HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/HARRIS1.ASC

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/* This case is reported in 941 F.2d 1495 (11th Cir. 1981).  This
case considers the complaint made by prisoners in the Alabama
system who test positive for HIV, who are all segregated from the
general prison population, and finds that some of the claims are
well founded. This case exhaustively reviews the laws of prison
confinement of those with HIV. In fact, it is so exhaustive that
it is presented in two parts.  The footnotes are at the end of
part 2. */

Carmen Jean HARRIS and Leslie John Pettway, Plaintiffs-
Appellants, James Hollifield, et al., Plaintiffs,

v.

Morris THIGPEN, Commissioner of the DOC, Jean W. Hare, Warden,
J.D. White, (Warden-Limestone), Lynn Harrelson,  (Warden-Kilby),
Correctional Health Care, Inc., Dr. George Sutton, Ala. Medical
Director (CHC), Brice R. Paul, Sheriff of Coffee County, Alabama,
Coffee County, Alabama and Fred Payne, Defendants-Appellees,

Georgia Rudolph, et al., Defendants,

Stewart M. Hughey, etc., et al., Defendants-Intervenors,

Alabama Department of Corrections, its agents and employees,
Defendant-Intervenor-Appellee.



Carmen Jean HARRIS and Leslie John Pettway, Plaintiffs-Appellees,
James Hollifleld, et al., Plaintiffs,

v

Morris THIGPEN, Commissioner of DOC, Jean Hare, Warden, J.D.
White, (Warden-Limestone), Lynn Harrelson, (Warden-Kilby),
Correctional  Health Care, Inc., Dr. George Sutton, Ala. Medical
Director (CHC), Brice R. Paul, Sheriff of Coffee County, Alabama,
Coffee  County,  Alabama  and  Fred Payne, Defendants-Appellants,

Georgia Rudolph, et al., Defendants,

Stewart M. Hughey, AIS # 131035, Adam Lamar Robinson, Chuck
Stoudemire, AIS # 153319, Alabama Department of Corrections, its
agents and employees, Defendants-Intervenors-Appellants.

United States Court of Appeals, Eleventh Circuit.

Sept. 18, 1991.



FAY, Circuit Judge:

Plaintiffs-appellants appeal the post-trial dismissal of their
class action civil rights challenge to various policies and proce
dures of defendant-appellee, the Alabama Department of
Corrections ("DOC").  The appellants raise four issues involving
the DOC's policy of uniformly segregating from the general prison
population those prisoners who test positive for exposure to
Human Immunodeficiency Virus ("HIV"), the virus commonly believed
to be the cause of Acquired Immune Deficiency Syndrome ("AIDS").

For the following reasons, we AFFIRM the district court's
conclusions as to appellants' eighth amendment claim of
"deliberately indifferent" medical care by the DOC, as well as to
the alleged violation by the DOC of appellants' fourteenth
amendment privacy rights. We believe, however, that more complete
findings of fact and conclusions of law are necessary for a
proper resolution of appellants' Rehabilitation Act and access to
courts claims. We therefore VACATE and REMAND those issues to the
district court for further proceedings consistent with this
opinion.



FACTUAL AND PROCEDURAL BACKGROUND.

This case involves a range of difficult AIDS-related issues that
confront all correctional officials, administrators, policymakers
and inmates as they attempt to grapple with the problems
engendered by the presence of HIV infection in our nation's
prisons and jails. [footnote 1]

The genesis of the litigation underlying this appeal was the
Alabama Legislature's passage in 1987 of a statute that provides,
among other things, that all persons sentenced to confinement in
an Alabama state correctional facility must be tested for various
sexually transmitted diseases designated by the state board of
health. [footnote 2] Shortly thereafter, defendant-appellee DOC
instituted a procedure for implementing this statute.
Consequently, all inmates entering an Alabama state correctional
facility are tested for sexually transmitted diseases at the time
of their admission to the facility in question, and are tested
again within thirty days of their release from the prison system.

One of the sexually transmitted diseases for which the DOC is
required to test is HIV, virtually certain to be the causative
agent of AIDS. The DOC initially administers to each prisoner an
enzyme-linked immunosorbant assay ("ELISA"), a standard screening
test designed to detect the presence of HIV antibodies.  If an
inmate exhibits a negative ELISA, and if other tests for sexually
transmitted diseases prove negative as well, then the inmate is
immediately released into the general prison population.

If, however, an inmate exhibits a positive ELISA, he or she is
then administered a second ELISA to again test for the presence
of the HIV antibody.  If the second ELISA is also positive, the
inmate is administered a third, confirmatory test known as the
"Western Blot"; like the ELISA, this test is also aimed at
detecting the presence of the HIV antibody. [footnote 3]

If a particular inmate tests positive for the separate ELISA
tests and the confirmatory Western Blot test, the inmate is as
signed to one of two segregated HIV wards established by the DOC.
Male seropositive [footnote 4] inmates are assigned to Dormitory
7 at the Limestone Correctional Facility ("Limestone") in
Capshaw, Alabama. [footnote 5] Female seropositive inmates are
housed in a separate HIV unit at Julia Tutwiler Prison for Women
("Tutwiler") in Wetumpka, Alabama.

On November 17, 1987, Carmen Harris, an inmate at Tutwiler, filed
a complaint challenging the DOC's actions in testing her for HIV
antibodies, and in segregating her in a separate unit when her
test results were reported as positive.  On March 4, 1988, Ms.
Harris and other prisoners filed a motion for class
certification.  Thereafter, inmates Stewart Hughey and Adam Robin
son, two non-HIV general population inmates incarcerated at
Limestone, filed a motion to intervene as defendants under
Fed.R.Civ.P. 24.  The trial court subsequently consolidated the
case with a number of similar actions pending in various federal
courts in Alabama requesting similar injunctive relief, and
certified two classes: the plaintiff class, consisting of all
inmates or future inmates of the DOC, except those inmates who
had indicated an intention to intervene on behalf of the
defendants; another class consisting of intervenor-inmates
opposing the relief sought by the plaintiffs.

As the trial court observed, plaintiffs' suit essentially
challenged the mandatory testing of all present or future Alabama
state prisoners for HIV antibodies, as well as the policy of
forced segregation and other practices associated with the
Alabama system's care for and treatment of seropositive inmates.
[footnote 6  Plaintiffs claimed that such practices violated
their rights guaranteed under the first, fourth, eighth, and
fourteenth amendments to the United States Constitution, as well
as section 504 of the Rehabilitation Act of 1973 (codified as
amended at 29 U.S.C. Sec. 701(1988)).

The first phase of the case was tried from March 27 to March 30,
1989, in Decatur, Alabama. [footnote 7]  The second phase of the
trial took place from June 12 to June 26, 1989, in Montgomery,
Alabama. On January 8, 1990, the district court issued an opinion
rejecting the claims of the plaintiff class.  In denying
injunctive relief, the court concluded:

CONCLUSION.  This Court is of the opinion that the testing
program does not amount to an unreasonable search and seizure or
an invasion of a constitutionally protected privacy; that
Plaintiffs have shown no credible evidence of failure to provide
adequate care for serious medical, dental and mental health needs
amounting to cruel and unusual punishment in violation of the
Eighth Amendment; that the totality of other conditions to which
seropositive prisoners are subjected does not inflict cruel and
unusual punishment; that the submission of Defendant inmates to
close contact with known AIDS carriers could well be considered
as invasive of constitutional rights of the Defendant prisoners;
that the differential treatment of seropositive prisoners does
not violate equal protection of the laws in violation of the Four
teenth Amendment; that the segregation of such prisoners
classified as shown by the evidence does not offend constitution
al rights even when done without a hearing; that the public
disclosure of positive tests is not a violation of [the] right of
privacy of the positive inmates; that the recent policy with
respect to library hours does not constitute a denial of
meaningful access to prison legal materials nor does it deny them
their right of access to courts in violation of the First or
Fourteenth Amendment; and that conditions and practices to which
seropositive prisoners are subjected does not constitute a
discrimination against them as handicapped individuals in
violation of Sec. 504 of the Rehabilitation Act of 1973, 29
U.S.C. Sec. 701, et seq., because the preponderance of the
evidence does not show them to have been otherwise qualified for
the privileges claimed by them.

