218 F.3d 1171 (10th Cir. 2000), 99-1263, Herring v. Keenan

Docket Nº:99-1263
Citation:218 F.3d 1171
Case Date:July 10, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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218 F.3d 1171 (10th Cir. 2000)



KATHLEEN KEENAN, Defendant-Appellant.

No. 99-1263

United States Court of Appeals, Tenth Circuit

July 10, 2000

Appeal from the United States District Court for the District of Colorado (D.C. No. 95-WY-3196-WD)

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Freddi Lipstein, Attorney, Appellate Staff (David W. Ogden, Acting Assistant Attorney General; Thomas L. Strickland, United States Attorney; Barbara L. Herwig, Attorney, Appellate Staff, Department of Justice, with her on the brief), Washington, D.C. for defendant-appellant.

Steven C. Choquette (A. Bruce Jones and Tiffany W. Smink of Holland & Hart LLP, Denver, Colorado; Jay S. Jester of Miller, Jester & Kearney, Denver, Colorado in association with the American Civil Liberties Union with him on the brief), for plaintiff-appellee.

Before SEYMOUR, ALARCÓN,[*] and BALDOCK, Circuit Judges.

ALARCÓN, Circuit Judge.

Kathleen Keenan ("Keenan"), a federal probation officer, appeals from the order denying her motion to dismiss the claims filed against her by Frederick Herring ("Herring").1 Herring alleged in his complaint, filed pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), that Keenan violated his federal constitutional right to privacy by stating to his sister, and the manager and acting director of the restaurant where he was employed as a waiter, that Herring had tested positive to human immunodeficiency virus ("HIV"). At the time of the disclosure, Herring was serving a period of probation under Keenan's supervision. The district court rejected

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Keenan's contention that she was entitled to qualified immunity because she did not violate a clearly established constitutional right. We conclude that there is a constitutional right to privacy that protects an individual from the disclosure of information concerning a person's health. We reverse the denial of the motion to dismiss, however, because we hold that it was not clearly established, at the time Keenan disclosed to Herring's sister and his employer that Herring had tested positive for HIV, that a probationer had a constitutionally protected right to privacy regarding information concerning his or her medical condition.


Because we are reviewing the denial of a motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, "we must accept all of the well pleaded allegations in the complaint as true." Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 510 (10th Cir. 1998). The following facts are alleged in the second amended complaint.

On or about September of 1993, Herring began serving a period of probation under Keenan's supervision following his conviction for driving while intoxicated on federal property. On or about December 22, 1993, Herring met Keenan as required by the terms of his probation. During their meeting, Herring informed Keenan that he had recently taken an HIV test and he thought he might be infected with the virus. Herring had not received the results of the HIV test at the time of this conversation. At no time did he inform Keenan that the results of the HIV test were positive. Herring did not authorize Keenan to disclose this information to anyone. On the date he disclosed this information to Keenan, Herring was employed as a waiter at the 50's Cafe, a restaurant at the Lowry Air Force Base Recreation Center in Denver, Colorado.

Following the December 1993 meeting, Keenan informed Candice Clark, the manager of the 50's Cafe, that Herring was HIV positive. Keenan repeatedly stated to Candice Clark that Herring should be terminated from his position.

In a telephone conversation with Sylvia Herring, Herring's sister, Keenan told her that Herring had been tested for HIV and/or was HIV positive. Prior to Keenan's disclosure, Sylvia Herring was unaware that her brother had been tested for HIV or might be HIV positive.

On or about January 10, 1994, Keenan informed John Casey, the acting director of the 50's CafE, that Herring was HIV positive. She demanded that Herring be fired because she believed that Colorado law prohibited a person who has tested as HIV positive from working in a food preparation position.

The complaint also alleges that:

Defendants' conduct was in blatant violation of Volume X, Sec. 16 D and F of the Guide to Judiciary Policies and Procedures which provides that probation officers "should not disclose HIV infection or illness information to the offender's family members, parents, or sexual/drug partners without the offender's informed, written consent" and that "notification of other third parties is the responsibility of the exposed person."


