Henderson et al v. Bentley et al

Filing 199

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.,
Plaintiffs,
v.
KIM THOMAS, Commissioner,
Alabama Department of
Corrections, et al.,
Defendants.

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CIVIL ACTION NO.
2:11cv224-MHT
(WO)

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
Department

of

Corrections

(ADOC)

facilities.

They

challenge ADOC’s policy of segregating HIV+ inmates from
the

general

prison

population.

They

have

named

as

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
question).
The

case

is

currently

before

defendants’ motion to dismiss.

the

court

on

the

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.

2

I. MOTION-TO-DISMISS STANDARD
In considering the defendants’ motion to dismiss, the
court accepts the plaintiffs’ allegations as true, Hishon
v.

King

&

Spaulding,

467

U.S.

69,

73

(1984),

construes the complaint in the plaintiffs’ favor.

and
Duke

v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993).

To

survive a motion to dismiss, a complaint must present
“enough

facts

to

state

plausible on its face.”
U.S.

544,

elements

570
of

a

a

to

relief

that

is

Bell Atl. Corp. v. Twombly, 550

(2007).
cause

claim

“Threadbare
of

action,

recitals

supported

conclusory statements, do not suffice.”
Iqbal, 556 U.S. 662, 678 (2009).

of
by

the
mere

Ashcroft v.

A complaint satisfies

the plausibility standard when “the plaintiff pleads
factual

content

that

allows

the

court

to

draw

the

reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

3

II. BACKGROUND
A.

ADOC’s HIV-Segregation Policy

Alabama law requires HIV testing for all prisoners.
1975

Ala.

Code

§§

22-11A-17

&

22-11A-38.

Alabama

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
accommodations,

both

inter-

and

intra-facility,

and

regardless of security classification.
Alabama has five levels of prisoner classification:
close-custody,

medium,

minimum-community.

minimum-in,

minimum-out,

and

Security classification is a multi-

factor analysis that includes an individual’s criminal
history,

past

convictions,

past

violence,

sentence, and pendency of unresolved charges.
Affidavit (Doc. No. 47-1) ¶ 3.

4

length

of

Atchison

Close-custody is “reserved for prisoners who have
demonstrated severe behavioral problems, some prisoners
sentenced to life without parole, and some detainees
awaiting

trial

or

sentencing

for

capital

offenses.”

Second Amended Complaint (Doc. No. 61) ¶ 37.

Medium-

custody prisoners are held at medium- or close-security
institutions and are housed in double-occupancy cells or
dormitories.

Medium-custody prisoners may receive work

assignments inside a secure facility.
The

“minimum”

classification

includes

three

sub-

parts, all of which permit some type of work outside a
secure facility.

Most important for present purposes,

only

and

minimum-out

minimum-community

transfer to a work-release center.

inmates

may

Atchison Affidavit

(Doc. No. 47-1) ¶ 5.
The

plaintiffs

allege

that,

despite

this

classification system, all HIV+ inmates are housed in
four facilities.
Limestone

Male HIV+ inmates are housed at either

Correctional

Facility

5

or

Decatur

Work

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
completely

barred

from

others.

For

instance,

male

inmates who have a six-month clear record may apply to
transfer to a facility closer to their families.
¶ 13.

Id.

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.
The

HIV-segregation

facilities.

policy

is

replicated

within

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

6

disclosing

their

health

status

to

fellow

prisoners,

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
women.

Within Tutwiler, HIV+ prisoners are housed in two

of 15 housing units: an HIV dormitory and the healthcare
unit.

Despite

these

differences

in

institutional

setting, the HIV-segregation policy as applied to females
mirrors the male counterpart.
The plaintiffs further allege that ADOC utilizes a
discriminatory

medical-clearance

which

to

inmates

send

to

policy

when

work-release

deciding

facilities.

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.
The

plaintiffs,

therefore,

allege

discriminatory

treatment in transferring male prisoners to Decatur Work

7

Release

and

female

prisoners

to

Montgomery

Women’s

¶¶ 89-90.

Facility. Id.

Additionally,

the

plaintiffs

allege

that

ADOC’s

segregation policy excludes them from certain programs.
HIV+

inmates,

for

example,

are

barred

from

the

residential component of any program, such as Limestone’s
substance-abuse

program.

And

by

implication,

the

plaintiffs are barred from programs at the majority of
ADOC’s prisons.

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.
103.