Harris v. Thigpen, 727 F.Supp. 1564, 1583 (M.D.Ala. 1990).

On appeal, plaintiffs-appellants challenge the district court's
factual findings and legal conclusions on four grounds: 1)
whether the Alabama DOC, in violation of the eighth amendment, is
deliberately indifferent to seropositive inmates' serious medical
and psychiatric needs; 2) whether the involuntary disclosure of
prisoners' HIV status violates their fourteenth amendment right
to privacy; 3) whether the blanket exclusion of HIV-positive
inmates from general prison population housing, educational,
employment, community placement, and other programs violates
section 504 of the Rehabilitation Act; 4) whether the DOC has
violated seropositive inmates' constitutionally guaranteed right
of access to courts. In addition, the DOC has cross-appealed the
trial court's exclusion in limine of certain survey evidence that
appellees had planned to introduce at trial, known as the "Ingram
Study."

More specific factual material relating to each of appellants'
claims of error is presented in the course of the Discussion
below.  Preliminarily, however, we frame our examination of the
factual and legal issues with some very rudimentary background on
AIDS and HIV infection.  Such background is necessary to a
meaningful review of the constitutional and statutory violations
that appellants allege are present in the Alabama correctional
system's attempts to treat and control the spread of the dread
disease.



Epidemiology, Transmission, and Treatment of AIDS and HIV
Infection.

AIDS is a devastating, communicable, fatal disease that attacks
and destroys the body's immune system. It renders individuals
"susceptible to a range of 'opportunistic' infections,
malignancies, and other diseases which would not generally be
life threatening to persons with normally functioning immune
systems.  AIDS also directly causes dementia and other disorders
of the central nervous system."  Correctional Facilities, supra
note 3, at 3. The term "AIDS," however, is considered obsolete in
the sense that it describes only a later, end-stage of an
epidemic [footnote 8] disease more appropriately labeled "HIV
infection."  Update 1988, supra note 1, at 4. [footnote 9]
Scientists now conceptualize HIV infection generally as a
continuum of disease ranging from asymptomatic infection to
endstage AIDS.  Id. at 5. [footnote 10] It is thought that
virtually everyone infected with HIV will progress at some point
[footnote 11] to active disease; further, the prognosis for
advanced stage HIV-infected patients is very poor. See id.

Although periods of survival vary considerably, no one has ever
recovered from the disease, and there is as yet no effective
vaccine or cure.  Correctional Facilities, supra note 3, at 3.

AIDS does not appear to be an air-borne disease.  While it is not
without question, the modes of transmission of HIV infection seem
to be relatively clear and well documented, and have been so
since quite early in the HIV epidemic. Id. at 8. Epidemiologic
evidence continues to indicate that the virus is transmitted in
three ways: 1) through sexual intercourse [footnote 12]; 2)
through blood-to-blood (or blood-to-mucous membrane) exposure
[footnote 13]; and 3) through perinatal events. [footnote 14]  In
a small percentage of cases, there is no explanation for how the
disease is transmitted.  However, despite common
misapprehensions, virtually no evidence exists that HIV is spread
through casual (even intimate) non-sexual contact; animals; blood
donation; food; inanimate objects, e.g. toilet seats, drinking
fountains or eating utensils; insects; skin; vaccines; or water.
Casual Contact, supra note 10, at 4-7; see 1989 Update, supra
note 10, at 5; Update 1988, supra note 1, at 12; Correctional
Facilities, supra note 3, at 15-17; see also Lifson, Do Alternate
Modes for Transmission of Human Immunodeficiency Virus Exist?: A
Review, J.A.M.A., 259:1353 (Mar. 4, 1988).

Although there have been significant gains in understanding the
structure and behavior of HIV, the goal of developing an
effective AIDS vaccine available for widespread human use is
perhaps a decade away. [footnote 15] Further, as mentioned, there
is as yet no cure for HIV infection.  Progress has been made,
however, in developing therapeutic drugs aimed at preventing or
controlling diseases associated with HIV infection. Of these, the
only anti-HIV drug that has been granted full Federal Drug
Administration ("FDA") approval is AZT (also known as zidovudine,
azidothymidine, and Retrovir), which was approved in March, 1987.
AZT has been shown to be fairly effective in treating patients
with advanced stages of HIV infection; FDA approval is limited to
seriously symptomatic patients.  1989 Update, supra note 10, at
3.



DISCUSSION.

Medical Care.

[1]  Appellants first contend that the Alabama DOC is
deliberately indifferent to the serious medical needs of
seropositive inmates incarcerated at Limestone and Tutwiler.  In
considering this claim, the district court found "that the
preponderance of the evidence shows no violation of any
prisoner's rights to medical or psychological or psychiatric care
and no deliberate indifference to any serious medical or
psychological need."  Harris, 727 F.Supp. at 1576 (footnote
omitted).  We agree. [footnote 16]

[2, 3]  The Supreme Court has recognized that correctional
inmates "must rely on prison authorities to treat [their] medical
needs; if the authorities fail to do so, those needs will not be
met."  Estelle v. Gamble, 429 U.S. 97,103, 97 S.Ct. 285, 290, 50
L.Ed.2d 251(1976).  Federal and state governments therefore have
a constitutional obligation to provide minimally adequate medical
care to those whom they are punishing by incarceration.  See id.
at 104, 97 S.Ct. at 291; see also Wellman v. Faulkner,  715 F.2d
269, 271 (7th Cir.1983) ("When a state imposes imprisonment as a
punishment for crime, it accepts the obligation to provide
persons in its custody with a medical care system that meets
minimal standards of adequacy."), cert. denied, 468 U.S. 1217,
104 S.Ct. 3587, 82 L.Ed.2d 885 (1984).  Prison personnel may not
subject inmates to "acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs." Es
telle, 429 U.S. at 106, 97 S.Ct. at 292; Mandel v. Doe, 888 F.2d
783, 787 (11th Cir.1989).  The Supreme Court has declared that
such "deliberate indifference" by a correctional system to the
serious medical needs of its prisoners constitutes the kind of
"'unnecessary and wanton infliction of pain'" [footnote 17] that
is proscribed by the eighth amendment. [footnote 18] Estelle, 429
U.S. at 104, 97 S.Ct. at 291 (quoting Gregg v. Georgia, 428 U.S.
153,173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). Further,
this court has acknowledged that the deliberate indifference
standard also applies to inmates' psychiatric or mental health
needs. Greason v. Kemp, 891 F.2d 829, 834 (11th Cir.1990);
Waldrop v. Evans, 871 F.2d 1030,1033 (11th Cir.1989) (citing
Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.1986)). It is thus
clear that prisoners are guaranteed the right under the eighth
amendment to be free from deliberate indifference by correctional
institutions to their serious physical or psychological needs.
[footnote 19]

[4]  In articulating the scope of inmates' right to be free from
deliberate indifference, however, the Supreme Court has also
emphasized that not "every claim by a prisoner that he has not
received adequate medical treatment states a violation of the
Eighth Amendment."  Estelle, 429 U.S. at 105, 97 S.Ct. at 291;
Mandel, 888 F.2d at 787. Medical treatment violates the eighth
amendment only when it is "so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to
fundamental fairness."  Rogers, 792 F.2d at 1058 (citation
omitted).  Mere incidents of negligence or malpractice do not
rise to the level of constitutional violations.  See Estelle, 429
U.S. at 106, 97 S.Ct. at 292 ("Medical malpractice does not
become a constitutional violation merely because the victim is a
prisoner."); Mandel, 888 F.2d at 787-88 (mere negligence or
medical malpractice "not sufficient" to constitute deliberate
indifference); Waldrop, 871 F.2d at 1033 (mere medical
malpractice does not constitute deliberate indifference).  Nor
does a simple difference in medical opinion between the prison's
medical staff and the inmate as to the latter's diagnosis or
course of treatment support a claim of cruel and unusual
punishment.  See Waldrop, 871 F.2d at 1033 (citing Bowring v.
Godwin, 551 F.2d 44, 48 (4th Cir.1977)).

