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

Text File | 1993-01-14 | 9KB | 180 lines

/*  This case is reported in 731 F.Supp. 715 (W.D.N.Y. 1991).
Wilson, a prisoner, seeks to sue under the FTCA alleging, perhaps
incoherently, that he was being experimented on and given AIDS.
In any event, the case provides citations and an explanation of
the law related to such claims. */

Melvin WILSON, Plaintiff,

v.

UNITED STATES PUBLIC HEALTH SERVICE, Defendant.

United States District Court, N.D. Illinois, E.D.

Dec. 13, 1989.



MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Melvin Wilson ("Wilson"), an inmate in the custody of the
Illinois Department of Corrections ("DOC"), asks leave to file
this action without payment of the filing fee. Wilson's pro se
Complaint seeks damages against the United States Public Health
Service ("Service") under the Federal Tort Claims Act, 28 U.S.C.
1346(b) and 2671-2680 ("FTCA"). [footnote 1] Because the
Complaint is frivolous as a matter of law, Wilson's motion for
leave to file in forma pauperis is denied and this action is
dismissed.

This is the second time Wilson has visited this Court with his
FTCA claim against Service-his earlier Complaint and action
tendered under Case No. 89 C 2163 were dismissed in this Court's
April 14, 1989 memorandum opinion and order (the "Opinion") for
Wilson's failure to exhaust his administrative remedies.  After
that dismissal Wilson submitted his administrative claim to the
Department of Health and Human Services ("Department").  Finding
no evidence of a negligent or wrongful act by a federal employee,
Department denied Wilson's claim on July 21, 1989. With
Department's final determination of his claim in hand, Wilson has
resubmitted his FTCA claim to this District Court.

In dismissing Wilson's first suit, Opinion at 1-2 remarked on the
rather confused nature of Wilson's allegations:

Wilson's Complaint is somewhat opaque. From attached documents it
appears the suit has its genesis in a contract between Service
and the Illinois Department of Corrections for a study on the
transmission of HTLV-III/LAV among adult male inmates in
correctional facilities. Although Wilson complains Service is
conducting experiments on prisoners, he does not provide any
information as to the exact nature and methodology of these
experiments.  Nor does he specify any particular injury.  While
his allegations are rather disjointed, Wilson appears to contend
the experimentation conducted pursuant to the contract has
resulted in his exposure to the virus responsible for AIDS.
Exactly how this occurred is left a mystery.

Although Wilson has remedied the procedural exhaustion problem
this Court found in his first Complaint he has not made the
factual basis for his claim any clearer.

[1]  Once again Wilson charges Service with "conducting human
experimentation on prisoners within DOC custody."  Additionally
he alleges Service staff is forcing known AIDS carriers to cell
with other inmates.  But he offers no allegations to indicate how
or whether he personally was subjected to some form of medical
experimentation or forced to share a cell with a known AIDS
carrier. [footnote 2]  Absent some such showing of personal
injury, Wilson has no basis for suit under the FTCA. [footnote 3]

[2]  Those deficiencies might perhaps be cured by repleading. But
even if that were done, Wilson would still fail because his FTCA
Complaint is fatally deficient in another respect: Wilson fails
to allege any act of negligence by an employee of the federal
government.  Except as FTCA alters the traditional rule of
sovereign immunity, the United States cannot be called to task
for torts of its agents (Doe v. United States, 838 F.2d 220, 221
(7th Cir.1988)). Section 1346(b) waives that immunity as to
damage actions against the United States:

for injury or loss of property, or personal injury or death
caused by the negligent or wrongful action or omission of any
employee of the Government while acting within the scope of his
office or employment, under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.

[3]  As "employee of the Government" is used in Section 1346(b),
that term includes officers and employees of any federal agency
but excludes "any contractor with the United States" (Section
2671). Wilson's Complaint identifies no wrongful conduct on the
part of Service or any other federal agency or employee.  Instead
Wilson's real grievance is not against Service but rather against
DOC in its performance of its governmental contract:

1.  All three numbered paragraphs in the Complaint section
entitled "Legal Claim" levy charges of unprofessional conduct,
fraud and deceit and negligence only against Illinois and its
agencies.