The

residential
obtaining

HIV-segregation
areas

and

food-service

policy

prohibits
employment.

Id. ¶¶ 101-

extends

HIV+

beyond

inmates

from

Finally,

the

plaintiffs assert that the HIV-segregation policy results
in disparate punishment and the unlawful disclosure of
their medical status.

8

B.

Prior Litigation

Alabama first instituted its HIV-segregation policy
in

the

1980s,

when

widespread

public

concern

over

HIV/AIDS prompted the overwhelming majority of States to
isolate HIV+ prisoners.
transmission

were

But once the sources of HIV

firmly

established,

many

States

rescinded these policies.

By 1994, only six States had

HIV+ segregation policies.

Today, only Alabama and South

Carolina

maintain

a

policy

of

isolating

all

HIV+

prisoners in separate housing units.
This

is

not

the

first

lawsuit

challenging

segregation of HIV+ prisoners in Alabama.

the

In 1987,

prisoners challenged the segregation of recreational,
religious,

and

educational

Rehabilitation Act.

programs

under

the

After a decade of litigation, the en

banc Eleventh Circuit Court of Appeals held that HIV+
prisoners

were

Rehabilitation

not
Act

“otherwise
and

9

qualified”

that

no

under

the

“reasonable

accommodations” were required.

Onishea v. Hopper, 171

F.3d 1289 (11th Cir. 1999) (en banc).1
The

Eleventh

Circuit

premised

its

ruling

on

exception to § 504 of the Rehabilitation Act.

an
The

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.
§ 705(20)(D)).
This statutory exception codified the Supreme Court’s
ruling in School Board of Nassau County v. Arline,
U.S. 273 (1987).

480

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
1.
The Onishea plaintiffs also brought an Eighth
Amendment claim, which was rejected.
10

risk
(how
long
is
the
carrier
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).
factors,

Arline

instructs

courts

In weighing these
to

“defer

to

the

reasonable medical judgments of public health officials”
when making these findings of fact.

Id.

The Arline

Court concluded that a person “who poses a significant
risk of communicating an infectious disease to others ...
will

not

be

otherwise

qualified

if

reasonable

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
that risk.
In Onishea, the Eleventh Circuit, building on the
Arline

test,

emphasized:

“In

the

state

of

medical

knowledge and art at the time of trial, HIV infection
11

inevitably progressed to AIDS.

AIDS always led to death,

often after lengthy suffering.”
1293.

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.

The

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
Eighth Amendment.

Edwards v. Alabama Dep’t of Corr., 81

F. Supp. 2d 1242 (M.D. Ala. 2000) (Thompson, J.).

With

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.

12

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’
ADA claim.”

Id. at 1250 n.2.

Regarding the Eighth Amendment claim, this court
found

res

judicata

factual conditions.

inapplicable
Id. at 1250.

because

of

changed

The Eighth Amendment

claim, however, was dismissed because the plaintiffs
failed to exhaust their administrative remedies under the
PLRA.

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.

A

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.).

13

C.

This Suit

Eight

plaintiffs

Rehabilitation

Act

brought

and

the

this

ADA.

suit

under

According

to

the
the

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
system.

They

represent

a

class

of

all

prisoners

diagnosed with HIV in the custody of ADOC, now and in the
future.

Henderson v. Thomas, 2012 WL 3777146 (M.D. Ala.

2012) (Thompson, J.)
Five state officials are sued in their official
capacities:
Department

Kim
of

Thomas,

Commissioner

Corrections;

Billy

of

the

Mitchem,

Alabama

warden

at

Limestone; Frank Albright, warden at Tutwiler; Bettina
Carter, warden at Decatur Work Release/Community Work

14

Center;

and

Edward

Ellington,

warden

at

Montgomery

Women’s Facility.
The plaintiffs seek prospective relief: a declaratory
judgment that the segregation policy violates the ADA and
the Rehabilitation Act and an injunction against its
further

enforcement.

The

plaintiffs

seek

no

money

damages.

III.
A.

DISCUSSION

Res Judicata

The defendants raise the affirmative defense of res
judicata as a bar to the “re-litigation” of its HIVsegregation policy.
action

if

four

Res judicata prohibits a subsequent

elements

are

present:

“(1)

a

final

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

15

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
Edwards.
As described above, the same class of plaintiffs
failed in their challenges to this policy in Onishea and
Edwards.2
the

In Onishea, the plaintiffs brought suit under

Rehabilitation

Act

and

the

Eighth

Amendment.