In institutional level challenges to prison health care such as
this one, systemic deficiencies can provide the basis for a
finding of deliberate indifference.  Rogers, 792 F.2d at 1058.
Deliberate indifference to inmates' health needs may be shown,
for example, by proving that there are "such systemic and gross
deficiencies in staffing, facilities, equipment, or procedures
that the inmate population is effectively denied access to
adequate medical care." Ramos v. Lamm, 639 F.2d 559, 575 (10th
Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68
L.Ed.2d 239 (1981). Moreover, although incidents of malpractice
standing alone will not support a claim of eighth amendment
violation, "[a] series of incidents closely related in time may
disclose a pattern of conduct amounting to deliberate
indifference." Rogers, 792 F.2d at 1058-59 (citing Bishop v.
Stoneman, 508 F.2d 1224 (2d Cir.1974)). "Repeated examples of
delayed or denied medical care may indicate a deliberate
indifference by prison authorities to the suffering that
results."  Id. at 1059 (citing Todaro v. Ward, 565 F.2d 48, 52
(2d Cir.1977)); see also Ramos, 639 F.2d at 575 ("In class
actions challenging the entire system of health care, deliberate
indifference to inmates' health needs may be shown by proving
repeated examples of negligent acts which disclose a pattern of
conduct by the prison medical staff.").

In the instant case, plaintiffs sought to establish the Alabama
DOC's alleged "deliberate medical indifference" to prisoners'
serious needs in a number of ways.

First, plaintiffs had medical experts testify regarding their
review of case histories and medical records of the treatment
received by various prisoners in the Alabama correctional system
afflicted with active, advanced-stage HIV infection.  These
inmates were for the most part stricken with various
opportunistic diseases and conditions that commonly attack
patients whose immune systems have been ravaged by AIDS. Upon
careful review of the testimony presented in the record regarding
each case (some of which are summarized by the parties in their
briefs), we believe that such evidence may or may not establish
inadequate treatment by the DOC health care provider for some or
all of the prisoners whose histories were considered.  However,
taken individually or together, the cases at most evidence
isolated incidences of medical malpractice. We simply cannot
agree with the plaintiffs that the treatment received by the
inmates in question was so inadequate as to manifest the kind of
"conscious or callous indifference" necessary to raise the DOC's
perhaps negligent care of certain AIDS-infected prisoners to
violations of a constitutional magnitude.

We mention the case of inmate C.D. by way of example.
Plaintiff's expert, Dr. Robert Cohen, testified concerning C.D.'s
medical condition.  Dr. Cohen stated that on October 12, 1988,
C.D. began complaining of severe pain in his ears, wanted to see
a doctor, and after having seizures was transferred to
CooperGreen Hospital in Birmingham, Alabama. While still at
Limestone, C.D. had been administered an anti-seizure medication,
as well as separate medications to treat fungal infection,
bacterial infection, and certain viral infections. At Cooper-
Green Hospital, after receiving a CAT-scan, C.D. was diagnosed as
having probable toxoplasmosis, a common infection in persons with
HIV disease that usually involves the development of a brain
abscess.  He was then prescribed sulfadiazene and pyrimethamine,
antibiotics particularly useful against the toxoplasmosis
organism, as well as anti-seizure medication and additional drugs
to treat thrush fungal infection of the mouth.

Dr. Cohen testified that when he saw C.D. at Limestone three or
four days after the inmate's hospital visit, C.D. had not yet
received sulfadiazene or pyrimethamine, two of the drugs
prescribed for and administered to him earlier at Cooper-Green.
Dr. Cohen conceded, however, that the nursing staff was aware of
C.D.'s need, was attempting to acquire the medications, and that
C.D. did eventually receive them. C.D. developed a skin rash in
reaction to the sulfadiazine, and this medication was
discontinued-a decision Dr. Cohen "had no disagreement with,"
although he felt that another drug should have been substituted
for treatment of C.D.'s toxoplasmosis brain abscess. (R15-[trans.
vol. 5]-26). Presumably because of the treatment that he had
received, C.D. survived this episode of toxoplasmosis.

Dr. George Sutton, Medical Director for CHC, testified that he
had been actively involved in the treatment of C.D. since the
time that CHC had begun running the DOC's health care facilities
in November, 1988.  C.D. was hospitalized in late 1989 for what
was presumed to be PCP, another serious infection common to
advanced stage HIV victims. He was given the antibiotic
pentamidine, which treatment was continued when C.D. was
transferred from Cooper-Green back to CHC's care.  C.D.
apparently did very well clinically, except for severe skin loss
due to his allergy to sulfa drugs.  C.D. was administered AZT,
and his TA blood cell count was periodically monitored. However,
as a result of bone marrow suppression and dropping blood counts
associated with the administration of AZT, CHC had to discontinue
giving AZT to C.D.

In  addition  to  AZT-related  medical management problems with
C.D., there were patient-compliance problems on the part of the
inmate.  For example, C.D. initially objected to weekly blood
counts that were necessary to monitor his level of bone marrow
suppression and blood count. Moreover, C.D. declined to take his
AZT. Dr. Sutton testified that he "begged" C.D. to resume the
blood counts and take the medication, emphasizing the importance
of these measures.  C.D. agreed, but three weeks later again
refused AZT and the blood counts.  Dr. Sutton made a special trip
to Limestone, had the inmate brought to the medical facility, and
after a long period of persuasion, convinced C.D. to come back to
the medical unit to resume AZT treatment.

Even upon resumption of AZT, however, C.D.'s response was not
favorable, and his condition progressively worsened.  Four days
before trial, CHC performed a CAT brain scan and a lumbar
puncture on C.D. It was determined that C.D. had another brain
abscess. Dr. Sutton, consulting with the primary care physician
at Limestone, had C.D. transferred to the internal medicine
service at Cooper-Green hospital. C.D. died on June 21, 1989.

Plaintiffs presented much additional testimony from Dr. Cohen and
another expert, Dr. Frank Rundle, which criticized C.D.'s course
of treatment.  The testimony second-guessed at many points the
decisions of the doctors entrusted with the care of C.D., and the
experts cited numerous incidents of allegedly negligent or
inadequate treatment of C.D.'s various opportunistic infections
and conditions.  Such criticism may or may not be justified.  But
again, whether C.D.'s treatment might have constituted
malpractice is not the focus of our inquiry here.  Measured
against constitutional minima, the record regarding C.D. seems to
evidence at least tolerable and responsive medical treatment-
transfers to better, outside hospital facilities on several
occasions; CAT-scans; the administration of a wide variety of
antibiotics and medications, including AZT; blood monitoring;
blood chemistry workups; active monitoring and treatment for
diabetes.  In short, whatever C.D.'s course of treatment
indicates, it is not deliberate indifference. See Bass v.
Sullivan, 550 F.2d 229, 232 (5th Cir.), [footnote 20] cert.
denied, 434 U.S. 864, 98 S.Ct. 195, 54 L.Ed.2d 138 (1977); see
also Waldrop, 871 F.2d at 1035 (observing that "when a prison
inmate has received medical care, courts hesitate to find an
Eighth Amendment violation"); Hamm v. DeKalb County, 774 F.2d
1567,1575 (11th Cir.1985) (evidence showed that plaintiff
received "significant" medical care while in jail, and although
plaintiff may have desired different modes of treatment, care
provided by jail did not constitute deliberate in difference),
cert. denied, 475 U.S. 1096, 106 S.Ct. 1492, 89 L.Ed.2d 894
(1986);  Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976)
("Where a prisoner has received some medical attention and the
dispute is over the adequacy of the treatment, federal courts are
generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.").

