Nolley v. County of Erie

Decision Date31 October 1991
Docket NumberNo. CIV-88-1170C.,CIV-88-1170C.
Citation776 F. Supp. 715
PartiesLouise K. NOLLEY, Plaintiff, v. COUNTY OF ERIE; Thomas Higgins, Sheriff; John Dray, Superintendent; and Jane O'Malley, Nurse, Defendants.
CourtU.S. District Court — Western District of New York


Damon & Morey (Jennifer A. Coleman, of counsel), Buffalo, N.Y., for plaintiff.

Patrick H. NeMoyer, Erie County Atty. (James L. Tuppen, Asst. County Atty., of counsel), Buffalo, N.Y., for defendants.


CURTIN, District Judge.

I. Background

Evidence in this non-jury case is now closed. The parties have submitted proposed findings of fact and conclusions of law, and the court has considered summation. The following constitutes the court's findings of fact and conclusions of law.

Plaintiff Louise K. Nolley, a former inmate at the Erie County Holding Center ("ECHC"), has brought this suit against the ECHC and various administrators of the facility alleging that their treatment of her during her confinements in 1988, 1989, and 1989/90 violated her constitutional and statutory rights. Ms. Nolley was confined at the ECHC on three separate occasions:

(1) June 14, 1988, through November 9, 1988 ("1988 confinement");
(2) February 15, 1989, through May 31, 1989 ("1989 confinement");
(3) December 18, 1989, through February 13, 1990 ("1989/90 confinement").

Prior to her first incarceration, Ms. Nolley tested positive for the human immuno-deficiency virus ("HIV+"), the virus associated with Acquired Immune Deficiency Syndrome ("AIDS"). This fact was known by the ECHC's Medical Department throughout Nolley's three confinements. Based on this information, defendants placed on Ms. Nolley's inmate records, medical records, and transportation documents a red sticker to indicate to those who came in contact with her that she was infected with a contagious disease.

Defendants also chose to segregate Ms. Nolley from the general population because of her HIV status. She was placed in an area of the Holding Center known as Female Delta Medical Pod ("Female Delta"). Female Delta is a pod for female inmates who are mentally disturbed, suicidal, or dangerous to themselves. Ms. Nolley was also deprived of access to the ECHC's law library and, for most of her three confinements, to the ECHC's regularly scheduled Catholic services. Other inmates housed in Female Delta were, at the same time, permitted to attend religious services and the law library.

Four defendants remain in the case: Erie County, Sheriff Thomas Higgins, Superintendent John Dray, and Nurse Jane O'Malley. Sheriff Higgins is the policy-making official responsible for the operation of the ECHC and the Erie County Sheriff's Department. John Dray is the acting Superintendent of the ECHC. He is responsible for promulgating policies for the Holding Center and supervising its day-to-day operations. Jane O'Malley is the Nursing Supervisor/Administrator at the ECHC. A fifth defendant, Willie Brown, has been dropped from the case.

Plaintiff Nolley seeks damages and injunctive relief. She alleges that ECHC's policy of placing red stickers on various documents and other items violated article 27-F of New York State's Public Health Law, N.Y.Pub.Health Law ? 2780 et seq. (McKinney 1991 Supp.), State Commission of Correction regulations adopted in accordance with that law, and her constitutional right to privacy. Plaintiff also argues that her segregation in Female Delta violated her state rights under article 27-F and her constitutional rights of privacy, due process, and equal protection. Further, Ms. Nolley alleges that the conditions of her confinement violated her Eighth Amendment rights. She also brings constitutional claims for ECHC's denial of access to the law library and religious services. Finally, Ms. Nolley argues that defendants discriminated against her in violation of the Rehabilitation Act, 29 U.S.C. ? 794.


Dr. Ross Hewitt was called by plaintiff as an expert in the diagnosis and treatment of AIDS and research regarding HIV and AIDS. Defendants accepted his qualifications by also using Dr. Hewitt as their expert. Dr. Hewitt has been Director of AIDS Services at the Erie County Medical Center ("ECMC") since 1988.

Dr. Hewitt testified that AIDS is a syndrome characterized by complications indicative of an underlying immune deficiency. The viral agent identified with AIDS is known as HIV. It was identified in late 1983 and was confirmed in 1984. The virus invades the T4 cell, which is a key cell in the human body's immune system. Over time, the number and function of these cells decline as the virus progresses. Serious complications can occur when an infected individual's T-cell count drops below 200. The most common complications are: pneumocystis pneumonia (non-contagious but potentially fatal), chronic viral infections, bacterial infections, tuberculosis ("TB"), meningitis, lymphoma, and kaposi sarcoma. Technically, an HIV+ person is not diagnosed or described as having AIDS until she is experiencing one or more of these complications.

