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

Text File | 1993-01-14 | 14KB | 302 lines

/* This case is reported in 976 F.2d 268 (5th Cir. 1992).  This
matter considers a prisoner complaint in which truly horrific
conditions were alleged and is one of the few cases in which
segregation of prisoners with HIV was found to be potentially
unlawful. */



David Darrell Moore, et al., Plaintiffs - Appellants,

v.

Ray Marbus, et al., Defendants - Appellees.

United States Court of Appeals, Fifth Circuit.

November 2, 1992

POLITZ, Chief Judge:

David Darrell Moore and Elton Banks appeal the 28 U.S.C. 1915(d)
dismissal of their pro se, in forma pauperis civil rights
complaint, and the denial of their application for appointment of
counsel.  We affirm in part, vacate the dismissal, remand for
further proceedings, and direct that counsel be appointed.

Background

Moore and Banks are inmates at the Mississippi State Penitentiary
in Parchman, Mississippi.  In 1990 Moore, Banks, and Eddie Ray
Gowdy [footnote 1] filed a 42 U.S.C. 1983 complaint against
various Mississippi state officials alleging, in relation to HIV-
positive prisoners: (1) deliberate indifference to serious
medical needs in violation of the eighth amendment, (2)
conditions of confinement in violation of the eighth amendment,
(3) violation of the fourteenth amendment right of privacy, (4)
loss of privileges in violation of fourteenth amendment due
process and equal protection components, and (5) denial of rights
guaranteed by state law. The complaint also inartfully purported
to be a class action on behalf of prisoners denominated by the
plaintiffs as the "fluid" class. The plaintiffs moved for
appointment of counsel.

Following a Spears [footnote 2] hearing the magistrate judge
recommended dismissal as frivolous under 28 U.S.C. 1915(d).  The
district court accepted the recommendation, denied the
appointment of counsel, and dismissed the complaint.  Moore and
Banks timely appealed.

Analysis

The district court did not have the benefit of two recent Supreme
Court decisions when it considered the instant complaint. Denton
v. Hernandez [footnote 3] clarified the legal standard for a
finding of factual frivolousness under section 1915(d) [footnote
4] and the standard for appellate review of such a finding, and
Wilson v. Seiter [footnote 5] mandated the application of the
deliberate indifference standard to all conditions of confinement
cases.

                 Spears after Neitzke and Denton

Spears, decided some years before Neitzke and Denton, has not
been reexamined in light of these new Supreme Court teachings.
Our holding in Spears that the "standard for determining the
legal sufficiency of a complaint is the same under Fed.R.Civ.P.
12 or 28 U.S.C.  1915(d)" did not survive Neitzke.  The Neitzke
Court concluded  that  "frivolousness  in  the  1915(d) context
refers to a more limited set of claims than does Rule 12(b)(6),"
[footnote 6] and held that while Rule 12(b)(6) and section
1915(d) overlap, "it does not follow that a complaint which falls
afoul of the former standard will invariably fall afoul of the
latter." [footnote 7] To the extent that an in forma pauperis
complaint fails to state a claim because it lacks even an
arguable basis in law, Rule 12(b)(6) and section 1915(d) both
counsel dismissal. When a complaint raises an arguable question
of law which the district court ultimately finds is correctly
resolved against the plaintiff, dismissal under Rule 12(b)(6) is
appropriate; however, dismissal under the section 1915(d)
frivolousness standard is not.  In explaining this conclusion,
the Neitzke Court reasoned that "[a]ccording opportunities for
responsive pleadings to indigent litigants commensurate to the
opportunities accorded similarly situated paying plaintiffs is
all the more important because indigent plaintiffs so often
proceed pro se and therefore may be less capable of formulating
legally competent initial pleadings." [footnote 8]

[1]  In Denton the Supreme Court applied Neitzke dicta to draw a
firm distinction between factually and legally frivolous
complaints and the appropriate section 1915(d) standard:

[A] court may dismiss a claim as factually frivolous only if the
facts alleged are "clearly baseless," a category encompassing
allegations that are "fanciful," "fantastic," and "delusional."
As those words suggest, a finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible, whether or not there are
judicially noticeable facts available to contradict them.  An in
forma pauperis complaint may not be dismissed, however, simply
because the court finds the plaintiff's allegations unlikely.
[footnote 9]

