Green v. Elmore County Jail et al (INMATE2)

Filing 70

REPORT AND RECOMMENDATIONS that: (1) Defendant Roberts' 16 motion for summary judgment, as supplemented be GRANTED; (2) Judgment be ENTERED in favor of Defendant Roberts and against Plaintiff; and (3) The costs of this proceeding be TAXED against Plaintiff for which execution may issue. Objections to R&R due by 10/19/2008. Signed by Honorable Wallace Capel, Jr on 10/6/2008. (cb, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ J E R E M IA H W. GREEN, P l a in tif f , v. A J A ROBERTS, D e f e n d a n t. ____________________________ * * * * * 2:06-CV-667-WKW (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Jeremiah Green ["Green"], challenges the co n stitutio n ality of actions taken against him during a brief incarceration at the Elmore C o u n ty Jail located in Wetumpka, Alabama. Specifically, during the approximately 24 hours G re e n was housed at the Elmore County Jail, he alleges that as a result of being given red s c ru b s and a "black tie" meal tray and cooler, items he claims are given only to inmates who h a v e AIDS, he experienced a violation of his right to privacy, a violation of his right to be tre a ted equally under the Americans with Disabilities Act ["ADA"], and a violation of his rig h t to a safe and secure environment in violation of the Eighth Amendment. Green names a s the defendant Warden Aja Roberts.1 He requests trial by jury and seeks declaratory and

In the original complaint Green named various "Doe" defendants. During the pendency of this action Green was allowed to amend his complaint after he was able to identify the fictitious defendants. Those defendants were subsequently dismissed as parties to the complaint leaving Warden Roberts as the sole defendant to this cause of action. (See Doc. Nos. 61-64.)

1

in ju n c tiv e relief and monetary damages for the alleged deprivations of his constitutional rig h ts . (Doc. No. 1.) In accordance with the orders of the court, Defendant Roberts filed an answer, s p e c ial report, supplemental special report, reply, and supporting evidentiary material in re sp o n s e to the allegations contained in the complaint. The court then informed Green that D e f en d a n t Roberts' special report, as supplemented, may, at any time, be treated as a motion f o r summary judgment, and the court explained to Green the proper manner in which to re sp o n d to a motion for summary judgment. Green filed responses to the special report and s u p p le m e n ta l special report filed by Defendant Roberts. This case is now pending on

D e f en d a n t Roberts' motion for summary judgment. Upon consideration of the motion, the ev iden tiary materials filed in support thereof, and Green's opposition to the motion, the court c o n c lu d e s that Defendant Roberts' motion for summary judgment is due to be granted. I . STANDARD OF REVIEW " S u m m a ry judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any, show there is no g e n u i n e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11 th C ir.2 0 0 7 ) (per curiam) (quoting Fed.R.Civ.P. 56(c)). The party moving for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the basis f o r its motion, and identifying those portions of the `pleadings, depositions, answers to

2

in te rro g a to rie s, and admissions on file, together with the affidavits, if any,' which it believes d e m o n s tra te the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U .S . 317, 323 (1986). The movant may meet this burden by presenting evidence showing th e re is no dispute of material fact or by showing that the nonmoving party has failed to p re se n t evidence in support of some element of its case on which it bears the ultimate burden o f proof. Id. at 322-324. Defendant Roberts has met her evidentiary burden and demonstrated the absence of a genuine issue of material fact. Thus, the burden shifts to Green to establish, with evidence b e yo n d the pleadings, that a genuine issue material to his case exists. Clark v. Coats & Clark, In c ., 929 F.2d 604, 608 (11 th Cir.1991); Celotex, 477 U.S. at 324 (non-movant must "go b e yo n d the pleadings and ... designate `specific facts showing that there is a genuine issue f o r trial.'"); Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made and s u p p o r te d ... an adverse party may not rest upon the mere allegations or denials of [his] p le a d in g , but [his] response ... must set forth specific facts showing that there is a genuine is s u e for trial."). A genuine issue of material fact exists when the nonmoving party produces ev iden ce that would allow a reasonable fact-finder to return a verdict in its favor. G r e e n b e r g , 498 F.3d at 1263. In civil actions filed by inmates, federal courts must distinguish between evidence of disputed facts and disputed matters of p rof essio n al judgment. In respect to the latter, our inferences must accord d e f e r e n c e to the views of prison authorities. Unless a prisoner can point to su f f icie n t evidence regarding such issues of judgment to allow him to prevail 3

