Onishea v. Hopper

Decision Date07 April 1999
Docket NumberNo. 96-6213,96-6213
Citation171 F.3d 1289
Parties15 NDLR P 65, 12 Fla. L. Weekly Fed. C 706 Lydia Kay ONISHEA; Renee Brown, et al., Plaintiffs-Appellants, v. Joe S. HOPPER, Commissioner of the Alabama Department of Corrections; Shirlie Lobmiller, Warden of the Julia Tutwiler Prison for Women; et al., Defendants-Appellees, Stewart M. Hughey; Adam Lamar Robinson; et al., Intervening Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Ayesha N. Khan, Margaret Winter, ACLU National Prison Project, Washington, DC, for Plaintiffs-Appellants.

Elizabeth A. Seaton, Whitman-Walker, Washington, DC, for Amicus Curiae.

David Byrne, Jr., J. Elizabeth Kellum, Robison & Belser, P.A., Alice Ann Byrne, Dept. of Corrections/Legal Division, Montgomery, AL, for Defendants-Appellees.

Seth M. Galanter, Dept. of Justice, Washington, DC, for Intervenor United States.

Appeal from the United States District Court for the Middle District of Alabama.

Before HATCHETT, Chief Judge, and TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL and MARCUS, Circuit Judges.

COX, Circuit Judge:

The plaintiff class, all of whom are prison inmates who have tested positive for the Human Immunodeficiency Virus (HIV), have sued officials of the Alabama Department of Corrections under § 504 of the Rehabilitation Act 1 to force integration of prison recreational, religious, and educational programs. The district court denied relief, and we affirm.

I. Background

This litigation began over a decade ago in reaction to a legislatively inspired program to prevent the spread of Acquired Immune Deficiency Syndrome (AIDS) in Alabama's prison system. Under statute, 2 the Alabama prison system tests all entering inmates for infection with HIV, which causes AIDS. Harris v. Thigpen, 941 F.2d 1495, 1499 (11th Cir.1991). The Department of Corrections segregates inmates testing positive for the virus from the general inmate population in HIV-positive units, one for men at the Limestone Correctional Facility and one for women at the Julia Tutwiler Prison for Women. Id. at 1500.

So segregated, the HIV-positive inmates are unable to participate in many programs and activities with the HIV-negative, general population. Programs that are available only to the general population program at Limestone include "Double O" squad jobs maintaining the prison grounds, jobs on the prison farm, bus squad jobs, facility maintenance jobs, trash detail jobs, kitchen jobs, runner jobs, upholstery classes, electrical technology classes, auto mechanics classes, construction trade classes, automotive body repair classes, horticulture classes, welding classes, 3 staff barber jobs, inmate barber jobs, laundry jobs, gardening jobs in the prison's vegetable gardens, the "Free by Choice" program (in which prisoners go to schools to talk to pupils about substance abuse and criminality), basketball and baseball tournaments, and "Alabama Volunteers in Corrections" meetings (to prepare prisoners for release). Programs that are available separately to Limestone HIV-positive inmates include paralegal training classes (HIV-positive inmates see videotapes of live instruction); adult basic education, GED testing, Narcotics and Alcoholics Anonymous meetings, graduation ceremonies, drafting classes, haircuts, visitation, medical treatment, gymnasium and library time, chapel services, dining, and prisoner transportation.

A similar range of programs is unavailable to HIV-positive inmates at Tutwiler: data processing classes, clerical classes, cosmetology classes, sewing classes, building trades classes, automotive repair classes, welding classes, floral design classes, small business machine repair classes, quantity foods service classes, nutrition classes, concerts and talent shows, softball and volleyball games, the "Free by Choice" program, college classes, Laubach literacy training, sewing factory jobs, data processing jobs, "downtown" jobs for government agencies, community projects jobs, road squad jobs, kitchen jobs, yard jobs, maintenance jobs, housekeeping jobs, laundry jobs, trash jobs, runner jobs, and haircutting jobs. Like their male counterparts, however, the HIV-positive prisoners at Tutwiler also have access to many programs separately from the general population: chapel services, some rehabilitation programs such as substance abuse and stress management counseling, visitation, organized recreational activities such as May Day and Oktoberfest, dining, medical care, adult basic education, GED testing, library use, and prisoner transportation.

