Opinion
Case No. 4:03CV000953 JMM/JFF, 4:03CV000954.
April 24, 2006
PROPOSED RECOMMENDED DISPOSITION
I. INSTRUCTIONS
The following recommended disposition has been sent to United States District Judge James Moody. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than eleven (11) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite 402 Little Rock, AR 72201-3325
II. DISPOSITION
Plaintiff filed this action (docket entry #2) against Major Kyle Kelley and Lieutenant Gene Stephens with the Faulkner County Detention Center. Plaintiff alleges that he was not given access to legal materials, and that Kyle Kelly contacted his public defender, Boyd Tackett, without his permission. He alleges that Lt. Stephens placed him cell 308 on September 15, 2003 after he was physically injured on September 13, 2003 by another inmate in that cell. On September 24, 2003, after returning from a doctor's appointment, he discovered that other inmates tampered with his legal materials and personal items. Plaintiff requested to be placed in solitary confinement or a transfer. On September 28, 2003, Deputy Smith told Plaintiff he was being transferred to Pulaski County. At the transport area, Lt. Stephens told Smith to cuff Plaintiff to the bench and Stephens told him that he could return to the unit and have his legal materials if he retracted the statements in a grievance. If Plaintiff did not file a separate grievance retracting the statements, Stephens told him that he would remain cuffed to the bench and would not have access to his legal materials.
Thereafter, he amended his Complaint (docket entry #8) to assert claims against Officer Lisa Phillips and Nurse C. Bailey. He asserts that Ms. Bailey and/or Ms. Phillips released medical information about the Plaintiff to other inmates informing them that Plaintiff is HIV positive. Plaintiff requested, but was not granted, a transfer to another facility after the information was released. Plaintiff filed a third Amended Complaint changing his request for damages (docket entry #10). On July 27, 2004, the Court consolidated case 4:03CV954, Leher v. Bailey, with this action as it raises the same legal issues against the same Defendants as set forth in the lead action.
Pending before the Court is Defendants' Motion for Summary Judgment (docket entry #21) to which Plaintiff has filed a response (docket entry #24).
A. Findings of Material Fact
On March 15, 2003, Plaintiff was arrested in Mayflower, Arkansas, and he was placed in the Faulkner County Jail.
On March 17, 2003, a felony information was filed against Plaintiff by the prosecuting attorney of Faulkner County for manslaughter.
A pretrial Order dated March 31, 2003, appointed Boyd Tackett, Jr., public defender, to represent the Plaintiff.
The Court refused to provide Plaintiff another attorney upon his request made in May 2003.
In a grievance dated May 7, 2003, he requested solitary confinement or transfer to another facility where inmates are not aware of his medical status. Plaintiff states he revealed his medical status to the nurse and the intake officer.
Inmate Steven Price and Plaintiff got into a physical confrontation after exchanging words on September 13, 2003 in cell 308, and two other inmates broke up the fight that resulted in Plaintiff having a broken bone.
Plaintiff filed a grievance on or about September 24, 2003, in which he requested transfer to another county jail or solitary confinement and stated that his incarceration in cell 308 following the conflict on September 13, 2003 reflected deliberate indifference to his safety.
The Complaint alleges that "Stephens told me that if I would retract the statements deliberate indifference and/or reckless disregard from my grievance I could go back to the unit and have my legal materials back. And that if didn't fill out another grievance retracting the statements that I would stay cuffed to the bench and my legal file and materials would stay locked up."
In a grievance dated September 29, 2003, Plaintiff states the retracts he allegations of deliberate indifference.
Plaintiff entered into a negotiated plea on the felony charge on November 19, 2003, and was sentenced to 72 months in the Arkansas Department of Correction. Plaintiff was represented by his public defender, Boyd Tackett, at the time he entered the plea.
B. Official Capacity Claims
Defendants contend that Plaintiff's action must be dismissed because he has failed to indicate in what capacity he is suing the Defendants, and therefore, the Complaint must be interpreted as asserting official capacity claims only. The Eighth Circuit has consistently advised plaintiffs to specifically plead whether government agents are being sued in their official or individual capacities to ensure prompt notice of potential personal liability. Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989); See also Andrus v. Arkansas, 197 F.3d 953 (8th Cir. 1999) (In actions against officers specific pleading of individual capacity is required to put public officials on notice they will be exposed to personal liability). When the plaintiff fails to state whether he is suing an official in his individual capacity, the Eighth Circuit has construed the claim to be against the official in his official capacity only. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) ("[I]n order to sue a public official in his or her individual capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity."); Egerdahl v. Hibbing Community College, 72 F.3d 615, 620 (8th Cir. 1995) ("Nix requires that a plaintiff's complaint contain a clear statement of her wish to sue defendants in their personal capacities. Neither a cryptic hint in a plaintiff's complaint nor a statement made in response to a motion to dismiss is sufficient.").