o n the merits, he cannot prevail at the summary judgment stage. B e a rd v. Banks, ___ U.S. ___, 126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006). Consequently, to survive Defendant Roberts' properly supported motions for summary judgment, Green is re q u ire d to produce "sufficient [favorable] evidence" which would be admissible at trial s u p p o rtin g his claims of constitutional violations. Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249 (1986). "If the evidence [on which the nonmoving party relies] is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Anderson, 477 U .S . at 249-250. "A mere `scintilla' of evidence supporting the opposing party's position w ill not suffice; there must be enough of a showing that the [trier of fact] could reasonably f in d for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L .E d .2 d 202 (1986)." Walker v. Darby, 911 F.2d 1573, 1576-1577 (11 th Cir. 1990). C o n c lu s o ry allegations based on subjective beliefs are likewise insufficient to create a g e n u i n e issue of material fact and, therefore, do not provide sufficient evidence to oppose a motion for summary judgment. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1 2 7 5 , 1279 (11 th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11 th Cir. 1997) (p la in tif f 's "conclusory assertions ..., in the absence of supporting evidence, are insufficient to withstand summary judgment."); Harris v. Ostrout, 65 F.3d 912, 916 (11 th Cir. 1995) (g ra n t of summary judgment appropriate where inmate produces nothing beyond "his own c o n c lu so ry allegations" challenging a defendant's actions); Fullman v. Graddick, 739 F.2d 5 5 3 , 557 (11 th Cir. 1984) ("mere verification of party's own conclusory allegations is not

4

su f f icie n t to oppose summary judgment . . . ."). Hence, when a plaintiff fails to set forth s p e c if ic facts supported by appropriate evidence sufficient to establish the existence of an e lem e n t essential to his case and on which the plaintiff will bear the burden of proof at trial, s u m m a ry judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 3 2 2 ("[F]ailure of proof concerning an essential element of the nonmoving party's case n e c e ss a rily renders all other facts immaterial."); Barnes v. Southwest Forest Industries, Inc., 8 1 4 F.2d 607, 609 (11 th Cir. 1987) (if on any part of the prima facie case the plaintiff presents in s u f f ic ie n t evidence to require submission of the case to the trier of fact, granting of su m m ary judgment is appropriate). F o r summary judgment purposes, only disputes involving material facts are relevant. W h a t is material is determined by the substantive law applicable to the case. Anderson, 477 U .S . at 248. "The mere existence of some factual dispute will not defeat summary judgment u n le s s that factual dispute is material to an issue affecting the outcome of the case." M c C o rm ick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11 th Cir. 2003) (citation o m itted). To demonstrate a genuine issue of material fact, the party opposing summary ju d g m e n t "must do more than simply show that there is some metaphysical doubt as to the m a ter ial facts. . . Where the record taken as a whole could not lead a rational trier of fact to fin d for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. C o . v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the c o u rt which is admissible on its face or which can be reduced to admissible form indicates

5

that there is no genuine issue of material fact and that the party moving for summary ju d g m e n t is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. a t 323-324 (summary judgment appropriate where pleadings, evidentiary materials and af fid av its before the court show there is no genuine issue as to a requisite material fact); W a d d e ll, 276 F.3d at 1279 (to establish a genuine issue of material fact, the nonmoving party m u st produce evidence such that a reasonable trier of fact could return a verdict in his favor). A lth o u g h factual inferences must be viewed in a light most favorable to the n o n m o v in g party, and pro se complaints are entitled to liberal interpretation by the courts, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine is s u e of material fact. Beard, ___ U.S. at ___, 126 S.Ct. At 2576; Brown v. Crawford, 906 F .2 d 667, 670 (11 th Cir. 1990). In this case, Green fails to demonstrate a requisite genuine is s u e of material fact in order to preclude summary judgment. Matsushita, 475 U.S. at 587. I I . DISCUSSION A . Injunctive Relief G re e n is no longer incarcerated.2 The transfer or release of a prisoner renders moot a n y claims for injunctive or declaratory relief. See County of Los Angeles v. Davis, 440 U.S. 6 2 5 , 631 (1979); see also Cotterall v. Paul, 755 F.2d 777, 780 (11 th Cir. 1985) (past exposure to even illegal conduct does not in and of itself show a pending case or controversy regarding in ju n c tiv e relief if unaccompanied by any continuing present injury or real and immediate

Green was incarcerated at the Federal Prison Camp in Atlanta, Georgia when he filed this complaint on July 26, 2006. During the pendency of this action Green was released from custody.

