JOHN DOE, APPELLANT
v.
JOAN DELIE, HEALTH CARE ADMINISTRATOR; PAUL NOEL, MEDICAL DIRECTOR; DIANE MANSON, MEDICAL NURSE/GRIEVANCE OFFICER; SOPHIE SWIKA, MEDICAL NURSE; KIM ZIMMERMAN, MEDICAL NURSE, AND ALL OTHER PARTIES ET AL., RELEVANT TO THIS INSTANT CIVIL ACTION AGAINST THEM; JAMES PRICE, SUPERINTENDENT (SCI PITTSBURGH)
No. 99-3019
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued September 11, 2000
Filed July 19, 2001
As Amended July 24, 2001.
Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 97-CV-01264) District Judge: Honorable Donald E. Ziegler[Copyrighted Material Omitted]
Martha E. Johnston, Esquire (Argued) Wolf, Block, Schorr and Solis-Cohen Llp 1650 Arch Street, 22nd Floor Philadelphia, PA 19103-2097 Attorney for Appellant
D. Michael Fisher, Attorney General Calvin R. Koons, Senior Deputy Attorney General John G. Knorr, III, Chief Deputy Attorney General Howard G. Hopkirk, Esq. J. Bart DeLone, Esquire (Argued) Office of Attorney General of Pennsylvania Strawberry Square, 15th Floor Harrisburg, PA 17120 Attorneys for Appellees
Charles W. Kenrick, Esquire Vincent C. Longo, Esquire (Argued) Grogan, Graffam & McGinley Three Gateway Center, 22nd Floor Pittsburgh, PA 15222 Attorneys for Appellee, Paul Noel
Before: Nygaard, Roth and Garth, Circuit Judges
OPINION OF THE COURT
Roth, Circuit Judge
John Doe, a former inmate of the Pennsylvania Department of Corrections, is HIV-positive. He was informed by the medical staff at the State Correctional Institution at Pittsburgh (SCIP) that his medical condition would be kept confidential. However, because of certain practices permitted by prison officials, Doe's condition was not kept confidential. Doe sued under 42 U.S.C.S 1983, claiming that prison practices violated his right to medical privacy under the Fourteenth Amendment and under the Pennsylvania Confidentiality of HIV-Related Information Act, 35 P.S. S 7601 et seq. The District Court granted defendants' motions to dismiss the S 1983 claims on the basis of qualified immunity, declined jurisdiction over the state claims, and dismissed the case.
Although we ultimately agree that defendants are entitled to qualified immunity, we do not agree with the District Court's reasoning. We hold that the Fourteenth Amendment protects an inmate's right to medical privacy, subject to legitimate penological interests. However , because this right was not clearly established at the time of defendants' conduct, we will affirm the dismissal of Doe's complaint.
I. FACTS
John Doe arrived at SCIP on January 11, 1995. Shortly thereafter, Doe was informed by the medical staff that he was HIV-positive. After signing a written consent of disclosure form, he was told that his medical condition would be kept confidential and that medical records relating to his illness would be maintained separately from his general prison file.
Because of certain procedures permitted by defendants, Doe's condition was not kept confidential. Specifically, when Doe was taken for sick call appointments, staff informed the escorting officers of Doe's medical condition. During physician visits, staff kept the door to the clinic room open, allowing officers, inmates, and guards in the area to see and hear Doe and the treating physician. Finally, while administering medication, nurses announced his medication loudly enough for others to hear , allowing inmates to infer Doe's condition. Doe filed administrative grievances concerning the sick call and medication distribution practices, but the grievances did not bring about any change in the practices.
On July 11, 1997, Doe, proceeding pro se, filed suit under 42 U.S.C. S 1983 and the Pennsylvania Confidentiality of HIV-Related Information Act, 35 P.S. S 7601 et seq. in the United States District Court for the Western District of Pennsylvania. The complaint named as defendants Joan Delie, Health Care Administrator at SCIP; Dr. Paul Noel, Medical Director of SCIP; Diane Manson, a Nurse/Grievance Officer; and Sophie Swika and Kim Zimmerman, both nurses at SCIP. Doe claimed his constitutional right to privacy was violated by the "open- door" examination room policy, by the disclosure of his medical condition to corrections officer escorts, and by the loud announcement of the names of his medications. He alleged that these practices made him reluctant to discuss embarrassing symptoms with doctors, subjected him to psychological harassment and humiliation, and caused him to discontinue treatment. Doe requested declaratory and injunctive relief, as well as nominal, compensatory, and punitive damages.
On August 5, 1997, Doe filed motions for a temporary restraining order and a preliminary injunction ordering defendants to provide for nondisclosure of his medical information during sick call visits and medication distribution. The Magistrate Judge recommended that both motions be denied pending service of the complaint and motions on defendants. This Report and Recommendation was adopted by the District Court on September 16, 1997.
After service of the complaint,1 defendants Delie, Manson, and Swika, and defendant Noel by separate motion, moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Doe was granted leave to file an amended complaint and did so on March 3, 1998. The amended complaint added James Price, the superintendent of SCIP, as a defendant and otherwise reasserted Doe's privacy claims. Defendants reasserted their motions to dismiss based, inter alia, on the defense of qualified immunity, which shields public officials from actions for damages unless their conduct was unreasonable in light of clearly established law.
