Henderson v. Thomas

• Decision Date: 21 December 2012
• Docket Number: Civil Action No. 2:11cv224–MHT.
• Citation: 913 F.Supp.2d 1267
• Parties: Louis HENDERSON, Dana Harley, Dwight Smith, Albert Knox, James Douglas, Alqadeer Hamlet, and Jeffrey Beyer, on behalf of themselves and of those similarly situated, Plaintiffs, v. Kim THOMAS, Commissioner, Alabama Department of Corrections; Billy Mitchem, Warden, Limestone Correctional Facility; Frank Albright, Warden, Julia Tutwiler Prison for Women; Bettina Carter, Warden, Decatur Work Release/Community Work Center; Edward Ellington, Warden, Montgomery Women's Facility, in their official capacities, Defendants.
• Court: U.S. District Court — Middle District of Alabama

913 F.Supp.2d 1267

Louis HENDERSON, Dana Harley, Dwight Smith, Albert Knox, James Douglas, Alqadeer Hamlet, and Jeffrey Beyer, on behalf of themselves and of those similarly situated, Plaintiffs,

v.Kim THOMAS, Commissioner, Alabama Department of Corrections; Billy Mitchem, Warden, Limestone Correctional Facility; Frank Albright, Warden, Julia Tutwiler Prison for Women; Bettina Carter, Warden, Decatur Work Release/Community Work Center; Edward Ellington, Warden, Montgomery Women's Facility, in their official capacities, Defendants.

Civil Action No. 2:11cv224–MHT.

United States District Court,

M.D. Alabama,

Northern Division.

Dec. 21, 2012.

Amanda C. Goad, Rose Saxe, American Civil Liberties Union Foundation Aids Project, New York, NY, Carl Takei, Gabriel B. Eber, Margaret Winter, Jennifer A. Wedekind, Washington, DC, Robert David Segall, Copeland, Franco, Screws & Gill, Montgomery, AL, for Plaintiffs.

Elizabeth Anne Sees, Alabama Department of Corrections, Montgomery, AL, Mitchell David Greggs, Maynard Cooper & Gale, PC, Birmingham, AL, for Defendants.

OPINION

MYRON H. THOMPSON, District Judge.

The seven plaintiffs (Louis Henderson, Dana Harley, Dwight Smith, Albert Knox, James Douglas, Alqadeer Hamlet, and Jeffery Beyer) bring this lawsuit on behalf of themselves and a class of all current and future HIV-positive prisoners incarcerated in Alabama Department of Corrections (ADOC) facilities. They challenge the ADOC's policy of categorically segregating HIV-positive prisoners from the general prison population, arguing, among other things, that, despite the dramatic advances in the treatment of HIV and despite the plaintiffs' differing individual circumstances, the plaintiffs are being denied the opportunity to be even considered for various rehabilitative services and programs offered to other prisoners. They have named as defendants ADOC Commissioner Kim Thomas and the wardens of the four ADOC facilities that house HIV-positive prisoners.

The plaintiffs claim that the HIV-segregation policy discriminates against them on the basis of a disability (HIV status) in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Jurisdiction is proper under 28 U.S.C. § 1331 (federal question).

Based on the evidence presented during a month-long non-jury trial and for the reasons that follow, this court holds that the ADOC has violated the ADA's Title II and the Rehabilitation Act's § 504.

I. BACKGROUND

A. HIV/AIDS

The human immunodeficiency virus, or HIV, is a chronic disease. If left untreated, it weakens the immune system and eventually leads to death. The disease unfolds in several stages. Soon after contracting the virus, an infected person enters acute infection. During this time, the person's viral load (the extent to which the virus is present in the blood) rockets upward. People in this stage of the disease can have hundreds of thousands of copies of the virus. Despite that, people in this stage test negative for HIV. This phase, known as the “window period,” generally lasts for a few weeks, but can extend as long as three months, and the people experiencing it represent the most infectious group of individuals with HIV.

Acute HIV gives way to chronic-HIV infection. During this stage, the viral load lowers. The final stage, advanced-HIV infection, occurs when the body's CD4 T-cells, which play a critical role in the immune system, drop to low levels and the viral load rises.¹ More commonly, this final stage is known as acquired immunodeficiency virus, or AIDS.

HIV emerged in the United States in the early 1980s and soon grew into an epidemic. HIV inevitably progressed to AIDS. Virtually everyone infected died. Meanwhile, no one, including the medical community, understood how HIV was transmitted. Fearing that even casual contact could spread it, doctors treating patients with HIV wore protective gear so extensive it was nicknamed a “space suit.” The profound consequences of the disease, combined with lack of knowledge about how it could spread, created an era of hysteria in the epidemic's early days.

