Powell v. Schriver

• Decision Date: 02 April 1999
• Docket Number: No. 543,D,543
• Citation: 175 F.3d 107
• Parties: Wayne POWELL, as Executor of the estate of Dana Kimberly Devilla, Plaintiff-Appellant, v. Sunny SCHRIVER, Superintendent; Thomas A. Coughlin, III; C.O. Lynch; C.O. Crowley, Defendants-Appellees. ocket 97-2851.
• Court: U.S. Court of Appeals — Second Circuit

Page 107

175 F.3d 107

Wayne POWELL, as Executor of the estate of Dana Kimberly Devilla, Plaintiff-Appellant, v. Sunny SCHRIVER, Superintendent; Thomas A. Coughlin, III C.O. Lynch; C.O. Crowley, Defendants-Appellees.

No. 543, Docket 97-2851.

United States Court of Appeals, Second Circuit Argued Dec. 7, 1998.

Decided April 2, 1999.

James Ostrowski, Buffalo, NY (Salvatore P. Abbate, on the brief), for plaintiff-appellant.

Daniel Smirlock, Assistant Attorney General, Albany, NY (Dennis C. Vacco, Attorney General; Peter H. Schiff, Deputy Solicitor General; Nancy A. Spiegel, Assistant Attorney General, on the brief), for defendants-appellees.

Before WINTER, Chief Judge, and OAKES and JACOBS, Circuit Judges.

JACOBS, Circuit Judge.

Plaintiff Dana Kimberly Devilla filed suit in the United States District Court of the Western District of New York (Foschio, M.J.), alleging that while she was an inmate at Albion Correctional Facility Prior to trial, the court dismissed the Eighth Amendment claim, apparently on the ground of qualified immunity. The privacy claim proceeded to trial, and the jury returned a verdict in favor of Lynch but against Schriver. The district court concluded that a verdict absolving the actor and holding the supervisor liable was fatally inconsistent and set it aside, entering judgment in favor of both Lynch and Schriver. Devilla appeals, seeking reinstatement of the verdict.

Correction Officer Jeffrey Lynch disclosed to other inmates and staff members that she was an HIV-positive transsexual, thereby violating (inter alia ) her constitutional right to privacy, as well as her Eighth Amendment right to be free from cruel and unusual punishment. Devilla's complaint also named Lynch's supervisor, Sunny Schriver, on the theory that Lynch's disclosure resulted from Schriver's failure to properly train Lynch.

With respect to Devilla's Eighth Amendment claim, we conclude that the district court erred in granting qualified immunity. With respect to Devilla's privacy claim, we conclude that Schriver (the defendant found liable by the jury) is protected by the doctrine of qualified immunity, and on that ground we affirm the entry of judgment in Schriver's favor.

BACKGROUND

In 1974, long before her imprisonment, Devilla began a series of operations to change her sex from male to female. In 1991, while in the custody of the New York State Department of Corrections, Devilla tested positive for Human Immunodeficiency Virus ("HIV"), the virus that eventually causes Acquired Immune Deficiency Syndrome ("AIDS").

In December of 1991, Devilla was incarcerated at the Albion Correctional Facility in New York. On December 31, 1991, Correction Officers Lynch and Crowley were escorting Devilla to Albion's medical facility when Lynch told Crowley--in the presence of other inmates and staff members--that Devilla had had a sex-change operation and that she was HIV-positive. Devilla maintains that as a result of Lynch's comment, word about her sex-change operation and her HIV-positive status became known throughout the prison and that she thereafter became the target of harassment by guards and prisoners.

Devilla filed a pro se complaint in the District Court for the Western District of New York. After retaining an attorney, she filed an amended complaint naming Officers Lynch and Crowley; Sunny Schriver, Albion's superintendent; and Thomas Coughlin, the Commissioner of the Department of Correctional Services of the State of New York. After filing the amended complaint, Devilla consented to proceeding before Magistrate Judge Leslie G. Foschio. In April of 1995, Devilla died, and her executor, the Reverend Wayne Powell, was substituted as plaintiff. (Notwithstanding this substitution, for ease of reference, this opinion continues to refer to Devilla as the plaintiff.)

The amended complaint alleged under 42 U.S.C. § 1983 (1994) that the defendants had violated her constitutional right to privacy, deprived her of her constitutional rights to life, liberty, due process of law and equal protection as guaranteed by the Fifth and Fourteenth Amendments, and inflicted cruel and unusual punishment in violation of the Eighth Amendment. Devilla also alleged negligent failure to care, intentional infliction of emotional distress, and violation of two state statutes, § 137(5) of New York's Correction Law, which prohibits the use of corporal punishment to discipline inmates as well as the "degrading treatment" of inmates, and § 2782(3) of New York's Public Health Law, insofar as it affords persons the right to maintain the confidentiality of their HIV status.

