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

Text File | 1993-01-14 | 115KB | 2,186 lines

/* Reported at 776 F.Supp. 715(W.D.N.Y. 1991) This case is one of
the most comprehensive related to the rights of those with HIV
who are in prison. The case finds under the facts of the case
that the automatic segregation of prisoners with HIV was not
justified. The Erie County prison decided to place the plaintiff
in the psychotic persons ward, barred her from going to church
and barred her from borrowing books form the law library. The
court finds this, perhaps motivated in part by the harrowing
conditions of her confinement, was illegal. The case also holds
that obvious signs of a persons HIV status, such as placing red
stickers on their files, is improper on a constitutional level.

Louise K. Nolley, Plaintiff,

v.

County of Erie:  Thomas Higgins, Sheriff; John Dray,
Superintendent; and Jane O'Malley, Nurse, Defendants.

United States District Court, W.D. New York.

October 31, 1991.



FINDINGS OF FACT

CURTIN, District Judge.

I.   Background

Evidence in this non-jury case is now closed.  The parties have
submitted pro posed findings of fact and conclusions of law, and
the court has considered summation. The following constitutes the
court's findings of fact and conclusions of law.

Plaintiff Louise K. Nolley, a former in-mate at the Erie County
Holding Center ("ECHC"), has brought this suit against the ECHC
and various administrators of the facility alleging that their
treatment of her during her confinements in 1988, 1989, and
1989/90 violated her constitutional and statutory rights. Ms.
Nolley was confined at the ECHC on three separate occasions:

(1)  June 14, 1988, through November 9, 1988 ("1988
confinement");

(2)  February 15,1989, through May 31, 1989 ("1989 confinement");

(3)  December 18, 1989, through February 13,1990 ("1989/90
confinement").

Prior to her first incarceration, Ms. Nolley tested positive for
the human immunodeficiency virus ("HIV +"), the virus associated
with Acquired Immune Deficiency Syndrome ("AIDS"). This fact was
known by the ECHC's Medical Department throughout Nolley's three
confinements. Based on this information, defendants placed on Ms.
Nolley's inmate records, medical records, and transportation
documents a red sticker to indicate to those who came in contact
with her that she was infected with a contagious disease.

Defendants also chose to segregate Ms. Nolley from the general
population because of her HIV status.  She was placed in an area
of the Holding Center known as Female Delta Medical Pod ("Female
Delta"). Female Delta is a pod for female inmates who are
mentally disturbed, suicidal, or dangerous to themselves.  Ms.
Nolley was also deprived of access to the ECHC's law library and,
for most of her three confinements, to the ECHC's regularly
scheduled Catholic services. Other inmates housed in Female Delta
were, at the same time, permitted to attend religious services
and the law library.

Four defendants remain in the case: Erie County, Sheriff Thomas
Higgins, Superintendent John Dray, and Nurse Jane O'Malley.
Sheriff Higgins is the policy-making official responsible for the
operation of the ECHC and the Erie County Sheriff's Department.
John Dray is the acting Superintendent of the ECHC. He is
responsible for promulgating policies for the Holding Center and
supervising its day-to-day operations. Jane O'Malley is the
Nursing Supervisor/Administrator at the ECHC.  A fifth defendant,
Willie Brown, has been dropped from the case.

Plaintiff Nolley seeks damages and injunctive relief.  She
alleges that ECHC's policy of placing red stickers on various
documents and other items violated article 27-F of New York
State's Public Health Law, N.Y.Pub.Health Law  2780 et seq.
(McKinney 1991 Supp.), State Commission of Correction regulations
adopted in accordance with that law, and her constitutional right
to privacy.  Plaintiff also argues that her segregation in Female
Delta violated her state rights under article 27-F and her
constitutional rights of privacy, due process, and equal
protection.  Further, Ms. Nolley alleges that the conditions of
her confinement violated her Eighth Amendment rights. She also
brings constitutional claims for ECHC's denial of access to the
law library and religious services. Finally, Ms. Nolley argues
that defendants discriminated against her in violation of the
Rehabilitation Act, 29 U.S.C.  794.



II.  HIV and AIDS

Dr. Ross Hewitt was called by plaintiff as an expert in the
diagnosis and treatment of AIDS and research regarding HIV and
AIDS.  Defendants accepted his qualifications by also using Dr.
Hewitt as their expert.  Dr. Hewitt has been Director of AIDS
Services at the Erie County Medical Center ("ECMC") since 1988.

Dr. Hewitt testified that AIDS is a syndrome characterized by
complications indicative of an underlying immune deficiency. The
viral agent identified with AIDS is known as HIV.  It was
identified in late 1983 and was confirmed in 1984. The virus
invades the T4 cell, which is a key cell in the human body's
immune system.  Over time, the number and function of these cells
decline as the virus progresses. Serious complications can occur
when an infected individual's T-cell count drops below 200. The
most common complications are: pneumocystis pneumonia
(noncontagious but potentially fatal), chronic viral infections,
bacterial  infections,  tuberculosis ("TB"), meningitis,
lymphoma, and kaposi sarcoma. Technically, an HIV + person is not
diagnosed or described as having AIDS until she is experiencing
one or more of these complications.

Louise  Nolley's  T-cell  count  never dropped below 300 during
her three confinements at the ECHC. Nor did Ms. Nolley develop
the complications that would lead her to being diagnosed as
having AIDS.  Nurse O'Malley was aware that HIV + inmates are
only at risk in the general population when their T-cell count
drops below 200. She could have obtained Nolley's T-cell count
from Dr. Hewitt at any time during Nolley's confinements but did
not do so.

An infected person may be HIV + for as long as ten years before
developing the full-blown complications of AIDS.  Even persons
with AIDS generally do not re quire hospitalization unless some
acute complication of AIDS develops.  Unfortunately, there is no
known cure for the disease.

There are only five known ways of transmitting the HIV virus: (1)
sharing needles with an infected person; (2) having intimate
sexual contact with an infected per-son;  (3) carrying a
developing fetus or breast-feeding a newborn; (4) receiving a
transfusion of tainted blood or blood products;  and (5) in rare
circumstances, by blood-to-blood contact initiated through per-
cutaneous cuts. AIDS cannot be transmitted by books, casual
contact, being present in the same room as an infected person,
toilet seats, door knobs, air conditioning, coughing, sneezing,
urine, feces, sputum, nasal secretions, saliva, sweat, tears, or
vomit.  It certainly cannot be transmitted by attending church
with an infected person or by sharing books with him or her.

Sometime in the fall of 1986 or 1987, Dr. Hewitt gave a
presentation on AIDS at ECHC to some of the administrative staff
of the facility.  This presentation was attended by O'Malley and
Dray. During that presentation, Dr. Hewitt explained the five
known means of transmitting HIV and AIDS, and presented an
overview of the disease which consisted of the same information
provided in his trial testimony. This testimony is consistent
with the findings of the National Center for Disease Control
("CDC"). The knowledge concerning the transmission of HIV and
AIDS has not changed since the time of his presentation.

Defendant O'Malley knew of the CDC's findings about the
transmission of HIV in 1986 and 1987 and discussed these findings
with Dray and with Deputy Judith Lips. Dray received publications
about the transmission of HIV, which he made available to his
staff.  Sheriff Higgins also sent a memo to Dray in late 1987,
which emphasized that AIDS could not be spread by casual contact.
That memo contained a 1987 publication of the U.S. Department of
Justice entitled "AIDS and the Law Enforcement Officer:  Concerns
and Policy Responses."  This publication was also received by
O'Malley.  As a result, both defendants Dray and O'Malley knew by
1987 that AIDS could not be transmitted by casual contact.
Nevertheless, Dray, in his testimony, said that he did not
believe the information he had received about the limited way in
which HIV could be transmitted. [footnote 1] He believed that HIV
could be transmitted through saliva, tears, spit, mucus, urine
and feces, by casual contact, by plaintiff using the typewriter
in the law library, and even by coming into contact with
plaintiff's personal items but not plaintiff.

Dr. Hewitt testified that a drug known as AZT, which first became
available in September, 1987, is used to combat HIV. AZT works by
slowing down the process of HIV replication.  It is necessary to
take AZT every four hours because, by then, it is effectively
gone from the bloodstream. Missing an entire day's dose of AZT
can lead to uncontrollable replication of the virus, which could
have long-term, serious consequences for an HIV + person.

After his one presentation to ECHC administrators in 1986 or
1987, the defendants did not again solicit Dr. Hewitt's
assistance, even though he was available to train ECHC staff.
Therefore, the only training of staff at ECHC about AIDS was in-
service training provided by Deputy Lips for newly hired
employees.



III. Universal Precautions

Since 1987, the CDC has recommended that universal precautions
replace a policy of special precautions  in  dealing with HIV +
inmates. Universal precautions are a system of infection-control
that assumes that you cannot identify all persons who are
potential carriers of blood-borne diseases. Staff are urged to
take appropriate precautions with all inmates, rather than
inmates identified as HIV +, to prevent blood-to-blood contact.
The population in the ECHC facility changes frequently, and it is
impossible for the staff to know which inmates are infected with
HIV.  Nurse O'Malley admitted that at any given time, in addition
to the inmates identified as being HIV +, there are inmates in
the general population who are HIV + or have AIDS. Thus, ECHC's
policy of using special precautions with inmates known to be HIV
+ is less effective than universal precautions in protecting
staff from potential infection by HIV + inmates because it fails
to cover inmates in the general population who may be HIV + or
have AIDS.

Other correctional facilities  have for some time practiced a
system of universal precautions. Since December, 1988, for ex
ample, the New York State Department of Correctional Services
("DOCS") has followed the policy of universal precautions in New
York State correctional  facilities. DOCS stopped isolating HIV +
inmates from the general population in 1987.  Defendant O'Malley
recommended to defendant Dray that the ECHC follow universal
precautions. [footnote 2]



IV.  The Red Sticker Policy

During Louise Nolley's three confinements, she was subject to a
written ECHC policy and procedure, promulgated as a general order
by Sheriff Higgins, known as the "red sticker alert." See Trial
Exhs. 1-4. This alert was developed by defendants O'Malley and
Dray in 1986. Tr.Exh. 1. It was reissued in revised form on
November 25,1987. Tr.Exh. 4, This revised order is still in
effect today.

The purpose of the red sticker alert is to ensure the safety of
staff by identifying inmates known to be or suspected of suf
fering from contagious or infectious diseases.

The use of the RED STICKER will alert the Clerks, Search/Change
Area Deputy, Housing Area Deputy, Medical Department,
Transportation Division and other personnel who might come in con
tact with the [contagious] inmate, to exercise additional
precautions.

Tr.Exh. 4 at 2.  A red sticker was affixed on intake to
plaintiff's paperwork, clothing bag, court papers, cell card, and
other items.  It was even affixed to plaintiff's cash record
index card, which was seen by civilian personnel assigned to
handle the personal property of plaintiff-her wallet, belt,
change, keys, etc.-but who never came in physical contact with
Ms. Nolley. Thus, the red sticker was seen by dozens of persons,
many of whom may never have had any close contact with plaintiff.

The red sticker policy was not always in effect.  It was
developed in 1986 "when AIDS became the epidemic that was
terrorizing everybody in the business, that we had to get and sit
down and [write] policy and procedure." Dray, Oct. 16,1990, at
19.

Sec also Higgins, Oct. 17,1990, at 11-16. Prior to the red
sticker policy, ECHC simply isolated inmates with infectious
diseases.  The deputies would be told that a particular inmate
was isolated and precautions should be taken, but they would not
be told what disease the inmate was carrying.

On its face, the red sticker does not identify any particular
disease and is used whenever an inmate is suspected or known to
be carrying an infectious or contagious disease, including HIV +,
AIDS, TB, hepatitis, chicken pox, measles, or syphilis. See
Tr.Exh. 4.  In practice, however, plaintiff argues that the red
dot revealed to staff and other persons who saw it that Louise
Nolley was HIV + or had AIDS. This is a central contention in the
case and must be carefully evaluated.

There is no question that the red sticker policy was developed,
not in response to contagious diseases in general, but specifi
cally in response to the hysteria over HIV and AIDS.  Sheriff
Higgins, when testifying about the development of the general
order requiring red stickers, stated:

Higgins:  But when this came out-when the AIDS came out and the
fear and the excitement and suspicions and -- of all the officers
both in the holding center and in the street and everybody that
is handling these people, we had to address this specifically.