The Magistrate Judge issued a Report and Recommendation on September 21, 1998. The Magistrate found that no clear federal constitutional right to nondisclosure of an inmate's medical condition exists and recommended dismissal of defendants Delie, Manson, Swika, and Price on grounds of qualified immunity. The Magistrate found that the only involvement alleged as to defendant Noel was his inadequate response to Doe's grievances, which did not give rise to a S 1983 claim. In addition, the Magistrate Judge found, sua sponte , that defendant Zimmerman was entitled to qualified immunity for her alleged misconduct and recommended dismissal of the complaint against her pursuant to 28 U.S.C. S 1915(e)(2)(B)(ii). Finally, the Magistrate Judge recommended that the District Court decline to exercise supplemental jurisdiction over Doe's state law claims.
Over Doe's objections, the District Court adopted the Magistrate Judge's Report and Recommendation and dismissed the case on December 17, 1998. On January 13, 1999, Doe filed his notice of appeal of the District Court's decision. We appointed counsel for Doe and have benefitted as a result from counsel's willingness to undertake this representation.
Shortly before oral argument, counsel informed us that Doe was awaiting a re-trial on his conviction. Counsel has now informed us that Doe was acquitted in his re-trial, and therefore is no longer an inmate at SCIP.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction over Doe's S 1983 claims pursuant to 28 U.S.C.S 1331 and over the state law claim under 28 U.S.C. S 1367. We have appellate jurisdiction over the District Court's final judgment pursuant to 28 U.S.C. S 1291. We exercise plenary review over the District Court's dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Piecknick v. Commonwealth of Pennsylvania,
III. DISCUSSION
Because Doe is no longer an inmate at SCIP, we must first consider whether his claims are moot before reviewing the District Court's qualified immunity analysis.
A. MOOTNESS
The Constitution limits the power of the federal judiciary to the resolution of "cases and controversies." See U.S. Const. art. III, S 2, cl.1. Federal courts are not empowered to decide moot questions. North Carolina v. Rice,
We have stated that "mootness has two aspects: (1) the issues presented are no longer `live' or (2) the parties lack a cognizable interest in the outcome." Id. As a result of his acquittal, Doe is no longer an inmate at SCIP . It is clear that any declaratory or injunctive relief with respect to the staff at SCIP would have no impact on him, and therefore his equitable claims are moot.
Doe argues that his case falls into the "capable of repetition, yet evading review" exception to the mootness doctrine. The exception is limited to cases which have two elements: "(1) the challenged action was in its duration too short to be fully litigated to its cessation or expiration and (2) there is a reasonable likelihood that the same complaining party would be subjected to the same action again." Abdul-Akbar v. Watson, 4 F .3d 195, 206 (3d Cir. 1993) (emphasis omitted), quoting Weinstein v. Bradford,
However, as a result of his acquittal, we simply cannot conclude that there is a reasonable likelihood that he would be subjected to the same conduct. See Weinstein,
Nonetheless, where a plaintiff has requested several forms of relief and some of the requests become moot, the court must still consider the viability of the remaining requests. Jersey Cent. Power & Light Co. v. State of New Jersey,
B. A PRISONER'S RIGHT TO PRIVACY IN MEDICAL RECORDS
Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges or immunities secured by the Constitution or laws of the United States. 42 U.S.C. S 1983. This section does not create any new substantive rights, but it provides a remedy for the violation of a federal constitutional or statutory right conferred elsewhere. Baker v. McCollan,
When the defendant in a S 1983 action claims qualified immunity, a court must first determine if the plaintiff 's allegations are sufficient to establish the violation of a federal constitutional or statutory right. Wilson v. Layne,
With this framework in mind, we must determine whether an HIV-positive inmate has a right to privacy in his medical information. If so, we must determine whether that right was clearly established in 1995.
1.
An individual has a constitutional right to privacy which protects "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe,
The District Court recognized Doe's right to privacy in his medical information, but concluded that such a right does not exist in prison. We disagree. As the Supreme Court has noted, prison inmates do not shed all fundamental protections of the Constitution at the prison gates. Wolff v. McDonnell,
For example, prisoners retain rights afforded by the First Amendment. O'Lone v. Shabazz,
The defendants correctly assert that prisoners do not have a Fourth Amendment right to privacy in their cells. Hudson v. Palmer,
However, Doe's asserted right to privacy in his medical information is completely different than the right extinguished in Hudson. See, e.g., Powell v. Schriver,
It is beyond question that information about one's HIV- positive status is information of the most personal kind and that an individual has an interest in protecting against the dissemination of such information. See Doe v. SEPTA,
We acknowledge, however, that a prisoner does not enjoy a right of privacy in his medical information to the same extent as a free citizen. We do not suggest that Doe has a right to conceal this diagnosed medical condition from everyone in the corrections system. Doe's constitutional right is subject to substantial restrictions and limitations in order for correctional officials to achieve legitimate correctional goals and maintain institutional security.
Specifically, an inmate's constitutional right may be curtailed by a policy or regulation that is shown to be "reasonably related to legitimate penological interests." Turner v. Safley,
[Turner] directs courts to assess the overall reasonableness of such regulations by weighing four factors. First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it, and this connection must not be so remote as to render the policy arbitrary or irrational. Second, a court must consider whether inmates retain alternative means of exercising the circumscribed right. Third, a court must take into account the costs that accommodating the right would impose on other inmates, guards, and prison resources generally. And fourth, a court must consider whether there are alternatives to the regulation that fully accommodate the prisoner's rights at de minimis cost to valid penological interests.