2

6

th re a t of repeated injury); Fisher v. Goord, 981 F. Supp. 140, 168 (W.D. N.Y. 1997) ("A p relim inary injunction cannot be issued based on past harm. The purpose of a preliminary in ju n c tio n is to prevent future irreparable harm."). As it is clear from the pleadings and re c o rd s before the court that Green is no longer incarcerated, his requests for declaratory and p re lim in a ry and permanent injunctive relief, which were rendered moot as a result of his tr a n sf e r from the county jail and/or release from incarceration, are due to be dismissed. F u r th e r , Green fails to meet the rigid requirements for prospective injunctive relief. " See S h o tz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)(quoting Wooden v. Board of Regents o f University System of Georgia, 247 F.3d 1262, 1284 (11th Cir. 2001) (a plaintiff is entitled to injunctive relief only if he can show "a real and immediate - as opposed to a merely co n jectura l or hypothetical - threat of future injury.")). B . Exhaustion. T h e Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, states that "[n]o a c tio n shall be brought with respect to prison conditions under section 1983 of this title, or a n y other Federal law, by a prisoner confined in any jail, prison, or other correctional facility u n til such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). E x h a u s tio n is mandatory, even if the process is futile or inadequate. Higginbottom v. Carter, 2 2 3 F.3d 1259, 1261 (11th Cir. 2000). This mandatory exhaustion requirement applies " irre s p e c tiv e of the forms of relief sought and offered through the administrative avenues." B o o th v. Churner, 532 U.S. 731, 741 n. 6 (2001).

7

In Boxer X v. Harris, 437 F.3d 1107, 1110 n. 2 (11th Cir. 2006), the court noted that, a s a prudential matter, a district court should first consider whether the PLRA bars a p riso n e r's case before rendering a decision on the merits. In this case, Defendant Roberts a rg u e s that Green failed to exhaust his administrative remedies. Green, however, argues that u p o n his arrival at the Elmore County Jail he was not informed of the grievance procedure n o r provided with an inmate handbook explaining the grievance procedure. Green also su b m itte d with his complaint copies of letters he sent to the attention of Warden Roberts a f te r his transfer from the county jail in which he advised her that the purpose of his initial le tte r, dated May 8, 2006, was an attempt at exhausting the grievance process with respect to the matters now made the subject matter of the instant complaint. Green sent a follow-up le tte r to Defendant Roberts on May 23, 2006, indicating that he was making a final attempt a t contacting her with respect to his efforts to exhaust administrative remedies. (Doc. No. 1 a t Attachments.) Green claims that his letters were never responded to nor acknowledged a n d , therefore, it was impossible for him to exhaust administrative remedies. (Id.) Although Defendant Roberts argues that Green's inmate file contains no completed in m a te request forms, she does not dispute Green's evidence that he contacted her via c e rtif ie d mail after his departure from the county jail for purposes of undertaking those steps n e c es s a ry to exhaust the jail's grievance process. Defendant Roberts further maintains that G re e n did not wait for a response from her with respect to the letters he sent to her in May 2 0 0 6 before filing suit against her on July 26, 2006, and, thus, she contends that he cannot

8

b e said to have properly and completely exhausted all available administrative remedies. (S e e Doc. Nos. 16, 42.) While Green may not have waited six months to receive a response from Defendant R o b e rts , which Defendant Roberts points out is the time frame for processing grievances a c c o r d i n g to the United States Department of Justice's Standards for Inmate Grievances, th e r e is no indication that this is the time period applicable to the inmate grievance process a t the Elmore County Jail.3 Further, it is unclear when or if Defendant Roberts would have re sp o n d e d to Green's attempts to exhaust available administrative remedies despite the fact th a t he did not file this lawsuit until almost three months after he initially contacted her by le tte r indicating that said correspondence was his attempt to satisfy the "first tier" of the c o u n ty jail's grievance process rather than waiting, as Defendant Roberts seems to suggest, a n additional three months for her to respond. Under the circumstances, the court concludes th a t Green met the PLRA exhaustion requirements. See e.g., Boyd v. Corr. Corp. of America, 3 8 0 F.3d 989, 996 (6th Cir. 2004) ("conclud[ing] that administrative remedies are exhausted w h e n prison officials fail to timely respond to a properly filed grievance"), cert. denied, 544 U .S . 920 (2005); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (holding prison's f a ilu re to timely respond to grievance renders administrative remedies unavailable); Foulk

According to the Elmore County Jail policy regarding inmate grievances, there is no time period specified for when an inmate must file his or her grievance with prison officials. Once an inmate has submitted a grievance, however, jail policy reflects that after a staff member has reviewed the grievance and written a response, a copy of the grievance with the response should be delivered to the inmate within 72 hours of the time the grievance is received, excluding weekends and holidays. (See Doc. No. 28, Attachments at 11-12.)

