Henderson et al v. Bentley et al
OPINION AND ORDER that the dfts' 34 MOTION to Dismiss is denied with the understanding that the court will address the res judicata issue after the bench trial. Signed by Honorable Judge Myron H. Thompson on 9/5/2012. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
LOUIS HENDERSON, et al.,
KIM THOMAS, Commissioner,
Alabama Department of
Corrections, et al.,
CIVIL ACTION NO.
OPINION AND ORDER
The eight named plaintiffs (Louis Henderson, Dana
Harley, Darrell Robinson, Dwight Smith, Albert Knox,
James Douglas, Alqadeer Hamlet, and Jeffery Beyer) bring
this lawsuit on behalf of themselves and a class of all
current and future HIV+ prisoners incarcerated in Alabama
challenge ADOC’s policy of segregating HIV+ inmates from
defendants ADOC Commissioner Kim Thomas and the wardens
of the four ADOC facilities that house HIV+ inmates.
The plaintiffs claim that the HIV-segregation policy
discriminates against them on the basis of a disability
(HIV+ status) in violation of Title II of the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.,
and § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
Jurisdiction is proper under 28 U.S.C. § 1331 (federal
defendants’ motion to dismiss.
The defendants argue that
dismissal is warranted (1) because the action is barred
by res judicata; (2) because the plaintiffs have failed
to state a claim for which relief can be granted; (3)
under the Prison Litigation Reform Act of 1995 (PLRA),
110 Stat. 1321; and 4) on sovereign-immunity grounds.
For the reasons that follow, the court denies the motion
to dismiss, but sets aside the res judicata issue until
a ruling on the merits.
I. MOTION-TO-DISMISS STANDARD
In considering the defendants’ motion to dismiss, the
court accepts the plaintiffs’ allegations as true, Hishon
construes the complaint in the plaintiffs’ favor.
v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993).
survive a motion to dismiss, a complaint must present
plausible on its face.”
Bell Atl. Corp. v. Twombly, 550
conclusory statements, do not suffice.”
Iqbal, 556 U.S. 662, 678 (2009).
A complaint satisfies
the plausibility standard when “the plaintiff pleads
reasonable inference that the defendant is liable for the
ADOC’s HIV-Segregation Policy
Alabama law requires HIV testing for all prisoners.
statutory and administrative law, however, is silent on
the segregation of HIV+ prisoners.
In the absence of an
explicit policy, the plaintiffs point to several specific
ways in which ADOC’s HIV-segregation policy functions in
practice. At its core, the defendants’ HIV-segregation
policy dictates that HIV+ inmates are housed in separated
regardless of security classification.
Alabama has five levels of prisoner classification:
Security classification is a multi-
factor analysis that includes an individual’s criminal
sentence, and pendency of unresolved charges.
Affidavit (Doc. No. 47-1) ¶ 3.
Close-custody is “reserved for prisoners who have
demonstrated severe behavioral problems, some prisoners
sentenced to life without parole, and some detainees
Second Amended Complaint (Doc. No. 61) ¶ 37.
custody prisoners are held at medium- or close-security
institutions and are housed in double-occupancy cells or
Medium-custody prisoners may receive work
assignments inside a secure facility.
parts, all of which permit some type of work outside a
Most important for present purposes,
transfer to a work-release center.
(Doc. No. 47-1) ¶ 5.
classification system, all HIV+ inmates are housed in
Male HIV+ inmates are housed at either
Release/Community Work Center.
Female HIV+ inmates are
housed at either Julia Tutwiler Prison for Women or the
Montgomery Women’s Facility.
The centerpiece of Alabama’s segregation policy is
that HIV+ prisoners are housed at certain facilities and
inmates who have a six-month clear record may apply to
transfer to a facility closer to their families.
While no inmate has a right to transfer, HIV+ male
inmates are prohibited entirely from transferring. Thus,
the male plaintiffs are barred from approximately two
dozen facilities around the State.
At Limestone, all HIV+ prisoners are housed
on the A-Side.
HIV+ prisoners, therefore, are excluded
from the general population area in B-Side and the FaithBased Honor Dorm in C-Side.
They are also barred from
the senior dormitory in A-Side.
Limestone separates HIV+
prisoners by forcing them to wear white armbands, thereby
staff, and visitors.
