit room after the plaintiffs used it. Among other factors was that the prison did not have mandatory testing, so other inmates must have known that unidentified prisoners who were also HIV-positive might use the room.

An Illinois district court held that a pretrial detainee with AIDS who was shackled to his outside-the-prison hospital bed stated claims under the ADA and constitutional claims for denial of due process and access to the courts.    ^{(See footnote 60)}  The court found that the detainee could establish that he was an individual with a disability under the ADA. The court also held that the plaintiff had pleaded sufficient facts to allege discrimination. The detainee alleged that was able, with reasonable accommodation, to participate in his personal care, the defense of his criminal case, and programs available to detainees at the county jail. A full development of the facts would, the court said, be necessary to determine whether the requested accommodation was "reasonable." Second, the court said, although the shackling policy at the hospital applied to disabled and non-disabled hospitalized detainees, it was plausible that it policy had a much more severe impact on disabled individuals. Consequently, most of the case was allowed to go forward.

C. Cases by prisoners without HIV, seeking separation from prisoners with HIV.

Some cases have been brought seeking mandatory testing and segregation of prisoners who are or may be HIV-positive. Most of the cases have been brought under the Eight Amendment and claim that prison officials have failed to protect the plaintiffs from the potential harm that may come from contact with prisoners with HIV/AIDS. The cases almost universally fail. Courts note that the plaintiff prisoners’ fears are based on theoretical risks and unsubstantiated fears and ignorance of the HIV virus.    ^{(See footnote 61)} 

As several commentators have pointed out, the courts’ reasons for ruling against prisoners seeking segregation from prisoners with HIV are often precisely the same ones courts have flatly rejected and coldly discounted when they are raised by inmates with HIV seeking to end segregation policies.    ^{(See footnote 62)} 

    The different views among prisoners about whether their fellow inmates with HIV should be integrated into the general population and into prison activities has led to difficulties for some class counsel in conditions cases. A federal district court in Mississippi appointed an attorney to represent the plaintiff class in a case challenging the segregation of inmates who has tested positive for HIV. The attorney delayed in working on the case. The class members sought to substitute counsel claiming that the delays were due in part to the opposition of non-class member prisoners in the general population whom the lawyers represented as class counsel in other prison conditions cases. The Fifth Circuit reversed a decision of the district court and removed the attorney in part because of a conflict of interest.    ^{(See footnote 63)} 

III. Cases claiming inadequate medical care for HIV/AIDS.

Some correctional facilities provide less than optimal medical care and treatment. An extensive body of case law has developed describing the constitutional standards for medical and mental health care in prisons, jails, and juvenile detention facilities.    ^{(See footnote 64)}  Not surprisingly, there are numerous prisoner suits challenging the lack of availability of appropriate medications, the failure to provide treatment promptly or at all, and misdiagnosis and improper treatment of HIV and AIDS. This section will briefly survey some of the representative cases.    ^{(See footnote 65)} 

    A. Failure to diagnose.    ^{(See footnote 66)} 

In a damage action brought by the parents of an inmate who died of AIDS, a court found no Eight Amendment violation.    ^{(See footnote 67)}  The parents’ claimed that the prison medical staff had failed to diagnose or treat the inmate’s condition.    ^{(See footnote 68)}  The court held that the inmate’s condition met the “seriousness” standard, as the inmate’s condition was so obvious that a layperson would easily recognize the necessity for a doctor's attention. However, the court held that neither the alleged negligent failure to diagnose the condition as AIDS nor the alleged decision to treat to what the doctors believed to be a cold Tylenol and throat lozenges rose to the level of “deliberate indifference.”

B. Medication related cases

Prisoners have challenged the total failure to provide any medication for HIV/AIDS, delays in providing medication, interruption of medication, and inadequate doses. The cases have been brought under a variety of statutory and constitutional causes of actions.