Dehart v. Horn,
Appellant alleges that his constitutional right to privacy in his medical information was violated by three practices: the "open-door" examination room policy, the disclosure of his medical condition to corrections officer escorts, and the loud announcement of the names of his medications. Doe concedes that the "open door" examination room policy could conceivably be justified by a legitimate security interest but contends that no such interest has been advanced here. In addition, Doe maintains that the other disclosures are unrelated to any legitimate penological interests, and thus violated his right to privacy.
Given the disposition of the case by the District Court, defendants did not have the opportunity to come forward with any evidence of legitimate penological interests, costs of accommodating Doe's privacy interest, or availability of alternatives to the disclosures made here. Based on this undeveloped record, we are unable to assess any of the Turner factors. Rather than speculating about these factors, we ordinarily would remand for consideration by the trial court on those issues. However, we need not decide those issues in this case because of our disposition of the second prong of the qualified immunity analysis.
2.
As stated earlier, the qualified immunity doctrine shields public officials from actions for damages unless their conduct was unreasonable in light of clearly established law. Harlow v. Fitzgerald,
Thus, having determined that Doe has alleged a violation of a constitutional right, we must determine whether Doe's right to privacy was "clearly established" in a "particularized" sense. Anderson v. Creighton,
Appellant makes three arguments in support of his contention that his right to privacy in his medical information was clearly established in 1995. First, Doe argues that a Pennsylvania statute both creates a right and serves to inform defendants of the existence of that right. Second, Doe argues that, by 1995, a "growing consensus" of other courts had held that inmates possess a right to privacy in their medical records. Finally, Doe argues that the class action settlement in Austin v. Pennsylvania Dept. of Corrections,
The Pennsylvania Confidentiality of HIV-Related Information Act, 35 P.S. S 7603, became effective March 1, 1991. Under the Act, any person who obtains confidential HIV-related information in the course of providing health or social services, or pursuant to consent, may not disclose the information, except by consent, or to certain designated persons. 35 P.S. S 7607. The state right is enforceable in a private cause of action for damages. 35 P.S.S 7610. Doe contends that he consented to the HIV test but did not consent to the various disclosures made by defendants. While Doe concedes that the state statute cannot be the basis for his federal action, he argues that prison officials could not have been acting "reasonably" when they were in direct violation of a clear state statute; they thus lost the protections of qualified immunity.
This argument misinterprets the effect of a state law on a federal constitutional claim. The Supreme Court has held that officials do not forfeit qualified immunity from suit for violation of a federal constitutional right because they failed to comply with a clear state statute. Davis v. Scherer,
Second, a review of decisions which had addressed the issue by 1995 reveals that no court of appeals had held that prisoners retained a constitutional right to the privacy of their medical information. In fact, only a handful of district court opinions had done so.
The earliest circuit opinion addressing the issue analyzed a prison policy of segregating HIV-positive inmates from the general prison population. Harris v. Thigpen,
Prior to 1995, other courts of appeals likewise upheld the segregation of HIV-positive inmates from the general population. See, e.g. Camarillo v. McCarthy,
In 1995, the Seventh Circuit considered disclosures that are closer to the ones that occurred in the present case. Anderson v. Romero,
We note that Doe has cited several district court cases which concluded, by 1995, that inmates have a right to privacy in their medical information. See Austin v. Pennsylvania Dept. of Corrections, 876 F . Supp. 1437 (E.D.Pa. 1995) (approving class action settlement including policies regarding treatment of HIV positive inmates); Clarkson v. Coughlin,
Of course, all of these opinions are factually and legally distinguishable from the present case. Both Nolley and Doe v. Coughlin are HIV-positive inmate segregation cases. These cases conflict with the subsequent appellate HIV segregation cases, which upheld the practice.9 See Camarillo,
In short, none of these decisions, individually or collectively, makes it sufficiently clear to reasonable officials that their conduct violated a prisoner's federal constitutional right. District court opinions may be relevant to the determination of when a right was clearly established for qualified immunity analysis.10 However, in this case, the absence of binding precedent in this circuit,11 the doubts expressed by the most analogous appellate holding, together with the conflict among a handful of district court opinions, undermines any claim that the right was clearly established in 1995.
Finally, we address Doe's argument regarding the settlement in Austin v. Pennsylvania Dept. of Corrections,
We agree that, in some ways, the Austin settlement is more persuasive than the scattered district court opinions previously discussed. Austin has significant factual correspondence to Doe's case. In addition, the opinion documents the participation of the DOC in lengthy negotiations regarding treatment of HIV-positive inmates to settle the class action. Cf. Buckley v. Rogerson ,
Nevertheless, Austin is also less persuasive than other district court opinions. Rather than providing a decision on the legal merits of the claims, the Austin court merely approved a settlement. As the Austin court itself noted, it "only evaluate[ed] the probable outcome of the litigation and [was] not required to weigh and decide each contention." Austin,
Nor can the fact that the DOC agreed to settle a case clearly establish a federal constitutional right. The law favors settlement, particularly in class actions and other complex cases, to conserve judicial resources and reduce parties' costs. See In Re General Motors Corp. Pick-Up Truck Fuel Tank Litig.,
Based on the foregoing, we cannot conclude that the cited authorities, individually or in combination, clearly established an inmate's constitutional right to privacy in his medical information. Government officials must stay abreast of constitutional developments, but they are not "expected to predict the future course of constitutional law." Wilson v. Layne,
3.