Coleman:  So it's fair to say, sir, that although these orders
speak generally of contagious diseases, the principle [sic] focus
of this was AIDS, right?

Higgins:  I would say that's a fair evaluation.

Coleman:  It's fair to say also that it was understood as such by
your staff, isn't

it?

Higgins:  Yes, ma'am.

Higgins, Oct. 17, 1990, at 116.  See also Dray, Oct. 16, 1990 at
19; O'Malley, Oct. 15,1990, at 35-36.

It also appears that staff people and others who saw the red dot
either knew or strongly suspected that Ms. Nolley was HIV +.  Ms.
Nolley testified that an inmate trustee named Leroy who worked in
the clothing room, after seeing the red dot, asked her if she had
AIDS or something contagious.  Nolley, Aug. 21,1990, at 47. On a
trip to court in Cheektowaga a matron named Vi saw the red dot
and told Nolley that meant she had AIDS.  When Nolley complained
of this statement to the judge, on her next visit the matron
informed Nolley's transporting officer, Deputy Lonnie Williams,
that Nolley had AIDS. Plaintiff testified that Deputy Williams
told plaintiffs cousin, Layna Williams, that plaintiff had AIDS.
Deputy Williams denied this.  Nevertheless, Nolley testified,
Layna Williams subsequently asked plaintiff if she was okay. Id.
at 48-51. Deputy Williams later admitted, with respect to a
different red-dotted inmate he was transporting,  that he
pressed  Undersheriff Payne to confirm whether that inmate had
AIDS.  He did so because he was fearful of AIDS.  Williams, Oct.
16,1990 at 146 48. On yet another occasion, plaintiff was being
transported with another inmate who asked her for a cigarette.
One of the transporting deputies denied the inmate's request,
stating that plaintiff had AIDS. Nolley, Aug. 21,1990 at 53-59,
144.

Plaintiff has made a compelling case that the red stickers placed
on her documents and other items revealed her HIV status to non-
medical ECHC staff and others. This falls short of proving that a
red dot reveals to every person who sees it that a particular
inmate is HIV +. Indeed, plaintiff cannot deny that many non-HIV
inmates were red-dotted. This fact, however, may not be critical
for this case.  Based on all the evidence, the court finds that
the red stickers placed on Ms. Nolley's items disclosed to non-
medical ECHC staff and others that Ms. Nolley was HIV +.

V.   Segregation

During each of the confinements at issue in this case, plaintiff
was segregated from the general inmate population in the five
cell ward known as Female Delta.  Three of the cells in the ward
are used principally for confinement and observation of inmates
who are suicidal or who have demonstrated severe psychiatric
problems or mental illness  The other two cells are used for
inmates with infectious or contagious diseases who, in the
judgment of the medical department, do not require solitary
isolation. Inmates with highly infectious airborne diseases such
as TB, chicken pox, or measles are also segregated from the
general population, but in single cells in a different part of
the jail than Female Delta. All five inmates in Female Delta eat
together and share a lounge/television area and shower
facilities. They have frequent contact with each other. Their
movements are monitored from a control area adjacent to the pod.

Louise Nolley was assigned to Female Delta upon intake during
each of her three confinements and remained there for the
duration of her stays. The decision to segregate her from the
general population was made by the medical department. This
decision was made solely on the basis of her HIV status.  Once
plaintiff was so assigned, her segregation was never reviewed by
the medical department nor by any other administrator at the
ECHC.  It was automatically renewed during Ms. Nolley's  1989
and  1989/90  confinements. Plaintiff was never afforded an
opportunity to contest her segregation.  Other administrative or
disciplinary segregation decisions are appealable.  Dray, Oct.
17, 1990, at 9; Lips, Oct. 15,1990, at 161. See also Tr. Exhs.
20, 21 (inmate handbooks).

The decision to segregate HIV + inmates is made pursuant to
General Order 87-14, Tr.Exh. 4, promulgated by Sheriff Higgins in
revised form on November 25, 1987, and still in effect today.
This same order was discussed above as the "red sticker alert."
Sheriff Higgins drafted General Order 87-14 on the
recommendations of a staff committee which included Nurse
O'Malley. Before recommending segregation, O'Malley spoke with
Dr. Maddi, the ECHC Chief Physician at that time, who recommended
that inmates suspected or known to be HIV + be isolated from the
general population. When the 1986 version of this order was
issued, the ECHC had only one or two known AIDS cases but had
already begun isolating such inmates on the recommendation of Dr.
Pietrak, who was Dr. Maddi's predecessor.  For some time, the
ECHC had a practice of isolating inmates known or suspected of
having other infectious or contagious diseases such as TB,
hepatitis, herpes, syphilis, measles, and chicken pox.

General Order 87-14, to the extent it calls for automatic
segregation of HIV + inmates, cannot be reconciled with ECHC
Medical Policy and Procedure HCM 23.00.00, issued in December,
1989, which states:

Housing decisions, in the Erie County Holding Center, will not be
made solely on the basis of the protected individual's HIV
status.  Special housing decisions can be made, however, for
medical reasons or for the safety and security of the facility
and the persons therein, in the same manner as any inmate housed
in general population.

Tr.Exh. 30J at 3 (emphasis in original). HCM 23.00.00 does allow
for segregation of HIV + inmates, but only after a determination
that "the medical condition of the protected individual is 'at
risk' in general population housing or if medical needs or
treatment indicate" or "[i]f a protected individual is
behaviorally disruptive and making threatening statements/
gestures due to his [or her] HIV status ...." Tr.Exh. 30J at 3.
[footnote 3] None of these findings was made in Louise Nolley's
case.

Defendants have offered several reasons to support their
isolation policy for HIV + inmates.  The first reason ECHC
isolates HIV + inmates is to protect the non-HIV general inmate
population from the possibility of exposure to the virus. This
purpose is undercut by ECHC's policy of housing HIV + inmate with
non-HIV inmates in Female Delta.  In the court's view, it would
appear that the prospects for accidental transmission of HIV to
non-HIV inmates are greater in Female Delta than in the general
population, given the volatility of the inmates housed there.
See infra (discussing conditions in Female Delta). Louise Nolley
testified to instances where an inmate with whom she was housed
tried to commit suicide by cutting herself with her dentures.
ECHC staff subsequently asked Ms. Nolley to take the inmate's
dentures from her should she contemplate another attempt at
suicide.  Ms. Nolley also was approached by a Female Delta inmate
to engage in homosexual activity. [footnote 4]

Defendants also argue that Louise Nolley was isolated to protect
her from contracting opportunistic viruses from the general
inmate population. The court finds this argument unsupported by
the record for two reasons. First, if defendants' purpose was to
protect Ms. Nolley, the decision to house her in close proximity
with inmates known to carry communicable diseases was peculiar
indeed.  Second, the court heard expert testimony that an HIV +
inmate is not at risk until their T-cell count drops to a level
below 200. Louise Nolley's T-cell count never dropped below 30 --
a safe level -- during any of her three confinements.  Nurse
O'Malley was aware of these facts, yet never inquired as to Ms.
Nolley's T-cell count to determine if she, in fact, would be at
risk in the general population. In other words, there was never a
finding pursuant to HCM 23.00.00 that "the medical condition of
the protected individual [wa]s 'at risk' in general population
housing or [that] medical needs or treatment indicate[d]"
segregation for Ms. Nolley.

Finally, defendants argue that HIV + inmates are isolated because
of their concern that inmates might react violently to the
presence of such an inmate in their midst Defendant Dray admitted
that this was merely a concern; he testified that there had never
been such an incident at ECHC. He knew of no such incidents in
other correctional facilities. The court finds that this concern,
even if valid and not wholly speculative, does not support ECHC's
practice of automatically isolating HIV + inmates. Since,
according to defendants' theory, it is the other inmates'
knowledge of an HIV + inmate in their midst that would trigger a
violent response, if an inmate is not known to be HIV + by the
general population, there would be no risk of violence.
Defendants admit that there are HIV + inmates in the general
population that neither ECHC nor the general population inmates
know about. There is no difference in terms of security between
this type of inmate and an inmate known by ECHC but unknown by
the general population to be HIV +.

The court also finds that defendants' alleged concern with
violence is undercut by the fact that Ms. Nolley was
intentionally housed with inmates known to be psychologically
unstable and often violent, although Mr.  Dray  testified  that
those housed in Female Delta were only violent toward themselves.
Inmates known to be violent toward others are isolated
completely, he stated.

Plaintiff argues that the ECHC, by segregating Louise Nolley in
Female Delta, revealed to staff and other inmates that plaintiff
was HIV + or had AIDS. There is little question that Female Delta
was known by staff and at least some of the ECHC inmate
population to house HIV + inmates.  One inmate, for example,
testified that several sheriff's deputies told her that Louise
Nolley had AIDS.  It is also Clear that ECHC inmates going to
sick call in the ... Department must pass by Female Delta.  They
can see into the unit and communicate with inmates housed there.
These factors might lead all those who passed Female Delta to
assume that each inmate therein had AIDS.  This assumption would
be wrong because Female Delta also housed non-HIV inmates, but it
Would not be significantly off the mark given the small number of
inmates confined there. Thus, although the court finds that
segregation in Female Delta did not conclusively reveal
plaintiff's HIV status to ECHC inmates, it did strongly suggest
to these persons that she was HIV +.  The question whether Ms.
Nolley's isolation in Female Delta revealed her HIV status to
ECHC staff will be discussed more fully below. See infra  II(A).

VI.  Conditions of Confinement

Plaintiff also complains that her confinements amounted to cruel
and unusual punishment. As noted, plaintiff was segregated for
the duration of each of her confinements in the Female Delta
Medical Pod. Medical treatment was not provided in Female Delta,
however, but only in the Medical Department.  Plaintiff testified
that at times she did not get her medicine, especially her AZT,
or received it late.

The overall conditions in Female Delta were extremely stressful.
Three of the five cells in the unit were used to confine inmates
who were suicidal or who demonstrated severe psychiatric
problems. Louise Nolley was under constant pressure from these
inmates.  As plaintiff testified, "[i]t was a lot of pressure.
It was hectic and it was crazy.  It was depressing." Nolley, Aug.
21,1990, at 59-60.

People were attempting to commit suicide.  It was just never
quiet.  Somebody was always crying or trying to hurt theirselves
[sic] and they didn't shut their doors, you know, they couldn't
lock in their rooms because the officers had to be able to get
right into their cells if anything happened, so they were always
running around, even at night when I could lock in they could
come out of their cells and be running around and asking for
cigarettes and trying to kill theirself [sic], and officers
always had to come up there to rescue one of them and it would
take a while.  It was a mental ward.

Id. at 59-60.

During her 1988 and 1989 confinements, plaintiff was housed with
an inmate who was accused of murdering her four children.  This
inmate attempted suicide on a number of occasions, including at
least one instance where she used her dentures to attempt to cut
her wrists. After that, sheriffs deputies asked plaintiff to take
her dentures away from her if she spoke of suicide.  The inmate
frequently described the murder of her children in gruesome
detail, even while plaintiff was eating. Often the staff asked
the plaintiff to give her medicine, to take spoons away from her
(which she attempted to swallow), or to do other things which
plaintiff claims the staff was afraid to do.

During her 1989 confinement, plaintiff was housed with another
inmate who was accused of murdering her child.  This inmate also
spoke frequently about the murder. Plaintiff testified that staff
asked her to give this inmate medication too.  In the 1989 and
1989/90 confinements, plaintiff was housed with an inmate accused
of helping her boyfriend commit murder.  This inmate also spoke
graphically of her crime. Another inmate housed with plaintiff
was homosexual and approached plaintiff for sex on several
occasions.  Still another inmate repeatedly ate out of the
garbage. Plaintiff had to get her out of the garbage and place it
outside the door where she could not get to it.

Defendant Dray was fully aware of the distressing conditions in
Female Delta. He acknowledged that inmates should not be
subjected to such behavior.