3

9

v . Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (holding prisoner exhausted available re m e d ies where prison officials failed to respond to his informal grievances); Underwood v. W ils o n , 151 F.3d 292, 295 (5th Cir. 1998) (holding "available administrative remedies are e x h a u ste d when the time limits for the prison's response set forth in the prison grievance p ro c e d u re s have expired"), abrogated in part by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910 (2 0 0 7 ) (abrogating the holding in Underwood that a district court may dismiss a civil co m p lain t sua sponte for failure to exhaust). C . Official Capacity Claims G re e n indicates that he seeks to sue Defendant Roberts in her official as well as her in d iv id u a l capacity. Defendant Roberts, however is immune from monetary damages in her o f f ic ia l capacity. Official capacity lawsuits are "in all respects other than name, . . . treated a s a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). Under all facets o f Alabama law, a county sheriff, his jailers, and medical staff act as state officers "when s u p e rv is in g inmates and otherwise operating the county jails." Turquitt v. Jefferson County, A l a b a m a , 137 F.3d 1285, 1289 (11 th Cir. 1998); see Ala. Const. Art. V, § 112 (designates sh e rif f as member of State's executive department); see also Parker v. Amerson, 519 So.2d 4 4 2 (Ala. 1987) (county sheriff is executive officer of the State). "[A] state official may not b e sued in his official capacity unless the state has waived its Eleventh Amendment im m u n ity, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 9 0 0 , 908, 79 L.Ed.2d 67 (1984), or Congress has abrogated the state's immunity, see 10

S e m in o le Tribe v. Florida, [517 U.S. 44, 59], 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996). A la b a m a has not waived its Eleventh Amendment immunity, see Carr v. City of Florence, 9 1 6 F.2d 1521, 1525 (11 th Cir. 1990) (citations omitted), and Congress has not abrogated A la b a m a 's immunity. Therefore, Alabama state officials are immune from claims brought a g a in s t them in their official capacities." Lancaster v. Monroe County, 116 F.3d 1419, 1429 (1 1 th Cir. 1997). In light of the foregoing, it is clear that Defendant Roberts is a state official entitled to Eleventh Amendment immunity when sued in her official capacity. Defendant Roberts is , therefore, entitled to absolute immunity from Green's claims for monetary damages a s s e rte d against her in her official capacity. D . Individual Capacity Claims4 1 . The Privacy Claim a . HIPPA G re e n complains about a violation of his right to privacy due to the conditions of c o n f in e m e n t he experienced while at the Elmore County Jail pursuant to certain jail policies a n d practices. To the extent Green alleges a right to privacy under the Health Insurance

The court notes Defendant Roberts' argument that Green's complaint against her must fail because he fails to demonstrate her personal involvement in the actions about which he complains. This action went forward against the named defendant based on the allegation that the policies and/or practices at the jail, as more fully described herein, were the moving force behind the constitutional deprivations about which Green complains. As the warden of the county jail, Defendant Roberts is charged with the governance, discipline, and policy of the jail and enforcing its orders, rules, and regulations. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.2003); Mandel v. Doe, 888 F.2d 783, 791 (11th Cir.1989).

4

11

P o r ta b ility and Accountability Act, Public Law No. 104-191, 110 Stat. 1936 (1996) [ "H IP A A " ], this court has determined that the Act does not create a private cause of action. M e a n s v. Independent Life and Acc. Ins. Co., 963 F. Supp. 1131, 1135 (M.D. Ala. 1997); see a ls o Webb v. Smart Document Solutions, L.L.C., 499 F.3d 1078 (9th Cir. 2007).5 Because G ree n has no private cause of action under HIPPA and he provides no authority to support h is claim that a private cause of action exists under HIPPA, the court is without federal s u b je c t matter jurisdiction over this claim. b. Fourteenth Amendment G re e n maintains that the county jail had a policy and/or practice in place designed to identify HIV positive inmates from the general population by the manner in which these inm ates were given their meals, by their single-cell assignment, and by the color of uniform