2.  In like fashion, the Complaint's "Nature of Claim" section
refers only to acts of DOC. [footnote 4]

To the extent the Complaint may be read to allege tortious
conduct by the State or DOC officials, Wilson's remedy is through
the action he has filed in the Illinois Court of Claims.  But to
maintain this action Wilson must allege wrongful conduct on the
part of a federal employee or agency. [footnote 5] Having failed
to do so, he has no viable claim for relief under FTCA.

Accordingly this Court concludes the Complaint lacks any arguable
basis in law or in fact and is thus "frivolous" in the legal
sense defined in Neitzke.  Wilson's motion for leave to file in
forma pauperis is therefore denied and this action is dismissed
with prejudice pursuant to Section 1915(d) (Smith-Bey v. Hospital
Administrator, 841 F.2d 751, 758 (7th Cir.1988)).

FOOTNOTES:

1.   All further citations to FICA and other provisions of Title
28 will simply take the form "Section --."

2.   This is not, of course, to suggest the substitution of a
regime of fact pleading for the notice-pleading approach embodied
in the Federal Rules of Civil Procedure.  Nor is this Court
unmindful  of  the  teaching  of  Neitske  v. Williams, - U.S. -,
109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989) that "a complaint.
containing as it does both factual allegations and legal
conclusions is frivolous where it lacks an arguable basis either
in law or in fact-this Court has consistently (even pre-Neitzke)
applied that concept and the generous reading called for by
Haines v. Kerner, 404 U.S. 519, 520-21. 92 S.Ct. 594, 595-96, 30
L.Ed.2d 652 (1972) (per curiam) to give pro se in forma pauperis
plaintiffs every benefit of the doubt in reading their self-
prepared pleadings.  But neither those cases nor any other
controlling authority calls for such a plaintiff to gain access
to the federal courts based only on the kind of end-result
conclusory statements that Wilson submits here.  Having said
that, however. this Court would still grant Wilson the
opportunity to correct what seems a curable defect if that were
the only hurdle he confronted here.

3.   Even if Wilson were in fact to allege specifically that he
was forced to share a cell with an inmate with AIDS. it is
doubtful that he would have a cognizable claim.  Several courts
have rejected the notion that failure to segregate inmates with
AIDS from other inmates is itself a constitutional tort
actionable under 42 U.S.C. Section 1983 (see Feigley v. Fulcomer,
720 F.Supp. 475, 482 (M.D.Pa.1989); Traylor v. Lane, 1988 WL
93479, 1988 U.S.Dist. LEXIS 9733, at 4-5 (N.D. Ill.)).  Nothing
suggests that the standard for a right of action against the
United States under FTCA would be any more lenient.

4.   Wilson alleges that DOC monitors inmates who are at high
risk for developing AIDS by giving them a physical examination
every three months.  That facially benign and beneficial program
appears to be the source of Wilson's medical experimentation
claim.

5.   Of course Service could be held liable for DOC's acts if the
terms of its contract with DOC vested Service with the power to
direct or control the detailed physical performance of DOC's work
under the contract (United States v. Orleans, 425 U.S. 807, 814,
96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976); Quilico v. Kaplan,
749 F.2d 480, 482-83 (7th Cir.1984) (labeling the independent
contractor standard "the strict control test")).  Although Wilson
apparently has acquired a copy of the contract through Freedom of
Information Act requests. he makes no such allegations here.  At
most Wilson alleges Service designed a protocol to use inmates as
guinea pigs for medical experimentation. That is not enough to
make the government liable under FTCA (see Barrett v. United
States, 660 F.Supp. 1291, 1313-15 (S.D.N.Y. 1987)).