Plaintiffs-appellants further allege that the DOC has been
deliberately indifferent to inmates' serious medical needs
because physician staffing is numerically inadequate for the HIV
units.  Appellants also argue that the physicians assigned to
Limestone and Tutwiler were "simply incompetent" to treat AIDS
and other serious HIV diseases, based upon their lack of
knowledge of diagnosis, prophylaxis, monitoring and treatment of
the disease.

After reviewing the testimony in the record regarding staffing,
particularly that of Dr. Sutton, we find that there is enough
evidence to support the district court's conclusion of no
deliberate indifference; we agree with the court that the units
were not so understaffed as to manifest systemic deliberate
indifference to the seropositive inmates' needs. [footnote 21]
With regard to the expertise  of correctional  system  medical
staff, the district court reasoned:

Here we have a new disease (the first case in the Alabama penal
system was seen in 1987) for which treatments were largely
unknown,  untried and  unapproved until recently. Evidence of
early lack of treatment of those early AIDS patients in the penal
system is not seriously inconsistent with what was done in the
best of hospitals when treatments were unknown and fear of the
disease was rampant.  Obviously, specialists in the treatment of
AIDS were until recently very difficult to find, and doctors who
became experienced in that unknown and fear-controlled field were
driven, either by an extreme devotion to duty, or by a necessity
to practice their chosen profession when there was little room
for them in more desirable and rewarding fields of medicine. It
is reasonable to believe that the better doctors more often than
not hoped to evade expertise in treating AIDS patients and that,
even now, it is difficult in a poor State such as Alabama to
obtain experts in treating AIDS and its opportunistic diseases
who are willing to accept full-time employment in a penal
institution. It is, therefore, understandable how and why the
standards for treating AIDS patients in the Alabama penal
institutions (where less than ten women and less than 150 men
have been found to have been infected) are less stringent than
those in such large States as New York and California where there
are several thousand AIDS patients in penal institutions and
experts in the disease may concentrate on their chosen field of
medicine. The evidence of medical or dental neglect shown in this
case by reputable evidence do[es] not amount to a "deliberate
indifference  to  serious  medical needs."

Harris, 727 F.Supp. at 1576-77. In considering the record on this
point, we agree with appellants that the lack of knowledge of
certain primary care physicians at Limestone and Tutwiler
relating to some seemingly basic terminology about the diagnosis,
prophylaxis, monitoring, and treatment of HIV infection is
disturbing.  And, although the district court's observations
about the Alabama system above may very well be accurate, they
would not serve to justify deliberate indifference to Alabama
seropositive inmates' serious medical needs if such were the
case. See Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th
Cir. 1989) (observing that "'access to medical staff is
meaningless unless that staff is competent and can render
competent care' " (citations omitted)). The record fully supports
the trial court's conclusion that the DOC has not been
"deliberately indifferent" to the seropositive prisoners' serious
medical needs. [footnote 22]

[5]  We would also note here that in spite of our agreement with
the district court's ultimate conclusion on this point, we are
troubled by and reject any suggestion in the court's reasoning
that a state's comparative wealth might affect an HIV infected
prisoner's right to constitutionally adequate medical care.  We
do not agree that "financial considerations must be considered in
determining the reasonableness" of inmates' medical care to the
extent that such a rationale could ever be used by so called
"poor states" to deny a prisoner the minimally adequate care to
which he or she is entitled.  See Harris, 727 F.Supp. at 1577-78.
Minimally adequate care usually requires minimally competent
physicians. It may also sometimes require access to expensive
equipment, e.g. CAT scanners or dialysis machines, or the
administration of expensive medicines. Once again, although we
are reluctant to interfere in a state system's course of
treatment of its inmates, we will not ignore the presence of an
eighth amendment violation.  Such a violation could well be
present if the care received by the prisoners, when measured
against general professional standards, rose to such a level of
gross incompetence that it manifested deliberate indifference.
See Waldrop, 871 F.2d at 1035; see also Rogers, 792 F.2d at 1058
(grossly incompetent medical care or choice of easier but less
efficacious course of treatment can constitute deliberate
indifference); Murrell v. Bennett, 615 F.2d 306, 310 n. 4 (5th
Cir.1980) (treatment may violate eighth amendment if it involves
"something more than a medical judgment call, an accident, or an
inadvertent failure"). We are aware that systemic deficiencies in
medical care may be related to a lack of funds allocated to
prisons by the state legislature. Such a lack, however, will not
excuse the failure of correctional systems to maintain a certain
minimum level of medical service necessary to avoid the
imposition of cruel and unusual punishment. See Wellman v.
Faulkner 715 F.2d at 274; see also Ancata v. Prison Health Servs.
Inc., 769 F.2d 700, 705 (11th Cir.1985) (lack of funds for facili
ties cannot justify an unconstitutional lack of competent medical
care and treatment for inmates); Newman v. Alabama, 559 F.2d 283,
286 (5th Cir.1977) ("It should not need repeating that compliance
with constitutional standards may not be frustrated by
legislative inaction or failure to provide necessary funds.")
(citing Gates v. Collier 501 F.2d 1291, 1319 (5th Cir.1974)),
rev'd in part sub nom. Alabama v. Pugh 438 U.S. 781, 98 S.Ct.
3057, 57 L.Ed.2d 1114, cert. denied, 438 U.S. 915, 98 S.Ct. 3144,
57 L.Ed.2d 1160 (1978).

Finally, plaintiffs argue that the mental health care provided to
prisoners in the HIV units at Limestone and Tutwiler was grossly
inadequate in terms of staffing, as well as in its failure to
include adequate AIDS education and counseling.  As mentioned,
this circuit has recognized that a failure of a correctional
system to provide basic psychiatric and mental health care can
constitute a claim of deliberate indifference to the serious
medical needs of in-mates.  See Greason, 891 F.2d at 834; Rogers,
792 F.2d at 1058. "[A] trier of fact can conclude that one who
provides grossly inadequate psychiatric care to a prison inmate
is deliberately indifferent to the inmate's needs."  Greason, 891
F.2d at 835 (citing Waldrop, 871 F.2d at 1033).

Nevertheless, we have once again considered carefully the record
on this issue. In spite of the testimony offered by plaintiffs'
medical experts critical of the amount and quality of psychiatric
coverage offered to the general prison population, and
particularly to the seropositive prisoners, we refuse to gainsay
the district court's conclusion.

DOC psychologist [footnote 23] Gina Hendricks-Ortiz testified
that she was the psychologist responsible for the approximately
three hundred inmates assigned to the HIV unit and other
segregation units at Limestone. She apparently provided various
types of counseling for the seropositive inmates, including grief
counseling, crisis intervention counseling, counseling for
depression and stress, and other appropriate counseling. She also
conducted mental health and AIDS education workshops for the HIV-
positive inmates, including group-type sessions in the HIV
dormitories.  Ms. Hendricks-Ortiz testified that she was able to
provide counseling to all seropositive in-mates who had requested
it, although very few of the HIV-positive inmates had actually
done so. In addition to her services, Ms. Hendricks-Ortiz
testified that the Limestone facility was served by another
fulltime employee with her same job title ("Psychological
Associate II"), two Ph.D. psychologists, and two psychiatrists
(one newly hired).

Like the district court that considered this testimony, we are
satisfied that the Alabama DOC has not responded with de liberate
indifference to seropositive prisoners' psychological needs. In
so concluding, we acknowledge the likelihood that Limestone, for
example, is not ideally staffed and the quality of its mental
health care perhaps is substandard.  Plaintiffs' expert Dr. Frank
Rundle testified during the following colloquy:

Q:  Did you reach any overall conclusions about the quality of
mental health services offered to the HIV prisoners at Limestone?