During the course of the trial, the court dismissed Crowley and Coughlin, as well as several of Devilla's causes of action, including--on the ground of qualified immunity- After two days of deliberations, the jury returned a verdict in favor of Lynch but against Schriver. The jury awarded Devilla $5,000 in compensatory damages and $25,000 in punitive damages.

--Devilla's claim that the defendants had violated her Eighth Amendment right to be free from cruel and unusual punishment. As a result of these pre-deliberation rulings, the jury was left to decide only the following questions: (i) whether, by divulging her HIV-positive status and transsexualism, Lynch had violated either Devilla's constitutional right to privacy or § 2782(3) of New York's Public Health Law, and (ii) whether, by "fail[ing] to properly train ... Lynch[ ] regarding a person's constitutional right to privacy," Schriver had violated Devilla's constitutional right to privacy.

The district court entered judgment in accordance with both the jury's verdict and the pre-deliberation rulings. After entry of judgment, Devilla filed a motion for attorney's fees and costs, and Schriver filed a motion asking that the verdict against her be set aside both (i) because she was protected by the doctrine of qualified immunity and (ii) because the verdict was against the weight of the evidence and inconsistent with the verdict in Lynch's favor. The district court granted Schriver's motion on the ground that the verdict against Schriver was fatally inconsistent with the verdict in Lynch's favor because (in the court's words) "[i]t is well settled that a claim of inadequate training and supervision under 42 U.S.C. § 1983 cannot be made against a supervisor without a finding of a constitutional violation by the persons supervised." The court denied Devilla's application for attorney's fees and costs on the ground that Devilla was not a prevailing party. An amended judgment was entered in favor of all of the defendants.

Devilla appeals the dismissal of her Eighth Amendment claim on the basis of defendants' qualified immunity, the denial of her oral application to dismiss a prospective juror for cause, the grant of Schriver's motion to set aside the verdict, and the denial of Devilla's application for attorney's fees and costs.

As to Devilla's right to privacy claim, we affirm the entry of judgment in Schriver's favor on the ground that Schriver is protected from liability by the doctrine of qualified immunity. We therefore do not reach Devilla's claim that the court erred by refusing to dismiss a prospective juror for cause. As to the dismissal of the Eighth Amendment claim on the ground of qualified immunity, we vacate the judgment and remand for further proceedings consistent with our opinion. Because we vacate the dismissal of the Eighth Amendment claim, we also vacate the denial of Devilla's application for an award of attorney's fees, which was predicated on the court's conclusion that Devilla was not a prevailing party, a determination that cannot yet be made.

DISCUSSION

A. The Right to Privacy Claim

Devilla's privacy claim presents the question: does the Constitution protect a prisoner's right to maintain the confidentiality of HIV-positive status or transsexualism? As the Supreme Court recommends, we consider Schriver's qualified immunity defense only after first deciding whether Devilla "has alleged a deprivation of a constitutional right at all." County of Sacramento v. Lewis, 523 U.S. 833, ---- n.5, 118 S.Ct. 1708, 1714 n.5, 140 L.Ed.2d 1043 (1998).

Bearing on this question is our opinion on HIV status in Doe v. City of New York, 15 F.3d 264, 267 (2d Cir.1994): "Individuals who are infected with the HIV virus clearly possess a constitutional right to privacy regarding their condition." In Doe, the plaintiff was not a prison inmate. See id. at 265. This appeal therefore raises two previously unresolved issues: first, whether the holding in Doe means that transsexuals have the right to confidentiality,

and second, whether the right to confidentiality recognized in Doe exists in prison. We address each of these questions, and then proceed to consider Schriver's invocation of qualified immunity.

1. The Right to Confidentiality

We conclude that the reasoning that supports the holding in Doe compels the conclusion that the Constitution does indeed protect the right to maintain the confidentiality of one's transsexualism. Our analysis in Doe begins with the principle, recognized by the Supreme Court, "that there exists in the United States Constitution a right to privacy protecting 'the individual interest in avoiding disclosure of personal matters.' " Id. at 267 (quoting Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977)). We explained that "this right to privacy can be characterized as a right to 'confidentiality,' to distinguish it from the right to autonomy and independence in decision-making for personal matters." Id. We then concluded that "the right to confidentiality includes the right to protection regarding information about the state of one's health," reasoning that "there are few matters that are quite so personal as the status of one's health, and few matters the dissemination of which one would prefer to maintain greater control over." Id. Finally, we noted that...