VII. Law Library and Religious Services Throughout her 1988 and
1989 confinements, plaintiff was not permitted direct access to
the ECHC law library, despite her repeated requests. The library
is available to female general population inmates once each week
on Friday mornings.  During her 1989/90 confinement, plaintiff
was allowed in the law library on four occasions after she
requested to use a typewriter, but was required to wear plastic
gloves while typing and was not permitted to touch the law
library's books.  In June, 1988, plaintiff sent a letter to
defendant Dray asking for use of the law library. Dray sent an
official to explain to plaintiff that she would not be allowed to
go the law library but could request the staff librarians to copy
specific cases to be delivered to her in Female Delta.  Plaintiff
was also denied face-to-face contact with inmate law clerks.
Although plaintiff was able to correspond with inmate clerks and
staff librarians, the process of being forced to request specific
materials without being able to conduct general research caused
undue delay.  Many times the materials she needed would not be
delivered because the librarians did not understand what she
wanted. Other non-HIV inmates who were housed in Female Delta,
even those with red stickers, were permitted to use the law
library on the same basis as those in the general population.

During her 1988 and 1989 and most of her 1989/90 confinements,
plaintiff was not permitted to attend Catholic mass with inmates
from the general population, even though she identified herself
as a Catholic and frequently asked for permission to attend.  She
was finally granted permission to attend communal services during
the last weeks of her 1989-90 confinement The Catholic chaplain
was permitted to meet with plaintiff in Female Delta during each
of her confinements to distribute communion and hear her
confessions, albeit not in a private place.  He testified,
however, that it was also very important for a Catholic to attend
church.  Other inmates from Female Delta were permitted to attend
mass.

During her confinements, plaintiff was not permitted access to
the general library maintained at the ECHC. Instead of being
permitted to borrow any book from the library, plaintiff was
brought books which were torn, outdated, and marked with an "X"
on the cover.  After she was finished with them, the books were
thrown away.

/* An extreme level of paranoia for transmission of HIV. */

ECHC policy and procedure HCM 10.09.-01, effective December 10,
1987, provides that the decision to deny an inmate housed in
Female Delta access to the law library or other ECHC programs is
to be made by the Medical Department.  Tr.Exh. 25.  HCM 23.00.00,
adopted in December, 1989, states unequivocally that:

No inmate housed in the Erie County Holding Center will be denied
access to programs based solely on HIV status. Protected
individuals will have access to programs in the same manner as
the general population except as required by the individual's
medical condition or for the protection of the safety and
security of the inmate or facility.

Tr.Exh. 30J at 3.  Dray testified that he discussed plaintiff's
access to programs with defendant O'Malley, and claimed that she
made the decision to deny plaintiff access to ECHC programs.
O'Malley denied this. It was her opinion that plaintiff did not
pose a medical threat to anyone at ECHC.  Sheriff Higgins
testified that it was not his intention to deny HIV + inmates
access to the law library or church services.

The court finds that the decision to deny plaintiff access to the
law library and other ECHC programs was the result of an ad hoc
policy implemented by defendant Dray. Dray testified that the
fact plaintiff was isolated in Female Delta, to his mind, meant
that she could not go to programs with the general population.
He said that he denied plaintiff access to the law library and
other facilities based solely on the fact that plaintiff was HIV
+.  ECHC policy and procedures were not followed in plaintiff's
case.

VIII.     Rehabilitation Act

Plaintiff contends that she was denied access to services and
activities at the holding center in violation of the
Rehabilitation Act, 29 U.S.C.  794.  Defendants have admitted
that in the years 1988, 1989, and 1990, the County of Erie
received approximately $779,060.00 in federal funds for the
detention of federal prisoners at the ECHC.

DISCUSSION

I.   THE RED STICKER POLICY

A.   Article 27-F of the Public Health Law and CoC Regulations

Plaintiff complains that by placing red stickers on Louise
Nolley's intake card, cash record index card, clothing bag, court
papers, cell card, and other items, defendants violated article
27-F of New York State's Public Health Law, N.Y.Pub.Health Law
2780 et seq.  (McKinney's  1991 Supp.), State Commission of
Correction ("CoC") regulations adopted pursuant that law, and
ECHC policy and procedure. Her complaint, however, is limited to
her 1989/90 incarceration and her request for injunctive relief
because article 27-F only became effective February 1, 1989.

Article 27-F, entitled "HIV and AIDS Related Information,
requires that HIV related information be kept confidential and
permits disclosure only in narrowly defined need-to-know
circumstances...."  V v. State, 566 N.Y.S.2d 987, 988 (Ct.Cl.
1991).  Pursuant to article 27-F, the CoC issued regulations
applicable to all local correctional facilities, defining the
circumstances under which confidential HIV-related  information
can  be  revealed.   9 N.Y.C.R.R.  7064 (1991). The regulations
became effective October 24, 1989.  To comport with these
regulations, the ECHC issued policy and procedure HCM 23.00.00 in
December, 1989, after consulting with the CoC.

[1]  Before the court can address the merits of plaintiff's
claims, the court must first determine whether article 27-F pro
vides a private cause of action for plaintiff. There has been one
decision to date addressing this precise question.  V v. State,
566 N.Y.S.2d 987. In that case, Judge Corbett, after reviewing
the legislative history of the act and applying the test set
forth in Sheehy v. Big Flats Community Day, inc., 73 N.Y.2d 629,
543 N.Y.S.2d 18, 20, 541 N.E.2d 18, 20 (1989) and Burns, Jackson,
Miller, Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 464 N.Y.S.2d
712, 716, 451 N.E.2d 459, 463 (1983), held that claimant, an
inmate housed at Attica Correctional Facility whose HIV
confidentiality had allegedly been breached,

qualifie[d] as one of the class for whose benefit Article 27-F
was enacted, that recognition of his right to pursue this action
would promote the legislative purpose of confidentiality,
particularly as articulated by the legislative sponsors and the
Governor, and, in further harmony therewith, this right is
consistent with the statutory scheme given the reference to
Section 12 of the Public Health Law in Section 2783(1)(b).

V v. State, 566 N.Y.S.2d at 989. The court concurs in Judge
Corbett's analysis and finds that plaintiff has a private cause
of action under article 27-F.

[2]  Defendants offer two arguments in support of the red sticker
policy.  First, defendants point out that because inmates
afflicted with infectious diseases-such as TB, hepatitis, herpes,
chicken pox, measles, or syphilis-who are not HIV + are also
subject to being red-stickered, the red sticker policy does not
disclose "confidential HIV-related information" about any
particular inmate to ECHC staff and others. CoC regulations
specifically restrict disclosure of "confidential HIV-related
information." 9 N.Y.C.R.R.  7064.8. That phrase is defined in
7064.2(g) as follows:

"Confidential  HIV-related  information" means any information,
in the possession of a person who provides health or social
services or who obtains the information pursuant to a release of
confidential HIV-related information, concerning whether an
individual has been the subject of an HIV-related test, or has
HIV infection, HIV-related illness or AIDS, or information which
identifies or reasonably could identify an individual as having
one or more of such conditions, including information pertaining
to such individual's contacts.

Id. (emphasis added).  Thus, pursuant to CoC regulations, if the
placement of a red sticker on an inmate's documents and other
items identified or "reasonably could [have] identif[ied] an
individual" as being HIV +, their HIV confidentiality would have
been breached.

As the court found above, the red sticker policy was developed,
not in response to infectious diseases in general, but directly
in response to the hysteria at ECHC over HIV and AIDS.  This was
understood by ECHC staff. Accordingly, the presence of a red
sticker on an inmate's documents first and foremost suggested
(and still no doubt suggests) that the inmate is HIV +. It is
also clear to the court that staff people and others who saw the
red dot on Ms. Nolley's documents either knew or strongly
suspected that she was HIV +.  The incidents with inmate trustee
Leroy and court matron Vi, as well as the incident where
transporting deputies denied the request of another inmate to
borrow a cigarette from plaintiff because she had AIDS, indicate
to this court that the red sticker revealed plaintiff's HIV
status to them. Therefore, the court finds, based on the
testimony of plaintiff and others, that the red stickers placed
on Louise Nolley's in-take card, clothing bag, court papers, cell
card, and other items disclosed her confidential HIV-related
information to ECHC staff and inmates who were exposed to the
stickers.

[3]  As noted, CoC regulations require confidential HIV-related
information to remain confidential.  The section entitled
"Confidentiality and disclosure," states:

(a)  No person who obtains confidential HIV-related information
in the course of providing any health or social service or
pursuant to a release of confidential HIV-related information may
disclose or be compelled to disclose such information, except to
the following: ...

9 N.Y.C.R.R.  7064.8(a). [footnote 5]  Defendants' second
argument is that, even if a red sticker reveals confidential HIV-
related information, it does so only to personnel authorized
under  7064.8 to receive it. Defendants rely on  7064.8(15),
which states that confidential HIV-related information can be
disclosed to:

(15) an employee or agent of a provider of health or social
services, including but not limited to the Department of
Correctional Services and local correctional facilities, when
reasonably necessary to provide supervision, monitoring or
administration of services and when these employees or agents
have access in the  ordinary  course  of business  to records
relating to the care, treatment, or provision of a health or
social service, and in accordance with such provider's
regulations promulgated in accordance with article 27-F of the
Public Health Law.  Disclosure to an employee or agent of a local
correctional facility pursuant to this paragraph shall be consist
ent with section 601 of the Correction Law and Part 7033 of this
Chapter and shall be authorized only when such disclosure is
necessary to:

(i)  enable the chief administrative officer to appropriately
maintain custody and supervision of the protected person or
provide for the safety and protection of the protected person or
provide for the safety and protection of staff, other inmates, or
the facility; and

(ii) the medical director reasonably believes that without
disclosure circumstances will exist creating a significant risk
of contracting or transmitting HIV infection.

9 N.Y.C.R.R.  7064.8(a)(15) (emphasis added).  Plaintiff contends
that the red stickers reveal confidential HIV-related information
to persons who are not employees or agents of ECHC.  Plaintiff
further contends that even if disclosure of her HIV status were
limited to transportation deputies, guards, and other non-medical
ECHC staff, such disclosure is not permitted under this section.
The court agrees.

As an initial matter, defendants do not contend that inmates who
saw Louise Nolley's red stickers and concluded she was HIV + are
authorized to receive this information under article 27-F.  The
court heard testimony that at least one inmate, upon seeing the
red stickers, concluded that plaintiff had AIDS.  Defendants' sec
ond argument must fail on this ground alone.

The court also concludes, based on a plain reading of the statute
and regulations, that transportation deputies, change guards, and
other non-medical ECHC staff were not intended, as a general
policy, to be privy to confidential HIV-related information under
7064. See V. v. State, 566 N.Y.S.2d at 989.  Section 7064 has
been promulgated by the CoC pursuant to Section 45(6) of the New
York Correction Law and  2786 of the Public Health Law, which is
part of article 27-F.  Section 2786(2)(a) directs the chairperson
of the CoC to issue regulations pursuant to Section 2782(1)(n)
and (o), determining which employees of local correction
facilities,  2782(1)(n), and the Commission of Correction,
2782(1)(o), "may, in the ordinary course of business of the
agency or provider, be authorized to access confidential HIV
related information  ..."  N.Y.Pub. Health Law  2786(2)(a).
Section 2782 of the Public Health Law states that "[n]o person
who obtains confidential HIV related information in the course of
providing any health or social service ... may disclose or be
compelled to disclose such information, except to the following,"
and then includes a list of sixteen categories of persons who may
be disclosed such information. N.Y.Pub.Health Law  2782(1). The
only section applicable to employees of local  correctional
facilities  is  found  at  2782(1)(n), which permits disclosure
to:

a medical director of a local correctional facility as defined in
[ 40] of the correction  law,  in  accordance  with [ 2786
(2)(a)], to the extent the medical director is authorized to
access records containing such information in order to carry out
his or her functions, powers and duties with respect to the
protected individual....

N.Y.Pub.Health Law  2782(1)(n) (emphasis added).  Thus, there is
no mention in article 27-F authorizing disclosure of HIV related
information to non-medical correctional facility personnel.
Indeed, one of the lead sponsors of article 27-F in the
legislature stated in a letter to the Governor,

Beyond disclosure of HIV-related information to medical
personnel, it is the intent of this legislation to only allow
disclosures of such information within correctional facilities to
those employees who normally have access to such medical
information in the course of carrying out their work-related
responsibilities. Broader provisions were considered and
rejected.

See V. v. State, 566 N.Y.S.2d at 989. Therefore, the court does
not read  7064.8(a)(15) as permitting blanket disclosure of
confidential HIV-related information to transportation deputies,
change guards, and other non-medical ECHC staff.

There is also no provision in the local regulations authorizing
non-medical ECHC staff to receive HIV-related information. ECHC
policy and procedure HCM 23.00.00, Tr.Exh. 30J, adopted pursuant
to article 27-F, reaffirms the CoC's policy of ensuring the
maximum confidentiality of information related to an inmate's HIV
status.

