Opinion
No. 01-74480
July 29, 2003
OPINION AND ORDER
Before the Court are cross-motions for summary judgment. This is a prisoner civil rights action brought under 42 U.S.C. § 1983. We dismissed many of Plaintiffs' claims on August 29, 2002. Pursuant to our prior order, the only claims remaining are the Americans with Disabilities Act ("ADA") and Rehabilitation Act claims against Defendant Patricia Caruso (who has been substituted under Fed.R.Civ.P. 25(d)(1) for former defendant Dan Bolden as the MDOC Deputy Director of Correctional Facilities Administration) and Harold White, the former Warden at the State Prison of Southern Michigan, Central Complex (SMI) which has been closed because of state budget concerns. (No successor has been appointed.) The only relief available is injunctive or declaratory. For the following reasons, we grant Defendants' summary judgment motion and deny Plaintiff's motion.
Specifically, we held that only declaratory and injunction relief remain against Bolden (now Caruso) and only declaratory relief against White.
BACKGROUND FACTS
Plaintiffs William Gibbs III, Kim Elmer, and Richard Simmon are all inmates of the Michigan Department of Corrections ("MDOC"). All three of them have the HIV virus (are "HIV+"), and all of them were ticketed for sexual misconduct in violation of MDOC rules. For the purposes of this suit, Plaintiffs are not contesting the validity of these findings of violation. Each individual Plaintiff was put in administrative segregation as a result of their sexual misconduct pursuant to MDOC Policy Directive 03.04.120 and state law MCLA § 791.267(3). Plaintiffs challenge their confinement to long-term administrative segregation and argue that it violates the Americans with Disabilities Act and the Rehabilitation Act in that they are treated differently than non-HIV+ prisoners who engage in the same sexual misbehavior. While prisoners who have HIV and engage in sexual misconduct are placed in administrative segregation indefinitely until the Correctional Facilities Administration Deputy Director decides otherwise, non-HIV+ prisoners who engage in the same sexual behavior are released after 30 days of punitive confinement into the general population.
Plaintiffs point out that the sexual misconduct was consensual. While this point is not being disputed (and is not particularly relevant to the remaining issues — one can just as easily get HIV from consensual sex as non-consensual sex), I want to emphasize that I think it is hard to determine what is truly consensual in a prison environment. For instance, Plaintiff Elmer is currently incarcerated on a charge of criminal sexual conduct. Furthermore, prisoners are not supposed to have sex in prison (even consensual sex) and these Plaintiffs are HIV+. Although they claim they will not engage in any more sexual misbehavior, I believe they(as well as all HIV+ prisoners who engage in sexual behavior) pose a direct threat to other prisoners. More on this later.
For background purposes, administrative segregation has a different purpose than punitive segregation: it is meant to protect either the inmate himself or the general inmate population. Any prisoner who engages in sexual misbehavior is placed in punitive segregation. Afterwards, non-HIV+ prisoners are released back into the general population while HIV+ prisoners are placed in administrative segregation indefinitely for the safety of themselves and others.
When this litigation began, the MDOC housed all of the Plaintiffs in the administrative segregation unit at SMI. Presently, Kim Elmer is at the Southern Michigan Correctional Facility in Jackson, Michigan; Richard Simmon is in the Oaks Maximum Correctional Facility in Eastlake, Michigan; and Plaintiff Gibbs is in the Ryan Correctional Facility in Detroit, Michigan. Gibbs, however, was released from administrative segregation in May 2002 and so his injunctive claim is now moot. (Gibbs claims that he still has declaratory relief remaining against Defendants Caruso and White.) Plaintiffs Simmon and Elmer are still in administrative segregation and have been there since 1997 and 1998 respectively. While in administrative segregation, Plaintiff Simmon obtained another sexual misconduct ticket, although he denies the accusations.