A:  Yes, I have.  I think it was ... is a poor quality.  Not only
because there is insufficient staff, but the staff that is
available just isn't, I think, dealing with the special needs of
that population.  It is mostly a perfunctory kind of contact.

The psychiatrist, as far as I could tell, focused primarily upon
the use of medication.  The psychologist, I think, was doing
mostly, again, routine workshops without  much  individual
interchange with inmates.

Q:  Were these special needs serious medical needs?

A:  I think they were serious.  Yes.

(R17-[trans. vol. 7]-131-32). Yet, even accepting the doctor's
conclusions here does not mandate a legal conclusion that the
mental health care provided to seropositive prisoners by the
Alabama system is constitutionally inadequate-the limit of our in
quiry on this point. Unfortunately, as with all medical care
provided to prisoners, it is not constitutionally required that
mental health care be "perfect, the best obtainable, or even very
good." Brown v. Beck, 481 F.Supp. 723, 726 (S.D.Ga.1980).

Moreover, while  the  desirability and wisdom of providing AIDS
education and counseling to seropositive prisoners, and indeed to
the general prison population, is undeniable, we are frankly
uncomfortable measuring with a constitutional yardstick the
attempts of a correctional institution to achieve these ends.  A
correctional system's refusal to respond medically to specific
psychiatric disorders and conditions that accompany the presence
of HIV infection, such as AIDS-related dementia, could constitute
grounds for alleging an eighth amendment violation.  But much of
the inadequacy in dealing with seropositive inmates' mental
health needs alleged by appellants seems to be focused also on
the DOC's deficient efforts to provide ongoing education and
counseling to help HIV-positive inmates deal with issues of
impending death, depression, despair, and stigmatization; that
is, plaintiffs have also attacked as "cruel and unusual" the
system's failure to provide the resources and preventive therapy
necessary to retard the general psychological deterioration of
inmates afflicted with a vicious, always fatal disease.

This is not a frivolous claim, nor is it an unsympathetic one. It
does strike us, however, as more akin qualitatively to the types
of systemic inadequacies that federal courts have been ill-suited
and justifiably reluctant to entertain as evils of constitutional
consequence.  In Newman v. Alabama, 559 F.2d 283 (5th Cir.1977),
for example, we specifically considered the issue of  whether
psychiatric  deterioration brought on by conditions of
indefinite, segregated confinement could constitute cruel and
unusual treatment violative of the eighth amendment:

The mental, physical, and emotional status of individuals,
whether in or out of custody, do deteriorate and there is no
power on earth to prevent it...   We decline to enter this
uncharted bog.  If the State furnishes its prisoners with
reasonably adequate food, clothing, shelter, sanitation, medical
care, and personal safety, so as to avoid the imposition of cruel
and unusual punishment, that ends its obligations under Amendment
Eight. The Constitution does not require that prisoners, as
individuals or as a group, be provided with any and every amenity
which some person may think is needed to avoid mental, physical,
and emotional deterioration.

Id. at 291. The instant case is distinguishable from Newman. The
disease counseling and education measures that appellants want
improved or implemented by the DOC are more than mere
"amenities." Indeed, they are part of what appellants argue is
"reasonably adequate" medical/psychiatric treatment for prisoners
stricken with HIV disease. Nevertheless, helping a terminally
sick prisoner "cope" psychologically with various aspects of a
dread physical illness, while therapeutic, may be a more
expansive view of mental health care than that contemplated by
the eighth amendment. [footnote 24] As the First Circuit opined
in a case similar to Newman, "[s]uch a view, however civilized,
would go measurably beyond what today would generally be deemed
'cruel and unusual.'"  Jackson v. Meachum, 699 F.2d 578, 583 (1st
Cir.1983). The record in this case demonstrates that the Alabama
DOC has not been deliberately indifferent to HIV-infected
prisoners' psychological needs, and has comported with constitu
tional minima.  The district court did not err in making this
conclusion.

In sum, although the eighth amendment guarantees the seropositive
inmates' right to adequate medical or psychological care, we are
not convinced that the Alabama DOC, with its shortcomings, has
been "deliberately indifferent" to the HIV-afflicted prisoners'
serious medical or psychiatric needs.



Right to Privacy.

Plaintiffs-appellants next charge that the DOC's policies of
mandatory testing and segregation, as well as certain DOC
disclosure practices, violate the seropositive prisoners'
constitutional rights of privacy.

The core of appellant's privacy attack is devoted to the DOC's
blanket policy of isolating from the general prison population
those inmates who have tested positive for HIV. Appellants argue
that the involuntary disclosure of inmates' seropositive status
resulting from such segregation is unnecessary, gravely
stigmatizing, and ultimately violative of constitutionally-guar
anteed privacy rights. See Brief of Appellants-Cross Appellees at
35-41. [footnote 25]  After careful consideration of this claim,
we disagree.

[6, 7]  First, as a matter of general principle, the Supreme
Court has "held that convicted prisoners do not forfeit all
constitutional protections by reason of their conviction and
confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545, 99
S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979).  Prison walls do not
separate inmates from their constitutional rights. Turner v.
Safley, 482 U.S. 78, 84,107 S.Ct. 2254, 2259, 96 L.Ed.2d 64
(1987).  Hence, when prison regulations or practices offend
fundamental constitutional guarantees, "federal courts will
discharge their duty to protect constitutional rights." Procunier
v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 1807-08, 40
L.Ed.2d 224 (1974), modified, Thornburgh v. Abbott, 490 U.S.
401,109 S.Ct. 1874,104 L.Ed.2d 459 (1989); see also Sheley v.
Dugger, 833 F.2d 1420, 1423 (11th Cir.1987) (traditional
deference to prison authorities does not mean "that courts must
abstain from reviewing the constitutional claims of prisoners").
It is also axiomatic, however, that "[l]awful incarceration
brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the
considerations underlying our penal system." Price v. Johnston,
334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948).  A
prisoner's constitutional "rights must be exercised with due
regard for the 'inordinately difficult undertaking' that is
modern  prison  administration,"  Thornburgh v. Abbott, 490 U.S.
401, 407, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989) (quoting
Turner, 482 U.S. at 85, 107 S.Ct. at 2259), and a prisoner
retains only those rights that are "not inconsistent with his
status as a prisoner or with the legitimate penological
objectives of the corrective system."  Pell v. Procunier, 417
U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974).

[8]  With regard to the right asserted on this appeal, it is
clear that prison inmates, in spite of their incarceration,
"retain certain  fundamental  rights  of  privacy." Houchins v.
KQED, Inc., 438 U.S. 1, 5 n. 2, 98 S.Ct. 2588, 2592 n. 2, 57
L.Ed.2d 553 (1978); see Torres v. Wisconsin Dep't of Health &
Social Servs., 838 F.2d 944, 951 (7th Cir.1988) (observing that
"inmates do retain some constitutional right to privacy"), cert.
denied, 489 U.S. 1017,109 S.Ct. 1133,103 L.Ed.2d 194 (1989).  The
precise nature and scope of the privacy right at issue in this
case is rather ill-defined. [footnote 26]  We nevertheless
believe and assume arguendo that seropositive prisoners enjoy
some significant constitutionally-protected privacy interest in
preventing the nonconsensual disclosure of their HIV-positive
diagnoses to other inmates, as well as to their families and
other outside visitors to the facilities in question. As one
district court has elaborated:

Each  [seropositive  prisoner]  is  fully aware that he is
infected with a disease which at the present time has inevitably
proven fatal.  In the court's view there are few matters of a
more personal nature, and there are few decisions over which a
person could have a greater desire to exercise control, than the
manner in which he reveals that diagnosis to others.  An
individual's decision to tell family members as well as the
general community that he is suffering from an incurable disease,
particularly one such as AIDS [or HIV], is clearly an emotional
and sensitive one fraught with serious implications for that
individual.  Certain family members may abandon the [sero
positive] victim while others may be emotionally unprepared to
handle such news. Within the confines of the prison the infected
prisoner is likely to suffer from harassment and psychological
pressures. Beyond the prison's walls the person suffering from
AIDS [or HIV] is often subject to discrimination.