The Court reaffirmed that a section 1915(d) dismissal is reviewed
for abuse of discretion. [footnote 10]  In determining whether a
district court has abused its discretion, the appellate court may
consider whether (1) the plaintiff is proceeding pro se, (2) the
court inappropriately resolved genuine issues of disputed fact,
(3) the court applied erroneous legal conclusions, (4) the court
has provided a statement of reasons which facilitates
"intelligent appellate review," [footnote 11] and (5) any factual
frivolousness could have been remedied through a more specific
pleading. [footnote 12]

We view Neitzke and Den ton as mandating that a Spears-hearing
record clearly distinguish between findings of factual, legal, or
mixed factual and legal frivolousness. In addition, to facilitate
a meaningful, "intelligent appellate review" the district court's
reasons for a section 1915(d) dismissal should reflect the
Neitzke-Den ton considerations.

The Allegations

[2]  Plaintiffs allege that:  (1) during September 1989, after
meeting with the prison classification committee, Moore was
upgraded to "A" level custody, assigned to the prison law library
as a clerk, and transferred to Unit 29-J, a minimum security
unit; (2) Moore then signed a contract which granted him certain
privileges, including access to vocational classes, college,
jobs, extended family visits, gym call, nightly telephone visits,
emergency leave, attendance at entertainment functions, and other
privileges; (3) in October 1989 Moore was transferred to Unit 1
B, the administrative segregation unit, and denied all
privileges, including the contract privileges; (4) in November
1989 Moore and approximately 45 other HIV-positive prisoners were
moved to Unit 28-D, a unit designated for housing of HIV-positive
prisoners where the living conditions were substantially inferior
to the housing of other prisoners because of defective plumbing,
vermin and insect infestation, and building deterioration
exposing prisoners to adverse weather conditions; (5) there was a
lack of physicians trained to treat HIV-related medical problems;
(6) prison dentists refused to provide HIV-positive prisoners
with timely treatment; (7) Moore did not receive adequate
diagnosis and treatment of his AIDS condition; (8) AIDS drugs
were not provided; (9) some HIV-positive prisoners remained in
the general prison population;  (10) privileges were denied HIV-
positive prisoners without any rational basis other than their
medical status; (11) guards failed to protect HIV-positive
prisoners;  and (12) prisoner privacy rights were violated by
publication of their medical status.

We cannot determine from the complaint whether any or all of the
allegations that refer to Moore alone are intended to be class-
wide. Both the magistrate judge and the district court referred
to a prior Mississippi state court action in which Moore
purportedly raised the same issues and concluded that Moore's
claims were barred by the res judicata effects of the dismissal
of that suit.  The state court record is not before us; we cannot
address that issue. [footnote 13]

Legal Frivolousness

This complaint poses questions nearly identical to those faced by
our Eleventh Circuit colleagues in Harris v. Thigpen. [footnote
14] Both complaints pose allegations of serious constitutional
violations  related  to  the "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." When our colleagues noted the
seminal importance of Thigpen, they were not reviewing an appeal
from a section 1915(d) dismissal but one following a post-trial
judgment. Reflecting the careful record development inherent in a
full-blown trial, the lengthy Thigpen opinion details the novelty
and difficulty of resolution of the issues.  Thigpen does not
involve the mere application of well-settled principles of law.
Many of the issues with which the Thigpen court struggled are res
nova in this circuit.

Applying the Neitzke considerations for testing a finding of
legal frivolousness, we conclude that the instant case involves:
(1) pro se, in forma pauperis plaintiffs; (2) instances of
potentially disputed facts resolved by the district court; (3)
potentially erroneous legal conclusions by the district court;
and (4) an inability to perform an intelligent appellate review
for lack of adequate record development and because of  an
inadequate statement of reasons for the dismissal.  For these
reasons Neitzke not only counsels, but commands a reversal of the
section 1915(d) dismissal." [footnote 15]