In August 2002, we threw out most of Plaintiffs' case. We left remaining claims under the ADA and Rehabilitation Act against officers White and Bolden (now Caruso) in their official capacities for prospective injunctive and declaratory relief. With respect to the remaining claims, Defendants had argued (as they do now as well) that under the "direct threat" exception to the ADA and Rehabilitation Act, the MDOC Policy Directive 03.04.120 is not impermissibly discriminatory. Defendants assert that they do not have to release Plaintiffs into the general population as they do with similar prisoners who are non-HIV+ and have engaged in the same sexual misconduct. We tentatively allowed these claims to remain, stating that we did not have evidence (at a motion to dismiss stage) before us to make a determination about whether the Plaintiffs fell under the "direct threat" exception. Now, Defendants have conducted discovery. They have deposed Dr. George Pramstaller, Chief Medical Officer of the MDOC, Patricia Caruso, the current Deputy Director of Correctional Facilities Administrator, and Harold White, former Warden of SMI, who testified that the current MDOC policy is the least restrictive means for preventing the spread of HIV to general population prisoners by HIV+ prisoners who engage in sexual misconduct. Plaintiffs — while submitting absolutely no evidence of their own (no expert witness, etc.) attack Defendants' evidence by stating that Dr. Pramstaller, Deputy Director Caruso, and Warden White, are not an experts on HIV or recidivism rates. Yet, Plaintiffs do not submit their own expert witness or any contrary admissible evidence to rebut the evidence of record.
LAW AND ANALYSIS
The usual summary judgment standard applies.
Plaintiffs claim they are being discriminated against based on their disability of being HIV+. The American With Disabilities Act ("ADA") provides:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.42 U.S.C. § 12132.
Sec. 504 of the Rehabilitation Act of 1973 provides in pertinent part:
No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance . . .29 U.S.C. § 794 (a).
We previously held that Plaintiffs had stated a prima facie case under the ADA and Rehabilitation Act.
Defendants' primary argument (then and now) is that Plaintiffs fall within the "direct threat" exceptions to both the ADA and Rehabilitation Act. The relevant provision of the ADA states:
Nothing in this subchapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others. The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.42 U.S.C. § 12182 (b)(3); (emphasis added). The Rehabilitation Act has a similar exception, which states that an individual with a disability "does not include an individual who has a currently contagious disease or infection and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of other individuals. . . ." 29 U.S.C. § 705 (20)(D).
Defendants argue that Plaintiffs are part of the "direct threat" exception to the ADA and Rehabilitation Act protections. Plaintiffs in this case have demonstrated themselves to be individuals who will still engage in sexual activity even though they are HIV+. That, in and of itself, is a threat to the health and safety of other inmates. Plaintiffs counter that their infractions happened years ago and that they do not pose a continuing threat of harm (in other words, that they have learned their lesson). Yet, Dr. Pramstellar testified that sexual misconduct are not usually isolated incidents (and Plaintiff Simmon has received another sexual misconduct ticket while in administrative segregation). Furthermore, Dr. Pramstaller, Ms. Caruso, and Mr. White explained that it is difficult to predict if a prisoner will commit another sexual misconduct and that the safest policy is to keep the inmate in administrative segregation.
Plaintiffs spend a large chunk of their response brief discussing the interesting question of who has the burden of proving the direct threat defense, which they claim has not been addressed in the Sixth Circuit. Needless to say, Plaintiffs argue that it should be the Defendants. It is not necessary to address this issue because Defendants have submitted evidence establishing the direct threat defense. In other words, Defendants have taken on the burden, even though it is not clear that the burden is on them.
Plaintiffs emphasize that they all have received favorable recommendations from the security classification committee and that they have exhibited years of behavior absent any sexual misconduct. Yet, as Ms. Caruso testified, there is much less freedom of movement while in administrative segregation and so the opportunity to engage in sexual misconduct is largely removed. (Ms. Caruso explained that a prisoner could masturbate in front of a guard while in administrative segregation and receive a ticket but, for the most part, cannot commit sexual misconduct while in administrative segregation.) Therefore, the fact Plaintiffs have not committed sexual misconduct in years while in administrative segregation is not a reliable predictor about what they would do once released into the general population. And Plaintiffs have provided none of their own experts to discuss their assertion of low recidivism rates.