For example, under section (A)(1), the regulations state: "The
medical records and/or condition of any inmate housed in the Erie
County Holding Center is strictly confidential."  HCM
23.00.00(A)(1), Tr.Exh. 30J at 2.

In addition to the court's previous finding that the red stickers
on Louise Nolley's items disclosed her HIV status to non-medical
ECHC staff, see supra, the court now finds that such disclosure
was not authorized under  7064.8(a)(15).  The sole purpose behind
disclosure of confidential HIV related information to these staff
people is to enable them to take precautions against exposure to
the virus. This purpose seems to have been contemplated in
7064.8(a)(15)(i) upon a finding that "disclosure is necessary to
... enable the chief administrative officer to ... provide for
the safety and protection of staff 9 N.Y.C.R.R.
7064.8(a)(15)(i).  The regulations, however, also require a
finding by the medical director that "without disclosure
circumstances will exist creating a significant risk of
contracting or transmitting HIV infection."  9 N.Y.C.R.R.
7064.8(a)(15)(ii). There is no evidence that such a finding was
ever made.  Moreover, given the efficacy of universal precautions
in protecting ECHC staff from the legitimate danger of being
exposed to the HIV virus, a fact that was uncontroverted at
trial, the court finds there is no need to disclose to transporta
tion deputies and other non-medical ECHC staff which inmates are
HIV + in order to protect them from exposure.  Because there are
likely to be several unidentified HIV + inmates at ECHC at any
given time, a fact admitted by Nurse O'Malley, handling all
inmates as if they were HIV + is more protective of Holding
Center staff than informing them of known HIV + inmates. Further,
defendants have admitted that, even where the HIV status of an
inmate is known, no protections greater than advised by universal
precautions are taken in handling that inmate.  Thus, disclosure
of confidential HIV-related information is not necessary to
provide for the safety and protection of these ECHC staff
members, 9 N.Y.C.R.R.  7064.8(a)(15)(i); similarly, failure to
disclose the HIV status of known HIV + inmates to them cannot, as
a general matter, create a "significant risk of contracting or
transmitting HIV infection." 9 N.Y.C.R.R.  7064.8(a)(15)(ii).
Therefore, disclosure of confidential HIVrelated information to
transportation deputies, change guards, and other non-medical
ECHC staff is a violation of article 27-F.

Accordingly, the placement of red stickers on plaintiff's
documents and other items during her 1989/90 confinement violated
article 27-F of the New York State Public Health Law.
N.Y.Pub.Health Law  2780 et seq.

B.   Constitutional Right to Privacy

Plaintiff also challenges ECHC's practice of placing red stickers
on Louise Nolley's documents and other items as violative of her
constitutional right to privacy.  The right plaintiff asserts is
the right to be protected against unwarranted disclosure of her
medical condition; namely, her HIV status. Determining whether
this right exists is our first task.  If there is such a right,
the court must then determine if ECHC violated this right.
Finally, even if the answer to this latter question is yes, the
court must then decide whether the red sticker policy is
nevertheless "reasonably related to legitimate penological
interests." Turner v. Safley, 482 U.S. 78, 89,107 S.Ct. 2254,
2261-62, 96 L.Ed.2d 64 (1987).

The starting point for our analysis must be the Supreme Court's
unanimous decision in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869,
51 L.Ed.2d 64 (1977).  In Whalen, plaintiffs challenged a New
York statute that directed the establishment of a centralized
database of names and addresses of individuals who obtained drugs
by prescription for which both a legal and illegal market
existed. Plaintiffs argued that the accumulation of this data,
and its potential release to the public, violated their
constitutional right to privacy.  id. at 600, 97 S.Ct. at 877.
After noting that the right to privacy discussed in prior Supreme
Court decisions is based on "the Fourteenth Amendment's concept
of personal liberty and restrictions upon state action," id. at
598 n. 23, 97 S.Ct. at 876 n. 23 (quoting Roe v. Wade, 410 U.S.
113, 153, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (1973)), [footnote 6]
the Court identified two interests protected by this right. "One
is the individual interest in avoiding disclosure of personal
matters, and another is the interest in independence in making
certain kinds of important decisions."  Id. at 599-600, 97 S.Ct.
at 876-77 (footnotes omitted).  The Court found, however, that
given the confidentiality protections embraced in the law, the
New York statute did not infringe upon these interests suffi
ciently to establish a constitutional violation.  id. at 603-04,
97 S.Ct. at 878-79.

Whalen's holding that privacy embraces the "individual interest
in avoiding disclosure of private matters" was affirmed by the
Court in Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 457,
97 S.Ct. 2777, 2797, 53 L.Ed.2d 867 (1977), decided the same
term. Nixon involved a suit by the former President to strike
down a congressional statute authorizing archival review of a
mountain of Presidential materials.  Balancing interests, the
Court held that given the important public interest in
preservation of the President's papers, the appellant's status as
a public figure, and the limited intrusion of the archival
screening, [footnote 7] the President's constitutional right to
privacy was not abridged.  Id. at 465,97 S.Ct. at 2801.

The Court has continued to affirm the privacy interest in
nondisclosure of personal matters.  In New York v. Ferber, 458
U.S. 747, 774, 102 S.Ct. 3348, 3364, 73 L.Ed.2d 1113 (1982), the
Court found constitutional a New York criminal statute which
prohibited distribution of child pornography. The Court supported
its holding that States "are entitled to greater leeway in the
regulation of pornographic depictions of children," id. at
756,102 S.Ct. at 3354, by noting the harm caused to children
exposed in photographs and films depicting them engaged in sexual
activity.  id. at 759,102 S.Ct. at 3356. Distribution of this
material violates the child's interest in avoiding the disclosure
of personal matters, the Court held.  Id. at 759 n. 10,102 S.Ct.
at 3355 n. 10 (citing Whalen v. Roe, 429 U.S. at 599, 97 S.Ct. at
876).  In United States Dep't of Justice v.  Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 769-70,109 S.Ct. 1468,
147980,103 L.Ed.2d 774 (1989), the Court again cited Whalen with
approval.

Numerous courts since Whalen have held that the constitutional
right to privacy includes protection against unwarranted
disclosure of one's medical records or condition. See Schaill ex
rel. Kross v. Tippecanoe County Sch. Corp., 864 F.2d 1309, 1322
n. 19 (7th Cir.1988); in re Search Warrant (Sealed), 810 F.2d 67,
71 (3d Cir.), cert. denied sub nom., Rochman v. United States,
483 U.S. 1007, 107 S.Ct. 3233, 97 L.Ed.2d 739 (1987); Trade Waste
Management Ass'n, inc. v. Hughey, 780 F.2d 221, 23334 (3d Cir.
1985); Doe v. Borough of Barrington, 729 F.Supp. 376, 382
(D.N.J.1990).  Other courts have recognized that the right
protects non-disclosure of analogous personal information.  See,
e.g., Pesce v. J. Sterling Morton High Sch. Dist. 201, 830 F.2d
789, 795-97 (7th Cir. 1987); Fadjo v. Coon, 633 F.2d 1172,1175
(5th Cir.1981).  One court, reviewing the law for qualified-
immunity purposes, stated that "as of June 1983 a majority of
courts considering the question had concluded that a
constitutional right of confidentiality is implicated by
disclosure of a broad range of personal information ...."
Borucki v. Ryan, 827 F.2d 836, 846 (1st Cir.1987). [footnote 8]

Precisely on point with this case, several courts have held that
prison inmates are constitutionally protected from the unwar
ranted disclosure of their HIV status. Harris v. Thigpen, 941
F.2d 1495 (11th Cir.1991); inmates of New York State With Human
immune Deficiency Virus v. Cuomo, 1991 WL 16032 (N.D.N.Y. Feb.
7,1991); Rodriguez v. Coughlin, 1989 WL 59607 (W.D.N.Y. June 5,
1989); Doe v. Coughlin,  697  F.Supp. 1234, 1238 (N.D.N.Y.1988);
Woods v.  White, 689 F.Supp. 874,  876 (W.D.Wis.1988), aff'd
without opinion, 899 F.2d 17 (7th Cir. 1990).  In Harris, HIV +
inmates in Alabama's State prisons brought a class action
challenging Alabama's practice of testing all inmates and
segregating those who tested positive for HIV. The district court
had sweepingly concluded that prisoners were completely without
privacy rights. Harris v.  Thigpen,  727  F.Supp.  1564,  1571
(M.D.Ala.1990), aff'd in part and rev'd in part, 941 F.2d 1495
(11th Cir.1991).  The Eleventh Circuit rejected this conclusion
and held that "prison inmates, in spite of their incarceration,
'retain certain fundamental rights of privacy.'"  Harris, 941
F.2d at 1513 (quoting Houchins v. KQED, inc., 438 U.S. 1, 5 n. 2,
98 S.Ct. 2588, 2592 n. 2, 57 L.Ed.2d 553 (1978)). Although the
court found this right to be ill-defined, it stated:

We nevertheless believe and assume arguendo that seropositive
[HIV +] prisoners enjoy some significant constitutionally-
protected privacy interest in preventing the non-consensual
disclosure of their HIV-positive diagnoses to other inmates, as
well as to their families and other outside visitors to the
facilities in question.

Id. [footnote 9]

In Cuomo, inmates infected with HIV in New York State prisons
filed a class action claiming that the prisons' lack of medical
and other services was violative of their rights under the
Constitution.  Within the context of a discovery dispute over
plaintiffs' request for the names or identification numbers of
inmates who were known by defendants to be HIV +, the court ac
cepted as uncontested "the proposition that the federal
Constitution protects against the unwarranted and indiscriminate
disclosure of the identity of HIV-infected individuals and of
their medical records    Cuomo, 1991 WL 16032.  The court con
cluded that the identity of HIV + inmates need not be disclosed
for plaintiffs to litigate their case. id. The court also
directed authorities to maintain even general information about
such inmates (with specific identities redacted) under the
tightest confidentiality.  Id.

In Rodriguez, 1991 WL 59607, an inmate transported in a "hygiene
suit" enveloping his entire body, brought suit claiming the
outfit revealed his HIV status to fellow inmates, who in turn
threatened him with bodily harm.  Judge Elfvin denied defendants'
motion to dismiss, holding that the pleading stated a valid
constitutional claim on right to privacy grounds.  "Such right
precluded New York's corrections officers from disclosing to
other inmates that he suffers from AIDS."  Id.

In Doe v. Coughlin, 697 F.Supp. at 1243, the court granted
preliminary injunctive relief to HIV + inmates who complained, in
ter alia, that their transfer to a separate dormitory reserved
for HIV +  inmates would reveal their HIV status to other inmates
and, subsequently, to the world outside prison.  The court based
its decision on both prongs of Whalen v. Roe.

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 [his HIV] diagnosis to others.Doe v. Coughlin,
697 F.Supp. at 1237. The court was especially sensitive to the
emotional implications and potential ostracism entailed in
notifying others of one's HIV status. "Within the confines of the
prison the infected prisoner is likely to suffer from harassment
and psychological pressures. Beyond the prison walls the person
suffering from AIDS is often subject to discrimination." Id.  The
court concluded that "the prisoners subject to this program must
be afforded at least some protection against the nonconsensual
disclosure of their diagnosis."  Id. at 1238.

Finally, in Woods v. White, 689 F.Supp. at 876, the court denied
defendants' motion for judgment on the pleadings where plaintiff
had alleged that medical personnel at the Waupun Correctional
Institution's Health Service Unit revealed to non-medical staff
and other inmates the fact that plaintiff had tested positive for
HIV. The court upheld plaintiff's right to privacy, stating:

Given the most publicized aspect of the AIDS disease, namely that
it is related more closely than most diseases to sexual activity
and intravenous drug use, it is difficult to argue that
information about this disease is not information of the most
personal kind, or that an individual would not have an interest
in protecting against the dissemination of such information.

Id.  The court added that it was not necessary to balance
plaintiff's right to nondisclosure against a contrary state
interest because no such state interest was suggested by
defendants.  Id.