Louise Nolley's T-cell count never dropped below 300 during her three confinements at the ECHC. Nor did Ms. Nolley develop the complications that would lead her to being diagnosed as having AIDS. Nurse O'Malley was aware that HIV+ inmates are only at risk in the general population when their T-cell count drops below 200. She could have obtained Nolley's T-cell count from Dr. Hewitt at any time during Nolley's confinements but did not do so.

An infected person may be HIV+ for as long as ten years before developing the full-blown complications of AIDS. Even persons with AIDS generally do not require hospitalization unless some acute complication of AIDS develops. Unfortunately, there is no known cure for the disease.

There are only five known ways of transmitting the HIV virus: (1) sharing needles with an infected person; (2) having intimate sexual contact with an infected person; (3) carrying a developing fetus or breast-feeding a newborn; (4) receiving a transfusion of tainted blood or blood products; and (5) in rare circumstances, by blood-to-blood contact initiated through percutaneous cuts. AIDS cannot be transmitted by books, casual contact, being present in the same room as an infected person, toilet seats, door knobs, air conditioning, coughing, sneezing, urine, feces, sputum, nasal secretions, saliva, sweat, tears, or vomit. It certainly cannot be transmitted by attending church with an infected person or by sharing books with him or her.

Sometime in the fall of 1986 or 1987, Dr. Hewitt gave a presentation on AIDS at ECHC to some of the administrative staff of the facility. This presentation was attended by O'Malley and Dray. During that presentation, Dr. Hewitt explained the five known means of transmitting HIV and AIDS, and presented an overview of the disease which consisted of the same information provided in his trial testimony. This testimony is consistent with the findings of the National Center for Disease Control ("CDC"). The knowledge concerning the transmission of HIV and AIDS has not changed since the time of his presentation.

Defendant O'Malley knew of the CDC's findings about the transmission of HIV in 1986 and 1987 and discussed these findings with Dray and with Deputy Judith Lips. Dray received publications about the transmission of HIV, which he made available to his staff. Sheriff Higgins also sent a memo to Dray in late 1987, which emphasized that AIDS could not be spread by casual contact. That memo contained a 1987 publication of the U.S. Department of Justice entitled "AIDS and the Law Enforcement Officer: Concerns and Policy Responses." This publication was also received by O'Malley. As a result, both defendants Dray and O'Malley knew by 1987 that AIDS could not be transmitted by casual contact. Nevertheless, Dray, in his testimony, said that he did not believe the information he had received about the limited way in which HIV could be transmitted.1 He believed that HIV could be transmitted through saliva, tears, spit, mucus, urine and feces, by casual contact, by plaintiff using the typewriter in the law library, and even by coming into contact with plaintiff's personal items but not plaintiff.

Dr. Hewitt testified that a drug known as AZT, which first became available in September, 1987, is used to combat HIV. AZT works by slowing down the process of HIV replication. It is necessary to take AZT every four hours because, by then, it is effectively gone from the bloodstream. Missing an entire day's dose of AZT can lead to uncontrollable replication of the virus, which could have long-term, serious consequences for an HIV+ person.

After his one presentation to ECHC administrators in 1986 or 1987, the defendants did not again solicit Dr. Hewitt's assistance, even though he was available to train ECHC staff. Therefore, the only training of staff at ECHC about AIDS was in-service training provided by Deputy Lips for newly hired employees.

III. Universal Precautions

Since 1987, the CDC has recommended that universal precautions replace a policy of special precautions in dealing with HIV+ inmates. Universal precautions are a system of infection-control that assumes that you cannot identify all persons who are potential carriers of blood-borne diseases. Staff are urged to take appropriate precautions with all inmates, rather than inmates identified as HIV+, to prevent blood-to-blood contact. The population in the ECHC facility changes frequently, and it is impossible for the staff to know which inmates are infected with HIV. Nurse O'Malley admitted that at any given time, in addition to the inmates identified as being HIV+, there are inmates in the general population who are HIV+ or have AIDS. Thus, ECHC's policy of using special precautions with inmates known to be HIV+ is less effective than universal precautions in protecting staff from potential infection by HIV+ inmates because it fails to...

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