2.
The defendants do not rely on the Leatherwood
class action for their res judicata argument.
See
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
Leatherwood matter.”).
In any event, the Leatherwood
plaintiffs raised an Eighth Amendment claim, not a
disability claim.
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
Amendment.
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.
16

Edwards, 81 F. Supp. 2d at 1246-47 (summarizing the
decade-long

history

of

the

Onishea

litigation).

In

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
changed-factual circumstances.
plaintiffs

argue

that

the

Relying on Edwards, the

“‘determinative

factor

in

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
operative

fact,

or

is

based

upon

the

same

factual

predicate, as a former action, that the two cases are

17

really the same ‘claim’ or ‘cause of action’ for purposes
of res judicata.”) (internal quotation marks omitted).
The plaintiffs contend that the “central factual
premise

of

the

Onishea

decision--that

HIV

infection

inevitably progresses to AIDS and then to death-–is no
longer true.”

Plaintiffs’ Brief (Doc. No. 37) at 3.

Since the introduction of highly active antiretroviral
therapy in 1997, HIV has gradually become a “manageable
chronic

condition.”

Id.

at

4-5.

These

changed

circumstances, in turn, impact the “significant risk”
standard

for

contagious

diseases

under

the

ADA

and

Rehabilitation Act.
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).

18

Fortner v.
Only when

the “defense’s existence can be judged on the face of the
complaint” may a court grant a motion to dismiss on a res
judicata ground.

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.”

Id.

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.

Oral Argument

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
supply
a
basis
for
changed
legal
conditions.
Specifically, the ADA now lists “functions of the immune
system” as a major bodily function.
42 U.S.C.
§ 12102(2)(B). This amendment may reflect congressional
concern that diseases that affect the immune system–-such
(continued...)

19

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
a claim.

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.
defendants

submit

that

prisoners

have

no

Third, the
right

to

confidentiality relating to their HIV status.4

(...continued)

as HIV and AIDS-–merit protection under federal antidiscrimination statutes. See also infra Section III.B.1.
4.
Bentley
action.
argument
Governor

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.
20

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.
elements

of

a

Thus, “[t]hreadbare recitals of the

cause

of

action,

supported

conclusory statements, do not suffice.”
at 678.

Twombly,

by

mere

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
Act.
In the Eleventh Circuit, the “causes of action under
Title II of the ADA and the Rehabilitation Act are
essentially identical.”

Everett v. Cobb County Sch.

Dist., 138 F.3d 1407, 1409 (11th Cir. 1999).
salient

difference

Rehabilitation

Act

is
can

that
be

a

claim

brought

only

The only

under
against

the
a

recipient of federal funding, a fact that the defendants
concede.

Defendants’ Brief (Doc. No. 35) at 25 n.10.

21

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
limits

one

or

more

major

life

activities

of

such

individual; (B) a record of such an impairment; or (C)
being

regarded

as

U.S.C. § 12102(1).

having

such

an

impairment.”

42

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.

22

Second

A disability under the statutory scheme, therefore,
is

(1)

a

physical

substantially

limits

or

mental

(3)

a

impairment

major-life

that

(2)

activity.

An

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

936,

2008)

943-44

(D.C.

Cir.

(distinguishing

an

impairment and a disability).
Under the ADA Amendments Act of 2008, a major-life
activity includes, but is not limited to, “caring for
oneself,

performing

manual

tasks,

seeing,

hearing,

eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating,
thinking,

communicating,

§ 12102(2)(A).
activities

also

and

working.”

42

U.S.C.

The statutory definition of major-life
encompasses

“major

bodily

functions”

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,

23

neurological, brain, respiratory, circulatory, endocrine,
and reproductive functions.” Id. § 12102(2)(B) (emphasis
added).
The defendants contend that the plaintiffs have not
pled sufficient facts to establish that their HIV status
substantially

limits

a

major-life

activity.

The

defendants believe that the complaint is deficient in
multiple ways.
First,
Plaintiffs

according
must

to

present

the
an

defendants,
individual

the

“Named

assessment

of

whether HIV substantially limits a ‘major life activity’
of a particular plaintiff.” Defendants’ Brief (Doc. No.
39)

at

13

(citing

Toyota

Motor

Mfg.,

Ky.,

Inc.

v.

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).