Because Alabama has far fewer female inmates, it
maintains only one secure institution (Julia Tutwiler
Prison for Women) and two work-release facilities for
Within Tutwiler, HIV+ prisoners are housed in two
of 15 housing units: an HIV dormitory and the healthcare
setting, the HIV-segregation policy as applied to females
mirrors the male counterpart.
The plaintiffs further allege that ADOC utilizes a
According to the plaintiffs, the policy forces inmates to
start antiretroviral medications before their viral loads
require it. Second Amended Complaint (Doc. No. 61) ¶ 86.
treatment in transferring male prisoners to Decatur Work
segregation policy excludes them from certain programs.
residential component of any program, such as Limestone’s
plaintiffs are barred from programs at the majority of
This includes several programs that are
not available at Limestone, such as agricultural programs
at J.O. Davis Correctional facility, trade schools at
Staton Correctional Center, and a secular substance abuse
program at Easterling Correctional facility.
Id. ¶¶ 101-
plaintiffs assert that the HIV-segregation policy results
in disparate punishment and the unlawful disclosure of
their medical status.
Alabama first instituted its HIV-segregation policy
HIV/AIDS prompted the overwhelming majority of States to
isolate HIV+ prisoners.
But once the sources of HIV
rescinded these policies.
By 1994, only six States had
HIV+ segregation policies.
Today, only Alabama and South
prisoners in separate housing units.
segregation of HIV+ prisoners in Alabama.
prisoners challenged the segregation of recreational,
After a decade of litigation, the en
banc Eleventh Circuit Court of Appeals held that HIV+
accommodations” were required.
Onishea v. Hopper, 171
F.3d 1289 (11th Cir. 1999) (en banc).1
exception to § 504 of the Rehabilitation Act.
statute excludes from its definition of an “otherwise
qualified individual with a disability” those persons
that have 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.’” Id. at 1296-97 (quoting 29 U.S.C.
This statutory exception codified the Supreme Court’s
ruling in School Board of Nassau County v. Arline,
U.S. 273 (1987).
Under Arline, four factors determine
whether the contagious-disease exception applies:
“[F]indings of fact, based on reasonable
medical judgments given the state of
medical knowledge, about (a) the nature
of the risk (how the disease is
transmitted), (b) the duration of the
The Onishea plaintiffs also brought an Eighth
Amendment claim, which was rejected.
infectious), (c) the severity of the
risk (what is the potential harm to
third parties) and (d) the probabilities
the disease will be transmitted and will
cause varying degrees of harm.”
Id. at 288 (alteration in original).
In weighing these
reasonable medical judgments of public health officials”
when making these findings of fact.
Court concluded that a person “who poses a significant
risk of communicating an infectious disease to others ...
accommodation will not eliminate that risk.”
Id. at 287
n.16 (emphasis added).
Thus, the contagious-disease
exception requires courts not only to examine the risk
associated with the disease but also to make findings
about whether a reasonable accommodation can ameliorate
In Onishea, the Eleventh Circuit, building on the
knowledge and art at the time of trial, HIV infection
inevitably progressed to AIDS.
AIDS always led to death,
often after lengthy suffering.”
Onishea, 171 F.3d at
Given this premise, the court of appeals held
that, when “transmitting a disease inevitably entails
death, the evidence supports a finding of ‘significant
risk’ if it shows both (1) that a certain event can occur
and (2) that according to reliable medical opinion the
event can transmit the disease.”
Id. at 1299.
Eleventh Circuit concluded that the evidence adduced at
trial established that HIV posed a “significant risk” in
the prison context.
In 1997, while Onishea was pending, another group of
HIV+ prisoners filed suit in this court, claiming that
Alabama’s segregation policy violated the ADA and the
Edwards v. Alabama Dep’t of Corr., 81
F. Supp. 2d 1242 (M.D. Ala. 2000) (Thompson, J.).
regards to the ADA claim, this court held that it was
identical to the Onishea plaintiffs’ Rehabilitation Act
claim and was precluded under res judicata.
Id. at 1249.
This court noted that “nothing in [its] opinion should be
taken to hold that the court has rejected the application
of a changed-circumstances argument to the plaintiffs’
Id. at 1250 n.2.
Regarding the Eighth Amendment claim, this court
Id. at 1250.