Herring filed this action on December 21, 1995, in the district court. He alleged that Keenan's disclosures violated his constitutional right to privacy, and his statutory right to be protected from disclosure of a record pursuant to the Privacy Act, 5 U.S.C. § 552(b). Herring died on July 23, 1996. Sylvia Herring was appointed the personal representative of Herring's estate on or about October 16, 1996.

As Herring's personal representative, Ms. Herring filed a second amended complaint against Keenan on December 9, 1996. In the second amended complaint, Ms. Herring ("the plaintiff") alleged that Keenan's disclosures violated Herring's constitutional right to privacy, constituted cruel and unusual punishment in violation

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of the Eighth Amendment, and deprived Herring of his liberty without due process of law in violation of the Fifth Amendment. In the second amended complaint, the plaintiff prayed for damages and a declaration of his constitutional rights.

Keenan filed a motion to dismiss the second amended complaint on January 24, 1997, pursuant to Rule 12(b)(1) and Rule 12(b)(6) in which she asserted the defense of qualified immunity. She argued that the second amended complaint should be dismissed because it fails to allege that Keenan engaged in conduct that violated clearly established law. On January 8, 1999, the district court referred the motion to dismiss to a magistrate judge for a report and recommendation regarding whether the facts alleged in the second amended complaint demonstrated that Keenan's disclosures violated clearly established law.

The magistrate judge submitted his report and recommendation on February 24, 1999. He recommended that the motion to dismiss should be granted on two grounds. First, the second amended complaint failed "to present factual allegations which would demonstrate that Keenan's disclosures were not supported by a compelling interest." Second, "in late 1993, the contours of the right of privacy were not sufficiently clear to place a probation officer on notice that disclosure of a probationer's HIV test or HIV status to his employer and his close relative would violate this right."2 The magistrate judge also noted that "[n]o decision of the United States Supreme Court or the United States Court of Appeals for the Tenth Circuit has specifically considered the parameters of the constitutional right to privacy in the context of the limited governmental disclosure of one's HIV status."3

On May 5, 1999, the district court entered its order denying Keenan's motion to dismiss the right to privacy claim. The court dismissed with prejudice Herring's Eighth Amendment claim, and his claim that Keenan's disclosures deprived him of his liberty without due process of law. The district court also dismissed the request for a declaratory judgment.

The district court held that the allegations in the second amended complaint that Keenan had violated the guidelines for probation officers for supervising probationers exposed to HIV were sufficient to satisfy the plaintiff's burden of demonstrating that the disclosures were not supported by a compelling interest. The district court also held that this court's decisions in Eastwood v. Department of Corrections of the State of Okla., 846 F.2d 627 (10th Cir. 1988), and Lankford v. City of Hobart, 27 F. 3d 477 (10th Cir. 1994), demonstrate that "the contours of the constitutional right to privacy as it relates to dissemination of one's actual or potential HIV status were clearly established in late 1993."

Keenan filed this timely interlocutory appeal on June 3, 1999. "A defendant may immediately appeal the denial of a 12(b)(6) motion based on qualified immunity to the extent it turns on an issue of law." Prager v. LaFaver, 180 F.3d 1185, 1190 (10th Cir. 1999) (citing Behrens v. Pelletier, 516 U.S. 299, 307 (1996)).


Keenan contends that the district court erred in rejecting her qualified immunity defense because "[a]t the time of the alleged disclosures in this case, there were no Supreme Court or Tenth Circuit

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decisions addressing whether limited disclosure of information regarding a probationer's HIV status fell within a clearly established constitutional right of privacy." This court reviews the denial of a motion to dismiss de novo. Prager, 180 F.3d at 1190.

The Supreme Court has instructed that in reviewing the denial of a claim of qualified immunity, "a court must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established." Conn v. Gabbert, 526 U.S. 286, 290 (1999). "To overcome the qualified immunity defense, the plaintiff must identify a clearly established statutory or constitutional right of which a reasonable person would have known, and then allege facts to show that the defendant's conduct violated that right." Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997).


The second amended complaint alleges that Keenan violated Herring's right to privacy by disclosing information regarding his HIV status to his...

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