[4] This court is persuaded by the reasoning of the above - cited
cases and expressly holds that prison inmates are protected by a
constitutional right to privacy from the unwarranted disclosure
of their HIV status. The cases that have rejected this conclusion
are not compelling.  See Baez v. Rapping, 680 F.Supp. 112, 115
(S.D.N.Y.1988); and Cordero v. Coughlin, 607 F.Supp. 9, 11
(S.D.N.Y.1984).  Both Baez and Cordero rejected inmates' claims
on the grounds that prisoners enjoy only limited privacy rights.
Baez, 680 F.Supp. at 115;  Cordero, 607 F.Supp. at 11.  The cases
cited in support of this hold, however, 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) (citing
Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119,
129, 97 S.Ct. 2532, 253940, 53 L.Ed.2d 629 (1977); Pell v.
Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495
(1974), and other cases).  Prison inmates retain some right to
privacy. Harris v. Thigpen, 941 F.2d at 1512-13;  Kimberlin  v.
United States Dept of Justice, 788 F.2d 434, 439 n. 6 (7th Cir.),
cert. denied, 478 U.S. 1009, 106 S.Ct. 3306, 92 L.Ed.2d 719
(1986). The question is: how much?

[5]  The Supreme Court's analysis under Whalen and subsequent
cases has always balanced the state's interest in assembling,
Whalen, 429 U.S. at 600, 97 S.Ct. at 877, or reviewing, Nixon,
433 U.S. at 451-52, 97 S.Ct. at 2794, personal information
against the individual's interest in nondisclosure to determine
if a constitutional violation of privacy has occurred. Where
constitutional violations are alleged by prisoners, however, the
Court has struck this balance differently, given its policy of
judicial restraint toward review of prison regulations. See,
e.g., Block v. Rutherford, 468 U.S. 576, 586-89, 104 S.Ct. 3227,
3232-33, 82 L.Ed.2d 438 (1984); Bell v. Wolfish, 441 U.S. at 550-
51, 99 S.Ct. at 1880; Jones v. North Carolina Prisoners' Union,
433 U.S. at 12930, 97 S.Ct. at 2539-40; Pell v. Procunier, 417
U.S. at 827, 94 S.Ct. at 2806. To balance the policy of judicial
restraint for prisoners' complaints against the need to protect
constitutional rights, the Court has set forth the following
test:

when a prison regulation impinges on inmates' constitutional
rights, the regulation is valid if it is reasonably related to
legitimate penological interests.

Turner v. Safley, 482 U.S. at 89,107 S.Ct. at 2261-62.  See also
Thornburgh v. Abbott, 490 U.S. 401, 404, 109 S.Ct 1874, 1877, 104
L.Ed.2d 459 (1989); O'Lone v. Estate of Shabazz, 482 U.S. 342,
349,107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). Thus, the
privacy rights of an inmate must be weighed against the strong
deference due prison administrator's judgments in the operation
of their prisons. See Harris v. Thigpen, 941 F.2d at 1515; Walker
v. Sumner; 917 F.2d 382, 385 (9th Cir.1990). Our analysis under
Turner is therefore necessary to answer the question whether
Louise Nolley's constitutional right to privacy was violated in
this case.

[6]  The court reaffirms the finding made in section I(A) that
ECHC's practice of placing red stickers on plaintiff's documents
and other items disclosed her HIV status to staff and inmates who
were exposed to the stickers. The question under Turner v. Safley
is whether the regulation which led to these disclosures was
nevertheless reasonably related to legitimate penological
interests.

Turner v. Safley identified four factors to consider to make this
determination:

First, there must be a "valid, rational connection" between the
prison regulation and the legitimate governmental interest put
forward to justify it .... Moreover, the governmental interest
must be a legitimate and neutral one ....

A second factor ... is whether there are alternative means of
exercising the right that remain open to prison inmates....

A third consideration is the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and
on the allocation of prison resources generally....

Finally, the absence of ready alternatives is evidence of the
reasonableness of a prison regulation....  By the same token, the
existence of obvious, easy alternatives may be evidence that the
regulation is not reasonable....

Turner; 482 U.S. at 89-90, 107 S.Ct. at 2261-62 (quoting Block v.
Rutherford, 468 U.S. at 586, 104 S.Ct. at 3232).

Courts interpreting the first of these factors have held that,
although prison officials are due substantial deference,
"[p]rison officials must 'put forward' a legitimate governmental
interest to justify their regulation ... and must provide
evidence that the interest proffered is the reason why the
regulation  was  adopted  or  enforced." Walker v. Sumner; 917
F.2d at 385. See Swift v. Lewis, 901 F.2d 730, 732 (9th Cir.
1990); Caldwell v. Miller; 790 F.2d 589, 598 (7th Cir.1986). The
Walker court added:

Prison authorities cannot rely on general or conclusory
assertions to support their policies.  Rather, they must first
identify the specific penological interests involved and then
demonstrate both that those specific interests are the actual
bases for their policies and that the policies are reasonably
related to the furtherance of the identified interests. An
evidentiary showing is required as to each point.

Walker; 917 F.2d at 386.

Defendants introduced evidence that the purpose for the red
stickers is to ensure the safety of staff against the danger of
infection from inmates with contagious diseases. This is
certainly a legitimate interest, and there is no dispute about
that. The question here is whether ECHC's red sticker policy is
rationally related to that purpose.  The red sticker policy
identifies inmates known to be or suspected of suffering from
contagious or infectious diseases so that ECHC staff will be
alerted to take additional precautions when handling those
inmates.  One problem with the red sticker policy, however, is
that it alerts staff to take precautions only with inmates known
by ECHC to be carrying infectious diseases, including HIV.  The
policy does nothing to protect staff from inmates who,
unbeknownst to ECHC, are carrying the same diseases.  Defendants
have admitted that numerous such inmates exist at the holding
center.  To protect staff against these unknown inmates, ECHC has
started to institute a system of universal precautions, whereby
staff are directed to take precautions against infection by blood
borne diseases with all inmates, not just those bearing the red
dot.  Thus, the red sticker policy is underinclusive in that it
protects staff less effectively than universal precautions.

More importantly, the red sticker unnecessarily identifies
inmates with blood-borne diseases [footnote 10] because the
precautions urged under universal precautions are exactly the
same precautions urged for inmates bearing the red dot.  Thus,
the presence of a red dot on an inmate's documents or other items
does not rationally further the protection of ECHC staff from the
legitimate danger of infection from inmates with contagious
diseases.

This conclusion is underscored by jumping to step four of the
Turner test, which evaluates whether the prison's regulation is
an "exaggerated response" to prison concerns. Turner; 482 U.S. at
90,107 S.Ct. at 2262.

[I]f 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 2263.  See also Abbott, 490 U.S. at
418,109 S.Ct. at 1884; Harris v. Thigpen, 941 F.2d at 1519. Given
the efficacy of universal precautions as a ready and, according
to uncontroverted testimony, notably superior alternative, see
supra, the court concludes that the red sticker policy is an
"exaggerated response" and is not reasonably related to the
protection of ECHC staff.

The court also finds that, under the second Turner factor, there
is no alternative means for inmates to exercise their right to
privacy.  Once it is lost, it is lost forever. Under the third
Turner factor, since universal precautions are in the process of
being implemented at ECHC, there would be minimal, if any, impact
on guards and others to accommodate inmates' constitutional
rights by doing away with the red stickers.

Accordingly, as the red sticker policy is not reasonably related
to legitimate penological interests, Louise Nolley's
constitutional right to privacy was violated by defendants'
practice of placing red stickers on her documents and personal
items, thereby revealing her HIV status to non-medical ECHC staff
and fellow inmates.



II.  SEGREGATION

A.   Article 27-F of the Public Health Law and CoC Regulations

[71  Plaintiff complains that her confinement in Female Delta
revealed her HIV status to unauthorized persons in violation of
article 27-F of New York's Public Health Law, and the CoC
regulations adopted pursuant to that law.  The court has already
reviewed this law in some detail in the context of ECHC's red
sticker policy. See supra  1(A). Under CoC regulations, if the
segregation of Louise Nolley released information which
identified, or reasonably could have identified, her as HIV +,
her HIV confidentiality would have been breached.  9 N.Y.C.R.R.
7064.2(g). This is the question for the court. [footnote 11]

Female Delta is a five-cell ward segregated from the general
inmate population. Generally, three of the cells are used to
house inmates who are suicidal or have severe psychiatric
problems.  The other two cells are used for inmates with blood-
borne infectious diseases, such as hepatitis or HIV.  ECHC staff
and at least some inmates from the general population were aware
during Nolley's 1989/90 confinement that Female Delta housed HIV
+ inmates. Inmates going to the Medical Department on sick call
passed by Female Delta. They could see into the unit and
communicate with inmates housed there.

As I indicated in my findings of fact, this information, while it
did not conclusively reveal plaintiffs HIV status to persons
serving her in Female Delta, strongly suggested that she was HIV
+.  Is this enough, by itself, to have breached plaintiff's HIV
confidentiality? This is a difficult question to answer.
Plaintiff's case is different from numerous other cases
challenging HIV segregation wards in other prisons, see, e.g.,
Harris v. Thigpen, 941 F.2d at 1499; Doe v. Coughlin, 697 F.Supp.
at 1240 & n. 15, in that Female Delta is an isolation ward not
limited to HIV + inmates. It can therefore not be assumed, as it
was in Harris and Doe, that housing plaintiff in Female Delta
automatically breached her HIV confidentiality. Further
complicating the question is the fact that ECHC used red stickers
to identify plaintiff.  As the court has already found, the
presence of these stickers alone revealed plaintiff's HIV status
to guards and inmates at the Holding Center.  Once this
information was revealed through the red sticker, disclosure by
segregation would have been redundant. It is therefore nearly
impossible for the court to assess whether segregation alone
revealed plaintiff's HIV status.

Given these difficulties, I have reviewed the record very
carefully.  There was no direct testimony showing that anyone had
deduced plaintiff's HIV status solely from observing her in
segregation.  With respect to fellow inmates who may have passed
by Female Delta only occasionally, this leads me to conclude that
there 15 insufficient evidence to find a violation of the Public
Health Law.  Guards, on the other hand, had the advantage of
observing Female Delta on a regular basis.  They were aware of
which inmates were psychotic, and which were carrying blood-borne
infectious diseases. [footnote 12] Over time, this additional
information must have permitted guards to deduce which inmates
were HIV +.  Thus, by isolating plaintiff in Female Delta,
defendants provided ECHC staff with "information which
identifie[d], or reasonably could [have] identif[ied]' plaintiff
as  being  infected  with  HIV, N.Y.Pub.Health Law  2780(7).  As
it has already been determined that non-medical ECHC staff,
except under limited circumstances which did not exist in
plaintiffs case, [footnote 13] were not privy to this information
the court concludes that plaintiff's segregation in Female Delta
during her 1989190 confinement disclosed confidential HIV-related
information about her to non-medical ECHC staff in violation of
article 27-F of the Public Health Law and the CoC's regulations
adopted pursuant thereto.

B.   Constitutional Right to Privacy

[81  Having determined that plaintiffs segregation in Female
Delta disclosed confidential HIV-related information about her to
non-medical ECHC staff at the Holding Center in violation of
article 27-F, the court must now examine whether this disclosure
also violated plaintiff's constitutional rights. I held above
that prison inmates are protected by a constitutional right to
privacy from the unwarranted disclosure of their HIV status. See
supra  1(B). Thus, it would appear that defendants' decision to
segregate plaintiff impinged on her constitutional right to
privacy. This does not end our inquiry, however, as we must deter
mine whether ECHC's segregation policy is "reasonably related to
legitimate penological interests."  Turner v. Safley, 482 U.S. at
89,107 S.Ct. at 2261432.

The elements of this test have already been spelled out. See
supra  1(B). The first step is to decide whether there is a
valid, rational connection between the challenged policy and a
legitimate governmental interest offered to justify it.  Defen
dants have offered three justifications for their isolation of
HIV + inmates.  The court has found factual support for only one
of these reasons, viz., protection of the general inmate
population from accidental exposure to the virus.  See supra
(Findings of Fact V). This reason is certainly legitimate. The
question is whether a policy of segregating all HIV + inmates in
Female Delta is rationally related to this legitimate purpose.
[footnote 14]

In Harris v. Thigpen, 941 F.2d at 1515-21, a case challenging the
blanket HIV testing and segregation policies of the Alabama
prison system, the Eleventh Circuit engaged in an extensive
analysis under Turner.  Although the court noted that

"[t]he logical connection between the stated goal[] of reducing
HIV transmission and the DOC's policy of uniformly segregating
seropositive prisoners, might be questioned," Id. at 1516, it
ultimately concluded that such an approach was not "irrational."
Id. at 1517 (citing Turner; 482 U.S. at 8990,107 S.Ct. at 2261-
62).