The

complaint also provides information on the contemporary
medical consensus regarding HIV treatment.

24

Id. ¶¶ 1, 4-

5, 41-42.

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

Given

these allegations, it is “plausible on its face” that
every

one

of

the

HIV+

plaintiffs

suffers

from

an

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
“significant

risk”

of

HIV

infection

if

prisons

are

integrated.

Defendants’ Brief (Doc. No. 35) at 28.

Under Onishea, when “transmitting a disease inevitably
entails

death,

the

evidence

supports

a

finding

of

5.
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.
25

‘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.”
Onishea, 171 F.3d at 1299.
poses

a

“significant

If the plaintiffs’ HIV status

risk,”

they

are

not

considered

“otherwise qualified” under the statute and fall outside
its protections.
At

this

stage

of

the

litigation,

taking

the

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
trial.”

Id. at 1293.

In the early 1990s, “HIV infection

inevitably progressed to AIDS.
often after lengthy suffering.”
premise,

the

Eleventh

AIDS always led to death,
Id. at 1293. Given this

Circuit

held

that

when

“transmitting a disease inevitably entails death, the
evidence supports a finding of ‘significant risk’ if it

26

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.

See, e.g.,

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.”)
(emphasis added).
“inevitably

Assuming it is true that HIV no longer

entails

death,”

Onishea’s

heightened

“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
would apply.

In Arline, the Court concluded that a

person “who poses a significant risk of communicating an
infectious disease to others ... will not be otherwise

27

qualified

...

if

reasonable

accommodation

will

not

eliminate that risk.” Arline, 480 U.S. 287 n.16 (emphasis
added).
The complaint pleads sufficient facts to show that
reasonable accommodations can be made to integrate HIV+
inmates.

For instance, the complaint notes that all but

two state penal systems have integrated HIV prisoners
into

the

general

population

and

that

the

National

Commission on Correctional Health Care counsels against
segregation.

Second Amended Complaint (Doc. No. 61)

¶¶ 5-6 & 43.
sufficient

The plaintiffs, therefore, have pled

facts

to

show

that

they

do

not

pose

a

“significant risk” under either Onishea or Arline.
Finally,

the

defendants

find

fault

with

the

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

28

not pled that they are “otherwise qualified” for these
programs.
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
dorm);

id.

(Tutwiler

¶

56

(Limestone

internal

honor

dorm);

segregation);

id.

id.
¶¶

¶

67

91-103

(accommodations and programs at other ADOC facilities).
Regarding

work-release,

discriminatory

the

placement–-not,

plaintiffs
as

the

claim

defendants

construe, total exclusion–-and have pled sufficient facts
to survive a motion to dismiss.

See id. ¶¶ 81-90.

And,

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
allegation[s]”

that

the

Twombly, 550 U.S. at 557.

plausibility

standard

bars.

The plaintiffs have more than

29

“nudged their claims across the line from conceivable to
Id. at 570.

plausible.”

2.

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
demand

that

choosing.”

they

be

placed

Defendants’

in

Brief

the
(Doc.

prison
No.

of

35)

their
at

30.

Defendants also note that “a prisoner does not have a
[constitutional] right to confinement in a particular
penal facility.”

Id. at 30 (citing Sandin v. Conner, 515

U.S. 472, 478 (1995) and Meachum v. Fano, 427 U.S. 215,
225 (1976)).
The defendants misconstrue the plaintiffs’ claim.
The plaintiffs do not assert a constitutional right to
placement
plaintiffs

in

any

seek

particular

the

statutory

facility.
right

to

Rather,
apply

the

for

a

transfer to another facility–-or within Limestone and

30

Tutwiler–-without

being

discriminated

against

on

the

basis of a disability.
That is the plaintiffs’ claim for relief in this
suit.

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
disability

discrimination

extend

to

accommodations at ADOC facilities.

programs

and

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.”
at 210.

Yeskey, 524 U.S.

Accordingly, the plaintiffs have stated a claim

upon which relief can be granted.

31

3.
The

Medical Privacy

defendants

submit

that

prisoners

have

no

constitutional right to privacy in their HIV+ status,
relying on a precedent from the Onishea litigation.

In

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.
The

plaintiffs

independent
“[i]nsofar

basis
as

concede
for

these

that

the

the

there

medical-privacy

disclosures

only

is

no

claims

affect

the

prisoners’ family relationships and personal well-being.”
Plaintiffs’ Brief (Doc. No. 37) at 26.
disclosure

of

private

medical

However, when the

information

permits

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).

