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HIV+ Cellmate Doesn't State Claim

This is yet another addition to the growing area of HIV/AIDS in prison case law. Andrew Marcussen is an Iowa state prisoner. He filed suit claiming prison officials were deliberately indifferent to his safety by assigning an HIV+ prisoner to his cell, thus, he claimed, exposing him to possible HIV infection. Marcussen claims he was subjected to the risk of HIV infection when his cellmate used his razor, drinking cup and cigarette roller. Marcussen has tested negative for HIV.

The district court gave a detailed discussion of AIDS in prison cases. Citing several court decisions on this issue, as well as U.S. Department of Health reports, the court held that, as a matter of law, there is no "pervasive risk" of contracting HIV/AIDS through being housed with HIV+ prisoners. AIDS activists should read this case to be better informed on developments in this relatively new area of prison law. This court ruling joins every other published decision to consider this issue by dismissing the suit. See: Marcussen v. Brandstat, 836 F. Supp 624 (ND Iowa 1993).

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Related legal case

Marcussen v. Brandstat

[28] In Glick, the inmate alleged that he was subjected to a pervasive risk of AIDS because (1) he came into contact with the sweat of other inmates during work detail, (2) he was subject to bites from mosquitoes which had bitten other inmates, (3) he had been sneezed on by a known homosexual, (4) prison officials untested for AIDS prepared his food, and (5) the prison officials regularly transferred prisoners from cell to cell throughout the prison. Glick v. Henderson, 855 F.2d 536, 539 (8th Cir. 1988). The inmate sought, in part, the segregation of all inmates with the AIDS virus from all other inmates and report of all detected cases of AIDS or the AIDS virus to other inmates. Id. 538. The Eighth Circuit Court of Appeals concluded that


the possibility of the transference of AIDS through these means is simply too remote to provide the proper basis for appellant's complaint as it is currently framed. See generally, United States v. Moore, 846 F.2d 1163, 1168 (8th Cir. 1988) (holding possibility of AIDS transmission by means of a human bite "too remote" in a legal context "to support a finding that the mouth and teeth may be considered a deadly and dangerous weapon in this respect", although that case held that the "mouth and teeth were used as a deadly and dangerous weapon" in the factual situation therein involved).

[30] Id. at 539. The court based its decision in part on a United States government report that stated, inter alia, "you won't get the AIDS virus through everyday contact," "from a mosquito bite," "from saliva, sweat, tears, urine or a bowel movement," "a kiss," "clothes, a telephone or from a toilet seat," or "by using a glass or eating utensil that someone else has used." Id. at 539 n.1 (citing U.S. Dep't of Health and Human Services, Pub. No. (CDC) HHS-88-8404, Understanding AIDS, p.2). Defendants are entitled to summary judgment as a matter of law on Marcussen's allegations that he was exposed to a risk of contracting AIDS from use of his drinking cup and cigarette roller by an allegedly HIV-positive inmate, because these are claims based on everyday contact rejected by the court in Glick. The possibility of the transference of AIDS through these means is simply too remote to provide the proper basis for appellant's complaint. Id.

[31] Defendants are also entitled to summary judgment as a matter of law on Marcussen's claim that simply housing him with an allegedly HIV-positive inmate violated his constitutional rights. Marcussen argues, "inmates who carry the HIV virus should not be housed with non-infected inmates, due to the obvious pervasive risk of serious harm and even death." Plaintiff's Statement of Material Facts, P 4. In Robbins v. Clarke, 946 F.2d 1331 (8th Cir. 1991), the Eighth Circuit Court of Appeals held that failure to segregate HIV-positive prisoners from the general population does not constitute cruel and unusual punishment of the uninfected prisoners. Robbins v. Clarke, 946 F.2d 1331, 1333 (8th Cir. 1991). The court also held that prison officials who decline to reveal to the general population the identities of HIV-positive prisoners do not thereby commit an illegal act. Id.