... It may be even more essential for a prisoner than a person
who enjoys the freedoms associated with life outside of prison,
and the personal strength derived from those freedoms, that the
prisoner be accorded the ability to protect and shape his
identity to as great a degree as possible. There is little
question but that the prisoner identified as having AIDS will be
severely compromised in his ability to maintain whatever dignity
and individuality a prison environment allows.

... The threat to family life and the emotional  enrichment
[gained]  from close ties with others" ... is quite real when an
AIDS victim's diagnosis is revealed.  Ignorance and prejudice
concerning the disease are widespread; the decision of whether,
or how, or when to risk familial and communal opprobrium and even
ostracism is one of fundamental importance.

Doe v. Coughlin, 697 F.Supp. 1234,1237-38 (N.D.N.Y.1988)
(citations and footnote omitted). [footnote 27]

It is undisputed that the involuntary placement of seropositive
prisoners into separate HIV dormitories necessarily involves a
measure of non-consensual disclosure of an inmate's seropositive
status. [footnote 28] Once again, however, prisoners'
constitutional rights are necessarily subject to substantial
restrictions and limitations in order for correctional officials
to achieve legitimate correctional goals and maintain
institutional security. O'Lone v. Estate of Shabazz, 482 U.S.
342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987); see
Wolfish, 441 U.S. at 547, 99 S.Ct. at 1878.  Indeed, the Supreme
Court has upheld various restrictions on prisoners' rights on the
basis of this principle.  See, e.g., Turner, 482 U.S. at 91-93,
107 S.Ct. at 2262-2264 (first amendment rights permissibly
limited by bar on inmate-to-inmate correspondence, where record
clearly demonstrated that the regulation was reasonably related
to legitimate security interests); Block v. Rutherford, 468 U.S.
576, 586-9, 104 S.Ct. 3227, 3232-34, 82 L.Ed.2d 438 (1984) (ban
on contact visits upheld in deference to administrators' concerns
that such visits would jeopardize the security of the facility,
and regulation was "reasonably related" to such concerns);
Wolfish, 441 U.S. at 556 57, 99 S.Ct. at 1883-84 (room-search
rule upheld, since any expectation of privacy retained by
pretrial detainee in his cell under fourth amendment is
necessarily diminished in scope in deference to the realities of
institutional confinement); Jones v. North Carolina Prisoners'
Labor Union, Inc., 433 U.S. 119,132-33, 97 S.Ct. 2532, 2541-42,
53 L.Ed.2d 629 (1977) (security concerns regarding prisoners'
efforts to form unions justified limitations on various first
amendment rights); Pell, 417 U.S. at 827-28, 94 S.Ct. at 2806-07
(first amendment rights permissibly limited by visitation
restriction designed to encourage rehabilitation without
compromising institutional security concerns). Further, in
general, privacy rights are among those most obviously curtailed
by the fact of a prisoner's confinement in a correctional
institution. See Wolfish, 441 U.S. at 537, 99 S.Ct. at 1873
(noting that "[l]oss of freedom of  choice and privacy are
inherent incidents of confinement in" jails, prisons or custodial
centers); United States v. Blake, 888 F.2d 795, 800 n. 11 (11th
Cir.1989) (acknowledging that in prison settings, privacy rights
are viewed as being on "a lesser scale").

In this case, we must balance the limited personal privacy
interests (assuming such exist) of the seropositive inmates, with
those legitimate interests that underlie the DOC's decision to
segregate such inmates from the general prison population.  In so
doing, we are also obliged to consider the interests and concerns
of the defendant- intervenors in this case. [footnote 29]

In Turner v. Safley, the Supreme Court formulated a test
sensitive to both the need to protect inmates' constitutional
rights and the policy of judicial restraint regarding prisoner
complaints.  See Turner, 482 U.S. at 85,107 S.Ct. at 2259.
[footnote 30] The Court determined that the standard of review
for evaluating prisoners' constitutional claims should be one of
reasonableness: when a prison regulation or policy "impinges on
inmates' constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests." Id. at
89, 107 S.Ct. at 2261. [footnote 31]

[9]  In articulating its test, the Court canvassed its earlier
"prisoners' rights" cases, and identified several "factors that
are relevant to, and that serve to channel, the reasonableness
inquiry."  Thornburgh v. Abbott, 490 U.S. at 414, 109 S.Ct. at
1882.  These are: (a) whether there is a "valid, rational
connection" between the regulation and a legitimate government in
terest put forward to justify it; (b)whether there are
alternative means of exercising the asserted constitutional right
that remain open to the inmates; (c) whether and the extent to
which accommodation of the asserted right will have an impact on
prison staff, inmates and the allocation of prison resources
generally; and (d) whether the regulation represents an
"exaggerated response" to prison concerns. See Turner, 482 U.S.
at 89-91, 107 S.Ct. at 2261-2263. We consider these factors in
more detail below.

1.   Rational relationship to legitimate governmental objective

[10]  First, "there must be a 'valid, rational connection'
between the prison regulation and the legitimate governmental
interest put forward to justify it."  Turner, 482 U.S. at 89,107
S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 586,
104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)). At trial, the DOC
justified its segregation policy on the asserted goals of
reducing the transmission of HIV infection and of reducing the
level of violence within the Alabama prison system.  The
legitimacy of these purposes  seems  beyond dispute; rather, the
issue is whether Alabama's blanket HIV segregation policy is
rationally related to such purposes.  Appellants contend that
"there is no rational relationship between violating the privacy
of prisoners who test positive for HIV [by separating them from
the general prison population] and any legitimate penological pur
pose."  Brief of Appellants-Cross-Appellees at 37.  We disagree.

The logical connection between the stated goals of reducing HIV
transmission and promoting internal prison security, and the
DOC's policy of uniformly segregating seropositive prisoners,
might be questioned. Indeed, it has been the crux of a massive,
intense correctional policy debate surrounding the proper methods
of testing for and preventing the transmission of HIV infection
within prison systems. In April, 1988, the National Institute of
Justice observed:

[T]here is serious controversy about the effectiveness of
screening in reducing transmission of HIV.  But without
segregation or separation of seropositives, screening can have
little or no effect on transmission.   Therefore,  correctional
systems should probably think in terms of deciding between two
basic constellations of policies:

1.   mass screening, segregation of seropositives who pose
behavioral risks, notification to correctional staff, and
education on AIDS; or

2.   focusing  prevention  efforts  on mandatory AIDS education
and intensive efforts to identify and control predatory inmates
and those engaging in high-risk behavior (without mass HIV
screening), together with strict confidentiality of medical
information.

Expected seropositive rates and the availability of various types
of housing (e.g., single- v. double-cells) will play an important
role in these interrelated policy decisions.  Ultimately,
however, these large policy decisions must be grounded in careful
consideration of the advantages and disadvantages of the major
options.

Correctional Facilities, supra note 3, at 37-38. The DOC's
correctional approach to handling the problem of HIV transmission
obviously has been structured according to the first
"constellation" of policies mentioned above. [footnote 32]
Appellants, on the other hand, have offered evidence roundly
critical of such a penological approach, urging that the needs of
seropositive prisoners are best served by a correctional policy
developed along the lines of the second model, i.e., by
integrating HIV-positive prisoners into the general prison
population, and by implementing an "appropriate AIDS education
and counseling program, along with appropriate security measures
and classification of prisoners." Brief of Appellants-Cross-
Appellees at 38.