The complaint’s

allegations

and

regarding

work

32

placement

HIV

status

trigger these protections. See Second Amended Complaint,
(Doc. No. 61) ¶¶ 84-85.

C.

The PLRA

The defendants raise two arguments for dismissal
pursuant to the PLRA.

First, they contend that the

plaintiffs

exhaust

remedies.

failed

to

their

administrative

Second, the defendants assert that the PLRA

bars the type of relief sought.

1.

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
confined

in

any

facility

until

jail,
such

prison,

or

administrative

other

correctional

remedies

available are exhausted.” 42 U.S.C. § 1997e(a).

as

are

As this

is an affirmative defense, “[t]he defendants bear the
burden

of

proving

that

the

33

plaintiff

has

failed

to

exhaust his available administrative remedies.”

Turner

v.

2008).

Burnside,

541

F.3d

1077,

1082

(11th

Cir.

Although this issue is raised at the motion-to-dismiss
stage,
conduct

the

court

may

fact-finding

look
to

behind

resolve

the

this

pleadings
question.

and
See

Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008)
(noting

that

a

judge

may

conduct

fact-finding

when

deciding “a motion to dismiss for failure to exhaust
nonjudicial remedies”).
The

parties

dispute

whether

Alabama’s

medical

grievance system is “available” for a complaint about the
HIV-segregation policy.

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:

34

“IF YOU WISH TO APPEAL THIS REVIEW YOU
MAY REQUEST A GRIEVANCE APPEAL FORM FROM
THE
HEALTH
SERVICES
ADMINISTRATOR.
RETURN THE COMPLETED FORM TO THE
ATTENTION
OF
THE
HEALTH
SERVICE
ADMINISTRATOR. YOU MAY PLACE THE FORM
IN THE SICK CALL REQUEST BOX OR GIVE IT
TO THE SEGREGATION SICK CALL NURSE ON
ROUNDS.”
Reese Affidavit (Doc. No. 35-1) ¶ 6.

A written response

to a medical grievance appeal is provided within five
days.

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
system

was

not

exhausted

by

the

plaintiffs.

Specifically, ADOC points to the plaintiffs’ claims of
disparate-healthcare

treatment

and

the

restrictive-

medical-clearance criteria for work release as issues
that should have been addressed through the prison’s
medical

grievance

process.

The

defendants

provide

evidence-–exhibits attached to affidavits–-showing that
one plaintiff (Harley) used the medical grievance system

35

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
HIV-segregation policy.

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
any

administrative

remedy

program

system-wide,

at

Limestone, or at Tutwiler” for non-medical complaints.
Plaintiffs’ Brief (Doc. No. 37) at 28.

The plaintiffs

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.

36

See Hatcher

Declaration (Doc. No. 37-5) ¶¶ 7-9 (Limestone); Harley
Declaration (Doc. No. 37-6) ¶¶ 5-9 (Tutwiler).
The

plaintiffs

also

submitted

Allison Neal, an ACLU attorney.

a

declaration

by

The Neal Declaration

states that ADOC’s special counsel informed her during a
telephone conversation that “there is no formal systemwide

administrative

Neal

Declaration

remedy

(Doc.

or

No.

grievance

37-4)

¶

procedures.”

2.

The

Neal

Declaration also states that Limestone’s warden told her
that there was no non-medical grievance system at that
Id. ¶ 3.

institution.
Under

the

PLRA,

a

order

grievance
to

system

trigger

needs

the

to

be

“available”

in

exhaustion

requirement.

See Turner, 541 F.3d at 1084 (“A remedy has

to be available before it must be exhausted.”).
the

possibility

of

some

relief,

the

“Without

administrative

officers would presumably have no authority to act on the
subject of the complaint, leaving the inmate with nothing
to exhaust.”

Booth v. Churner, 532 U.S. 731, 736 n.4

37

(2001).

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

for

administrators

to

complete.

These

boxes

includes labels for healthcare issues (e.g., “access to
onsite care” and “medication issues”) and a catch-all box
labeled “other.”
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
accommodations policy.

38

This reading of the medical grievance form comports
with how prisoners interpreted it.

See, e.g., Harley

Declaration (Doc. No. 37-6) ¶ 4-5.