The Eighth Amendment
claim, however, was dismissed because the plaintiffs
failed to exhaust their administrative remedies under the
Id. at 1256-57.
Shortly after Edwards, a class action was brought
challenging the constitutional adequacy of medical care
for HIV+ inmates at Limestone Correctional Facility.
consent decree was entered in 2004 and terminated in
2006. See Settlement Agreement, Leatherwood v. Campbell,
No. CV-02-BE-2812 (N.D. Ala. Apr. 29, 2004) (Bowdre, J.).
allegations in the complaint, plaintiffs Louis Henderson,
Darrell Robinson, Albert Knox, James Douglas, and Jeffery
Beyer are housed at Limestone; plaintiffs Dwight Smith
and Alqadeer Hamlet are housed at Decatur Work Release;
and plaintiff Dana Harley is housed at Tutwiler.
The named plaintiffs are just a fraction of the
approximately 260 HIV+ inmates in the Alabama prison
diagnosed with HIV in the custody of ADOC, now and in the
Henderson v. Thomas, 2012 WL 3777146 (M.D. Ala.
2012) (Thompson, J.)
Five state officials are sued in their official
Limestone; Frank Albright, warden at Tutwiler; Bettina
Carter, warden at Decatur Work Release/Community Work
The plaintiffs seek prospective relief: a declaratory
judgment that the segregation policy violates the ADA and
the Rehabilitation Act and an injunction against its
The defendants raise the affirmative defense of res
judicata as a bar to the “re-litigation” of its HIVsegregation policy.
Res judicata prohibits a subsequent
judgment on the merits, (2) rendered by a court of
competent jurisdiction, (3) the parties, or those in
privity with them, must be identical in both suits, and
(4) the same cause of action must be involved in both
cases.” Hart v. Yamaha-Parts Distributors, Inc., 787 F.2d
1468, 1470 (11th Cir. 1986).
The defendants contend that
the plaintiffs’ claims under the Rehabilitation Act and
the ADA are identical to those raised in Onishea and
As described above, the same class of plaintiffs
failed in their challenges to this policy in Onishea and
In Onishea, the plaintiffs brought suit under
The defendants do not rely on the Leatherwood
class action for their res judicata argument.
Defendants’ Brief (Doc. No. 35) at 12 n.5 (“While there
are reasonable grounds to conclude that the Named
Plaintiffs are collaterally estopped from bringing their
claims by virtue of Leatherwood, the preclusive effect of
the other actions is such that the Court need not even
consider any collateral estoppel resulting from the
In any event, the Leatherwood
plaintiffs raised an Eighth Amendment claim, not a
The defendants also cite a recent 42 U.S.C. § 1983
suit brought by an HIV+ prisoner at Limestone who
challenged the prison’s armband policy as a violation of
his constitutional right to privacy under the Fourteenth
Id. at 16 n.8.
The Eleventh Circuit
concluded that the defendants were entitled to qualified
immunity. Reed v. Allen, 379 Fed. App’x 879 (11th Cir.
2010). Reed is inapposite because, among other reasons,
it is premised on a constitutional claim.
Edwards, 81 F. Supp. 2d at 1246-47 (summarizing the
Edwards, the plaintiffs’ claims were brought under the
ADA and the Eighth Amendment. Id. at 1245.
The plaintiffs concede that the first three elements
of res judicata are satisfied.
No. 37) at 2.
Plaintiffs’ Brief (Doc.
The plaintiffs, however, argue that the
defendants cannot meet the fourth element because of
Relying on Edwards, the
ascertaining whether two causes of action are identical
for res judicata purposes is not only whether the same
legal claim is asserted, but also whether the factual
underpinnings of the causes of action are constant.’” Id.
(quoting Edwards, 81 F. Supp. 2d at 1249); see also
Edwards, 81 F. Supp. 2d at 1248 (“It is now said, in
general, that if a case arises out of the same nucleus of
predicate, as a former action, that the two cases are
really the same ‘claim’ or ‘cause of action’ for purposes
of res judicata.”) (internal quotation marks omitted).
The plaintiffs contend that the “central factual
inevitably progresses to AIDS and then to death-–is no
Plaintiffs’ Brief (Doc. No. 37) at 3.
Since the introduction of highly active antiretroviral
therapy in 1997, HIV has gradually become a “manageable
circumstances, in turn, impact the “significant risk”
Because this issue requires an examination of the
past and present state of HIV treatments, this court need
not address the res judicata issue now.
