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

Text File | 1993-01-14 | 13KB | 252 lines

/* This case is reported in 845 F.2d 175 (8th Cir. 1988). In this
prisoner case, the Court finds that the fact that a person was
confined to a special unit because of HIV status did not
unconstitutionally classify the plaintiff. This is another case
in which the Court states a rather strange thing- in which a
person was held in solitary confinement, since it is not done for
punitive reasons, this somehow changes the result. The result to
the plaintiff is the same. */

Imam 'Shahid MUHAMMAD, Appellant,

v.

Norm CARLSON, U.S. Federal Bureau of  Prisons; C.A. Turner,
Warden; Robert  Brutsche; Joseph S. Petrovsky; George Killinger;
Wayne Seyrnore; Alice Conroy; E. Stanley Nelson, M.D.; Donald
Lieberwita, M.D., Appellees.

United States Court of Appeals, Eighth Circuit.

Submitted Oct. 13, 1987.

Decided April 26, 1988.

Rehearing and Rehearing En Banc Denied July 21,1988.



MAGILL, Circuit Judge.

Imam  'Shahid  Muhammad  ("Muhammad"), a prisoner at the United
States Medical Center for Federal Prisoners in Springfield,
Missouri ("MCFP"), appeals the district court's [footnote 1]
dismissal of his pro se complaint, arguing that medical
regulations governing his placement in the AIDS [footnote 2] unit
at MCFP endowed him with a "liberty interest" under the Due
Process Clause of the Constitution. Because we believe that
Muhammad asserts an interest too insubstantial to trigger due
process protection, we affirm the district court's dismissal of
his complaint.



I.   BACKGROUND.

Muhammad, a prisoner at Leavenworth Federal Prison, was
transferred to MCFP because he had lost coordination in his legs
and right hand. Blood tests indicated that Muhammad  had
developed  antibodies against the AIDS virus.  Pursuant to the
Bureau of Prison regulations (the "Operations Memorandum" and
"Institution Supplement"), Muhammad was classified as Pre-ARC
[footnote 3] and was placed in the restricted AIDS unit at MCFP
without a hearing, where he was isolated from the general inmate
population.  Approximately seven months  later,  the  Bureau  of
Prisons changed its regulations and released Muhammad and other
restricted inmates back into the general prison population at
MCFP.

Muhammad brought a pro se complaint, contending that his transfer
to, and seven-month confinement in, the restricted AIDS unit
violated his due process rights to a hearing, and stigmatized
him. The district court found that the complaint failed to allege
conduct rising to the level of a constitutional violation and
dismissed the complaint.  Although we recognize that Muhammad's
pro se pleadings are entitled to a liberal construction, we
nevertheless hold that Muhammad's due process claim fails as a
matter of law, and was properly dismissed by the district court.



II.  DISCUSSION.

We begin with the familiar proposition that a liberty interest
protected by the Due Process Clause of the Fifth Amendment may
arise from two sources-the Due Process Clause itself and laws of
the United States. Cf Hewitt v. Helms, 459 U.S. 460, 103 S.Ct
864, 74 L.Ed.2d 675 (19S3); Bell v. Wolfish, 441 U.S. 520, 99
S.Ct. 1861, 60 L.Ed.2d 447 (1979).  Muhammad does not contend
that the Due Process Clause itself creates an interest in being
confined in the general penitentiary population, nor do we
believe he could. See Hewitt, 459 U.S. at 466~67, 103 S.Ct at
868.  Instead, he claims a liberty interest in prison medical
regulations that establish procedures for the diagnosis,
treatment and isolation of AIDS carriers.

This court's decisions establish that a liberty interest may be
created by prison regulations, Parker v. Corrothers, 750 F.2d
653, 656 (8th Cir.1984), if those regulations impose substantive
criteria which limit or guide the discretion of prison officials.
Id.  By contrast, a liberty interest is not created by a
regulation which accords prison officials "unfettered
discretion," Connecticut Board of Pardons v. Dumschat, 452 U.S.
458, 466,101 S.Ct. 2460, 2465, 69 L.Ed.2d 158 (1981), or
authorizes prison officials to act "for whatever reason or no
reason at all."  Meachum v. Fano, 427 U.S. 215, 228, 96 S.Ct.
2532, 2540, 49 L.Ed. 2d 451(1976).