The Harris court acknowledged that Alabama's decision to
segregate all HIV + in-mates was now a minority position among
correctional facilities nationwide. A recent preliminary draft of
a National Institute of Justice report states that only four
state systems- Alabama, California, Colorado, and Mississippi
currently segregate all known HIV-infected prisoners.  See T.
Hammett & A. Daugherty, AIDS in Correctional Facilities issues
and Options, ch. 7 at 1, National Inst. of Justice (DRAFT 1990
Update, January, 1991).  Of these states, both California and
Colorado appear to be moving away from automatic segregation.
Id.  Moreover, the report states that "[o]nly two responding U.S.
city/county jail systems segregate all known HIV infected
prisoners." id.  New York State Department of Correctional
Services stopped isolating HIV + inmates from the general
population in 1987.  This strong trend away from automatic
segregation of HIV +  inmates is echoed even within ECHC's own
policies.  HCM  23.00.00, adopted in December, 1989, states that
"[h]ousing decisions, in the Erie County Holding Center, will not
be made solely on the basis of the protected individual's HIV
status."  Tr.Exh. 30J at 3 (emphasis in original).

A strong trend toward integration of HIV + inmates into the
general population does not by itself, however, render a decision
counter to that trend unconstitutional.  Rather,  ECHC's policy
of segregating HIV + inmates must be "so remotely connected to
the legitimate goal[] of reducing HIV transmission ... within the
[correctional facility] 'as to render the policy arbitrary or
irrational.'" Harris, 941 F.2d at 1517 (quoting Turner; 482 U.S.
at 8990, 107 S.Ct at 226162).  Although this is a very high
threshold, the court believes that ECHC's segregation policy
crossed this threshold. As I pointed out in my findings of fact,
if ECHC's purpose behind segregating plaintiff was to reduce the
possibility of transmitting HIV to non-HIV inmates, housing her
in Female Delta with extraordinarily volatile non-HIV inmates was
a strange choice.  Louise Nolley graphically spoke of the chaotic
and violent conditions in Female Delta.  See supra (Findings of
Fact  VI) (quoting Nolley, Aug. 21, 1990, at 5960).  One of the
inmates housed with plaintiff repeatedly tried to cut herself.
Another inmate approached plaintiff for homosexual relations.
Given these dangerous conditions, the prospects for accidental
transmission of the HIV virus to non-HIV inmates through blood-to-
blood contact was increased, not decreased, by placing plaintiff
in Female Delta.

More importantly, defendants' policy has done very little to
protect the general inmate population from the risk of HIV
transmission.  Only known HIV carriers have been segregated.
Nurse O'Malley admitted, however, that many unknown HIV carriers
are likely to be integrated into the general population at any
given time.  As ECHC's more recent policy attests, an inmate's
HIV status alone does not make it likely that the inmate will
transmit their HIV virus to another. See Tr.Exh. 30J at 3 (HCM
23.00.00).  Rather, it is an HIV + inmate's behavior toward non-
HIV inmates which carries the risk of HIV transmission. Thus,
ECHC's decision to segregate only on the basis of an inmate's HIV
status, without regard to their behavior, while it may slightly
reduce the possibility of accidental HIV transmission, does not
seriously further that goal. Furthermore, it does not comport
with ECHC's own policy, HCM 23.00.00, which calls for segregation
only after a finding that an inmate is "behaviorally disruptive."
Id.  There was no such finding in plaintiff's case. Accordingly,
the court finds that ECHC's policy of automatically segregating
plaintiff in Female Delta based solely on her HIV status was not
rationally related to the goal of reducing the risk of HIV
transmission at the Holding Center.

The court also finds that ECHC's automatic segregation policy is
an "exaggerated response" to its concerns.  The policy
alternative is found in ECHC's own regulation HCM 23.00.00, which
the court has cited to repeatedly.  "Housing decisions will not
be made solely on the basis of the protected individual's HIV
status." Id. Segregation of HIV + inmates is permitted, however,
after a finding that "the medical condition of the protected
individual is 'at risk' in general population housing or if
medical needs or treatment indicate" or a protective individual
is behaviorally disruptive and making threatening statements/
gestures due to his [or her] HIV status ...." id. This policy
could be instituted with minimal disruption.  Thus, the fourth
step of Turner is satisfied.

The second Turner factor also favors plaintiff, as there is no
alternative means for inmates to exercise their right to privacy
once it is lost.  The third factor-the effect on guards, other
inmates, and prison resources-may favor defendants, but not
enough to sustain the policy. It should not matter to guards
whether HIV + inmates are segregated, as under universal precau
tions they are trained to treat all inmates as if they might be
HIV +.  Nor can the court discern any significant impact on
prison resources.  The only potential impact is on other inmates
who now may encounter a few more HIV + inmates than they
presently do.  Given the fact defendants have admitted that HIV +
inmates already roam within the general inmate population,
however, the court finds this incremental impact to be
insignificant.

Accordingly, ECHC's policy of automatically segregating known HIV
+ inmates in Female Delta is not reasonably related to legitimate
penological interests. [footnote 15]  Plaintiff's constitutional
right to privacy was violated.

C.   Due Process

Plaintiff also complains that her segregation in Female Delta
violated her constitutional right of due process under the Four
teenth Amendment.

[9]  The first question to answer in a due process claim is
whether plaintiff has been deprived of a "life, liberty, or
property" interest.  The only interest at stake here was
plaintiff's liberty. "Liberty interests protected by the
Fourteenth Amendment may arise from two sources-the Due Process
Clause itself and the laws of the States."  Hewitt v. Helms, 459
U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983) (citing
Meachum v. Fano, 427 U.S. 215, 223-227, 96 S.Ct. 2532, 253540, 49
L.Ed.2d 451(1976)).  I will address plaintiff's argument that the
due process clause itself created a liberty interest first.

In Hewitt v. Helms, inmate Helms, who was suspected of
participating in a violent prison riot, was removed from his cell
and placed in administrative segregation while authorities
investigated his role in the riot id. at 463, 103 S.Ct. at 867.
Various reports and charges were filed during the time Helms
remained in segregation.  He was ultimately found guilty by a
prison disciplinary committee of assaulting an officer and was
sentenced to six months of disciplinary confinement.  Id. at 465,
103 S.Ct. at 868. Helms sued, claiming that he was denied due
process because he should have been granted a hearing prior to
being confined  in  administrative  segregation. The Court of
Appeals agreed, but the Supreme Court reversed, holding that
under the due process clause inmates have no general liberty
interest in remaining in the general population of a prison. id.
at 467-68,103 S.Ct. at 869. The Court reasoned:

"[a]s long as the conditions or degree of confinement to which
the prisoner is subjected is within the sentence imposed upon him
and is otherwise not violative of the Constitution, the Due
Process Clause does not in itself subject an inmate's treatment
by prison authorities to judicial  oversight."   Montanye  v.
Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466
(1976).  See also Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct.
1254, 1264, 63 L.Ed.2d 552 (1980).

It is plain that the transfer of an inmate to less amenable and
more restrictive quarters for nonpunitive reasons is well within
the terms of confinement ordinarily contemplated by a prison sen
tence.  The phrase "administrative segregation," as used by the
state authorities here, appears to be something of a catchall: it
may be used to protect the prisoner's safety, to protect other in
mates from a particular prisoner, to break up potentially
disruptive groups of inmates, or simply to await later
classification or transfer....  Accordingly, administrative
segregation is the sort of confinement that inmates should reason
ably anticipate receiving at some point in their incarceration.

Hewitt, 459 U.S. at 468,103 S.Ct. at 869. The critical inquiry in
this analysis is whether "'the conditions or degree of
confinement to which the prisoner is subjected is within the
sentence imposed upon him [or her] ... .'" Id. (quoting Montanye
v. Haymes, 427 U.S. at 242, 96 S.Ct. at 2547).

In Vitek v. Jones, 445 U.S. 480,100 S.Ct. 1254 (1980), the Court
held that the transfer of a Nebraska state prisoner to a mental
hospital was not within the range of confinement justified by a
prison sentence.  The Court cited two reasons.  First, the
transfer stigmatized the inmate as being mentally ill. Second,
the inmate would be subjected involuntarily to institutional care
in a mental hospital.  These conditions were found by the Court
to be qualitatively different from the punishment normally
suffered by a person convicted of a crime. id. at 493,100 S.Ct.
at 1264. Accordingly, the inmate was entitled to due process pri
or to his transfer.

Defendants argue, based on Hewitt, that plaintiff's liberty
interests were not implicated by her segregation in Female Delta.
Indeed, several courts, citing Hewitt, have rejected due process
claims brought by inmates segregated because of their HIV status.
See, e.g., Muhammad v. Carlson, 845 F.2d 175, 177 (8th Cir.1988),
cert. denied sub nom., Muhammad v. Quinlan, 489 U.S. 1068,109
S.Ct. 1346,103 L.Ed.2d 814 (1989); Powell v. Department of Cor
rections, State of Okla., 647 F.Supp. 968, 970 (N.D.Okla.1986);
Cordero v. Coughlin, 607 F.Supp. at 10.  Plaintiff counters that
her detention in Female Delta, the "mental ward" at ECHC, was
analogous to the involuntary transfer of the prisoner in Vitek v.
Jones to the state mental hospital.

The court finds that the facts of this case are much closer to
the conditions in Vitek than those in Hewitt. The inmate in Hew
itt was confined in administrative segregation in the aftermath
of a prison riot, during which time the prison authorities were
legitimately concerned that further outbreaks could occur.
Inmate Helms was suspected of participating in the riot and was
therefore secluded until the authorities could determine exactly
what had transpired. The authorities then conducted an
investigation,  brought  charges  against Helms and, on a finding
of guilt, moved him from administrative to disciplinary seg
regation. In this case, there was no prison disturbance, nor even
the threat of one. No reports were ever issued; no charges were
ever filed.  Plaintiff was placed in administrative segregation
from the moment she entered ECHC during each of her three
confinements,  and she  remained there, with no administrative
review, for the duration of those confinements.

In Vitek, an inmate was involuntarily transferred from prison to
the state mental hospital. The stigma of being assigned to the
mental hospital in Vitek was not dramatically different from the
stigma associated with being involuntarily placed in Fe male
Delta, a ward known to house inmates who were suicidal and
psychologically unstable, or who were HIV +. Whether plaintiff
was thought by outsiders to need psychiatric help, or to be HIV
+, both of these classifications could have engendered serious
adverse consequences for her. See Vitek, 445 U.S. at 492, 100
S.Ct. at 1263. Similarly, although Louise Nolley was not subject
to mandatory behavioral modification as the inmate in Vitek was,
she was subject to the kinds of pressures an inmate would face in
a mental hospital.  The inmates in Female Delta repeatedly tried
to kill themselves, spoke often and in gruesome detail about the
murders they had committed, ate out of the garbage, and so forth.
See supra.  Defendant Dray acknowledged that inmates should not
be subjected to such conditions. This evidence indicates that
confinement in Female Delta was qualitatively different from the
punishment normally suffered by a person convicted of a crime.
See Vitek, 445 U.S. at 493, 100 S.Ct. at 1264. For these reasons,
I find that plaintiff was constitutionally entitled to due
process. I do not rest on these points alone, however.

There is an additional factor that leads me to conclude that due
process was violated here.  In Hewitt, the Court concluded that
an inmate's liberty was not constrained by administrative
segregation because this was the "sort of confinement that
inmates should reasonably anticipate receiving at some point in
their incarceration." Hewitt, 459 U.S. at 468, 103 S.Ct. at 869
(emphasis added). The Court later added in a footnote, that:

Of course, administrative segregation may not be used as a
pretext for indefinite confinement of an inmate.  Prison
officials must engage in some sort of periodic review of the
confinement of such inmates.

Id.  at 477 n. 9, 103 S.Ct. at 874 n. 9. This language indicates
that indefinite administrative confinement of an inmate without
review by prison officials is outside "the terms of confinement
ordinarily contemplated by a prison sentence."  id. at 468, 103
S.Ct. at 869. Louise Nolley was segregated in Female Delta under
just those conditions. She was placed there upon admission during
each of her three confinements and remained there throughout. Her
segregation was never reviewed by defendants. Such confinement,
based solely as it was on her HIV status, could not have been
contemplated as part of a normal prison sentence.  Accordingly,
for the reasons cited above, the court finds that plaintiff's due
process rights were violated.