As a general
rule, an affirmative defense, such as res judicata, “will
not support a [Fed. R. Civ. P.] 12(b)(6) motion to
dismiss for failure to state a claim.”
Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993).
the “defense’s existence can be judged on the face of the
complaint” may a court grant a motion to dismiss on a res
Concordia v. Bendekovic, 693 F.2d 1073,
1075 (11th Cir. 1982).
If more information is necessary
to adjudicate the res judicata defense, then the court
must treat the motion “as if it were a motion for summary
judgment under [Fed. R. Civ. P.] 56.”
At oral argument on September 16, 2011, counsel for
the defendants indicated that discovery related to the
changed-circumstances argument was appropriate in order
for the court to make an informed decision about the
recent improvements in HIV treatments.
Transcript (Doc. No. 56) at 30-32.
The court, therefore,
sets aside the res judicata issue for the moment and will
make a ruling after the bench trial.3
3. Although not mentioned by either side, the court
notes that Congress’s recent amendments to the ADA may
Specifically, the ADA now lists “functions of the immune
system” as a major bodily function.
§ 12102(2)(B). This amendment may reflect congressional
concern that diseases that affect the immune system–-such
B. Failure to State a Claim
The defendants raise three Fed. R. Civ. P. 12(b)(6)
arguments that the plaintiffs’ complaint fails to state
First, they argue that the “Plaintiffs’ cursory
non-descript allegations of ‘discrimination’” runs afoul
of the plausibility standard.
(Doc. No. 35) at 22.
Second, they contend that the plaintiffs have no right to
be incarcerated at any particular facility.
confidentiality relating to their HIV status.4
as HIV and AIDS-–merit protection under federal antidiscrimination statutes. See also infra Section III.B.1.
The defendants also argued that Governor Robert
was improperly named as a defendant in this
After an agreement between the parties at oral
on September 16, 2011, the court dismissed
Bentley as a defendant. See Doc. No. 53.
1. The Plausibility Standard
A complaint must present “enough facts to state a
claim to relief that is plausible on its face.”
550 U.S. at 570.
Thus, “[t]hreadbare recitals of the
conclusory statements, do not suffice.”
Iqbal, 556 U.S.
The defendants submit that the plaintiffs have
failed to state sufficient facts to establish a claim
under Title II of the ADA and § 504 of the Rehabilitation
In the Eleventh Circuit, the “causes of action under
Title II of the ADA and the Rehabilitation Act are
Everett v. Cobb County Sch.
Dist., 138 F.3d 1407, 1409 (11th Cir. 1999).
recipient of federal funding, a fact that the defendants
Defendants’ Brief (Doc. No. 35) at 25 n.10.
Thus, for purposes of this opinion, the court uses the
two statutes interchangeably.
To state a claim under Title II of the ADA, a
plaintiff must demonstrate that he “(1) is disabled, (2)
is a qualified individual, and (3) was subjected to
unlawful discrimination because of [his] disability.”
Waddell v. Valley Forge Dental Assoc., Inc., 276 F.3d
1275, 1279 (11th Cir. 2001) (internal quotation marks
omitted) (alteration in original).
Under these statutes, a “disability” is defined as
“(A) a physical or mental impairment that substantially
individual; (B) a record of such an impairment; or (C)
U.S.C. § 12102(1).
In this suit, the plaintiffs have
alleged that they have an existing physical impairment
that substantially limits a major-life activity.
Amended Complaint (Doc. No. 61) ¶ 105.
A disability under the statutory scheme, therefore,
impairment is not necessarily a disability under the
statutory definition; the impairment must substantially
limit a major-life activity.
See Adams v. Rice, 531 F.3d
impairment and a disability).
Under the ADA Amendments Act of 2008, a major-life
activity includes, but is not limited to, “caring for
eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating,
The statutory definition of major-life
which “includes the operation of a major bodily function,
including but not limited to, functions of the immune
system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine,
and reproductive functions.” Id. § 12102(2)(B) (emphasis
The defendants contend that the plaintiffs have not
pled sufficient facts to establish that their HIV status
defendants believe that the complaint is deficient in
whether HIV substantially limits a ‘major life activity’
of a particular plaintiff.” Defendants’ Brief (Doc. No.