Although the exact boundaries of such a right have yet to be established, we hold today that prison inmates retain a Fourteenth Amendment substantive due process right to privacy in their medical information. The exact parameters of a prisoner's right to privacy in that information will have to be determined in a later case on a more complete record, where the Turner factors can be fully considered in the context of the penological interests concerned. Moreover, because we are granting qualified immunity to the defendants, we also do not go on to the issue of the standard that is utilized to determine whether a prisoner's right to privacy in his medical information has been violated. That determination too will have to wait for another day.
IV. CONCLUSION
We hold that the Fourteenth Amendment protects an inmate's right to medical privacy, subject to legitimate penological interests. However, because this right was not clearly established at the time of defendants' conduct, we will affirm the District Court's dismissal of Doe's complaint on the basis of qualified immunity.
Notes:
Notes
Nurse Zimmerman was never served with process in the district court. She is not a Commonwealth employee, and was apparently referred to SCIP through a private nursing facility. Efforts to locate her at that agency were unsuccessful.
But see Doe v. Wigginton, 21 F .3d 733, 736 (6th Cir. 1994) (no discussion of mootness, although facts state plaintiff was released from prison prior to appeal). The Sixth Circuit reached the merits to dismiss the privacy claim of an HIV-positive prisoner , but, as discussed in footnote six, infra, the substantive law of privacy in the Sixth Circuit conflicts with that of the Third Circuit.
While the District Court did not consider the effect of S 803(d)(e) of the Prison Litigation Reform Act, codified at 42 U.S.C. S 1997e(e), on Doe's claims, we have since recognized that S 1997e(e) prohibits compensatory damages for mental or emotional injury absent allegations of physical injury. Allah v. Al-Hafeez,
Notwithstanding the fact that the Supreme Court has twice stated in mandatory, unqualified language that "[a] court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all . . ." Wilson,
The Fourth Amendment prohibits the government from conducting unreasonable searches and seizures. U.S. Const. amend. IV. While courts and commentators have emphasized the privacy interests protected by the Fourth Amendment, the Supreme Court has clarified that the Fourth Amendment "protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all." Katz v. United States,
There are at least two types of privacy protected by the Fourteenth Amendment: the individual interest in avoiding disclosure of personal matters, and the right to autonomy and independence in personal decision-making. See Whalen,
For example, state law may bear upon a claim under the Due Process clause when the property interest protected by the Fourteenth Amendment is created by state law. See Board of Regents v. Roth,
By 1995, the Sixth Circuit had explicitly held that the right of privacy is not implicated at all by prison official's disclosure of an inmate's HIV status. See Doe v. Wigginton,
The appellate cases illustrate the problem identified by the Supreme Court in qualified immunity cases: "[T]he generally sound rule of avoiding determination of constitutional issues does not readily fit the situation presented here [because] when liability is claimed on the basis of a constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional law at the time the officer acted. What is more significant is that if the policy of avoidance [of constitutional issues] were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or non-constitutional . . . . therefore the better approach is to determine the right before determining whether it was previously established with clarity." County of Sacramento v. Lewis,
These opinions also conflict with other New York district court cases which upheld the segregation of HIV-positive inmates. See Baez v. Rapping,
See Hayes v. Long,
We have held that district court decisions do not establish the law of the circuit, and are not even binding on other district courts within the district. Threadgill v. Armstrong World Indus., Inc.,
The absence of circuit precedent does not mean an official will always retain the immunity defense. "The easiest cases don't even arise." United States v. Lanier,
The Austin court stated: "One group of inmates objects to the Settlement Agreement because they believe the provisions which ensure the anonymity of HIV-infected inmates are too stringent. These inmates want the DOC to test all inmates and notify the general population of those inmates who are HIV-positive. Such a notification procedure is unrelated to any penological interest and would most likely violate state law . . . and the Constitution of the United States." Austin,
We will likewise affirm the District Court's order dismissing Nurse Zimmerman pursuant to 28 U.S.C. S 1915(e)(2)(B)(ii) for qualified immunity and declining supplemental jurisdiction over the state claims.
GARTH, Circuit Judge, dissenting and concurring.
I agree with Judge Roth that the District Court's decision dismissing Doe's complaint should be affirmed because the defendants have qualified immunity from Doe's claims. However, I cannot agree that, on this record brought before us on a Rule 12(b)(6) motion,1 we can or should declare that "a constitutional right to privacy in one's medical information exists in prison." (Roth Op. at 317.) This case is one of first impression, and Judge Roth's holding, with which Judge Nygaard concurs as to the constitutional right,2 may have a multitude of ramifications in this Circuit where major prisons abound. It is for that reason that I write separately contesting the creation of a constitutional right of privacy and confidentiality for prisoners.3
It is true that, in so holding, Judge Roth qualifies this statement, observing that "Doe's constitutional right is subject to substantial restrictions and limitations in order for correctional officers to achieve legitimate correctional goals and maintain institutional security." (Roth Op. at 317.) Nevertheless, because she and I agree that such a constitutional right of privacy in prison has not been and is not clearly established, the prudential and wiser course of action in this case is to decline to determine that such a constitutional right has been established at all.
I.