The Plaintiff did not indicate on the form Complaint in the lead action, 4:03CV00953, in which capacity he was suing the Defendants; however, he did so state in the consolidated action that was filed on December 1, 2003. In 4:03CV00954, Plaintiff states that he is suing Defendants Bailey, Phillips, Stephens and Kelly in their official and individual capacities. Accordingly, Defendants' argument on this point is unavailing.
C. Access to Courts Claim
Plaintiff asserts in his responsive pleading that he was denied access to legal materials, denied access to photocopy services, and he was never given forms he requested to formulate a motion to suppress and for change of venue in his state criminal action.
Despite Plaintiff's allegations about the failures of the jail law library, Plaintiff's access to the courts was constitutionally adequate because he was represented by the public defender's office. See Johnson-El v. Schoemehl, 878 F.2d 1043, 1052 (8th Cir. 1989) (pretrial detainees must be provided with either acceptable law libraries or adequate assistance from legally trained persons). Further, Plaintiff did not establish prejudice or actual injury. See Jones v. James, 38 F.3d 943, 945 (8th Cir. 1994). The fact that Plaintiff may have wanted the Court to appoint him an attorney other than Mr. Tackett to represent him does not change the analysis on this point. Furthermore, it does not change the analysis that Kelly contacted Mr. Tackett after Plaintiff submitted a grievance on May 5, 2003 in which he requested forms from the Arkansas Legal Form Book. Kelly responded to the grievance that Tackett wanted to help Plaintiff and would visit him in prison when he received discovery from the prosecutor in Plaintiff's case.
D. Release of Medical Information
Defendants do not contend that an inmate has no constitutional right of privacy in their HIV status. Rather, they contend that Plaintiff's privacy claims must fail because he has offered no proof that either Defendant Bailey or Phillips released his HIV status to other inmates, or in the alternative, they are entitled to the defense of qualified immunity. Neither Defendant has offered a declaration or affidavit to the Court admitting or denying Plaintiff's allegation. The Plaintiff has not offered any direct evidence that either Nurse Bailey or Officer Phillips disclosed his HIV status. Instead, he infers that it must have been either of these two individuals because they are the only two to whom he revealed his HIV status. Given this premise, there is obviously no allegation or evidence before the Court that the disclosure, if made, was done for the purpose of harassing, embarrassing or stigmatizing Plaintiff or for a legitimate reason, such as for the welfare of other inmates or officers.
In Tokar v. Armontrout, Tokar, an HIV-positive inmate, claimed that the segregation of HIV-positive inmates in the Jefferson County Jail violated his right to privacy by disclosing his HIV-positive status to other inmates and guards. 97 F.3d 1078 (8th Cir. 1996). The district court found that the Defendants were entitled to qualified immunity holding that during the time that Tokar was held in segregated confinement in 1989 and 1991, inmates had no clearly established right to non-disclosure of their HIV status. The Eighth Circuit agreed on appeal reciting the finding of the district court that the law was not "clearly established that a prison cannot without violating the constitutional rights of its HIV-positive inmates reveal their condition to other inmates and to guards in order to enable those other inmates and guards to protect themselves from infection." Id. at 1084. The Court noted that it "could not find a Supreme Court case or `appellate holding that prisoners have a constitutional right to confidentiality of their medical records.'" Id. The undersigned was unable to find any Circuit authority overruling the Tokar decision. However, a more recent case recognizes a right of privacy in medical information outside of the prison context.
