Glick v. Henderson

• Decision Date: 25 August 1988
• Docket Number: No. 87-2376,87-2376
• Citation: 855 F.2d 536
• Parties: Dennis GLICK, Appellant, v. Dr. F.M. HENDERSON, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 536

855 F.2d 536

Dennis GLICK, Appellant, v. Dr. F.M. HENDERSON, et al., Appellees.

No. 87-2376.

United States Court of Appeals Eighth Circuit.

Submitted April 14, 1988.

Decided Aug. 25, 1988.

Jo Ann L. Goldman, Little Rock, Ark., for appellant.

Alan R. Humphries, Pine Bluff, Ark. and C. Kent Jolliff, Little Rock, Ark., for appellees.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge.

Dennis P. Glick appeals from the district court's dismissal, without prejudice, of his 42 U.S.C. Sec. 1983 action seeking declaratory and injunctive relief and damages for appellees' alleged failure and refusal to protect the inmates of the Arkansas Department of Corrections (A.D.C.) from exposure to Acquired Immune Deficiency Syndrome (AIDS). We affirm.

Appellant Glick and two other inmates filed this action on November 13, 1985 alleging that the sampling of blood from blood plasma donors had revealed that at least five inmates of the A.D.C. tested seropositive for the virus which causes AIDS. A seropositive test shows that a person has been exposed to the AIDS virus but does not indicate whether the person has or will acquire AIDS or AIDS-Related Complex. The inmates also alleged that the A.D.C. was neither testing all inmates and personnel for exposure to the AIDS virus, nor segregating all those who did test seropositive. According to the complaint, the combination of these factors, along with the presence of practicing homosexuals within the A.D.C., placed the inmates in immediate danger of contracting AIDS because of the daily interactions which take place among inmates and A.D.C. officials at the A.D.C.

Named as defendants in the suit were: A.L. Lockhart, A.D.C. Director; Woodson D. Walker, chairman of the Arkansas Board of Corrections; Larry B. Norris, Warden of the Maximum Security Unit of the A.D.C.; Dr. F.M. Henderson, of Health Management Associates; and the Arkansas Board of Corrections. The suit was brought against the defendants in both their individual and official capacities. As relief the inmates sought $4,000,000 in damages and an injunction commanding the defendants to: (1) administer tests to all inmates and staff members to discover the presence of AIDS or the AIDS virus; (2) hospitalize all inmates with the disease AIDS; (3) discharge all staff members with the disease AIDS; (4) segregate all inmates with the AIDS virus from all other A.D.C. inmates not infected; (5) remove any and all staff members with the AIDS virus from all contact with inmates and staff members not infected; and (6) report all detected cases of AIDS or the AIDS virus to the U.S. Health Department, the Arkansas Health Department, the Court and the plaintiffs.

On October 7, 1986 the United States District Court for the Eastern District of Arkansas, the Honorable William R. Overton presiding, filed an order dismissing defendants Walker, Lockhart and Norris from the case, ruling that the inmates had "failed to allege sufficient involvement or knowledge to state a Sec. 1983 claim against" these three defendants. The court, however, did grant a motion for the appointment of counsel for the inmates with regard to the case against the remaining defendants.

On September 28, 1987, the action itself was dismissed, without prejudice, in an order filed by the Honorable G. Thomas Eisele. In the order Judge Eisele first ruled that the Eleventh Amendment to the United States Constitution required the dismissal of the Arkansas Board of Corrections from the suit, thereby leaving Dr. F.M. Henderson as the only remaining defendant. The Court then noted that as Dr. Henderson was no longer the health care provider for the Arkansas prison system the court would be unable to provide the inmates with any of the injunctive relief requested against the A.D.C. Accordingly, the court dismissed the present action ordering that the inmates "may refile their claims in a new lawsuit, within one year, without prejudice, naming the proper parties."

Appellant Glick now appeals the dismissal of the suit on a number of grounds. The other plaintiffs named in the original action have not joined him on appeal.