Whether something is a "direct threat" is assessed according to several factors, including (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. See E.E.O.C. v. Prevo's Market, Inc., 135 F.3d 1089, 1095 (6th Cir. 1998). A direct threat is one that carries a high probability of substantial harm, not merely a speculative risk. See Hamlin v. Charter Township of Flint, 165 F.3d 426, 431-32 (6th Cir. 1999). In this case, despite advances in medical treatment, HIV+ status in a permanent, incurable condition. The nature and potential harm is that a third party (another inmate) could catch HIV (even from "consensual" sex). Plaintiffs assert that the chance of catching HIV from sexual activity is small. Yet, they provide no expert to proffer such an opinion. The likelihood of the potential harm is not knowable with specifics, but the fact that each of the Plaintiffs has committed sexual misconduct in the past raises the odds considerably. The imminence of the harm if the Plaintiffs were released from segregation is impossible to tell, but of course, Plaintiffs could have further sexual or other physical contact with other inmates very soon after release.
Indeed, it is entirely irrelevant whether the sex is consensual or forced when we are dealing with the transmission of AIDS.
The Eleventh Circuit case, Onishea v. Hopper, 171 F.3d 1289 (11th Cir. 1999), is particularly instructive. There, the court specifically held that the Alabama prison system's segregation of all HIV+ inmates was not a violation of the Rehabilitation Act because those prisoners posed a direct threat to other inmates. In balancing the aforementioned factors (notably in a prison setting), the court noted:
Thus, when the adverse event is the contraction of a fatal disease [HIV], the risk of transmission can be significant even if the probability of transmission is low: death itself makes the risk "significant." But federal courts disagree about how low the odds may be, and how much evidence it takes to prove a significant risk. On one hand, the Fourth, Fifth, and Sixth Circuits have implicitly followed a cautious rule . For these courts, a showing of a specific and theoretically sound means of possible transmission was enough to justify summary judgment against an HIV-positive plaintiff on the ground that the infection posed a "significant risk" to others in the workplace, even though reported incidents of transmission were few or nonexistent, and the odds of transmission were admittedly small.171 F.3d at 1297 (emphasis added). The Sixth Circuit case referred to above is Estate of Mauro ex rel. Mauro v. Borgess Med. Ctr., 137 F.3d 398, 405, 407 (6th Cir. 1998) where the court affirmed summary judgment against an HIV-positive surgical technician even though the Centers for Disease Control calculated odds of HIV transmission during a surgery as between 1 in 42,000 and 1 in 420,000. Given that the Alabama prison policy where all HIV+ prisoners are automatically segregated (independent of whether they have committed sexual misbehavior) because of their status (or disability of being HIV+) has been upheld in the 11th Circuit as not violating the Rehabilitation Act, it seems hard to allow this case to go forward where the MDOC policy is more restrictive and narrower than the policy upheld in Onishea. This conclusion is only bolstered by the fact that the Sixth Circuit takes a "cautious" approach to the balancing of the harms when HIV is involved.
Plaintiffs propose a "solution" that they argue is more narrowly tailored than the current MDOC policy of indefinite administrative segregation for sexual misbehavior of HIV+ inmates: that Defendants should distribute condoms. Their reasoning is as follows: if condoms are provided (and used), then HIV+ prisoners who engage in sexual misbehavior will not pose a "direct threat" to other prisoners, and therefore can be treated similarly to non-HIV+ prisoners who engage in the same prohibited behavior (i.e. punished and then released back into the general population). With all due respect to Plaintiffs' counsel, this argument is without merit. First of all, prisoners are not supposed to engage in sexual acts with other prisoners. Why should the prison provide condoms so prisoners can perform what is prohibited? Second, in reality, we are dealing with a prison environment and prisoners are not model citizens. Should we trust that prisoners (some, like Plaintiff Elmer, who are in prison for criminal sexual conduct) will reliably use condoms when performing prohibited sexual misconduct? Should the prison require that HIV+ prisoners who engage in prohibited, but "consensual"sex (even with condoms supposedly provided by the prison itself) inform their sexual partners that they are HIV+? This is a prison environment and we believe that we should defer to prison authorities where appropriate. General policies need to be implemented that protect the health and safety of all the inmates. Plaintiffs' request jeopardizes the risks to non-HIV+ prisoners; they, too, have a right to be protected from contracting this fatal and incurable disease.
There are no factual issues that merit a trial, especially where Plaintiffs fail to provide their own experts to argue that Plaintiffs do not pose a direct threat. Indeed, in this respect, Defendants' evidence is unrebutted.
While Defendants raise additional arguments concerning mootness and Eleventh Amendment immunity, because it is so clear that we should dismiss this case under the "direct threat" exceptions to the ADA and Rehabilitation Act, we do not analyze them here.