Williams, 534 U.S. 184, 194 (2002)).
The complaint specifies that each named plaintiff is
diagnosed with HIV.
See, e.g., Second Amended Complaint,
(Doc. No. 61) ¶ 16 (Henderson); Id. ¶ 32 (Harley).
complaint also provides information on the contemporary
medical consensus regarding HIV treatment.
Id. ¶¶ 1, 4-
The plaintiffs further allege that “HIV is an
impairment of the immune system that substantially limits
a person with HIV in one or more major-life activities.
It is therefore a disability within the meaning of 42
U.S.C. § 12102(1)(A) [Title II of the ADA] and 29 U.S.C.
§ 705(9)(B) [Rehabilitation Act].” Id. ¶ 105.5
these allegations, it is “plausible on its face” that
impairment (HIV) that substantially limits a major-life
Twombly, 550 U.S. at 570.
activity (the immune system).
Second, the defendants contend that the plaintiffs
have failed to plead sufficient facts that there is no
Defendants’ Brief (Doc. No. 35) at 28.
Under Onishea, when “transmitting a disease inevitably
The defendants concede that HIV is a physical
impairment under the ADA. See Defendants’ Brief (Doc.
No. 39) at 13.
At oral argument, the defendants also
agreed that the complaint alleges that the “major life
activity” at issue in this litigation is the immune
system. Oral Argument Transcript (Doc. No. 56) at 35.
‘significant risk’ if it shows both (1) that a certain
medical opinion the event can transmit the disease.”
Onishea, 171 F.3d at 1299.
If the plaintiffs’ HIV status
“otherwise qualified” under the statute and fall outside
allegations in the complaint as true, the plaintiffs have
demonstrated that HIV does not pose the same “significant
risk” as it did in the 1990s.
The court finds it
significant that the Eleventh Circuit anchored its ruling
on “the state of medical knowledge and art at the time of
Id. at 1293.
In the early 1990s, “HIV infection
inevitably progressed to AIDS.
often after lengthy suffering.”
AIDS always led to death,
Id. at 1293. Given this
“transmitting a disease inevitably entails death, the
evidence supports a finding of ‘significant risk’ if it
shows both (1) that a certain event can occur and (2)
that according to reliable medical opinion the event can
transmit the disease.”
Id. at 1299.
The complaint provides detailed allegations regarding
the recent improvement in HIV treatments.
Second Amended Complaint (Doc. No. 61) ¶ 4 (“By the mid1990s, however, new classes of antiretroviral medications
proved extremely effective at suppressing the virus.
These medications changed HIV from a fatal disease to a
chronic condition that can be successfully treated.”)
Assuming it is true that HIV no longer
“significant risk” test may be undermined to the point
that it no longer controls.
If Onishea is inapplicable, the Supreme Court’s more
general “significant risk” test for communicable diseases
In Arline, the Court concluded that a
person “who poses a significant risk of communicating an
infectious disease to others ... will not be otherwise
eliminate that risk.” Arline, 480 U.S. 287 n.16 (emphasis
The complaint pleads sufficient facts to show that
reasonable accommodations can be made to integrate HIV+
For instance, the complaint notes that all but
two state penal systems have integrated HIV prisoners
Commission on Correctional Health Care counsels against
Second Amended Complaint (Doc. No. 61)
¶¶ 5-6 & 43.
The plaintiffs, therefore, have pled
“significant risk” under either Onishea or Arline.
plaintiffs’ “cursory, non-descript allegations such as
their repeated general references to ‘services, programs,
or activities.’” Defendants’ Brief (Doc. No. 35) at 28.
Similarly, the defendants argue that the plaintiffs have
not pled that they are “otherwise qualified” for these
The plaintiffs provide detailed lists of the types of
programs and accommodations that they are ineligible for
solely because of their HIV status. See, e.g., Second
Amended Complaint, Doc. No. 61, ¶ 50 (Limestone senior
(accommodations and programs at other ADOC facilities).
construe, total exclusion–-and have pled sufficient facts
to survive a motion to dismiss.
See id. ¶¶ 81-90.
as to the named plaintiffs, they have pled that they are
“otherwise qualified” for transfer and other programs.
See, e.g., id. ¶ 18 (Henderson); id. ¶ 31 (Beyer).