The record before us in this case is naked of anything other than Doe's allegations in his complaint--allegations which complain of a lack of privacy and confidentiality as well as a violation of his grievance/appeal rights.4 However, we have not been informed and do not know whether Doe, who was a death penalty prisoner, was required to be closely guarded at all times by prison guards, thereby virtually ensuring that the guards would be privy even to private conversations. We do not know the construction and dimensions of the medical area or medication dispensary at SCI-Pittsburgh--whether there are communal examination rooms or private examination cubicles. We do not know the location of Doe's death penalty cell in the Restricted Housing Unit ("RHU"), or the route, access, and distance from his cell to the medical area. We do not know the circumstances under which medication is dispensed at sick call--the structure and configuration of the dispensary, the location in the dispensary of physicians, nurses, guards, and other prisoners, or the manner in which prisoners receive medication (are they separately scheduled or are they scheduled in a group or in an open line?). Nor do we know the administrative complexities encountered by prison authorities in ensuring the manner in which each prisoner receives the correct medication. We do not know the state of the security precautions in the dispensary area as compared to the security in the RHU, nor do we know the required provisions for security in the passageways between the two areas.
All that we do know from Doe's complaint is 1) that the clinic door is kept open when Doe is seen by doctors and CDC specialists so that Doe may be viewed by corrections officers,5 and 2) that, when Doe receives his medication, the medication is sometimes referred to by name. Moreover, because, on a Rule 12(b)(6) motion, no response or information is available from, in this case, the prison authorities, we have no knowledge of the physical, structural, or security conditions in prison that contribute to and may generate a diminished expectation of privacy or confidentiality.6
Prisons are communal environments in which a large number of inmates and prison employees coexist in a confined living space. For this reason, inmates have little physical privacy, and the circumstances of medical treatment may not conform to private, non-prison norms. Prisoners must do everything in close proximity to other inmates and prison personnel, including sleeping, eating, dressing, bathing, and, to a certain extent, receiving medical attention.
II.
Another reality of prison life is the fact that prison resources are limited. Prison systems are generally in this day and age overcrowded and understaffed. Therefore, accommodation of prisoners' privacy and confidentiality demands, their needs, and even their rights cannot be assumed or declared in a vacuum. Considering the communal nature of prison existence, similar in many privacy (or lack of privacy) aspects to life in the military, together with the limited and often insufficient financial resources of prisons, I believe it to be rash and imprudent to hold at this time, without much more information about prison security concerns, that Doe has a constitutional right to privacy in his HIV-positive status, any more than he has a constitutional right of privacy in his cell. See Hudson v. Palmer,
I recognize, of course, that the rationale of Hudson, analyzed under the Fourth Amendment, dealt with the lack of privacy an inmate has in his cell accommodation, whereas here our attention is drawn to rights under the Fourteenth Amendment and the "penumbras" of rights encompassing privacy. See Griswold v. Connecticut,
Indeed, I take issue with Judge Roth's assertion that "Doe's asserted right to privacy in his medical information is completely different than the right extinguished in Hudson." (Roth Op. at 316.) After all, in Hudson, the Supreme Court declined to declare a constitutional right because "[t]he recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions,"
That is the course of action that the Supreme Court took in Hudson, where the Court decided the very limited question of a prisoner's Fourth Amendment privacy right in his cell on an appeal from a grant of summary judgment, not a Federal Rule of Civil Procedure 12(b)(6) motion, and even Powell v. Schriver,
I believe that we can analogize Doe's situation to the Supreme Court's rationale in Hudson, where the Court, as noted, held that prisoners do not have a Fourth Amendment right to privacy in their cells. Doe's complaint includes claims of violation of his privacy, violation of confidentiality, and violation of his rights under the grievances and appeal procedures. My reading of Doe's complaint reveals that it is the privacy aspect on which Doe has focused and which has caused his distress. But, the question that then arises is whether Doe had a legitimate expectation of privacy concerning his HIV -positive status. In this respect, I believe we can look to Hudson, where the Court stated:
Determining whether an expectation of privacy is "legitimate" or "reasonable" necessarily entails a balancing of interests. The two interests here are the interest of society in the security of its penal institutions and the interest of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: A prison "shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room." We strike the balance in favor of institutional security, which we have noted is "central to all other corrections goals." A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement."
Hudson,
Thus, the realities of prison life compel a holding that Doe has not established a constitutional right to privacy on the record here--and certainly not in the current posture of this case. Though the Supreme Court has held that prisoners retain "those [constitutional] rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration," Hudson v. Palmer,
III.