[32] Marcussen's claim that prison officials exposed him to a pervasive risk of harm by allowing other inmates to use sharp objects, such as a razor, that could cause blood-to-blood transmission of the HIV virus is appealing, but defendants are also entitled to summary judgment on this claim as a matter of law. Neither the district court nor the Eighth Circuit Court of Appeals reached this issue in Robbins, supra, finding that the inmate was collaterally estopped from bringing a similar claim of failure to protect the inmate from exposure to AIDS by an adverse decision in state court. Id. 1333-34. However, other courts have rejected similar claims. In Johnson v. United States, 816 F. Supp. 1519 (N.D. Ala. 1992), the plaintiff inmate claimed that his former cellmate tampered with his toothbrush, toothpaste, and razor blade; in addition, on several occasions, he observed his cellmate's blood on their sink, toilet and towels. Johnson v. United States, 816 F. Supp. 1519, 1521 (N.D. Ala. 1992). The court, citing Glick, supra, at 539, concluded that "all of the examples that the plaintiff lists as means by which he feared he may have contracted AIDS are based on "unsubstantiated fears and ignorance." Id. at 1524. *fn1" In this case, and each of the other cases cited in the margin, the courts concluded that prison regulations prohibiting behavior by inmates that could result in exposure to the AIDS or HIV viruses were adequate measures to protect the inmates. See, e.g., Portee v. Tollison, 753 F. Supp. 184, 185 (D.S.C. 1990). *fn2" Similar rules are in place at the NCCF regarding AIDS transmission and inmates' responsibility for their own personal property. Affidavit of John Ault, P 7. Defendants are therefore entitled to summary judgment on Marcussen's claim of exposure to a pervasive risk of harm from allowing other inmates to use sharp objects, such as a razor, that could cause blood-to-blood transmission of the HIV virus.

[33] b. Qualified Immunity

[34] Even if defendants were not entitled to summary judgment as a matter of law on all of Marcussen's claims, they are entitled to summary judgment as a matter of law on the basis of qualified immunity. The standard for qualified immunity is that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Givens v. Jones, 900 F.2d 1229, 1231-32 (8th Cir. 1990) (quoting Harlow). The test for qualified immunity at the summary judgment stage of a proceeding is an objective one: "to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989). The plaintiff must demonstrate that the law is clearly established and the defendant then bears the burden of showing that his conduct either does not violate plaintiff's rights or that there were extraordinary circumstances and that the defendant neither knew nor should have known of the relevant legal standard. Id. The record and cases cited above demonstrate that defendants' behavior was in line with standards stated in existing precedent, and therefore could not have violated the clear contours of any of Marcussen's rights. Defendants are entitled to qualified immunity in this case.

[35] Upon the foregoing,


[37] That defendants' October 6, 1993, motion for summary judgment (docket number 26) is granted. The Clerk of Court is directed to enter judgment in favor of all defendants and against plaintiff in this action. This action is dismissed.


[39] Chief Magistrate Judge



[42] Decision by Court. This action came before the Court. The decision has been rendered.

[43] IT IS ORDERED AND ADJUDGED THAT the plaintiff take nothing and this action is dismissed.

[44] November 1, 1993

[45] Date

Opinion Footnotes

[46] *fn1 The district court also cited the following cases in support of its conclusions: Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261 (S.D.N.Y. 1990) (plaintiff "has not presented . . . any facts or allegations from which it might be inferred that the decision to house the cellmate with [plaintiff] without informing him of the HIV test results evidenced a deliberate indifference to his medical needs"); Feigley v. Fulcomer, 720 F. Supp. 475 (M.D. Pa. 1989) (prison officials did not violate Eighth Amendment by failing to segregate carriers of the AIDS virus); Davis v. Stanley, 740 F. Supp. 815 (N.D. Ala. 1987) (court rejected Eighth Amendment claim of cruel and unusual punishment against sheriff who placed prisoner in cell with HIV-infected cellmate, finding that there was no deliberate indifference to the well-being of the prisoner); Cameron v. Metcuz, 705 F. Supp. 454, 458-60 (N.D. Ind. 1989) (the failure to segregate an inmate with AIDS who had a known violent character was not an Eighth Amendment violation because the prison officials did not intentionally or recklessly expose the prisoner to a known risk of violence from another inmate). To these cases may be added Portee v. Tollison, 753 F. Supp. 184 (D.S.C. 1990) (plaintiff inmates' claims that their civil rights were being denied by prison policy that did not adequately protect them from the risk of the AIDS virus because allegedly AIDS-infected inmates worked in the kitchen and used the same utensils rejected as insufficient to amount to Eighth Amendment violation).

[47] *fn2 The court finds this reasoning somewhat disingenuous, because the court believes it is naive to assume that prisoners will adhere to institution rules in all situations. However, the standard is whether the prison officials failed "to reasonably respond to [the] risk" of AIDS infection. Glick v. Henderson, 855 F.2d 536, 539-40 (8th Cir. 1988); Martin v. White, 742 F.2d 469, 474 (8th Cir. 1984). Courts in the cases cited above have found that rules governing behavior of inmates are a reasonable response to the risk presented by the AIDS virus in the context of the realities of prison life.