[10]  This conclusion is underscored by the second prong of
Hewitt, in which the Court held that even if no liberty interest
was created by the United States Constitution, an inmate could be
protected by a state-created liberty interest. Hewitt held that
procedural "guidelines" are insufficient to create such an
interest; state or local regulations must be of an "unmistakably
mandatory character, requiring that certain procedures 'shall,'
'will,' or 'must' be employed" before a liberty interest may be
created.  Hewitt, 459 U.S. at 471,103 S.Ct. at 871. See also
Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461-63,
109  S.Ct.  1904,  1909-10,  104 L.Ed.2d 506 (1989); Muhammad v.
Carlson, 845 F.2d at 177. Plaintiff argues that the inmate
handbooks for ECHC, Tr.Exhs. 20, 21, and ECHC policy and
procedures created a protected liberty interest.

Two inmate handbooks were introduced into the record.  One is
dated May, 1987, Tr.Exh. 21; the other is dated March, 1989,
Tr.Exh. 20. The first handbook contains a confusing discussion of
administrative segregation, see 9 N.Y.C.R.R.  7006.1(b)(1), but
does not limit the discretion of prison officials to segregate
inmates. See Tr.Exh. 21 at 20. The latter handbook, under the
heading  "Administrative  Segregation," states that

The status of any inmate placed in Administrative Segregation
will be re viewed every seven days to determine whether the
reasons for initial placement in the unit still exist and a
decision will be rendered at that time as to whether the inmate
will remain in Administrative Segregation or moved to general
population.

Tr.Exh. 20 at 28 (emphasis added and in original).  This
provision appears analogous to those found in Pennsylvania under
which a state-created liberty interest was found in Hewitt.  See
Hewitt, 459 U.S. at 470 n. 6, 103 S.Ct. at 871 n. 6.  Stronger
language is found in ECHC medical policy and procedure HCM
23.00.00, effective as of December, 1989, which has been quoted
in full above. See supra (Findings of Fact  V). It states that
housing decisions "will not be made solely on the basis of the
protected individual's HIV status.  Special housing decisions can
be made, however, ... in the same manner as any inmate housed in
general population." id. (emphasis in original).  Neither the
handbook nor HCM 23.00.00 prohibits defendants from segregating
HIV + inmates.  Both, however, like the provisions in Hewitt, re
quire particular administrative findings before initiating, and
while continuing, such segregation.

Based on these ECHC regulations, I find that, as of their
effective dates, the Holding Center created a liberty interest
for plaintiff to be placed in the general inmate population
absent a proper finding that she needed to be segregated. No such
finding was ever made. There was never a medical determination
made that she was "at risk" in the general population nor that
her medical needs or treatment required segregation. No review of
the decision to segregate her was ever undertaken.  She was
segregated upon entry during her 1988 confinement solely because
she was HIV +. The decision to segregate her was automatically
renewed for her 1989 and 1989/90 confinements.   Accordingly,
plaintiffs state - created liberty interests, and thus her
constitutional due process rights, were violated during her
1989/90 confinement.

Finally, defendants argue that their actions are protected under
the Turner v. Safley test discussed above.  That analysis,
however, does not apply here. This is not a situation where an
otherwise valid regulation impinges on plaintiff's constitutional
rights, but where the defendants failed to follow even their own
regulations. Thus, Turner does not apply.  Even if it did, for
the reasons stated in  11(B), the court finds that plaintiff's
segregation in Female Delta was not reasonably related to
legitimate penological interests.

D.   Equal Protection

[11]  Plaintiff also challenges her segregation on equal
protection grounds.  Similar equal protection challenges to
administrative segregation by HIV + inmates have been universally
rejected.  See, e.g., Judd v. Packard, 669 F.Supp. 741, 743
(D.Md. 1987); Powell v. Department of Corrections, 647 F.Supp. at
971;  Cordero v. Coughlin, 607 F.Supp. at 10; Brickus v. Frame,
1989 WL 83608, 1989 U.S. Dist. LEXIS 8510 (E.D.Pa. July 24,1989).
For plaintiff to invoke the equal protection clause, she must
show that she was similarly situated with other inmates.  Plyler
v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786
(1982). As an HIV + inmate carrying a contagious disease, she has
not made this showing.  Accordingly, plaintiff's equal protection
claims are denied. Judd, 669 F.Supp. at 743; Cordero, 607 F.Supp.
at 10.



III. CONDITIONS OF CONFINEMENT

[12]  Plaintiff argues that the conditions of her confinement
were cruel and unusual punishment in violation of the Eighth
Amendment. There is no question that the conditions in Female
Delta were extremely stressful.  Louise Nolley was housed with
inmates who graphically described their horrible crimes, who were
suicidal, who demonstrated severe psychiatric problems, and who
were in a state of perpetual trauma.  Plaintiff was asked on many
occasions to assist ECHC staff in controlling these inmates.
Plaintiff also complains that at times she did not get the
medicine she needed, especially AZT, a critical drug for
combatting AIDS, or received it late.

Just this last term, the Supreme Court held that for conditions
of confinement to violate the Eighth Amendment, prison officials
creating those conditions must have possessed a culpable state of
mind.  Wilson v. Seiter; -- U.S. -- 111 S.Ct. 2321, 232826, 115
L.Ed.2d 271 (1991).  "[T]he offending conduct must be wanton."
Id. 111 S.Ct. at 2326 (emphasis in original). "[w]hether [the
offending conduct] can be characterized as 'wanton' depends upon
the constraints facing the official."  Id. (emphasis in
original). Drawing on the holding of Estelle v. Gamble, 429 U.S.
97, 97 S.Ct. 285, 50 L.Ed.2d 251(1976), which held that
"deliberate indifference to serious medical needs of prisoners"
violates the Eighth Amendment, id. at 104, 97 S.Ct. at 291, the
Court found "no significant distinction between claims alleging
inadequate medical care and those alleging inadequate 'conditions
of confinement.'"  Wilson, 111 S.Ct. at 2326.  Therefore,

"Whether one characterizes the treatment received by [the
prisoner] as inhumane conditions of confinement, failure to
attend to his medical needs, or a combination of both, it is
appropriate to apply the 'deliberate indifference' standard
articulated in Estelle."

Id. at 2327 (quoting LaFaut v. Smith, 834 F.2d 389, 391-92 (4th
Cir.1987)).

Aside from announcing a subjective component for Eighth Amendment
jurisprudence, Wilson reaffirmed the longstanding objective
requirement.  "The Constitution, we said, 'does not mandate
comfortable prisons,' [Rhodes v. Chapman, 452 U.S. 337, 349,101
S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981),] and only those
deprivations denying 'the minimal civilized measure of life's
necessities,' id., at 347,101 S.Ct. at 2399, are sufficiently
grave to form the basis of an Eighth Amendment violation."
Wilson, 111 S.Ct. at 2324.  See also Deutsch v. Federal Bureau of
Prisons. 737 F.Supp. 261, 266 (S.D.N.Y.1990), aff'd without
opinion, 930 F.2d 909 (2d Cir.1991); Cordero v. Coughlin, 607
F.Supp. at 11. Applying this objective standard to the stressful
environment in Female Delta, the court finds that the overall
conditions in the pod, although severe, were not sufficiently
traumatic to violate the Eighth Amendment. See Griffin v.
Coughlin, 743 F.Supp. 1006,1018 (N.D.N.Y.1990) (finding noise
level and stress of environment insufficient for Eighth Amendment
violation); Cordero, 607 F.Supp. at 11. Plaintiff does not
complain that the stress of being incarcerated in Female Delta
caused her any physical harm.  Nor is there any evidence that
ECHC failed to clothe her, or feed her, or provide her with
sufficient warmth. Moreover, plaintiff was able to escape some of
the stress of her environment by entering her cell and closing
the door.

[13] The several instances where plain-tiffs AZT was either not
delivered or was delivered late, did, however, deprive plaintiff
of a necessity of life under the Eighth Amendment.  See Roe v.
Fauver; No. 88- 1225, slip. op. at 9, 1988 WL 106316 (D.N.J. Oct.
7, 1988).  AZT is an absolutely vital medication for HIV +
persons because it is the only medication known to slow the
advance of the disease.  Id.  With the objective component of an
Eighth Amendment violation thus proven,  the question is whether
defendants' late delivery or non-delivery of AZT amounted to
"deliberate indifference."  The court finds that it did not. The
most that plaintiff has proven is that the Holding Center was
negligent in its delivery of medications.  Although this was
deplorable conduct in the care of an HIV + inmate, there is not
enough evidence that defendants possessed the culpable state of
mind necessary to be found guilty of an Eighth Amendment
violation. See Wilson, 111 S.Ct. at 2328. Accordingly,
plaintiff's Eighth Amendment claims must be denied.



IV.  LAW LIBRARY and RELIGIOUS SERVICES

Plaintiff alleges that defendants' decision to deny her access to
ECHC's law library and to communal religious services violated
her constitutional rights.  I will take up each argument in turn.

[14]  During each of her three confinements, plaintiff was denied
direct access to the ECHC law library. The only time she was even
allowed in the library was on four occasions during her 1989/90
confinement, but this was only to use the typewriter. Plaintiff
was not permitted to touch the law library's books.  To receive
materials from the library, she was required to submit written
requests for specific cases to staff librarians who, in turn,
would copy those cases for her.  The process was tedious, time-
consuming, and not productive. The court has been informed that
ECHC no longer denies HIV + inmates direct access to the law
library.

"It is now established beyond doubt that prisoners have a
constitutional right of access to the courts." Bounds v. Smith,
430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977).

We hold, therefore, that the fundamental constitutional right of
access to the courts requires prison authorities to assist
inmates in the preparation and filing of meaningful legal papers
by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.

Id at 828, 97 S.Ct. at 1498.  See also Griffin v. Coughlin, 743
F.Supp. at 1019 -- 25 (discussing elements of constitutional
violation in great detail); Harris v. Thigpen, 941 F.2d at 1527.

This constitutional right was denied.  Plaintiff was never
permitted direct access to any of the volumes in the law library.
Plaintiff was also denied face-to-face con-tact with inmate law
clerks. See Griffin, 743 F.Supp.  at  1022-24.  The system
Whereby plaintiff was required to request Copies of specific
materials without being able to conduct general research or work
with inmates who could help with that research was woefully
inadequate.  Thus, plaintiff was not given adequate access to a
law library nor adequate assistance from a Person trained in the
law. By now choosing to alter these practices, defendants have
essentially admitted that the prior practice was misguided.
Current ECHC policy is that no inmate will be denied access to
programs based solely on their HIV status. See Tr.Exh. 30J at 3
(HCM 23.00.00).

The denial of access to the law library is also not justified
under the Turner v. Safley test. As I discussed in my findings of
fact, plaintiff was denied access to the law library as a result
of an ad hoc policy implemented by defendant Dray.  ECHC policies
and procedures were not followed. Thus, there can be no argument
that she was denied access pursuant to a regulation reasonably
related to legitimate penological interests. See Turner; 482 U.S.
at 89, 107 S.Ct. at 2261-62.  Moreover, defendant Dray apparently
believed in the face of overwhelming evidence to the contrary,
see supra note 1 and accompanying text (quoting Dray's
testimony), that plaintiff could transmit the HIV virus to others
by using the law books in the library or by using the typewriter
found there. He required plaintiff to wear plastic gloves on the
four occasions she was permitted to use the library typewriter.
The evidence at trial established that plaintiff could not infect
other inmates in this way. Therefore, there was no rational
connection between the legitimate goal of limiting the
possibility of HIV transmission and denying plaintiff access to
the library. Accordingly, plaintiff's constitutional right of
access to the courts was denied.

Plaintiff also claims that defendants abridged her First
Amendment right to free exercise of religion by denying her
access to congregate religious services.

[15, 16]  The right to attend congregate religious services is
not absolute. The Supreme Court has held that where denial of
access to such services is reasonably related to legitimate
penological objectives, it is valid.  O'Lone v. Estate of
Shabazz, 482 U.S. at 353, 107 S.Ct. at 2407.  See also Matiyn v.
Henderson, 841 F.2d 31, 37 (2d Cir.), cert. denied, 487 U.S.
1220, 108 S.Ct. 2876, 101 L.Ed.2d 911 (1988); Griffin v.
Coughlin, 743 F.Supp. at 1025 & n. 17; Aliym v. Miles, 679
F.Supp. 1, 2 (W.D.N.Y.1988) (Curtin, J.).  These cases have
upheld denial of access to communal services based in part on the
serious security concerns of the prison.  O'Lone, 482 U.S. at
351,107 S.Ct. at 2405-06; Griffin, 743 F.Supp. at 1025 n. 17;
Aliym, 679 F.Supp. at 2.  Those are not the reasons advanced
here, however.