I also note that a decision in this case that 1) the record is not sufficient to establish a constitutional right but that 2) the right was not clearly established in any event is consistent with the Supreme Court's directive in Wilson v. Layne,
However, Wilson arose in the context of a district court's ruling on a summary judgment motion, not on a Rule 12(b)(6) motion to dismiss, as did the other cases cited by the Court in Wilson. See Conn v. Gabbert,
Hence, it seems to me that the Wilson rule is not appropriately extended to rulings on Rule 12(b)(6) motions to dismiss, where the factual record is as scant as it is here. In my opinion, to construct a constitutional right out of the whole cloth without analysis and without any knowledge of the institutional factors or security concerns attendant to a prison population or to a penal environment appears to me to be not only improvident but, as I have stated, rash. Indeed, I find it highly unusual that a court should decide the existence of a constitutional right when it has essentially no record before it and no basis on which it may balance the claims made by the prisoner of privacy expectations against legitimate security interests of the prison. Such a decision does not "promote[ ] clarity in the legal standards for official conduct, to the benefit of both the officers and the general public," Wilson,
Judge Roth in her majority opinion has responded to this critique and my thesis by citing two Supreme Court cases and declaring that the Supreme Court unequivocally demands that, in qualified immunity cases, the constitutional right first be declared before we address whether that right has been clearly established. (Roth Op. at 315 n.4.) I quite agree with her that the doctrine she invokes requires the declaration of a constitutional right as the first order of business. However, and this is a major "however," those cases to which she refers were not cases decided by a district court on a Rule 12(b)(6) motion. See Wilson v. Layne,
The Seventh Circuit, albeit in a different context, has recently held that district court judges should not apply the Rule 12(b)(6) standard of accepting a plaintiff 's allegations as true when they determine whether to certify a class. The Seventh Circuit instructed that, "[b]efore deciding whether to allow a case to proceed as a class action, .. . a judge should make whatever factual and legal inquiries are necessary under Rule 23." Szabo v. Bridgeport Machines, Inc.,
Moreover, I have great difficulty, as I envisage the bench and bar will also have, in identifying the contours and parameters of an asserted constitutional right of prison privacy that is still subject to the restrictions and limitations of penal security interests. Even Judge Roth admits that these restrictions, limitations, and accommodations have yet to be delineated. In particular, since the relevant penological interests are presently not known and may, by their very nature, cause the constitutional right at issue here to disappear into thin air or be diminished to a point of nothingness, it seems to me far better that we know precisely the right with which we are dealing before creating such a right liable to be dismissed on its first documented challenge.
Certainly the Supreme Court could never have intended that a fundamental constitutional right be created with no regard for the framework or circumstances relevant to its application. It is for that reason, I suggest and strongly urge, that it is far more prudent and responsible to await the development of an appropriate record before plunging ahead to create a fundamental right which may not ever be sustainable in a communal prison context.
Judge Roth acknowledges that the record in this case is undeveloped just as Doe himself "concedes that the `open door' examination room policy [see note 3, supra] could conceivably be justified by a legitimate security interest but contends that no such interest has been advanced here." (Roth Op. at 314.) Judge Roth, recognizing that we would ordinarily remand for consideration by the trial court of issues concerning legitimate penological interests, security concerns, costs of accommodating Doe's privacy interest, availability of alternatives, etc., did not take that course because the right which she has declared was not clearly established.
I would hold that, if a record is undeveloped, as this one is, it cannot suffice to form the basis for the declaration of a constitutional right. The announcement of a constitutional right--an announcement which is never lightly reached and which inevitably has far -reaching and unpredictable consequences--should be grounded on unassailable legal principles and formulated based on a full factual record. Had Judge Roth just assumed arguendo that a constitutional right existed in prison, as the Eleventh Circuit did in Harris v. Thigpen, 941 F .2d 1495, 1513 (11th Cir. 1991), (which was admittedly decided before the Supreme Court's holding in Wilson v. Layne,
IV.
Accordingly, in my opinion, we are correct in disposing of this case on qualified immunity grounds, not only because the constitutional right was not clearly established but because, at this time and in the posture of the present case, we should not announce a constitutional right which cannot be defined at this stage of the proceedings.
I therefore respectfully dissent from Judge Roth's constitutional holding but concur in the final judgment, because I agree with Judge Roth that such a right has not been, and is not, clearly established and that, therefore, the District Court's dismissal of Doe's action should be affirmed.
Notes:
A motion brought pursuant to Federal Rule of Civil Procedure 12(b)(6) is granted only if: "taking the allegations of the complaint as true, . . . and viewing them liberally giving plaintiffs the benefit of all inferences which fairly may be drawn therefrom, . . .`it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.' "Bogosian v. Gulf Oil Corp.,
For ease of reference, I will refer to Judge Roth's holding throughout this dissent and concurrence, although Judge Nygaard constitutes her majority with respect to the establishment of a constitutional right to privacy in prison.
In her footnote 3, relevant to her discussion of mootness, (see Roth Op., Part III.A), Judge Roth asserts that S 1997e(e) of the Prison Litigation Reform Act ("PLRA") does not bar claims for punitive damages, relying on Allah v. Al-Hafeez, 226 F .3d 247, 251 (3d Cir. 2000). I disagree with her analysis, because I believe that this case is far more similar to Davis v. District of Columbia,
That statement of Doe's claim alleges:
* Doe is a death row prisoner;
* After submitting to a blood test, Doe was informed by the prison medical staff that he was HIV-positive and that this medical condition would be kept confidential;
* He has undergone medical examinations and tests in the open presence of correctional officers and other inmates;
* The clinic door is kept open when Doe is seen by doctors and specialists from the Centers for Disease Control (CDC), so that correctional officers can see Doe;
* When Doe has an appointment with a CDC specialist, the correctional officers who escort him to the appointment are informed of the nature of the appointment;
* On one occasion, a nurse announced aloud the names of the medications being delivered to Doe in the presence of other inmates and that nurse told a corrections officer about Doe's condition;
* In connection with Doe's internal grievance about the sick call procedure, he was interviewed by a medical grievance officer whom Doe told that another inmate twice over heard a nurse stating the name of Doe's medication when delivering it to him;
* Doe's internal grievance, which contained information about his HIV-positive status, was forwarded to the superintendent of the prison;
* Prison officials responded to Doe's internal grievance by informing him that the nurses denied his allegations and that the door had to be left open when Doe was being examined by specialists and doctors due to a "security issue"; and
* His appeal rights had been affected by being obliged to go through the superintendent prior to appeal to final review.