We express no opinion on either side of this debate. One can
argue, as appellants do, that the current trend in correctional
thinking has moved increasingly away from blanket segregation
policies and towards policies of "mainstreaming"-that is,
maintaining all categories of HIV-infected prisoners in the
general prison population.  1989 Update, supra note 10, at 53.
After reviewing the record, however, it also seems clear to us
that debate on this issue is far from settled, and undoubtedly
will continue as the rapidly expanding corpus of information
about HIV engenders new strategies for dealing with the disease
in the difficult prison setting. Even if Alabama's approach in
this case is now a minority position among state correctional
systems, we simply are unable to say at this point that the DOC's
use of combined mass screening and segregation is so remotely
connected to the legitimate goals of reducing HIV transmission
and violence within the state's penal system "as to render the
policy arbitrary or irrational."

Turner, 482 U.S. at 89-90, 107 S.Ct. at 2261-2262.

2.   Availability of alternative means to exercise right

The second factor identified in Turner as relevant to the
determination of a prison restriction's reasonableness is
"whether there are alternative means of exercising the right that
remain open to prison inmates."  Turner, 482 U.S. at 90, 107
S.Ct. at 2262. If so, courts in gauging the validity of a
regulation should be particularly conscious of the "'measure of
judicial deference owed to corrections officials.'" Id. (quoting
Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41
L.Ed.2d 495 (1974)).  In considering this factor, the right at
issue must be viewed "sensibly and expansively."  Thornburgh, 490
U.S. at 417, 109 S.Ct. at 1883. Thus, the Court in Turner did not
require that prisoners be provided with alternative means of
communicating with inmates at other institutions; the Court
instead held it sufficient that "other means of expression (not
necessarily other means of communicating with inmates in other
prisons) remained available." Id. at 417-18, 109 S.Ct. at 1883-
84.

Applying this second Turner factor to the facts of the instant
case, however, is problematic because the limited right that
appellants claim is being violated by the DOC does not lend
itself to an "expansive" reading. Unlike the first amendment
activity at issue in Turner, any privacy right claimed here by
the seropositive inmates in their medical status is a "passive"
one. It is difficult to talk of "alternative means" of protecting
such a right, since, unlike the first amendment context, there is
no range or continuum of other affirmative activity against which
to measure the encroachment of a given prison restriction. Just
as one cannot be "a little bit pregnant," disclosure of one's HIV
status either occurs or it does not. Thus, in our case, this
particular factor of the Turner calculus does little to channel
our inquiry into the reasonableness of the segregation policy as
a restriction on seropositive inmates' right to privacy in
disclosing their medical diagnoses. Because of the "all or
nothing" nature of the right at issue, the lack of alternative
means to honor it merely reaffirms a fact upon which the parties
have apparently already agreed, i.e., that involuntary disclosure
of prisoners' HIV status is an inherent byproduct of Alabama's
"identify and isolate" policy.

3.  "Ripple effects" of accommodating the right

The third factor to be addressed under the Turner analysis is
"the impact that accommodation of the asserted constitutional
right will have on others (guards and inmates) in the prison."
Thornburgh, 490 U.S. at 418, 109 S.Ct. at 1884.  "When
accommodation of an asserted right will have a significant
'ripple effect' on fellow inmates or on prison staff, courts
should be particularly deferential to the informed discretion of
corrections officials."  Turner, 482 U.S. at 90,107 S.Ct. at 2262
(citation omitted).

Evidence at trial suggested that the consequences or "ripple
effects" of integrating seropositive prisoners into the general
prison population could be severe indeed for prisoners and prison
staff.  First, as observed by the district court, the presence of
an intervening defendant class of inmates in this case who oppose
the release of HIV-positive prisoners into the general prison
population is an indicator of significant opposition that could
likely degenerate into active violence within the Alabama system
should reintegration occur.  Although disputed by the appellants,
appellees' assertion that such increased violence would in fact
be a consequence of reintegration was supported by testimony of
correctional officials, inmates, and appellees' expert witness,
Dr. Nadim Koury. [footnote 33]  In addition, there was testimony
that integration of HIV-positives into the general inmate
population would also generate significant negative effects on
prison guards-that some guards, not knowing who was seropositive,
would end up resorting to physical force more quickly (R22-
[trans. vol. 12(b) ]-34-35) (testimony of Warden White),
[footnote 34] while others would be hesitant to break up fights
that involved blood being "thrown around and splattered." (R23-
[trans. vol. 13]-111-12) (testimony of DOC official Thomas
Allen).

Both of these effects clearly implicate the DOC's self evident
interest in preserving the order and security of Alabama prisons,
particularly since the potential "ripple effect" of seropositive
inmates' attempt to preserve their privacy rights through inter
action with the general prison population affects the inmates and
staff at more than one institution.  See Turner, 482 U.S. at 92,
107 S.Ct. at 2263.  Where, as here, integrating seropositive
prisoners poses a realistic threat of violence in the prisons, we
think that the choice made by Alabama correctional officials-
"which is, after all, a judgment 'peculiarly within [their]
province and professional expertise,' Pell v. Procunier, 417
U.S., at 827 [94 S.Ct. at 2806] should not lightly be set aside."
Turner, 482 U.S. at 92-93,107 S.Ct. at 2263-2264.

4.   "Exaggerated response"

According to the final factor cited in Turner, courts may
consider the absence of ready alternatives as evidence of the
reasonableness of a prison regulation; correspondingly, the
existence of "obvious, easy alternatives  may he considered as
evidence that a prison restriction is not reasonable, but merely
"an 'exaggerated response' to prison concerns."  Id. at 90, 107
S.Ct. at 2262.  Thus, "if an inmate claimant can point to an
alternative that fully accommodates the prisoner's rights at de
minimis cost to valid penological interests, a court may consider
that as evidence that the regulation does not satisfy the
reasonable relationship standard."  Id. at 91,107 S.Ct. at 2262.

Despite appellants' claim in this case, we can divine no simple
alternatives to the mandatory segregation policy adopted by the
DOC.  To be sure, alternatives As suggested earlier, the primary
alternative urged by appellants is that of "mainstreaming" HIV-
positive prisoners into the general inmate population, combined
with counseling and thorough education about the disease and its
transmission.  As evidenced by the testimony of appellants'
experts, variations of this latter correctional approach
apparently have gained increasing support in recent years.
Nevertheless, if the trend away from mandatory testing and
segregation implies that it is perhaps a more extreme approach to
the problem of managing HIV in prisons, we are not convinced that
Alabama's response can yet be dismissed as an unreasonable,
"exaggerated" one.  The Supreme Court has emphasized that the
consideration of other alternatives to assess a current prison
policy or restriction's reasonableness is not a least restrictive
means test: "prison officials do not have to set up and then
shoot down every conceivable alternative method of accommodating
the claimant's constitutional complaint."  Turner, 482 U.S. at 90-
91, 107 S.Ct. at 2262-2263. Further, the Court has stated that
"when prison officials are able to demonstrate that they have
rejected a less restrictive alternative because of reasonably
founded fears that it will lead to greater harm, they succeed in
demonstrating that the alternative they in fact selected was not
an 'exaggerated response' Under Turner." Thornburgh, 490 U.S. at
419, 109 S.Ct. at 1884.