This complaint is not the series of “conclusory
Twombly, 550 U.S. at 557.
The plaintiffs have more than
“nudged their claims across the line from conceivable to
Id. at 570.
Requesting a Transfer
The defendants contend that the plaintiffs have no
right to transfer to new accommodations.
Within ADOC, no
inmate, “regardless of HIV status, enjoys the right to
Defendants also note that “a prisoner does not have a
[constitutional] right to confinement in a particular
Id. at 30 (citing Sandin v. Conner, 515
U.S. 472, 478 (1995) and Meachum v. Fano, 427 U.S. 215,
The defendants misconstrue the plaintiffs’ claim.
The plaintiffs do not assert a constitutional right to
transfer to another facility–-or within Limestone and
basis of a disability.
That is the plaintiffs’ claim for relief in this
ADOC policy permits inmates to request transfers
to other facilities in order to be closer to home or to
enroll in vocational programs. Atchison Affidavit (Doc.
No. 47-1) ¶ 13. Given that the ADA and Rehabilitation Act
apply to prisons, these statutory protections against
accommodations at ADOC facilities.
See Pa. Dept. of
Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (ADA Title II);
Onishea, 171 F.3d at 1296 n.11 (Rehabilitation Act).
Indeed, the “text of the ADA provides no basis for
distinguishing these [correctional and rehabilitative]
programs, services, and activities from those provided by
public entities that are not prisons.”
Yeskey, 524 U.S.
Accordingly, the plaintiffs have stated a claim
upon which relief can be granted.
constitutional right to privacy in their HIV+ status,
relying on a precedent from the Onishea litigation.
Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991), the
Eleventh Circuit assumed arguendo that prisoners maintain
a right to medical privacy in their HIV status and held
that Alabama’s legitimate penological interest in safety
Id. at 1512 & 1521.
outweighed any privacy right.
prisoners’ family relationships and personal well-being.”
Plaintiffs’ Brief (Doc. No. 37) at 26.
However, when the
disability discrimination by a private contractor, the
plaintiffs have a claim under federal law.
See 28 C.F.R.
§§ 35.130(b)(1)(v) & 35.130(b)(3)(I).
trigger these protections. See Second Amended Complaint,
(Doc. No. 61) ¶¶ 84-85.
The defendants raise two arguments for dismissal
pursuant to the PLRA.
First, they contend that the
Second, the defendants assert that the PLRA
bars the type of relief sought.
Failure to Exhaust
The PLRA mandates that, “No action shall be brought
with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner
available are exhausted.” 42 U.S.C. § 1997e(a).
is an affirmative defense, “[t]he defendants bear the
exhaust his available administrative remedies.”
Although this issue is raised at the motion-to-dismiss
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008)
deciding “a motion to dismiss for failure to exhaust
grievance system is “available” for a complaint about the
At Alabama’s four facilities
that house HIV+ inmates, a prisoner must file an informal
“Medical Grievance” form to the healthcare unit through
the institutional mail system.
A written response on the
bottom of the same document is provided within five days.
See Reese Affidavit (Doc. No. 35-1) ¶ 6; Hunt Affidavit
(Doc. No. 35-2) ¶ 6.
Below the response, the form
states, in all caps:
“IF YOU WISH TO APPEAL THIS REVIEW YOU
MAY REQUEST A GRIEVANCE APPEAL FORM FROM
RETURN THE COMPLETED FORM TO THE
ADMINISTRATOR. YOU MAY PLACE THE FORM
IN THE SICK CALL REQUEST BOX OR GIVE IT
TO THE SEGREGATION SICK CALL NURSE ON
Reese Affidavit (Doc. No. 35-1) ¶ 6.
A written response
to a medical grievance appeal is provided within five
In the interim, an inmate may be brought in for a
one-on-one conversation with the medical staff.
Id. ¶ 6.
The defendants contend that this medical grievance
Specifically, ADOC points to the plaintiffs’ claims of
medical-clearance criteria for work release as issues
that should have been addressed through the prison’s
evidence-–exhibits attached to affidavits–-showing that
one plaintiff (Harley) used the medical grievance system
in the past, thus establishing that the plaintiffs were
aware that it existed.
See id. Ex. B.