The tide began to turn in the decade that followed. In 1996, the first protease inhibitors were approved to treat HIV. Highly active antiretroviral therapy (HAART), emerged as an effective weapon against the disease. These treatments did not eliminate the virus, but they did restrict its ability to progress and could stave off AIDS. However, while important developments, early treatment combinations had many deficiencies. The medications had to be administered multiple times each day; they had severe side effects, including diarrhea and peripheral neuropathy; and because the regimes were so complicated and so punished patients with side effects, many HIV patients failed to take their medication.

Today, advances in HIV treatment have profoundly changed the disease. There is still no cure for HIV: indeed, there is only one known case in which a person was completely cured of it. However, modern treatment regimes have rendered it manageable. The vast majority of HIV patients can be treated by one pill once a day; side effects are less severe, and, where they do occur, multiple treatment options allow patients to try different medications until they find one that works; and, most importantly, although people with HIV will require treatment for their entire lives, HIV is no longer invariably fatal. People who receive treatment for HIV can expect to enjoy near-normal lifespans.

HIV can be transmitted through contaminated blood and bodily secretions, commonly during unprotected sex (between a man and a woman or between men) and needle sharing (for drug use or tattooing, for example). It is not transmitted through casual contact or through the food supply.² A person would have to drink a 55–gallon drum of saliva in order for it to potentially result in a transmission. There is no documented case of HIV being sexually transmitted between women.

Moreover, simply because HIV can be transmitted in certain contexts does not mean that it will be, or even that it is likely to be, transmitted by that means. Advances in antiretroviral treatment have not only ameliorated the effects of HIV, but have also powerfully reduced (and in some contexts, even vitiated) the possibility of transmission, even when individuals engage in high-risk behavior. This is true because transmission typically occurs only when a person's viral load is at a certain minimum threshold. Modern treatments, however, if successful (which they generally are), result in “viral suppression,” a state in which the person's viral load is so low that the likelihood of HIV transmission is, generally speaking, virtually non-existent.

Because modern treatment is effective as prevention, the medical community now recommends that antiretroviral treatment be offered to everyone living with HIV who is ready and willing to take it. This approach represents a sea change that has revolutionized the public-health strategy for preventing transmissions.

While in 2012, outcomes are better, treatment simpler, and prevention possible, social perceptions of HIV have yet to catch up with the modern realities of the illness. Undoubtedly exacerbated by the terror that accompanied the disease in its early history, a relentless stigma adheres to HIV. This stigma has at least two plausible sources. First, HIV is most frequently found among historically marginalized populations: particularly, gay men. Prejudice against homosexuals intensifies prejudice against HIV, and prejudice against HIV becomes a proxy for prejudice against members of the gay community. Because HIV is also more common among minorities and the poor, the stigma attached to HIV deeply implicates race and class prejudice, as well as homophobia.

A second source of stigma stems from the means of HIV transmission. The plaintiffs' expert, Dr. Frederick Altice, an international authority on HIV and the Director of the HIV in Prisons Program at Yale University School of Medicine, explained: “People make judgments just by the virtue of HIV that you must have done ... something dirty or something awful to have acquired HIV. Being gay. Being a prostitute. Being sexually promiscuous.” ³ These impressions build upon negative stereotypes about the groups most commonly affected by HIV.

The progression of how HIV has been handled in American prisons somewhat mirrors its progression in the free world: initial (and understandable) terror about its spread gave rise to drastic prevention measures, which subsided as both treatment and understanding of HIV improved.

The first report of HIV in prisons was made in 1983. Soon after, a critical minority (but never a majority) of state-correctional systems began segregating HIV-positive prisoners from the general prison population. In the mid–1990s, as the fear surrounding HIV began to subside, most States that had enacted such policies reversed them. By 2006, only three States still segregated HIV-positive prisoners: South Carolina, Mississippi, and Alabama. In 2010, Mississippi ended its segregation policy as well. Today, preeminent public-health organizations, including the U.S. Centers for Disease Control and the National Commission on Correctional Healthcare, uniformly recommend against segregating prisoners with HIV.

B. The ADOC's HIV–Segregation Policy

As in the rest of the nation, the advent of the AIDS epidemic generated panic within the ADOC. Billy Mitchem, the former warden of Limestone Correctional Facility, explained: “[E]verybody was ... afraid. The inmates were afraid. The staff was afraid. We didn't understand, really, how you could get AIDS. I mean, you used your imagination, and most of that was wrong.... And people were dying.”

It was in this atmosphere that the ADOC established its original HIV-segregation policy. The initial policy was austere. HIV-positive prisoners were...