Several courts have held that allegations that prison officials or employees failed to provide any treatment for an inmate's AIDS or HIV-positive condition known to the officials or employees stated a claim under the Eighth Amendment.    ^{(See footnote 69)}  Similar claims under the Fourteenth Amendment have also survived defendants’ motions to dismiss or for summary judgment. For example, a plaintiff detainee in

that the denial of his medication violated his constitutional rights.    ^{(See footnote 70)}  The court held that the fact that the detainee was HIV-positive was not itself enough to establish a “serious medical need.” However, evidence did establish that the consequences of missing medication for three days were enough to meet the standard. The court also held that a jury could reject the defendant's reasons for failing to provide the medication and could find deliberate indifference.

In a class action, the court in Roe v. Fauver, denied the prison officials' motion for summary judgment, holding the plaintiffs’ Eighth Amendment claim was supportable. The inmates alleged that they sometimes did not get their AZT at the correct time, or did not receive it at all, or were given incorrect dosages.    ^{(See footnote 71)} 

However, other courts have held that delays in beginning treatment or interruptions of treatment with medication did not violate the Eighth Amendment. For example, in Parker v. Proffit, the court dismissed claims against jail officials alleging that that a 57-day delay in commencing AZT treatment following the diagnosis of HIV violated the Eighth Amendment.    ^{(See footnote 72)}  The court held the delay was not so grossly incompetent, inadequate, or excessive as to shock the conscious or to be intolerable to fundamental fairness, noting that the efficacy of prescribing AZT was not as conclusive in 1991 and 1992 when the delay occurred as it perhaps was in 1995 when the motion was filed.

Other cases have alleged that the prisons failure to provide a particular medication for treatment of HIV or AIDS constituted a constitutional or statutory violation. For example, an inmate’s claim that the change of medication had no medical purpose, caused serious side effects, shortened his life, and was motivated solely by cost considerations, stated a claim for violation of the Eighth Amendment in Taylor v. Barnett.    ^{(See footnote 73)}  However, the Tenth Circuit has held that the district court properly dismissed a prisoner's Eight Amendment claims that he was not provided the proper combination of medications.    ^{(See footnote 74)} 

IV. Conclusions

In her 1995 review of the case law, Kathleen Knepper concluded that that courts display a high degree of deference to the decisions of prison administrators and to the policies and practice that they adopt and implement. She also found strong evidence of an absence of consensus of among prison official on how to respond to the presence of inmates with the HIV virus or AIDS and a marked lack of consistent guidance from the courts.    ^{(See footnote 75)}  Not much appears to have changed since then.

HIV and AIDS Risk Behaviors in Juvenile Detainees: Implications for Public Health Policy, 93 Am. J. Pub. Health 906 (2003).

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Footnote: 5

Id.

Federal Constitutional and Statutory Claims by HIV-Positive Inmates as to Medical Treatment or Conditions of Confinement, 162 A.L.R. Fed. 181 (2001-2004). Most of the cases cited in this Fact Sheet are more fully described in the A.L.R. annotation.

Rape in Prison and AIDS: A Challenge for the Eighth Amendment Framework of Wilson v. Seiter, 44 Stanford L. rev. 1541 (1992). According to materials provided by Jackie Walker at the 2004 TASC/NAPAS annual conference, see footnote 2 supra, only eight jails or prisons systems make condoms available to prisoners: Dallas, District of Columbia, Los Angeles, Mississippi, New York City, Philadelphia, San Francisco, and Vermont.

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Footnote: 10

.

Prison Litigation Reform Act (PLRA). The PLRA imposes significant restrictions on the recovery of monetary damages by federal or state prisoners bringing an action under federal law. P&A attorneys contemplating prison litigation should be fully cognizant of the potential consequences of the PLRA.

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Footnote: 13

Doe v. Coughlin, 697 F.Supp. 1234 (N.D.N.Y. 1988).

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Footnote: 18

Dunn, 880 F. 2d at 1196.