The plaintiffs respond that the medical grievance
process is not “available” to them to challenge Alabama’s
The plaintiffs contend that the
Reese and Hunt affidavits focus exclusively on healthcare
claims, not on the segregation policy more generally.
According to the plaintiffs, the defendants have not made
any showing that the medical officers have any authority
over the HIV-segregation policy.
The plaintiffs submit that ADOC “does not maintain
Limestone, or at Tutwiler” for non-medical complaints.
Plaintiffs’ Brief (Doc. No. 37) at 28.
support this contention by inference from the medical
grievance forms and through prisoner declarations that
aver that no facility-specific, non-medical grievance
system exists at Limestone and Tutwiler.
Declaration (Doc. No. 37-5) ¶¶ 7-9 (Limestone); Harley
Declaration (Doc. No. 37-6) ¶¶ 5-9 (Tutwiler).
Allison Neal, an ACLU attorney.
The Neal Declaration
states that ADOC’s special counsel informed her during a
telephone conversation that “there is no formal systemwide
Declaration also states that Limestone’s warden told her
that there was no non-medical grievance system at that
Id. ¶ 3.
See Turner, 541 F.3d at 1084 (“A remedy has
to be available before it must be exhausted.”).
officers would presumably have no authority to act on the
subject of the complaint, leaving the inmate with nothing
Booth v. Churner, 532 U.S. 731, 736 n.4
The court finds that the medical grievance forms
are “available” only to address medical issues and that
no general, non-medical, system-wide grievance system
exists in ADOC prisons.
At the top of the medical grievance forms, prisoners
may check one of only two boxes: “Medical Grievance” or
“Medical Grievance Appeal.”
The medical grievance form,
therefore, is no misnomer: the form deals solely with
medical claims, not broader disputes about ADOC housing
and transfer policy.
Moreover, the medical grievance forms include checkboxes
includes labels for healthcare issues (e.g., “access to
onsite care” and “medication issues”) and a catch-all box
35-1) at 11.
See, e.g., Reese Affidavit (Doc. No.
There is no indication on the form that it
could be used to complain to prison officials-–as opposed
to the Correctional Medical Services personnel–-about
This reading of the medical grievance form comports
with how prisoners interpreted it.
See, e.g., Harley
Declaration (Doc. No. 37-6) ¶ 4-5.
state that prisoners are told to submit only medicallyrelated grievances to these systems.
In fact, plaintiff
defendants cut against their argument.
about medical issues, not ADOC’s HIV segregation policy
as it applies to accommodations.
See, e.g., Harley
Grievance (Doc. No. 35-1) at 13.
examples of medical grievances: “[a]ny decision made by
a member of the medical staff: when labs are drawn; what
evaluates...one of the named plaintiffs.”
Transcript (Doc. No. 56) at 34.
These claims are not in
the same class as a grievance against the HIV segregation
Perhaps most revealing, the defendants have submitted
no evidence that the medical professionals reviewing the
medical issues or ADOC policy more generally.
ADOC to characterize the medical grievance process as a
generalized system would bait-and-switch the plaintiffs.
See Goebert v. Lee County, 510 F.3d 1312, 1323 (11th Cir.
2007) (criticizing prison officials for playing “hideand-seek” with administrative remedies); see also Hutto
v. Barnes, No. 04-0522-WS-M, 2006 WL 2052596, at *1 n.1
(S.D. Ala. July 2006) (noting that ADOC failed to offer
evidence of any state grievance procedure available to
Alabama prisoners in support of its exhaustion defense).
In light of the evidence before the court, the medical
grievance system is not “available” to the plaintiffs to
address their grievances concerning the HIV-segregation
The question, then, is whether ADOC maintains a
general, non-medical grievance procedure.
concludes that it does not.
The defendants have provided no evidence that an
evidence is evidence of absence. See Neal Declaration
(Doc. No. 37-4) ¶ 2.
The defendants have failed to meet
their burden of establishing that a general grievance
grievance process, there is no exhaustion requirement
As the Eleventh Circuit has explained:
“We find that the term ‘available’ in
section 1997e(a) is used to acknowledge
that not all prison actually have
administrative remedy programs.
state penal institutions may not have an
administrative remedy program to address
prison conditions, and thus there are no
‘available’ administrative remedies to
exhaust. Section 1997e(a) permits these
directly in federal court.”
Alexander v. Hawk, 159 F.3d 1321, 1326-27 (11th Cir.