In this case the DOC's belief that testing and separation will
reduce transmission of HIV, as well as its security concerns
attending a policy of "mainstreaming" seropositive prisoners, are
at least reasonably founded.  It is a fact that the stakes in
dealing with HIV infection could not be higher; the disease is
communicable, in curable, and certain at some point in the
seropositive patient's life to result in a nightmarish death.  It
is also a fact that high risk behavior occurs disproportionately
in prison systems.  Alabama is no exception. Undisputed testimony
established that high risk behavior such as homosexual relations,
IV drug use, tattooing, and ear piercing occurs regularly within
the Alabama system, as well as frequent fights and blood spills.
The DOC, like all correctional systems confronting the already
difficult task of prison administration, has been forced to
formulate some response to these problems. That response must
incorporate not only the prison's interest in reducing
transmission of the disease, but also preserve the  prison's
"core"  security  concerns, which include maintaining internal
security and minimizing violence within the system. With such
objectives in mind, even appellants' experts conceded that two
bodies of thought currently exist within correctional and public
health communities regarding HIV and AIDS prevention in prisons:
mandatory testing and separation versus voluntary testing and
education.  Although appellants have successfully identified
numerous difficulties with the former approach, some quite
serious, they have not demonstrated in a convincing manner that
the costs to Alabama's legitimate penological goals of adopting
the latter as an alternative would be de minimis.

The importance of AIDS education in both prisons and the
population at large is immense, and, for that matter, not
disputed.  Both parties agree that education should have a
significant role in the correctional response to HIV infection.
Considered as a complete alternative to segregation, however, the
record indicates that it is also at best an imperfect option.
The parties agree that under any system of prison administration,
the elimination of high risk behavior, such as homosexual
activity or IV drug use, is impossible. Moreover, the extent and
speed with which education alone is capable of changing such
behavior, particularly among prison populations (who are in a
sense recalcitrant to begin with), was disputed at trial.  The
record indicates that a significant amount of high risk behavior
continued to occur in the HIV dorms after inmates had been
diagnosed as seropositive [footnote 35]; there is simply no basis
upon which to conclude that such behavior would not continue to
occur if such inmates were mainstreamed. The anticipated violent
reaction by some general population prisoners to integration is
likely predicated on fear, some of it irrational and magnified by
misinformation;  such fear might or might not be allayed with
more education about the disease than is already being provided.
[footnote 36]  Given the distressingly high stakes, however, we
do not think that the evidence in the record is so substantial as
to indicate that the DOC's conservative approach is an
"exaggerated response" to the presence of the disease. See Pell,
417 U.S. at 827. 94 S.Ct. at 2806. [footnote 37]

In short, mandatory testing and segregation still apparently lies
within the perimeter of an important correctional policy debate.
As such, it represents precisely the type of urgent problem of
prison reform and prison administration with which we as a court
are "ill equipped to deal." Martinez, 416 U.S. at 405, 94 S.Ct.
at 1807. [footnote 38]  The district court concluded that
"knowledge of the identity of AIDS carriers is a matter
reasonably related to a legitimate state interest":

It is inescapable that correctional systems should attempt to (1)
prevent high risk behavior among inmates, (2) make reasonable
efforts to protect all inmates from victimization and (3) avoid
any practices which could lead to unprotected blood exposure.
The bounds of these duties as they relate to AIDS, and whether
negligence or constitutional wrongs are involved, have not yet
been clearly defined. At this early stage of the diagnosis and
treatment of AIDS, these matters should best be left in the hands
of prison officials with the help and advice of their medical
staffs.

Harris, 727 F.Supp. at 1581

Our application of the Turner "reasonable relationship" test to
the DOC's policy of uniformly segregating those prisoners who
test positive for HIV yields the same conclusion. The DOC's more
conservative approach in separating all known seropositives is
not in itself constitutionally violative.  To the extent that the
segregation policy encroaches upon the privacy rights of HIV-
positive inmates, it is a reasonable infringement in light of the
inmate interests at stake (both seropositive and general
population), and the difficult decisions that the DOC must make
in determining how best to treat and control within Alabama
correctional facilities the spread of a communicable, incurable,
always fatal disease. [footnote 39]



Rehabilitation Act.

In accordance with the DOC's segregation policy, it appears to be
undisputed that prisoners who test positive for HIV have been
categorically separated from virtually all aspects of general
population institutional life, e.g. housing assignments, edu
cation, employment, recreation, dining, law library use,
religious services, family visitation, transportation, sick call,
and canteen.

As a result, they have not been able to participate in most of
the programs available to general population prisoners, while in
other cases, the segregated programming provided to them is not
comparable. [footnote 40] Appellants claimed at trial that such
categorical exclusion from prison programs was violative of
section 504 of the Rehabilitation Act of 1973, 87 Stat. 394
(1973) (codified as amended at 29 U.S.C. Sec. 794 (1988)). The
trial court denied relief on this claim, determining that
appellants were not "otherwise qualified" within the meaning of
the Act.

Section 504 of the Rehabilitation Act prohibits a federally
funded state program from discriminating against a handicapped
individual solely on the basis of the individual's handicap.
School Board of Nassau County v. Arline, 480 U.S. 273, 275,107
S.Ct. 1123, 1125, 94 L.Ed.2d 307 (1987). Specifically, the Act
states:

No otherwise qualified handicapped individual ... shall, solely
by reason of his handicap, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any
Executive agency or by the United States Postal Service.

29 U.S.C. Sec. 794 (1982).

As the text of the statute suggests, in order to obtain relief
under section 504 appellants must establish that: 1) they are
"handicapped" within the meaning of the Act; 2) they are
"otherwise qualified"; 3) they are excluded from programs or
activities solely because of the handicap; and 4) the programs or
activities from which they are excluded are operated by an agency
that receives federal financial assistance.

[11] The record indicates no dispute as to the latter two
elements. It is clear that the DOC receives federal financial
assistance.  Moreover, the DOC concedes that section 504 applies
to prisoners. [footnote 41] In addition, to the extent that
seropositive individuals are considered "handicapped," there is
no dispute in this case that they are excluded from programs and
activities solely because of their HIV-positive status.  The
first two elements merit a bit more attention.



1.   "Handicapped Individual"

(12)  For the limited purposes of this appeal, we also believe
that the prisoner-appellant class members have satisfied the
threshold criterion of demonstrating a "handicap" within the
meaning of the Rehabilitation Act.  The district court confined
its brief discussion of section 504 only to the question of
whether appellants were "otherwise qualified," evidently assuming
that appellants were in fact "'handicapped with a contagious
disease.'" Harris, 727 F.Supp. at 1582 (quoting Martinez By and
Through Martinez v. School Board, 861 F.2d 1502,1505 (11th
Cir.1988)). We agree with this assumption, although the issue is
not entirely free from debate.

As opposed to later-stage AIDS, the scope of section 504's
application as it pertains solely to a plaintiff's HIV-positive
status is not entirely settled.  A "handicapped person" within
the meaning of the Rehabilitation Act is "any person who (i) has
a physical or mental impairment which substantially limits one or
more major life activities, (ii) has a record of such an
impairment, or (iii) is regarded as having such an impairment."
29 U.S.C. Sec. 706(7)(B) (1982) (renumbered as Sec. 706(8)(B));
45 C.F.R. Sec. 84.3(j)(1) (1990).  In considering whether persons
with contagious diseases may be considered "handicapped" under
the Act, the Supreme Court in School Board v. Arline affirmed our
circuit's holding in Arline v. School Board, 772 F.2d 759, 764
(11th Cir.1985), that contagious diseases "fall neatly" within
the statutory and regulatory framework of the Rehabilitation Act.
Arline, 480 U.S. at 277, 107 S.Ct. at 1125.  The Court, however,
expressly left open the questions of whether asymptomatic
carriers of a disease such as AIDS could be considered
"physically impaired," or whether such persons could be
considered "handicapped" solely on the basis of their
contagiousness. Id. at 282 n. 7, 107 S.Ct. at 1128 n. 7,
[footnote 42]  In the instant case, it is undisputed that the DOC
categorically denies HIV-positive prisoners access to programs by
virtue of their seropositive status alone (not physical
impairment, behavior or any other classification factor) for the
stated purpose of reducing transmission of the disease; the DOC,
in other words,  excludes  seropositive  prisoners from programs
solely on the basis of contagiousness. Any application of the
Rehabilitation Act here thus confronts the precise question left
unanswered by the Supreme Court in Arline. [footnote 43]

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