These declarations

state that prisoners are told to submit only medicallyrelated grievances to these systems.

In fact, plaintiff

Harley’s

submitted

medical

grievance

forms

defendants cut against their argument.

by

the

Harley complains

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.
And

at

oral

argument,

defense

counsel

listed

examples of medical grievances: “[a]ny decision made by
a member of the medical staff: when labs are drawn; what
time

of

day

they’re

drawn;

whether

evaluates...one of the named plaintiffs.”
Transcript (Doc. No. 56) at 34.

a

doctor

Oral Argument

These claims are not in

the same class as a grievance against the HIV segregation
policy.

39

Perhaps most revealing, the defendants have submitted
no evidence that the medical professionals reviewing the
medical

grievance

forms

had

any

authority

medical issues or ADOC policy more generally.

over

non-

Allowing

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
policy.

40

The question, then, is whether ADOC maintains a
general, non-medical grievance procedure.

The court

concludes that it does not.
The defendants have provided no evidence that an
alternative,
Declaration

generalized
confirms

system

that,

in

exists.

this

case,

The

Neal

absence

of

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
procedure

exists.

Because

there

is

no

non-medical

grievance process, there is no exhaustion requirement
before
policy.

filing

suit

to

challenge

the

HIV

segregation

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.
Some
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
prisoners
to
pursue
their
claims
directly in federal court.”
41

Alexander v. Hawk, 159 F.3d 1321, 1326-27 (11th Cir.
1998).
The court notes that, with no generalized grievance
system, ADOC inmates have lost “a way of attempting to
improve

prison

lawsuit.”

conditions

Turner,

541

without
F.3d

at

having

to

1084.

file

In

a

turn,

corrections officials “lose the substantial benefits that
administrative remedies were intended to provide them.”
Id.

at

1085.

ADOC

officials

have

decided

against

maintaining a general grievance process to address inmate
complaints about potentially unlawful activity in the
prison system.

Accordingly, the plaintiffs may file suit

directly in federal court to address these non-medical
grievances.

2.
In

The “Need-Narrowness-Intrusiveness” Test

prison

litigation

suits,

a

court

granting

prospective relief must determine “that such relief is
narrowly drawn, extends no further than necessary to
42

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)
at 37.

According to the defendants, the plaintiffs have

failed to satisfy this “need-narrowness-intrusiveness”
test

because

a

“prohibition

on

all

discriminatory

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-

43

narrowness-intrusiveness test.) (emphasis added).

Other

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
prospective

relief);

see

also

Babbitt

v.

Sweet

Home

Chapter of Comm. for a Great Oregon, 515 U.S. 687, 702-03
(1995)

(applying

relevant

the

precedent.

Whole

Act

Rule),

as

does

the

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
in full.

44

D.

Sovereign Immunity

The

defendants

precludes this suit.

assert

that

sovereign

immunity

They note that the plaintiffs may

not seek damages under Title II of the ADA because
Congress failed to validly abrogate the States’ sovereign
immunity.

Seeking to avoid the Young fiction,

Ex parte

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.”
Brief

(Doc.

No.

35)

at

41.

They

Defendants’

contend

that

the

plaintiffs failed to “allege an ‘ongoing and continuous
violation.’” Id.
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

45

in

their

official

capacities,

¶¶

id.

11-15,

thus

triggering the Ex parte Young analysis.
In determining whether Young’s exception to sovereign
immunity

applies,

“a

court

need

only

conduct

a

‘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
original).

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
under

Title

II

of

Rehabilitation Act.”

the

ADA

and

Section

504

of

the

Second Amended Complaint (Doc. No.

61) ¶ 113 (emphasis added).

Because the plaintiffs have

alleged an ongoing violation of federal law and are

46

seeking

only

prospective

relief,

sovereign

immunity

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

district

overcrowding);

court’s

Hutto

v.

order

to

Finney,

437

reduce
U.S.

678

prison
(1978)

(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
settlement

agreement

to

remedy

Eighth

Amendment

violations at Julia Tutwiler Prison for Women).

The

Eleventh Amendment did not prevent courts from ordering
prospective

relief

in

these

cases.

Indeed,

ADOC

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).

47

*

Accordingly,

it

is

*

*

ORDERED

that

the

defendants’

motion to dismiss (Doc. No. 34) is denied with the
understanding

that

the

court

will

address

the

judicata issue after the bench trial.
DONE, this the 5th day of September, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

res