Whether the regulation is intended to limit the decision-making
of prison officials or merely sets forth procedural guidelines
for the exercise of authority, depends in large part upon the
language of the regulation at issue and the nature of the
predicates, if any, for exercise of that authority. Use of
language of an "unmistakably mandatory character, requiring that
certain procedures 'shall,' 'will,' or 'must' be employed,"
Hewitt, 459 U.S. at 471, 103 S.Ct. at 871. coupled with what the
Supreme Court terms "specific substantive predicates," id. at
472,103 S.Ct. at 871, indicates an intent to trammel prison
officials' discretion, and thus creates a liberty interest
entitled to some degree of constitutional protection. Id.

[1]  With these principles in mind, we turn to the regulations
Muhammad claims give rise to a liberty interest.  Muhammad first
urges that he has a liberty interest in his Pre-ARC
classification because the regulations in both the Operations
Memorandum and the Institution Supplement set forth specific
criteria which limit the action prison officials could take in
testing for the AIDS virus, as well as in classifying and housing
inmates based on the test results. Muhammad points to the
following provisions, among others, to make his argument: (1)
language in the Operations Memorandum which provides that
"[t]esting for the [AIDS] antibodies shall be performed only when
determined by the Chief of Health Programs to be clinically
indicated"; (2) the definition of "Pre-ARC" in the Operations
Memorandum, which specifies that individuals must "have a
confirmed positive blood test for infection with the AIDS virus
and have at least one symptom/sign" (emphasis in original); (3)
language in the Operations Memorandum which states "Pre-ARC cases
must be discussed with the Medical Director"; and (4) language in
the Institution Supplement  which  provides "Pre-ARC's * * * will
ordinarily be transferred to [the restricted unit]."  Muhammad
argues this is language of an "unmistakably mandatory character,"
Hewitt, 459 U.S. at 471,103 S.Ct. at 871, which creates a liberty
interest.

[2, 3]  It is apparent, however, that the "mandatory" language
Muhammad relies upon relates only to the actual medical
procedures for the diagnosis, treatment and isolation of AIDS-
infected inmates. There is no language in these regulations from
which a prisoner could reasonably expect that he would not be
transferred to the AIDS unit without a chance to challenge his
medical classification, [footnote 4] see Vitek v. Jones, 445 U.S.
480, 48891, 100 S.Ct. 1254, 1261A;2, 63 L.Ed.2d 552 (1980). Nor
do the regulations specify any substantive limitations on prison
officials' discretion in transferring an inmate to the AIDS unit
once a medical evaluation has been made, as is required under
Hewitt, 459 U.S. at 472, 103 S.Ct. at 871.  It bears repeating
that the transfer of inmates to more restricted quarters for
nonpunitive reasons implicates no due process protections, id. at
466A;7, 103 S.Ct. at 868, as long as the conditions or degree of
confinement are within the purview of the sentence imposed and do
not otherwise violate the Constitution. Id. at 468, 103 S.Ct. at
869. This is especially the case here, where the transfer has the
legitimate purpose of isolating suspected AIDS carriers for
diagnostic, treatment and security purposes.  Judd v. Packard,
669 F.Supp. 741, 743 (D.Md.1987); Powell v. Department of
Corrections, State of Oklahoma, 647 F.Supp. 968, 971
(N.D.Okla.1986); Cordero v. Coughlin, 607 F.Supp. 9,10
(S.D.N.Y.1984).  While it is undoubtedly true that Muhammad has
been stigmatized by his Pre-ARC classification, that stigma
arises primarily from public fear of, and misunderstanding about,
the disease, not from the prison medical officials' conduct.
Moreover, it has never been enough to argue that a classification
has been made; the claimant must also allege some judicially
cognizable injury stemming from that classification.  University
of California v. Bakke, 438 U.S. 265, 98 S.Ct 2733, 57 L.Ed.2d
750 (1978).  Muhammad does not allege that the conditions of the
confinement resulting from his Pre-ARC classification violated
any right preserved by the Constitution, nor does he allege any
facts that, if nurtured by additional discovery proceedings,
might blossom into an equal protection claim. Muhammad's argument
must fail because he alleges no constitutionally  impermissible
classification, and no cognizable injury resulting from his
medical status.