(App. 15a-19a.)
Judge Roth acknowledges that Doe has conceded that this practice may be justified by the prison's legitimate security concerns. (Roth Op. at 317.)
Because, as noted, this is an appeal from a Rule 12(b)(6) dismissal, the defendants have not been able to inform us of their actions, procedures, regulations, explanations, or justifications in response to Doe's complaint. (See text infra, discussing the inadvisability of creating constitutional rights based on a naked record consisting only of the prisoner-plaintiff 's allegations.) It is not only impossible to analyze the factors identified in Turner (connection between regulation and justification; alternative means of exercising right; costs of accommodating right; and alternatives to the regulation), as even Judge Roth acknowledges (see Roth Op. at 317 ("defendants did not have the opportunity to [produce] any evidence of legitimate penological interests, costs. . . , or availability of alternatives. . .")), but it is similarly hopeless to draw upon instruction from the "privacy?" cases cited by both Judge Roth and Judge Nygaard. This is so because, here, there are no factual circumstances that can be likened or compared to the circumstances described in the cases my colleagues have cited, almost all of which are non-prison cases or are inapposite for some other reason and, therefore, are not relevant in any event. See, e.g., Doe v. Southeastern Pennsylvania Transp. Auth.,
I should note that the connection between the prison's security interest and the deprivation of Doe's right to privacy is less direct here than in the Fourth Amendment context. In Hudson , the Supreme Court observed that prison officials must be able to maintain prison safety by entering inmate's cells to search for weapons and contraband. Here, Doe's right to privacy is overshadowed and diminished by the general need to monitor and guard prisoners and by the very nature of a forced communal living environment, both of which make it difficult to preserve a prisoner's privacy.
Moreover, I believe that the balancing of interests prescribed by the Supreme Court in Hudson whereby expectations of privacy must be balanced against legitimate penological and security interests cannot be undertaken unless and until those interests are known and spread upon the record. Until that time, I cannot subscribe to or hold that prisoners have the same privacy interests as the general non-prison population enjoys. I also believe that, when the balancing equation is completed, it will weigh in favor of institutional security and against prisoners' unrealistic expectations of privacy as it does in the Fourth Amendment context.
Hence, I am neither influenced nor persuaded by Judge Roth's reliance on Powell v. Schriver,
The Supreme Court reaffirmed this principle most recently in Shaw v. Murphy, stating that "constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large."
Powell v. Schriver, see note 5, supra, in which the Second Circuit held that a transsexual prisoner had a constitutional right to privacy in that medical information but that the constitutional right to privacy in prison was not clearly established, arose in the context of a district court's grant of judgment notwithstanding the verdict to the defendant. In that case, unlike this one, the Second Circuit had the benefit of a full factual record after a full jury trial.
NYGAARD, concurring and dissenting:
I agree with Judge Roth's conclusion that prisoners have a right to privacy in their medical information, and that this right may be compromised only if it conflicts with a legitimate penological objective that satisfies the criteria outlined in Turner v. Safley,
It is now axiomatic that the doctrine of qualified immunity bars government officials from liability for damages unless they disobeyed "clearly establish[ed] statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
The question is whether these members of the Pennsylvania Department of Corrections should have known from 1995 through 1997 that prisoners possessed a right to the privacy of their medical records. I proceed to my conclusion as follows:
First, we have recognized the right to confidentiality in medical records since 1980. United States v. Westinghouse Elec. Corp.,
Likewise, the standard for determining the legitimacy of an infringement on a prisoner's constitutional right, such as the right to confidentiality in medical records, was well established by 1995. In Turner,
Although we have given "[p]rison officials . . . broad discretion in fashioning appropriate responses to legitimate penological objectives consistent with the constitutional rights of inmates," Monmouth County,
Well before 1995, therefore, officials for the Pennsylvania Department of Corrections should have known 1) that a constitutional right to privacy in medical records exists, particularly for HIV-related information, and 2) that under Turner, prisoners do not forfeit constitutional rights except when those rights cannot reasonably be reconciled with legitimate penological objectives. With these two premises well known, I would expect reasonable prison officials to infer that they cannot arbitrarily violate a prisoner's right to privacy in medical information. In this situation, the "contours of the right [were] sufficiently clear" for Appellees to understand that they were violating Doe's constitutionally protected right. Anderson ,
Next, I believe that a "consensus of cases of persuasive authority" had been established by 1995. Wilson v. Lane,
In 1993, the Eastern District of Pennsylvania held that inmates have a constitutionally protected privacy interest in nondisclosure of confidential medical information concerning their HIV status. Faison v. Parker,
A series of other District Courts reached the same conclusion by 1995. Clarkson v. Coughlin,
Appellees argue, and Judge Roth agrees, that these cases do not constitute a proper consensus. T o the contrary, I agree with the Court of Appeals for the Eighth Circuit, which explained that "[i]n the absence of binding precedent, a court should look to all available decisional law, including decisions of state courts, other circuits and district courts." Norfleet v. Arkansas Dep't of Human Services ,
Two other factors render the officials' failure to recognize Doe's right to privacy in his medical records still more unreasonable. First, The Pennsylvania Confidentiality of HIV-Related Information Act, 35 P .S. S 7603, which became effective on March 1, 1991, provides a statutory right to nondisclosure. Section 7607 states:
(a) Limitations on disclosure.--No person or employee, or agent of such person, who obtains confidential HIV- related information in the course of providing any health or social service or pursuant to a release of confidential HIV-related information under subsection (c) may disclose or be compelled to disclose the information.