5

In Webb, 499 F.3d at 1083-84, the court found that:

HIPAA aims 'to improve the . . . efficiency and effectiveness of the health information system through the establishment of standards and requirements for the electronic transmission of certain health information.' HIPAA § 261, Pub.L. 104-191, 110 Stat. 1936 (codified at 42 U.S.C. § 1320d notes). As the Fourth Circuit has noted, Congress intended through this legislation to 'recogniz[e] the importance of protecting the privacy of health information in the midst of the rapid evolution of health information systems.' S.C. Med. Ass'n v. Thompson, 327 F.3d 346, 348 (4th Cir. 2003). . . . The statute itself, however, does not specify either how to protect privacy or to transmit health records efficiently and effectively. Instead, it authorizes the Secretary of Health and Human Services to 'adopt standards' that will 'enable health information to be exchanged electronically, . . . consistent with the goals of improving the operation of the health care system and reducing administrative costs,' and that will 'ensure the integrity and confidentiality of [individuals' health] information [and protect against] ... unauthorized uses or disclosures of the information.' See 42 U.S.C. § 1320d-2.

12

th e y were required to wear. To the extent Green alleges a violation of his right to privacy u n d e r the Fourteenth Amendment due to the jail's alleged policy and/or practice during his stay at the facility which he contends resulted in the non-consenual disclosure of his HIV s ta tu s , the court finds that he is entitled to no relief. According to the complaint, Green disclosed to jail personnel upon his arrival at the E lm o re County Jail that he had AIDS. During the intake process Green received a red ju m p s u it and disposable slippers. Green maintains that the other inmates at the jail, either p r e -tr ia l detainees or convicted prisoners, were wearing orange jumpsuits. Green also re c eiv e d an insulated cooler that had the words "black tie" written all over it as well as p ic tu re s of bow ties. He claims that he was not allowed to drink from the communal water f o u n ta in , and was placed in a single cell even though other inmates had cellmates. When o th e r inmates approached Green's cell asking him why he was wearing a red jumpsuit and h a d a "black tie" thermos, Green states that he informed them that he had a cold.

N o n e th e le ss , Green goes on to assert that "the inmates knew that the jail had a policy of s in g lin g out those with AIDS, placing those inmates with AIDS in red medical scrubs and f o rc in g them to drink from the "Black Tie" thermos/cooler." At the dinner meal, Green m a in tain s he was "ostracized" because he was fed on a tray which had black ties drawn all o v e r it, given disposable utensils while all other inmates had "regular" utensils, and provided w ith a clear garbage bag with which to dispose of his food tray and utensils. Green had one o th e r meal at the jail served in the same manner. He asserts that to ensure his safety he 13

s ta ye d in his cell during the 24 hours he was at the county jail. (Doc. No.1 at 8-11.) In her dispositive motion, Defendant Roberts maintains that the stated purpose of the p ris o n 's policy on the color of uniforms issued to inmates at the Elmore County Jail serves to identify their status as a state, federal, or county inmate for purposes of protection and id e n tif ic a tio n . Because Green was a federal inmate, he received a red uniform. Jail policy f u r th e r requires that inmates known to have HIV/AIDS be provided treatment for the disease in a confidential and professional manner and also requires that precautions be taken in s e e k in g to protect other inmates and jail staff from exposure to the virus. With regard to the c o o le r and meal trays about which Green complains, Defendant Robert states that the items in question feature the phrase "black tie" in very discreet, subtle lettering. Defendant Roberts f u rth e r states that Green also received disposable utensils with which to eat his meals. While d isp o sa b le eating and drinking containers are likely unnecessary from a medical and health p e rs p e c tiv e , Defendant Roberts maintains that this practice is followed at the jail due to the " g ro s s misconceptions" Elmore County Jail inmates have about infectious diseases. Such m is c o n c ep tio n s , Defendant Roberts states, lead the inmates to believe they can "catch" c o m m u n ic a b le diseases, including sexually transmitted diseases and Hepatitis A, B and C as w ell as HIV/AIDS, from subsequent use of untensils, meal trays, and drink containers p re v io u s ly used by an infected inmate even where the utensil, tray, thermos, etc., has been w a sh e d . Thus, Defendant Roberts asserts that "inmates with conditions such as HIV and A I D S receive a designated water cooler and meal tray and use disposable eating utensils so 14