[4]  Muhammad also claims a liberty interest in regulations
governing placement of prisoners in "administrative detention,"
28 C.F.R.  541.22-23 (1987), because he was isolated in the AIDS
unit without a hearing. [footnote 5] It is clear from the record,
however, that Muhammad's segregation was medically directed, and
not the result of a discretionary administrative decision. The
administrative detention regulations, while admittedly couched in
"unmistakably mandatory" language, do not apply to medical
determinations regarding isolation and segregation of infected
and exposed inmates. Contrary to the situation contemplated by
the regulations, Muhammad was not confined for disciplinary
reasons, nor was he singled out for individualized protection
measures.  See 28 C.F.R.   541.22-23; Hewitt, 459 U.S. at 463 n.
1, 103 S.Ct. at 867 n. 1.  His reliance on this disciplinary
regulation is thus misplaced. for no disciplinary action was
taken against him.  Accordingly, we decide that Muhammad had no
liberty interest in these administrative detention regulations.

In closing, we emphasize that our refusal to find a liberty
interest in procedures established for identifying, treating and
isolating prisoners carrying the AIDS virus stems from more than
just our reluctance to hinder prison officials' attempts to cope
with the extraordinarily difficult problems AIDS poses in a
prison setting. We believe the prison medical procedures at issue
were not intended to limit prison officials' administrative
discretion, and the language setting forth the procedures
supports our conclusion.  More importantly, Muhammad's transfer
to the AIDS unit was due to his medical condition, and not to any
misbehavior, or need for individualized protection. Judd, 669
F.Supp. at 743.  Accordingly, the decision of the district court
dismissing  Muhammad's  complaint is  affirmed. [footnote 6]



FOOTNOTES:

1.   The Honorable William R. Collinson. Senior United States
District Judge for the Western District of Missouri.

2.   AIDS is the accepted acronym for Acquired Immune Deficiency
Syndrome, a disease characterized by infection with Human T-cell
lymphotrophic virus type three (HTLV-III virus). To avoid
confusion, we will refer to the HTLV III virus as the AIDS virus
throughout this opinion.

3.   In the Operations Memorandum. AIDS is defined as the [AIDS]
virus plus opportunistic secondary infections like cancer or
pneumonia, which take advantage of the immunological system's
reduced ability to fight off disease; ARC (AIDS Related Complex)
is defined as infection with the [AIDS] virus plus damage to the
body's immunological system, but no secondary infections; Pre-ARC
is defined as a confirmed positive blood test for infection with
the [AIDS] virus plus one or more symptoms of AIDS but no
conclusive damage to the body's immunological system.

4.   It would be an extraordinary regulation that would allow
Muhammad to insinuate himself in the diagnostic procedure by
challenging his medical classification, for such a regulation
would have to provide inmates the opportunity for a second
medical opinion in order to be effective. If such a regulation
exists, it has not been brought to our attention.

5.   Although he has been released from the AIDS unit at MCFP,
Muhammad claims damages for the alleged violation of his due
process right to a hearing under the constitutional tort doctrine
announced in Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971). Because we hold that Muhammad does not have a liberty
interest in the prison regulations he relies on to make his
claim, we do not decide whether or not abrogation of a right to a
hearing is compensable under the Bivens doctrine.

6.   We Wish to thank Muhammad's appointed counsel, Kirk T. May,
for the excellent representation he provided.