The plaintiff class challenged this practice of denying some programs to the HIV-positive, and providing other programs separately, as a violation of several constitutional rights and of § 504 of the Rehabilitation Act of 1973. 4 The district court denied relief after a bench trial. The court concluded that no constitutional rights were violated. See Harris, 941 F.2d at 1521. It further concluded that the plaintiffs were not "otherwise qualified," as required for rights to arise under § 504, to participate in integrated programs because their participation would pose a significant HIV-transmission risk. This court affirmed judgment against the plaintiffs on the constitutional claims. This court held, however, that § 504 requires a program-by-program analysis to determine if the plaintiffs merit relief. See Harris, 941 F.2d at 1523. The action was remanded to the district court for this fact-finding. This court directed the district court especially to evaluate the risk of HIV transmission in each program in order to determine whether the plaintiffs were otherwise qualified to participate in each program. In so directing the district court, the panel nonetheless acknowledged that "the court's conclusion of the significance of the risk of HIV transmission with regard to each program [could] be unaltered." Id. at 1526.

Measuring the significance of the risk of HIV transmission in a host of programs (and thus determining whether the plaintiffs were otherwise qualified to participate) was accordingly the focus of the second trial. One relevant fact was undisputed: In the state of medical knowledge and art at the time of trial, HIV infection inevitably progressed to AIDS. AIDS always led to death, often after lengthy suffering. But the parties' evidence and arguments reflected two different approaches to the problem of measuring risk. Both sides presented substantial evidence in support of their positions.

On one hand, the plaintiffs argued that experience teaches us that the odds of HIV transmission in prison programs are remote at best. Their evidence fell into two categories. First, the plaintiffs presented expert testimony that incidents of HIV transmission in many activities are rare or virtually unknown. For instance, at the time of trial there were no reported cases of transmission as a result of lesbian sex. There was a similar lack of reported incidents of transmission from sports injuries, stabbing, or tattooing. Only "sporadic" instances of transmission from oral sex and fistfights had been reported. In short, the possibility of transmission in certain unusual circumstances (for instance in a fight if both participants bleed copiously into each other's wounds, or during barbering if bloody razors are immediately reused) had not been realized in any commonly recurring way.

Second, however, the plaintiffs' medical expert had to acknowledge that anal sex and needle-sharing are high-risk activities. Rather than assert the medical unlikelihood of transmission from these activities, the plaintiffs presented evidence of the rarity of such conduct in the programs in which they wish to participate. The plaintiffs' prison security expert combed prison files for incident reports and found none describing anal sex or needle-sharing during a wide variety of prison programs at both Limestone and Tutwiler. Reported incidents being rare or unknown in the past, the plaintiffs reason, we can expect them to be rare or unknown in the future even if HIV-positive inmates participate in integrated programs. The plaintiffs also showed that many of these programs are in high demand, and that inmates therefore have every incentive to be on their best behavior; moreover, they point out, the degree of surveillance in most programs makes an occurrence of anal sex, for instance, implausible.

While not completely contradicting any of this testimony, the defendants stressed other facts. They introduced testimony that HIV transmission is theoretically possible, even if not documented, in sports accidents and during fights--wherever there is a large exchange of blood between an infected person and an uninfected one. And the defendants introduced evidence that concededly high-risk activity abounds in prison. This evidence included a six-inch high stack of incident reports from the past few years describing hidden hypodermic needles, homosexual acts, and bloody fights. The defendants also showed that a 1991 outbreak of syphilis in the HIV-positive population at Limestone, in which 86 inmates were ultimately treated, was traceable to a single inmate. Finally, the defendants offered studies showing that residentially integrated prison systems in Maryland, Nevada, and Illinois have experienced seroconversions at annual rates of .41%, .19%, and .33%, respectively. 5 In Alabama, by contrast, over the entire roughly eight-year period of entrance and exit HIV-testing before the time of trial, (see R.31 at 167), only two inmates out of the at least 30,000 tested had seroconverted--an all-time rate of .0067%. (See id. at 106 (at least 30,000 inmates tested); id. at 166 (two total seroconverted).) Had the Alabama seroconversion rates resembled those in Illinois, in the neighborhood of 5 inmates per year would have contracted HIV at Limestone alone, perhaps 40 over an eight-year period. 6

Neither side's evidence was iron-clad...

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