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FEIGLEY v. FULCOMER

July 27, 1989

GEORGE FEIGLEY, Plaintiff,
v.
THOMAS A. FULCOMER and DAVID S. OWENS, JR., Defendants



The opinion of the court was delivered by: MUIR

 I. Introduction.

 George Feigley, an inmate at the State Correctional Institution at Huntingdon, Pennsylvania, (Huntingdon), commenced this action pro se pursuant to 42 U.S.C. § 1983 by filing a complaint on June 29, 1987. Feigley named Thomas A. Fulcomer, the Superintendent of Huntingdon, as the sole Defendant, and Feigley alleged that Fulcomer was depriving him of various of his federal constitutional rights by not protecting him adequately from contracting Acquired Immune Deficiency Syndrome (AIDS) from other inmates and employees at Huntingdon. By order of December 24, 1987, we granted Feigley's motion for appointment of counsel and on February 22, 1988, we appointed counsel for him.

 Feigley, through counsel, filed an amended complaint on May 4, 1988, in which he named as Defendants Superintendent Fulcomer and David S. Owens, Jr., who is the Commissioner of the Pennsylvania Department of Corrections. Feigley's amended complaint contains two counts. Count I, pled pursuant to 42 U.S.C. § 1983, alleges that Fulcomer and Owens are violating Feigley's Eighth Amendment rights by not protecting him adequately from contracting AIDS. Count II of Feigley's amended complaint pleads pendent state law claims against Fulcomer and Owens.

 The Defendants filed a motion for summary judgment on April 17, 1989. Briefs, declarations under penalty of perjury, and other documents have been filed in support of and in opposition to the Defendants' motion for summary judgment, and this motion is now ripe for disposition.

 II. Relevant Medical Vocabulary.

 AIDS is a disease in which the body's immune system becomes severely impaired. Because the body's ability to fight disease is decreased, unusual infections and forms of cancer occur. Pennsylvania Department of Corrections' Correctional Policy for the Management of HIV Infection (hereinafter "Correctional Policy for HIV Infection") at 1 (appended to Defendants' brief filed May 1, 1989, in support of their motion for summary judgment). Human immunodeficiency virus (HIV) is the virus that causes AIDS. See Correctional Policy for HIV Infection at 2. Antibodies are proteins in the blood that are made by the body to attack antigens, which are foreign organisms or toxins. Antibodies are usually effective in controlling the antigens. With some infections such as HIV, however, the antibodies do not fight the antigen but only mark its presence. See Correctional Policy for HIV Infection at 1-2.

 III. Discussion.

 A. The Summary Judgment Standard.

 Rule 56 of the Federal Rules of Civil Procedure provides in pertinent part as follows:

 
Summary Judgment
 
. . . .
 
. . . .
 
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein . . . . The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. . . .

 The United States Supreme Court has stated with regard to motions for summary judgment that a material fact is one which might affect the outcome of the suit under the relevant substantive law. See Anderson v. Liberty Lobby Company, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The Supreme Court also stated in Anderson v. Liberty Lobby, Inc. that a dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 2510.

 
B. Have the Defendants Violated Feigley's Eighth Amendment Right to be Free from Cruel and Unusual Punishment by Not Protecting Him Adequately from Contracting AIDS ?

 The practices allegedly followed by the Defendants which Feigley claims violate his Eighth Amendment right to be free from cruel and unusual punishment can be divided into two categories: (1) those practices which the Defendants admit they follow and which are prescribed by the Correctional Policy for HIV Infection and (2) those practices which Feigley alleges the Defendants follow but which the Defendants deny following and which are not prescribed by the Correctional Policy for HIV Infection.

 1. Have the Defendants violated Feigley's Eighth Amendment Right to be Free from Cruel and Unusual Punishment by Following those Practices about which Feigley Complains Which are Prescribed by the Correctional Policy for HIV Infection?