th a t other inmates do not believe that their eating utensils or the meal trays on which their f o o d is served were used previously by an inmate with HIV or AIDS. This practice is in t e n d e d to preserve institutional order and security." (Doc. No. 16, Exh. A - Roberts A ffid a v it; Doc. No. 28, Attachments.) Because prisoners retain Constitutional rights, "[w]hen a prison regulation or practice o f f e n d s a fundamental constitutional guarantee, federal courts will discharge their duty to p ro te c t constitutional rights." Turner v. Safley, 482 U.S. 78, 84 (1987) (quoting Procunier v . Martinez, 416 U.S. 396, 405-06 (1974)). However, "maintaining institutional security and p re se rv in g internal discipline are essential goals that may require limitation or retraction of th e retained constitutional rights." Bell v. Wolfish, 441 U.S. 520, 546 (1979). As the Court n o te d in Turner: R u n n in g a prison is an inordinately difficult undertaking that requires ex p ertise, planning, and the commitment of resources, all of which are p e c u lia rly within the province of the legislative and executive branches of g o v e rn m e n t. Prison administration is, moreover, a task that has been co m m itted to the responsibility of those branches, and separation of powers c o n c e rn s counsel a policy of judicial restraint. Where a state penal system is in v o lv e d , federal courts have, as we indicated in Martinez, additional reason to accord deference to the appropriate prison authorities.

Id . 482 U.S. at 84-85. The proper inquiry in those cases where a prison regulation impinges on an inmate's c o n stitu tio n a l rights is whether the regulation is reasonably related to legitimate penological in te re s ts . Turner, 482 U.S. at 89 (establishing this standard and applying it to a prison policy 15

p ro h ib itin g correspondence among inmates of different institutions); Thornburgh v. Abbott, 4 9 0 U.S. 401, 404, (1989) (applying this analysis to a prison policy allowing the warden to re jec t publications sent to inmates in certain circumstances). This "reasonableness" test is " le ss restrictive than that ordinarily applied to alleged infringements of fundamental c o n stitu tio n a l rights." O'Lone v. Shabazz, 482 U.S. 342, 347-49 (1987) (holding that the T u r n e r v. Safley standard of review is applicable to claims that an inmate's free exercise rig h ts have been violated).

In determining whether a prison regulation improperly infringes on a prisoner's constitutional rights, the factors to be considered include: (1) whether there is a valid, rational relationship between the regulation and the legitimate government interest it serves; (2) whether there are alternative means of exercising the right available to the inmates; (3) the impact accommodation of the asserted right will have on jail staff and other inmates; and (4) the absence of ready alternatives as evidence of reasonableness of the regulation. Turner, 482 U.S. at 89-91; Beard, 548 U.S. at ___, 126 S.Ct. at 2578. However, a "court is not required to weigh evenly, or even consider explicitly, each of the four Turner factors." Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999); Freeman v. Texas Department of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004) (interpreting the decision in Turner as stating that a court need not weigh evenly or even consider each of the factors as rationality is the controlling standard).
T h is circuit has held that the involuntary placement of HIV prisoners in separate HIV 16

d o rm s does not violate the prisoners' constitutional rights.

Harris v. Thigpen, 941 F.2d

1 4 9 5 , 1521 (11th Cir. 1991); see generally Olim v. Wakinekona, 461 U.S. 238 (1983) ("an in m a te normally has no liberty interest in where he is housed."). The Eleventh Circuit upheld th e segregation policy as a reasonable infringement of the right of privacy "in light of the in m a te interests at stake (both [HIV] and general population), and the difficult decisions that th e [prison officials] must make in determining how best to treat and control . . . the spread o f a communicable, incurable, always fatal disease." Id. This was despite the potential that in m a te s might possibly suffer psychological pressure, embarrassment, harassment, rejection, o r discrimination due to the involuntary disclosure of the medical information to non-medical p e rs o n s over which they had no control. See id. H e re , as noted, Green disclosed to prison officials that he had HIV/AIDS upon his a rriv a l at the jail. He does not claim that Defendant Roberts disclosed to anyone at the jail h is condition, but rather, that certain policies and/or practices in effect at the jail essentially re s u lte d in the non-consensual disclosure of his HIV/AIDS status via color of uniform, s in g le cell assignments, and the manner in which inmates with infectious diseases receive th e ir meals which violated his privacy rights. In support of his contention that jail policy d ic ta te d that he be issued red scrubs in order to identify him as an inmate with AIDS, Green s u b m its the affidavit of Harvey Shenberg, a federal inmate who, on April 4, 2006, was tra n sp o rte d from the Federal Prison Camp in Montgomery, Alabama, to the Elmore County J a il for an unspecified period of time. Inmate Shenberg affirms that upon his arrival at the 17