As with the denial of access to the law library, plaintiff was
not permitted to attend Catholic services as a result of an ad
hoc policy implemented by defendant Dray. Current ECHC policy and
procedure, which was  also  in  effect  during  plaintiff's
1989/90 confinement, would have permitted plaintiff to  attend
communal  services. Dray did not follow this policy, apparently
because he feared that plaintiff might infect other inmates with
HIV during church services.  As Dray admitted at trial, however,
he substituted his own layman's understanding of how the HIV
virus can be transmitted for expert medical opinions on the
subject. See supra note 1. Mr. Dray's opinions in this regard
were completely contradicted by Dr. Hewitt, who testified on the
limited way in which the HIV virus can be passed. Accordingly,
although preventing the spread of HIV infection is certainly a
legitimate penological objective, there was no evidence
introduced by defendants which would show that the decision to
deny plaintiff access to church services was reasonably related
to that purpose. See Walker, 917 F.2d at 386. This conclusion is
reinforced by the fact that ECHC now permits HIV inmates (and
Louise Nolley during the last segment of her 1989/90 confinement)
to attend communal services. The  court  finds  that  plaintiff's
First Amendment rights were abridged. [footnote 16]  Her denial
of rights was mitigated significantly, however, by the fact that
throughout her three confinements, plaintiff was permitted one-on-
one meetings in Female Delta with a Catholic priest. C.f.
Griffin, 743 F.Supp. at 102627.



V.   REHABILITATION ACT

[17]  Plaintiff's last claim is that defendants denied her access
to programs at the Holding Center in violation of the
Rehabilitation Act, 29 U.S.C.  794.  Section 794 states:

No otherwise qualified individual With handicaps in the United
States, as defined in section 706(8) of this title, shall, solely
by reason of his or her 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 ....

29 U.S.C.  794(a) (emphasis added). The statute goes on to define
"program or activity" as "all of the operations of --(1)(A) a
department, agency, special purpose district, or other
instrumentality of a State or of a local government ... any part
of which is extended Federal financial assistance."  29 U.S.C.
794(b).  Defendants have admitted that in each of the three years
plaintiff was confined, Erie County received approximately
$779,060.00 in federal funds for the detention of federal
prisoners at the ECHC.  Defendants argue, however, that the Act
does not apply to them because the federal funds received by Erie
County were a payment, at fair market value, for detention
services at the ECHC, and thus did not constitute "Federal
financial assistance" under the Act. 29 U.S.C.  794.

The phrase "Federal financial assistance" is not defined in the
Rehabilitation Act.  Nevertheless, several courts have held that
"an entity receives financial assistance when it receives a
subsidy." DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d
1377, 1382 (10th Cir.1990), cert. denied, -- U.S. --,111 S.Ct.
799, 112 L.Ed.2d 860 (1991). See also Hingson v. Pacific
Southwest Airlines, 743 F.2d 1408,1414 (9th Cir.1984); Jacobson
v. Delta Airlines, Inc., 742 F.2d 1202, 1208-09 (9th Cir.1984),
cert. dismissed, 471 U.S. 1062, 105 S.Ct. 2129, 85 L.Ed.2d 493
(1985); Bachman v. American Soc'y of Clinical Pathologists,  577
F.Supp.  1257,  1264 (D.N.J.1983); Cook v. Budget Rent-A-Car
Corp., 502 F.Supp. 494, 496 (S.D.N.Y.1980). Cf 34 C.F.R.
104.3(h) (1990) (Department of Education regulations defining
"Federal financial assistance").  Payment of fair market value
for services rendered does not constitute a subsidy.  Jacobson,
742 F.2d at 1210; [footnote 17] Cook, 502 F.Supp. at 498.  There
is no evidence that the federal funds received by Erie County in
1988, 1989, and 1990 to detain federal prisoners in the ECHC
exceeded the fair market value for this service.  Thus, ECHC did
not receive "Federal financial assistance" during the years
plaintiff was confined. Accordingly, plaintiffs claim under the
Rehabilitation Act is denied.



VI.  RELIEF

With this long opinion, the court has drawn the following
conclusions, here reiterated in abbreviated form:

I.   Red Sticker Policy

A.   Defendants' red sticker policy violated plaintiff's privacy
rights under article 27-F of New York's Public Health Law and CoC
regulations.

B.   Defendants' red sticker policy also violated plaintiff's
constitutional right to privacy. The policy was not reasonably
related to legitimate penological interests.

II.  Segregation

A.   Defendants' policy under which plaintiff was automatically
segregated in Female Delta violated plaintiff's privacy rights
under article 27-F of the Public Health Law and CoC regulations.

B.   This policy decision also violated plaintiff's
constitutional right to privacy. The policy was not reasonably re
lated to legitimate penological interests.

C.   This policy also violated plaintiff's rights under the due
process clause.

D.  Defendants' segregation policy did not violate plaintiff's
equal protection rights.

III. Conditions of Confinement

The conditions of confinement which plaintiff was subjected to in
Female Delta, although deplorable, did not violate plaintiff's
Eighth Amendment rights.

IV.  Law Library and Religious Services

Plaintiff was deprived of her constitutional right of access to
courts.  This deprivation was based on an ad hoc policy
implemented by Superintendent Dray and was not reasonably related
to legitimate penological interests.

Plaintiff was also deprived of her First Amendment right to
access congregate religious services.  This deprivation was also
based on an ad hoc policy implemented by Superintendent Dray and
was not reasonably related to legitimate penological interests.

V.   Rehabilitation Act

There was no violation of the Rehabilitation Act because ECHC did
not receive "Federal financial assistance" under the Act.

These conclusions, by themselves, do not answer the difficult
question of what relief should be afforded plaintiff as a result
of the statutory and constitutional violations found above.
Plaintiff seeks both injunctive and monetary relief.  With
respect to injunctive relief, the court has significant doubts
whether Ms. Nolley still has standing to seek this relief, given
the fact that she is no longer incarcerated in the Holding Center
and has no prospects of returning there. See, e.g., Los Angeles
v. Lyons, 461 U.S. 95, 10507,103 S.Ct. 1660, 1667-68, 75 L.Ed.2d
675 (1983).  This relief may, however, be appropriate for other
HIV + inmates currently housed at ECHC.  The court will defer
ruling on this request until such time as it can meet with the
parties.

With respect to monetary relief, the court also chooses at this
time not to render a final judgment as to the liability of the
four remaining defendants.  Questions remain, for example, as to
whether any of the defendants are entitled to qualified immunity,
and the appropriate measure for damages, should any be awarded.
The court may require additional briefing on these issues, but
will again defer making a decision until a meeting with the
parties can be held.  There may also be other issues the parties
will want to bring to the court's attention.

So ordered.



FOOTNOTES

1.   The following exchange between the court and Mr. Dray is
very telling in this regard:

Court:    Well now, you are familiar with the material, you've
gone over the material that we've discussed here in court about
the way-the limited way in which this virus can be transmitted?

Dray:     I am aware as anybody can be.  And reading it.

Court:    But in listening to your testimony, at least that I had
the understanding that you believe in spite of that, that you are
still suspicious that there may be some untoward incident, and
that the facility could be liable?

Dray:     I am, your Honor.  I am, and I've begun watching it
closely for five or six years, and just recently a poor dentist
is accused of giving his client-infecting them with HIV. We were-

Court:    Well, I mean, the-the prisoners in the general
population are not doing dental work and/or [do] not have similar
tools?

Dray:     Right. but we have no control over them sharing a
plate, sharing a meal, drinking out of the same cups.

[Court:] But see you just-have you read the material about that,
and we had a doctor here that told us that the disease cannot be
transmitted that way?

Dray:     I read it, I've heard it.

Court:    So that as I understand it, what you're telling me, is
that you're substituting your laymen's [sic] judgment for that of
the best medical information you can get, is that right?

Dray: I hate to admit that, but I guess I am.

Dray, Oct. 16, 1990 at 110-11.

2.   As of today, ECHC has instituted some training for staff in
the use of universal precautions.

3.   HCM 23.00.00 was developed by Deputy Lips with the approval
of defendant Dray, and after consultation with the New York State
Commission of Correction's ("CoC") attorney.  See Tr. Exhs. 17H,
17F; Lips, Oct. 15,1990, at 132-37; Dray, Oct. 16, 1990. at 77.

4.   The court is not expressing the opinion that transmission of
the HIV virus was likely to occur as a result of these instances.
The court merely notes them to indicate that blood-to- blood
contacts between inmates may have been more likely to occur in
Female Delta than in the general population.

5.   The ECHC and its staff provides a "health or social service"
under these regulations. See id.,  7064.2(h).

6.   See also Carey v. Population Serv. Int'l, 431 U.S. 678. 684,
97 S.Ct. 2010, 2015, 52 L.Ed.2d 675 (1977).

7.   The Court noted that the President's materials were to be
screened by archivists with an unblemished record for discretion,
and truly private materials were to be returned to the President.
Id. at 460, 462. 97 S.Ct. at 2798, 2800.

8.   In Borucki, the court concluded that the constitutional
right of confidentiality. as of the time defendant acted, was not
"clearly established" for purposes of qualified immunity
analysis. Borucki. 827 F.2d at 83947.  See also Pueblo
Neighborhood Health Ctrs. v. Losavio. 847 F.2d 642. 64748 (10th
Cir.1988); Plowman v. United States Dep't of the Army, 698
F.Supp. 627, 633-34 (E.D.Va.1988).  This court must at some point
take up the question of qualified immunity for defendants, but
declines to do so now.

9.   The court, applying the Supreme Court's Turner v. Safley
test (discussed below), ultimately found that the Alabama prison
system did not unconstitutionally impinge upon these privacy
rights, given the countervailing interests of the prison
authorities.  Harris, 941 F.2d at 1521.

10.  Staff are urged to take additional precautions for inmates
bearing red dots who carry airborne diseases, but this
information is conveyed separately by the medical staff and is
unrelated to the red dot.

11.  This question is limited to plaintiff's 1989/90 confinement.
which postdated the effective date of New York's Public Health
Law.

12.  plaintiff gave extensive testimony describing the bizarre
behavior of her fellow inmates. She also testified that guards
trusted her to help them control these inmates, thus setting her
apart from them.

13.  On some limited occasions it would appear that revealing an
inmate's HIV status by segregating them may be authorized by the
regulations. Under the Holding Center's medical policy HCM
23.00.00, although housing decisions should not be made solely on
the basis of an inmate's HIV status, such decisions can be made
if the inmate is "at risk" in the general population, or if
medical treatment indicates that medical housing would be best.
These determinations would follow for an inmate in an advanced
stage of the disease, when be or she is susceptible to
opportunistic viruses.  Special housing can also be instituted
when an inmate engages in high-risk behavior, such as needle
sharing or homosexual activity, to protect other inmates from
infection. See Tr.Exh. 30J, Sections 7064.8(a)(15)(i) and (ii)
also appear designed to permit disclosure under these circum
stances. The difference between those circumstances and this
case, however, is that no such findings were ever made for Louise
Nolley.

14.  Plaintiff does not challenge that HIV + inmates who engage
in actions which place other inmates at risk of infection, such
as needle sharing, or, in the case of male inmates, homosexual
activity, should be isolated.

 15. As the court has several times emphasized, see supra notes
13 and 14 and accompanying text, this holding does not implicate
case-by-case decisions to segregate HIV + inmates based on the
findings contemplated in HCM 23.00.00.

16.  The court does not find, however, that ECHC must always
permit HIV + inmates to access congregate services.  An
individual's medical condition or the security of the facility
may require denial of access in particular cases. See Tr.Exh. 30J
at 3 (HCM 23.00.00).  These findings were not made in plaintiff's
case.

17.  The Jacobson court, as well the Tenth Circuit in DeVargas,
911 F.2d at 1382, hold that the test for whether federal funds
amount to financial assistance does not turn on an accounting of
"fair market value," but on the intention of the government to
grant or not to grant a subsidy. My conclusion below does not
depend on this distinction, for I find that under either the
"fair market value" or the "intention" test, there was no
evidence of a subsidy here.