Discussion

Glick's complaint presents this Court with a difficult task. On the one hand, this Court can envision situations in which courts would be warranted in involving themselves in the administration of a prison in order to protect inmates from practices conducive to the spread of AIDS. On the other hand, Glick's complaint, as it is framed, asks this Court to involve itself in a medical controversy and to dictate medical guidelines in an area where the medical profession has not yet spoken, a task this Court is hardly suited for. In reviewing these competing factors several aspects of this case lead us to affirm the district court's dismissal of Glick's case.

The first such factor is the total inadequacy of the complaint as it is framed. It does not even bear the elements of notice pleading. There is not the slightest indication of what the officials are doing or not doing that is not in accord with proper practice as established by medical guidelines.

The second factor is that the risk appellant alleges is based on unsubstantiated fears and ignorance. The basis of his complaint are the allegations that appellant faces a pervasive risk of acquiring AIDS because: (1) he comes into contact with the sweat of other inmates during work detail; (2) he is subject to bites from mosquitoes which have bitten other inmates; (3) he has been sneezed on by a known homosexual; (4) A.D.C. officials untested for AIDS prepare his food; and (5) the A.D.C. regularly transfers prisoners from cell to cell throughout the prison. The possibility of the transference of AIDS through these means is simply too remote to provide the proper basis for appellant's complaint as it is currently framed. ¹ See generally, United States v. Moore, 846 F.2d 1163, 1168 (8th Cir.1988) (holding possibility of AIDS transmission by means of a human bite "too remote" in a legal context "to support a finding that the mouth and teeth may be considered a deadly and dangerous weapon in this respect", although that case held that the "mouth and teeth were used as a deadly and dangerous weapon" in the factual situation therein involved).

The third factor which needs to be mentioned before we turn to the specific challenges appellant raises is the fact that the district court's dismissal of the case was without prejudice. Thus, Glick has not been jeopardized in any way. Instead, he has just been told that he must allege more sufficiently and clearly all possible facts which demonstrate the constitutional deprivation or injury, if any, which he has suffered as a result of the conditions of his confinement, and that he must do so against the proper parties. With these three factors in mind we now turn to the specific assertions appellant raises.

1. The Dismissal of Walker, Lockhart and Norris.

Glick's first challenge is to the dismissal of defendants Walker, Lockhart and Norris from the suit. Glick charges that this dismissal was improper because the three each had a "legal responsibility in this matter" and because they each acted in a way deliberately indifferent to "a pervasive risk of harm" to him.

We agree with Glick that he could have a colorable claim under Sec. 1983 if he could show that there is "a pervasive risk of harm to inmates" of contracting the AIDS virus and if there is "a failure of prison officials to reasonably respond to that risk." See Martin v. White, 742 F.2d 469, 474 (8th Cir.1984). However, we disagree that this claim presents such a situation. As already noted the risks being alleged by Glick are unsubstantiated fears unrecognized by the mainstream medical community. Accordingly, we are unwilling to term as unreasonable the prison officials' decision not to institute a wholesale AIDS testing and segregation program in response to these specific fears. Thus it was not error to dismiss these three defendants.

2. The Dismissal of the Arkansas Board of Corrections.

Glick's second challenge is to the dismissal of the Arkansas Board of Corrections from the suit. He bases this challenge on two grounds. First, he argues that all the members of the Arkansas Board of Corrections were sued in their individual capacities in the complaint, and thus not subject to any eleventh amendment bar. Secondly, he asserts that the Arkansas Board of Corrections is exempt from the eleventh amendment bar under the exceptions discussed by the Supreme Court in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). We find both grounds to be without merit.

The first ground is without merit because even if Glick's original action were construed as naming all of the members of the Arkansas Board of Corrections individually, these parties would not be liable to Glick for the very reasons discussed above with regard to defendants Walker, Norris and Lockhart. There simply has been no allegation of individual involvement or indifference to a pervasive risk sufficient to hold these parties individually liable under Sec. 1983.

The second ground is without merit because neither of the two exceptions discussed by the Supreme Court in Pennhurst apply to this case. The first exception found in Pennhurst is that "Congress has power with respect to rights protected by the Fourteenth Amendment to abrogate the Eleventh Amendment immunity." 465 U.S. at 99, 104 S.Ct. at 907. However, this exception applies only when there is "an unequivocal expression of congressional intent to 'overturn the constitutionally guaranteed immunity of the several States.' " Id....