In Cooksey v. Boyer, 289 F.3d 513 (8th Cir. 2002), Cooksey served as the Chief of Police in Potosi, Missouri. He sought treatment in the spring of 1998 for stress. In accordance with city policy, in June he submitted a statement from his psychologist explaining his need for excused leave. Cooksey later submitted another note stating that he would be returning to full duty on July 6, 1998, but would remain under the psychologist's care due to the stress associated with his job. At a Potosi Board of Aldermen meeting on July 13, 1998, the mayor, Boyer, disclosed in open session that Cooksey was undergoing treatment for stress from a psychologist. Cooksey's health status was discussed briefly at two later board meetings. In February 1999, the mayor sent Cooksey a letter terminating him from his position, but he was reinstated after it was determined that the mayor acted without the approval of the Board. Cooksey later resigned citing to his inability to work in a small town where his reputation has been maligned and his mental fitness questioned. Cooksey filed suit claiming the mayor's disclosure of and the Board's discussion of his mental health treatment violated his constitutional right of privacy. The case was heard by the Eighth Circuit after the district court granted summary judgment for the Defendants. Citing to an Eighth Circuit decision decided the same year as Tokar as well as a Supreme Court case, the Court found that "it is established that `notions of substantive due process contained within the Fourteenth Amendment safeguard individuals from unwarranted governmental intrusions into their personal lives.'" Id. at 515 ( citing Eagle v. Morgan, 88 F.3d 620 (8th Cir. 1996 and Whalen v. Roe, 429 U.S. 589 (1977)). The protection against the disclosure of personal matters, the Court stated, has been characterized as the right to confidentiality. See id. However, not every disclosure of personal information implicates a privacy right, and therefore, "we have consistently held that to violate the constitutional right of privacy `the information disclosed must be either a shocking degradation or an egregious humiliation . . . to further some specific state interest, or a flagrant breach of a pledge of confidentiality which was instrumental in obtaining the personal information.'" Id. ( quoting Alexander v. Peffer, 993 F.2d 1348 (8th Cir. 1993)). The Eighth Circuit held that the disclosure that Cooksey was seeking treatment for stress was not degrading or humiliating given that the field of law enforcement is recognized as inherently stressful. Furthermore, the Board's reinstatement of Cooksey was strong evidence that he was not stigmatized by the disclosure. The Court specifically noted that the holding was limited to the facts of the case and the mental health information at issue.
The undersigned notes that the case relied upon by the Court in Cooksey was decided three years before Tokar.
The Supreme Court has never declared that there is a general right to privacy nor does the Constitution specifically confer such a right in its text. The Court has, however, carved different, specific privacy rights. Roe v. Wade, 410 U.S. 113 (abortion); Eisenstate v. Baird, 405 U.S. 438 (1972) (contraception); Loving v. Virginia, 388 U.S. 1 (1967) (marriage). However, there is no Supreme Court case declaring that medical information constitutes a zone of privacy protected by the Fourteenth Amendment. Although courts finding a right of privacy in medical information have cited to the Supreme Court decision in Whalen v. Roe, 429 U.S. 589 (1977), Whalen did not establish a zone of privacy for medical information. In Whalen, doctors and patients challenged the constitutionality of a New York statute requiring disclosure to the state of the names and addresses of individuals who received prescriptions for schedule II drugs arguing that they had a constitutional right of privacy in their medical information. The state had enacted security measures to protect the medical information disclosed pursuant to the statute. The Court began its discussion by stating that cases have characterized "privacy" as two different interests: (1) "the individual interest in avoiding disclosure of personal matters" and (2) "the interest in independence in making certain kinds of important decisions." Id. at 599. Justice Stevens writing for the Court held that neither of these two areas were imposed upon by the law. "[N]either the immediate nor the threatened impact of the patient-identification requirements . . . is sufficient to constitute an invasion of any right of liberty protected by the Fourteenth Amendment." Id. at 603.
As could be predicted, the Circuits have split on the issue. Powell v. Schriver, 175 F.3d 107 (2nd Cir. 1999) (holding based on prior Second Circuit authority that inmates have a right to privacy in their HIV and transsexualism status but that such a right was not clearly established in 1991 at the time of disclosure); Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994) (no privacy right in medical information); Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995) (no privacy right in confidentiality of medical information); Doe v. Delie, 257 F.3d 309 (3rd Cir. 2001) (disclosure of HIV status is protected by the right of privacy). The undersigned has been unable to find any Eighth Circuit or United States Supreme Court precedent that establishes that the right to confidentiality in HIV status in the prison context. Thus, it is with confidence that the undersigned reaches the conclusion that there was no clearly established right in 2003 under the Fourteenth Amendment for an inmate not to have medical information, such as HIV status, disclosed by government actors regardless of whether or not the actors made the disclosure on the basis of a legitimate penological reason. It is recommended that the claims against Nurse Bailey and Officer Bailey be dismissed on the ground that they have qualified immunity from suit. Mays v. Rhodes, 255 F.3d 644, 647 (8th Cir. 2001) (defense applies if the plaintiff has not asserted the violation of a constitutional right or if the asserted right was not clearly established).
The privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA) took effect on April 14, 2003. 45 C.F.R. 164.534.
The HIPAA privacy rules provide national standards for protecting the privacy of health information. They regulate how certain entities, called covered entities, use and disclose certain individually identifiable health information, called protected health information (PHI). Covered entities are health plans, health care providers and health care clearinghouses. 45 C.F.R. 160.102, et seq.
The HIPAA Privacy Regulation does not give individuals the right to sue. Instead, individuals must file a written complaint with the Secretary of Health and Human Services through the Office for Civil Rights. It is then within the Secretary's discretion to investigate the complaint. HHS may impose civil penalties and criminal sanctions. 45 C.F.R. §§ 160.306, 160.312, 160.304, 42 U.S.C § 1320d et seq.