The court notes that, with no generalized grievance
system, ADOC inmates have lost “a way of attempting to
corrections officials “lose the substantial benefits that
administrative remedies were intended to provide them.”
maintaining a general grievance process to address inmate
complaints about potentially unlawful activity in the
Accordingly, the plaintiffs may file suit
directly in federal court to address these non-medical
The “Need-Narrowness-Intrusiveness” Test
prospective relief must determine “that such relief is
narrowly drawn, extends no further than necessary to
correct the violation of the Federal right, and is the
least intrusive means necessary to correct the violation
of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).
The defendants contend that the “relief requested
does not meet the requisite standards for prospective
relief under the PLRA.” Defendants’ Brief (Doc. No. 35)
According to the defendants, the plaintiffs have
failed to satisfy this “need-narrowness-intrusiveness”
policies and practices for HIV inmates is entirely too
broad and will ultimately hinder ADOC administrators.”
Id. at 38 (emphasis in original).
The “need-narrowness-intrusiveness” test, however,
is a limitation on judicial authority over prisons at the
remedial stage, not a heightened-pleading requirement
imposed on the plaintiffs.
makes this clear.
The PLRA’s plain language
See 18 U.S.C. § 3626(a)(1)(A) (“The
court shall not grant or approve any prospective relief
unless the court finds” that it satisfies the need-
narrowness-intrusiveness test.) (emphasis added).
provisions in § 3626(a) reinforce this reading, see id.
§ 3626(a)(3) (requirements for prisoner release orders);
id. § 3626(b) (placing conditions on the time period for
Chapter of Comm. for a Great Oregon, 515 U.S. 687, 702-03
See Williams v. Edwards, 87 F.3d
126 (5th Cir. 1996); Anderson v. Garner, 22 F. Supp. 2d
1379 (N.D. Ga. 1997) (Murphy, J.).
The PLRA did not abrogate the longstanding rule that,
at the motion-to-dismiss stage, a complaint is judged by
whether it presents “enough facts to state a claim to
relief that is plausible on its face,”
Twombly, 550 U.S.
at 570, not whether the relief requested will be granted
precludes this suit.
They note that the plaintiffs may
not seek damages under Title II of the ADA because
Congress failed to validly abrogate the States’ sovereign
Seeking to avoid the Young fiction,
Young, 209 U.S. 123 (1908), the defendants argue that
Onishea and Edwards demonstrate that “not only is there
... no violation of federal law, but there is certainly
not any ongoing and continuous violation.”
plaintiffs failed to “allege an ‘ongoing and continuous
But, as the plaintiffs point out, this is a suit for
prospective relief, not for damages. Indeed, the relief
sought is quintessentially prospective: a declaratory
judgment and an injunction.
(Doc. No. 61) at 37.
See Second Amended Complaint
The five defendants have been sued
triggering the Ex parte Young analysis.
In determining whether Young’s exception to sovereign
‘straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective.’” Verizon
Maryland, Inc. v. Public Service Comm. of Maryland, 535
U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261, 296 (1997)) (alteration in
The court need not look to the merits of the
suit to determine whether Young applies; an allegation in
the complaint will suffice.
Here, the plaintiffs allege
that the “Defendants are violating Plaintiffs’ rights
Second Amended Complaint (Doc. No.
61) ¶ 113 (emphasis added).
Because the plaintiffs have
alleged an ongoing violation of federal law and are
presents no bar to this action.
The court notes that this case falls within a long
history of suits brought by inmates seeking to vindicate
their constitutional and statutory rights. See, e.g.,
Brown v. Plata, 131 S. Ct. 1910 (2011) (affirming threejudge
(affirming district court’s 30-day time limit for placing
prisoners in isolation cells); Laube v. Campbell, 333 F.
Supp. 2d 1234 (M.D. Ala. 2004) (Thompson, J.) (approving
violations at Julia Tutwiler Prison for Women).
Eleventh Amendment did not prevent courts from ordering
officials have recognized this fact in past litigation
over this policy.
See Onishea, 171 F.3d at 1296 n.11
(noting that defendants conceded sovereign immunity point
during en banc oral argument).
motion to dismiss (Doc. No. 34) is denied with the
judicata issue after the bench trial.
DONE, this the 5th day of September, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?