ja il he was dressed out in an orange jumpsuit. (Doc. No. 20, Shenberg Affidavit.) The fact, h o w e v e r, that another federal inmate, who was temporarily housed at the Elmore County Jail tw o months after Green was, received an orange uniform is, in and of itself, not sufficient e v id e n c e to demonstrate that Green received a red jumpsuit during his incarceration at the c o u n ty jail in order to specifically identify him as an inmate with a communicable disease. N o n e th e le s s , assuming, arguendo, that Green had at least a limited privacy right in the nonc o n se n su a l disclosure of his medical information under the circumstances of this case, any e n c ro a c h m e n t on his privacy rights by the manner in which he was housed, dressed, and/or g iven meals was reasonable and subject to limitation inasmuch as such privacy rights were o u tw e ig h e d by the legitimate penological interests of the Elmore County Jail in determining h o w to best treat and control the spread of a transmittable disease. See Harris, 941 F.2d at 1 5 2 1 ; see also Doe v. Delie, 257 F.3d 309, 317 (3rd Cir. 2001) (acknowledging a c o n s t itu tio n a l right to privacy in one's medical information but stating such right may be c u rta ile d by policy or regulation shown to be "reasonable related to legitimate penological in te re sts " ) (citing Turner, 482 U.S. at 89). Because the matters that can be said to be a ttr ib u te d to Defendant Roberts were those designed to achieve legitimate correctional goals, th e court concludes that she is due to be granted summary judgment on Green's privacy c la im . 2. Cruel and Unusual Punishment G re e n complains that implementation of a policy and practice at the Elmore County 18

Ja il which prescribed the manner in which he was dressed, housed, and received meals r e su l te d in the non-consensual disclosure of his HIV status which amounted to cruel and

unusual punishment violative of the Eighth Amendment. This claim fails to implicate a violation of Green's constitutional rights.
The Constitution proscribes those conditions of confinement which involve the w a n to n and unnecessary infliction of pain. Hope v. Pelzer, 536 U.S. 730, 737 (2002);

R h o d e s v. Chapman, 452 U.S. 337 (1981). Only actions which deny inmates "the minimal c iv i liz e d measure of life's necessities" are grave enough to establish constitutional violations. Id. at 347; see also Wilson v. Seiter, 501 U.S. 294 (1991) (overcrowding, without more, does n o t rise to the level of a constitutional violation). The Constitution "does not mandate c o m f o rta b le prisons, but neither does it permit inhumane ones." Farmer v. Brennan, 511 U .S . 825, 832 (1994) (quoting Rhodes, 452 U.S. at 349). Thus, it is well-settled that the tre a tm e n t a prisoner receives and the conditions under which he is confined are subject to c o n s titu tio n a l scrutiny. Helling v. McKinney, 509 U.S. 25 (1993). The Eighth Amendment, how ever, "does not authorize judicial reconsideration of `every governmental action affecting th e interests or well-being of a prisoner.' " Campbell v. Sikes, 169 F.3d 1353, 1362 (11th Cir. 1 9 9 9 ) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1988)). "If prison conditions are merely `re stric tiv e and even harsh, they are part of the penalty that criminal offenders pay for their o f f en s e s against society.' " Chandler v. Crosby, 379 F.3d 1278, 1288-89 (11th Cir.2004) (q u o tin g Rhodes, 452 U.S. at 347). 19

T h e documentary evidence before the court reflects that jail officials at the Elmore

County Jail instituted the clothing and cell assignment policies and the practice and procedures for utilizing disposable food and drink containers, in large part, because of safety, protection, and security concerns. The fact that Green felt ostracized, degraded, humiliated, and/or insecure as a result of those policies and practices does not modify them from a safety, protection, and security measure. As previously noted, "the legitimate government interest in the order and security of penal institutions justifies the imposition of certain restraints." Procunier, 416 U.S. at 412-413. Consequently, enforcement of valid security and safety regulations and procedures does not in and of itself amount to an Eighth Amendment violation for the purposes of an inmate's right to be free from cruel and unusual punishments and it does not do so in this case. Moreover, there is no evidence before the court that the challenged policies and practices resulted in the unnecessary and wanton infliction of pain prohibited by the Eighth Amendment. See Wilson v. Seiter, 501 U.S. 294, 297 (1991); Farmer v. Brennan, 511 U.S. 825, 834 (1994); Whitley v. Albers, 475 U.S. 312, 319 (1976). Defendant Roberts is, therefore, entitled to summary judgment on Green's Eight Amendment claim.
E . Americans With Disabilities Act Claim G re e n alleges in conclusory fashion that he was subjected to discrimination while in c a rc e ra te d at the Elmore County Jail in violation of the Americans with Disabilities Act [ "A D A " ] by "his scarlet colored 'garb' and his vividly marked food tray and his exclusive 20