 Feigley alleges in his amended complaint that the following four practices followed by the Defendants which are prescribed by the Correctional Policy for HIV Infection violate his Eighth Amendment right to be free from cruel and unusual punishment: (1) the Defendants do not test inmates routinely for HIV at the time they are received initially by a correctional institution under their control; (2) the Defendants do not test inmates routinely for HIV at the correctional institutions under their control; (3) the Defendants do not test an inmate at a correctional institution under their control for HIV if he or she requests such a test; and (4) the Defendants do not automatically segregate inmates at correctional institutions under their control who test positively for HIV or who are suffering from any stage of AIDS. We will address each of these practices.

 a. Does the Defendants' Practice of Not Testing Inmates Routinely for HIV at the Time They are Received initially by a Correctional Institution Under Their Control Constitute a Violation of Feigley's Eighth Amendment Right to be Free from Cruel and Unusual Punishment ?

 In determining whether the Defendants' practice of not testing inmates routinely for HIV at the time they are received initially by a correctional institution under their control violates Feigley's Eighth Amendment right to be free from cruel and unusual punishment, we must first determine the appropriate Eighth Amendment analysis to use. Feigley alleges in his amended complaint that the Defendants, by failing to test inmates routinely for HIV at the time they are received initially by a correctional institution under their control have been deliberately indifferent to his medical needs in violation of the Eighth Amendment. See Feigley's amended complaint, para. 51-52. The United States Supreme Court has stated that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' [citation omitted], proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). The United States Court of Appeals for the Third Circuit explained the aforementioned rule from Estelle v. Gamble as follows: "This standard [enunciated in Estelle v. Gamble ] is two-pronged. It requires deliberate indifference on the part of prison officials and it requires the prisoner's medical needs to be serious." West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978). We are of the view that the Defendants' failure to test inmates routinely for HIV at the time they are received initially by a correctional institution under their control does not constitute "deliberate indifference" to Feigley's "serious medical needs" as these phrases are used in Estelle v. Gamble. We decline to apply the "deliberate indifference to serious medical needs" analysis of Estelle v. Gamble to a situation in which the allegedly serious medical need claimed by the prisoner is only the possibility that he may contract a fatal disease from a fellow inmate or prison employee.

 Feigley also alleges in his amended complaint that the Defendants' failure to test inmates routinely for HIV at the time they are received initially by a correctional institution under their control constitutes a breach of the Defendants' obligation to protect Feigley from involuntarily contracting AIDS and therefore, the Defendants are violating Feigley's Eighth Amendment right to be free from cruel and unusual punishment. See Feigley's amended complaint, para. 50-51. The United States Court of Appeals for the District of Columbia Circuit explained the District of Columbia's obligation under the Eighth Amendment to protect an inmate in one of its jails from assault by another inmate as follows:

 
The eighth amendment, "which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners." Whitley v. Albers, 475 U.S. 312, 106 S. Ct. 1078, 1088, 89 L. Ed. 2d 251 (1986). Having incarcerated the individuals, stripped them of all means of self-protection, and foreclosed access to private aid, the state is constitutionally required to provide prisoners with some protection from the dangers to which they are exposed. See Washington v. District of Columbia, 256 U.S. App. D.C. 84, 802 F.2d 1478, 1481-82 (D.C.Cir.1986). Although the state is not obliged to insure an assault-free environment, a prisoner has a constitutional right to be protected from the unreasonable threat of violence from his fellow inmates. [Citations omitted].
 
. . . .
 
We . . . conclude that "deliberate indifference" was the appropriate standard by which to judge the District's conduct in this case. Accordingly, for Morgan [the inmate-plaintiff] to prevail, the jury was required to find that the District acted with deliberate indifference to its duty to protect Morgan from unreasonable risk of assault by another inmate on or about June 26, 1983.

 Morgan v. District of Columbia, 263 U.S. App. D.C. 69, 824 F.2d 1049, 1057-1058 (D.C. Cir. 1987). The parties in the case before us have not directed our attention to any cases in which the United States Court of Appeals for the Third Circuit has construed the Eighth Amendment to require prison officials to protect inmates from unreasonable risk of assault by other inmates. The Court of Appeals for the Third Circuit has, though, stated the following:

 
Liability under § 1983 may be imposed on prison officials even when the assault [on an inmate] has been committed by another prisoner, if there was intentional conduct, deliberate or reckless indifference to the prisoner's safety, or callous ...

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