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Footnote: 22

Harris, 941 F.2d at 1517 (quoting Turner v. Safley, 482 U.S. 78, 89-90 (1987).

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Footnote: 23

Id., at 971.

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Footnote: 28

Wolff v. McDonnell, 418 U.S. 539 (1974) and Hughes v. Rowe, 449 U.S. 5 (1980).

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Footnote: 29

Vitek analysis does not seem to have carried much weight in many HIV/AIDS segregation cases. Knepper, supra footnote. 7, at 70.

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Footnote: 30

Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court declared that due process liberty interests created by prison regulations will generally be limited to freedom from a restraint which imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. In that case the court rejected the approach taken in Hewitt v. Helms, 459 U.S. 460 (1983), under which mandatory language in a prison regulation served as the predicate for a finding that the regulation created a liberty interest.

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Footnote: 31

Washington v. Harper, 494 U.S. 210, 221-22, (1990).

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Footnote: 32

White v. Napolean, 897 F.2d 103, 113 (3d Cir.1990).

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Footnote: 34

Judd v. Packard, 669 F. Supp. 741 (D.Md. 1987).

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Footnote: 39

^th Cir. 1992).

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Footnote: 40

City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983). They are, however, protected by the Fourteenth Amendment, the protections of which are at least as great as those of the Eighth Amendment. See, Bell v. Wolfish, 441 U.S. 520 (1979). “From a practical perspective, the standards which the courts apply in considering the conditions of confinement and provision of medical care are analogous.” Knepper, supra footnote 7, at 75 (footnote following text omitted).

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Footnote: 41

Estelle v. Gamble, 429 U.S. 97 (1976) and Gregg v. Georgia, 428 U.S. 153 (1976).

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Footnote: 42

Gregg, 428 U.S. at 171.

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Footnote: 43

Estelle, 429 U.S. at 104-05.

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Footnote: 44

Hudson v. McMillian, 503 U.S. 1, 8, (1992).

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Footnote: 46

Roe v. Fauver, 1988 WL 47559 (D.N.J. 1988).

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Footnote: 50

Bragdon v. Abbott, 524 U.S. 624 (1998)(“Because few, if any, activities in life are risk free…the ADA require[s] that the risk be significant.”)

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Footnote: 57

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Footnote: 58 The court held that the department's fears of retaliation or violence were insufficient in the context of § 504.

Bullock v. Gomez, 929 F.Supp. 1299 (C.D. Cal. 1996).

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Footnote: 60

Feigley v. Fulcomer, 720 F.Supp. 475 (M.D. Pa. 1989); Glick v. Henderson, 855 F.2d 536 (8^th Cir. 1988); and Johnson v. United States, 816 F.Supp. 1519 (N.D. Ala. 1993). These and other related cases are described and discussed in Knepper, supra. footnote 7 at 81-87.

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Footnote: 62

Women in Prisons With AIDS: An Assault on the Constitution?, 64 S. Cal. L. Rev. 741, 777 (1991), cited in Knepper, supra n. 7 at 81.

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Footnote: 63

Gates v. Cook, 234 F.3d 221 (5^th Cir. 2000).

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Footnote: 64

Miller v. Hoffman, 1999 WL 415397 (E.D. Pa. 1999)(holding inmate had stated a claim under the Eight Amendment when misdiagnosis led to isolation). But see, Bailey v. Aida Unit-San Quentin State Prison, 1995 WL 274370 (N.D. Cal. 1995)(misdiagnosis of AIDS and resulting emotional turmoil did not support a constitutional claim).

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Footnote: 67

Maynard v. New Jersey, 719 F.Supp. 292 (D.N.J. 1989).

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Footnote: 68

Macomber v. Davis, 1993 WL 79593 (E.D. Pa. 1993).

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Footnote: 74

Perkins v. Kansas Dept. of Corrections, 165 F.3d 803 (10^th Cir. 1999).

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Footnote: 75