The statute makes no exception for inmates, as it states that HIV-related information can be disclosed to
[e]mployees of county mental health/mental retardation agencies, county children and youth agencies, county juvenile probation departments, county or State facilities for delinquent youth, and contracted residential providers of the above-named entities receiving or contemplating residential placement of the subject, who:
(i) generally are authorized to receive medical information; and
(ii) are responsible for ensuring that the subject receives appropriate health care; and
(iii) have a need to know the HIV-related information in order to ensure such care is provided.
Id. Because no exception is made for adult prisoners, and all other exceptions are clearly stated, the Department of Corrections should have known by March 1991 that prisoners possess a right to the privacy of their HIV-related information. Considering the specificity of the statute, and its precise applicability to the facts of this case, the right under review was clearly established in 1991.
Appellees, and Judge Roth, claim that a state statute is irrelevant to the issue of qualified immunity on a federal claim. See Davis v. Scherer,
an official's clear violation of a state administrative regulation does not allow a S 1983 plaintiff to overcome the official's qualified immunity. Only in this context is the Court's statement comprehensible: `A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the appellee official's qualified immunity only by showing that those rights were clearly established . . .' Davis, in short, concerned not the authorities a court may consider in determining qualified immunity, but this entirely discrete question: Is qualified immunity defeated where an appellee violates any clearly established duty, including one under state law, or must the clearly established right be the federal right on which the claim for relief is based? The Court held the latter.
The reason why I disagree with Judge Roth is that although a state statute will not, by itself, place an official on notice of a federal right, to me such a statutory right should raise the official's awareness that a parallel federal right may exist. Such a warning should facilitate a reasonable official's ability to make the inference discussed above. This position is congruent with the objectives of the doctrine of qualified immunity. If a state statute clearly articulates a right, and places those within its jurisdiction on notice of that right, and if that right perfectly coincides with a federally protected right, then why would we not consider the statute's existence when determining whether the offender should have known of the federal right? I think we should. Indeed it seems to me that a state statute, locally promulgated, and free from many of the uncertainties of case law, most effectively notifies the community of a protected right, and reinforces federal law.
Regardless of how a person learned of the right, and regardless of whether she thought she was violating state or federal law, she knew that a right existed and that she was violating it. The purpose of qualified immunity is to protect government officials from having to defend themselves in litigation over rights and duties that they did not know they were violating. Here, the Appellees were clearly notified by the 1991 statute that Doe was entitled to the privacy of his medical records under state law. The inference that prisoners were entitled to the same right under federal law was implicit by 1995. If we allow the state statute to play no role in assessing whether or not the officials should have known of the federal right, then we allow officials to turn a blind eye to the general state of the law and discourage them from making a good faith effort to recognize such implicit principles. I consider this good faith effort to be within the responsibilities of a "reasonable official."
In addition, as powerful evidence that these officials knew they were violating Doe's right to privacy, in an opinion establishing a right to privacy for inmates' HIV- related medical records, Austin v. Pennsylvanian Dep't of Corr., the very agency and officials before us now were also appellees in that case. In that opinion in January 1995, the Court stated that the "DOC has agreed to keep inmates' medical information regarding HIV status confidential and to advocate a universal precautions policy in place of the current Contagious Disease Notification Policy in its forthcoming negotiations with the union representative of its custody staff." Austin, 876 F . Supp. at 1453. This decision alone directly notified Appellees of their obligation to protect Doe's privacy right. As Judge Roth correctly states, court approval of a settlement does not provide a legal decision regarding the constitutionality of the elements of the settlement. But that is not the test. The court clearly warned the very institution before us in this matter that it risked constitutional violations by disclosure. Indeed the language the Court used was that disclosure of a prisoner's HIV-related medical information, if "unrelated to any penological interest . . . would most likely violate state law, and the Constitution of the United States." Id. at 1437. Austin explained that "[a]lthough individuals have an interest in preventing disclosure of their HIV status which is protected by state law and the Constitution, inmates' rights must necessarily yield to a certain extent to legitimate penological interests," and then clearly stated the criterion of the Turner test. Id. In light of this notification, it seems disingenuous to claim that the officials here deserve protection from Doe's claims because they did not know that they could not arbitrarily disclose a prisoner's medical information.2
In summary, the combination of the preponderance of case law, the state statute, and the Pennsylvania Department of Corrections' previous agreement to respect privacy in prisoners' HIV-related materials, clearly established the right in question. I would find that, taken together, these factors defeat Appellees' claim to qualified immunity. I therefore respectfully dissent from this aspect of the Majority's decision.
Notes:
Judge Roth states that the Seventh Circuit "rejected" Woodsin Anderson v. Romero, 72, F.3d 518 (7th Cir. 1995). This is not entirely accurate. The court in Anderson merely declined to reach the question.
Finally, I note that the manner in which this delicate information was disseminated indicates to me that the officials knew they were misbehaving, but persisted in doing so regardless of the fact that they were mistreating Doe.