Eighth Amendment Deliberate indifference Considerations

[3]  Because of the paucity of the record, any comment that we
might make with respect to the merits of the case is subject to
the suggestion of speculation. Nonetheless an observation is
warranted.  Wilson does not require a "smoking gun" in order to
find deliberate indifference.  Nor does Wilson attempt to define
what acts might constitute deliberate indifference.  Rather, the
Wilson Court reaffirmed that the determination must be made with
"due regard for differences in the kind of conduct to which an
Eighth Amendment objection is lodged." [footnote 16] The Court
reaffirmed an earlier holding that "[s]ome conditions of con
finement may establish an Eighth Amendment violation 'in
combination' when each would not do so alone, but only when they
have a mutually enforcing effect that produces the deprivation of
a single, identifiable human need  ..." [footnote  17]

Segregation and Privacy Rights

[4]  Moore's complaint about the abridgment of his right of
privacy and the loss of privileges in violation of the fourteenth
amendment due process and equal protection components are without
merit and the dismissal thereof is affirmed.  Prior to the
district court's ruling, on the appeal of the temporary
injunction ruling, [footnote 18] we held that Moore had
demonstrated no likelihood of success on the privacy claim.
Further, the identification and segregation of HIV-positive
prisoners obviously serves a legitimate penological interest.
[footnote 19]

Appointment of Counsel

[5]  Thigpen also informs why we believe the district court erred
in denying the plaintiffs' motion to appoint counsel under Ulmer
v. Chancellor. [footnote 20]  Thigpen demonstrates beyond cavil
that (1) the type and complexity of the issues raised in the
complaint are deserving of professional development, (2) the
complex subject of HIV-AIDS management in a prison environment is
beyond the ability of a mere prisoner to investigate adequately,
(3) the scope of the questions raised and the extensive resources
required to pursue properly the issues in this case far exceed
the capability and resources of a prisoner, and (4) the
apparently essential testimony from experts on HIV-AIDS
management in the prison environment will require professional
trial skills. We are persuaded that this is an extraordinary case
in which appointment of counsel will assist the plaintiffs, the
State of Mississippi, and the court in resolving these important
unanswered questions.  The district court should promptly appoint
qualified counsel.

Conclusion

The denial of the motion for the appointment of counsel is
REVERSED and counsel is to be appointed.  The district court
judgment insofar as it dismisses the privacy and loss of
privileges claims is AFFIRMED; otherwise the dismissal of the
complaint as frivolous is VACATED and the case is REMANDED for
further proceedings consistent herewith.

FOOTNOTES

1.   Gowdy apparently has been released from prison.

2.   Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

3.   --- U.S. ---, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).

4.   Neitzke v. Williams, 490 U.S. 319. 109 S.Ct. 1827. 104
L.Ed.2d 338 (1989), provided the analogous guidance for a finding
of legal frivolousness under section 1915(d).

5.   ---US---, 111 S.Ct. 2321, 115 L.Ed.2d 271. (1991).

6.   Neitzke, 490 U.S. at 329, 109 S.Ct. at 1833.

7. Neitzke, 490 U.S. at 326, 109 S.Ct. at 1832.

8.   Neitzke, 490 U.S. at 330. 109 S.Ct. at 1834.

9.   Denton, - U.S. at ---. 112 SCI. at 1733-1734,     118
L.Ed.2d at 349-350.

10.  Denton, - U.S. at -, 112 S.Ct. at 1734. 118 L.Ed.2d at 350.
A section 1915(d) dismissal is not a dismissal on the merits but
may have res judicata effect. Id.

11.  Id.

12.  Denton, ---U.S. at ---, 112 S.Ct. at 1734. 118 L.Ed.2d at
351.

13.  Accord, Denton, -- U.S. at -- 112 S.Ct. at 1734-1735, 118
L.Ed.2d at 350-351.

14.  941 F.2d 1495 (11th Cir.1991).

15.  Neitzke, 490 U.S. at 328-330, 109 S.Ct. at 1833-1834.

16.  Wilson, -- U.S. at --, 111 S.Ct. at 2326, 115 L.Ed.2d at
281.

17.  Wilson, --U.S. at --, 111 S.Ct. at 2327, 115 L.Ed.2d at 283
(emphasis in original).

18.  Moore v. Mabus, 931 F.2d 890 (5th Cir. Apr. 16, 1991)
(unpublished).

19.  Turner v. Safley, 482 U.S. 78. 107 S.Ct. 2254, 96 L.Ed.2d 64
(1987).

20.  691 F.2d 209 (5th Cir.1982).