E. Eighth Amendment
Plaintiff submitted a grievance in September 2003 requesting a transfer to another county or solitary confinement. He also stated that his confinement in cell 308 reflected Defendants deliberate indifference to his safety given he was attacked by another inmate in the cell on September 15, 2003. After he filed the grievance, Plaintiff alleges that Defendant Stephens ordered that Plaintiff be handcuffed to a bench. Stephens responded to the grievance on September 28, 2003, stating that Plaintiff was moved to the bench for his safety and there was no where else to house him. Plaintiff submitted a second grievance dated September 29, 2003, stating that he retracts his statements of deliberate indifference contained in the prior grievance. It is unclear how long Plaintiff was cuffed to the bench.
Plaintiff dated the grievance 3-24-03. However, this date must be inaccurate given Plaintiff has repeatedly stated that the events occurred in September and only after he was attacked by a cell mate in cell 308.
Plaintiff states in his response that he "never claimed physical injury from cuffed to bench, just extreme discomfort, back and neck pain, nerves, anxiety, cruel and unusual punishment." Notwithstanding this limitation, to prevail with a conditions-of-confinement claim, a plaintiff must prove that: (1) objectively, his deprivation was sufficiently serious as to pose a substantial risk of serious harm to his health or safety; and (2) Defendants were deliberately indifferent to the risk of harm posed by the deprivation. Smith v. Copeland, 87 F.3d 265, 267-68 (8th Cir. 1996). The Court concludes that Plaintiff has failed to state a viable conditions-of-confinement claim. Whitnack v. Douglas County, 16 F.3d 954, 957 (8th Cir. 1994) (applying a deliberate indifference standard to pretrial detainee's conditions-of-confinement claim). First, other than the statement that he was cuffed to the bench, Plaintiff has not alleged that this posed a substantial risk of serious harm to his health or safety. The Eighth Circuit has held that conditions similar to and worse than those alleged by Plaintiff did not violate the Eighth Amendment. See Phillips v. Norris, 320 F.3d 844 (8th Cir. 2003) (thirty-seven days without exercise does not violate Eighth Amendment); Smith v. Copeland, 87 F.3d 265, 269 (8th Cir. 1996) (no Eighth Amendment or Due Process Clause violation when plaintiff, a pretrial detainee, was subjected to raw sewage for four days); O'Leary v. Iowa State Men's Reformatory, 79 F.3d 82, 83-84 (8th Cir. 1996) (several days without underwear, blankets, mattress, exercise and visits not in violation of Eighth Amendment); Williams v. Delo, 49 F.3d 442, 444 (8th Cir. 1995) (four days without clothes, mattress, water, bedding, mail, and hygienic supplies not in violation of Eighth Amendment); White v. Nix, 7 F.3d 120, 121 (8th Cir. 1993) (eleven days in an unsanitary cell did not amount to an Eighth Amendment violation because of the short period of exposure).
F. Retaliation
The parties have not addressed a retaliation claim, however, the undersigned believes that Plaintiff's Complaint fairly raises such a claim even though he did not use the term "retaliation." Plaintiff states that he was cuffed to the bench as a means of "blackmail" and "extortion" in order to get him to retract his statements of deliberate indifference. The Complaint alleges that "Stephens told me that if I would retract the statements deliberate indifference and/or reckless disregard from my grievance I could go back to the unit and have my legal materials back. And that if didn't fill out another grievance retracting the statements that I would stay cuffed to the bench and my legal file and materials would stay locked up." Conduct that retaliates against the exercise of a constitutionally protected right is actionable, even if the conduct would have been proper if motivated by a different reason. Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990). Indeed, the retaliatory conduct does not itself need to be a constitutional violation in order to be actionable. See Cooper v. Schriro, 189 F.3d 781, 784 (8th Cir. 1999) (allegations that prison officials shut off inmate's water for five days and threatened inmate's safety were sufficient to state a retaliation claim). Here, Plaintiff's use of the grievance system to allege that his confinement in cell 308, where he was attacked just days before by another inmate, reflected deliberate indifference to his safety was protected conduct. Although Stephens states in a grievance response that Plaintiff was cuffed to the bench for his safety, he provides no reason or basis for his conclusion that Plaintiff's safety was in jeopardy and why the bench was selected as opposed to any other area of the prison, like another cell. The parties have offered a different factual basis to account for Plaintiff being cuffed to the bench, and the Court cannot decide disputed issues of fact.
Accordingly, it is therefore recommended that Defendants' Motion for Summary Judgment be GRANTED in part and DENIED in part and that Plaintiff's retaliation claim against Defendant Stephens proceed to trial, and that all remaining claims against all remaining Defendants be DISMISSED WITH PREJUDICE.