w a te r cooler," which he claims effectively disclosed his HIV/AIDS status. (Doc. No. 20 at 5 ; see also Doc. No. 1 at 11.) The ADA prohibits the exclusion of otherwise qualified p a rtic ip a n ts from any program or benefits on account of their disability. 42 U.S.C. § 12132. T itle II, 42 U.S.C. § 12132 provides, in relevant part, that "no qualified individual with a d is a b ility shall, by reason of such disability, be excluded from participation in or be denied th e benefits of the services or activities of a public entity or be subjected to discrimination b y such entity." Prisons and jails are public entities covered by the ADA. See, e.g., P e n n sy lv a n ia Dep't of Corrections v. Yeskey, 524 U.S. 206 (1998). To state a claim under T itle II of the ADA, Green must allege that: (1) he is a `qualified person with a disability'; (2 ) he was either excluded from participation in or denied the benefits of a public entity's s e rv ic e s , programs or activities, or was otherwise discriminated against by the public entity; a n d (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. S e e Miller v. King, 384 F.3d 1248, 1265 (11th Cir. 2004). Defendant Roberts argues that it is debatable whether Green may be considered a " q u alif ie d individual with a disability" for purposes of the ADA and further maintains that G r e e n has not alleged nor demonstrated how he was excluded or denied services, programs, o r activities because of any disability. (Doc. Nos. 16, 42.) Green responds in a conclusory m a n n e r that he is a qualified person with a disability, he has been discriminated against by a public entity, and the discrimination was a result of his disability. (Doc. No. 20 at 5.) Citing to Bragdon v. Abbott, 524 U.S. 624, 2d 540 (1998), Green states that HIV is a "disability" 21

u n d e r the ADA and that he is in the so-called symptomatic phase - "better known as full b l o w n AIDS." (Id.) C o n tra ry to Green's position, in Bragdon the Supreme Court declined to address the is s u e of whether an HIV infection is a per se disability under the ADA. Id, 524 U.S. at 6414 2 (1998). Indeed, "[i]t is insufficient for individuals attempting to prove disability status . . . to merely submit evidence of a medical diagnosis of an impairment." Toyota Motor Mfg., K e n tu c k y , Inc. v. Williams, 534 U.S. 184, 198 (2002). Since § 12102(2) defines disability " w ith respect to an individual," the existence of a disability is to be determined in "a case-byc a se manner." Id. at 198. Consequently, Green cannot establish the existence of a

" d is a b ility" under the ADA merely by stating that he suffered from AIDS during the relevant p e rio d of time. Nonetheless, in this case, even assuming that Green's affliction with H IV /A ID S is a disability within the meaning of the ADA and that he may be considered a " q u a lif ie d individual" as such is defined under the ADA, see Waddell v. Valley Forge Dental A s s o c i a t e s , Inc., 276 F.3d 1275, 1279 n.4 (11th Cir. 2001), he would not have a cause of a c tio n because he has not demonstrated exclusion from a service, program, or activity, nor h a s he shown any discrimination, which is required by the ADA. Green acknowledges that h e was provided food, clothing and shelter at the county jail but claims it was not provided in a discreet manner thereby allowing his medical condition to become known to others. The c o u rt finds that this allegation fails to state a claim under the ADA. Therefore, Defendant R o b e rts is due to be granted summary judgment on Green's ADA claim. 22

I I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Defendant Roberts' motion for summary judgment, as supplemented (Doc. No. 16), b e GRANTED; 2 . Judgment be ENTERED in favor of Defendant Roberts and against Plaintiff; 3 . The costs of this proceeding be TAXED against Plaintiff for which execution may is s u e . It is further ORDERED that on or before October 19th, 2008, the parties may file objections to th e Recommendation. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a i l u r e to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tt a c k in g on appeal factual findings in the Recommendation accepted or adopted by the D istrict Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en 23

b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. D o n e , this 6th day of October 2008.

/s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

24