697 F.Supp. 1234, 57 USLW 2320
United States District Court, N.D. New York.

John DOE, on behalf of himself and all others similarly situated, Plaintiff,

v.

Thomas A. COUGHLIN, III, Commissioner, and Raymond Broaddus, Ph.D., Assistant Commissioner for Health Services, Defendants.

No. 88-CV-964.
Oct. 14, 1988.
Inmate brought action on behalf of class of inmates confined in correctional facilities in New York seeking preliminary injunction prohibiting further implementation of program involving involuntary transfer of inmates who had tested positive for Human Immunodeficienicy Virus to separate dormitory. The District Court, Munson, J., held that inmate was entitled to preliminary injunction.
Request granted.

*1234 Prisoners' Legal Services of New York, Poughkeepsie, N.Y., for plaintiff; John Gresham, Geri Pomerantz, Ken Stephens, Law Graduate, of counsel.
Robert Abrams, Atty. Gen. of State of N.Y., Albany, N.Y., for defendants; Alan S. Kaufman, Bruce D. Feldman, Asst. Attys. Gen., of counsel.
MEMORANDUM-DECISION & ORDER

MUNSON, District Judge.
This court is today presented with the difficult task of first determining the nature and extent of the privacy rights of inmates who have tested positive for exposure to the Human Immunodeficiency Virus (HIV) FN1 and then balancing that privacy *1235 interest against the asserted interest of the New York State Department of Correctional Services ("DOCS") in establishing a dormitory to house such inmates, all of whom will be transferred there involuntarily. That dormitory is known as "D-2" and is located in the Greene Correctional Facility in Coxsackie, New York. Inmates are purportedly placed in D-2 in order to facilitate and improve the medical care provided them, and to effectuate cost reductions related to the transportation of these prisoners for treatment at the Albany Medical Center. Presently there are 21 HIV positive inmates housed in D-2; all arrived on September 15, 1988, shortly before the cutoff hour set by this court in an order temporarily restraining any further transfers of HIV positive inmates to that dormitory.FN2
FN1. HIV infection is believed to weaken the body's immune system by destroying certain white blood cells known as T-helpers which are the body's principal weapons for fighting infection and disease. The weakening of the body's immune system permits certain opportunistic diseases to further weaken the body. In its most advanced stage, HIV induced disease is referred to as full blown acquired immune deficiency syndrome ("AIDS"). An intermediate stage of the disease is known as AIDS related complex ("ARC"). Throughout this opinion, when the court uses the term AIDS it is referring to all three stages of the disease.
FN2. The court was presented with plaintiff's request for a temporary restraining order on the day that approximately 50 inmates from various prisons within New York State were slated for transfer to D-2. By the time the parties could discuss the circumstances of the transfer with the court, thereby allowing the court to determine the appropriateness of granting the temporary restraining order, it was apparent that many inmates were either at Greene or soon to arrive. The court set a midnight deadline after which no further transfers could be made.
Plaintiff John Doe is an inmate currently confined in the general population of one of New York State's medium security correctional institutions who has tested positive for exposure to the HIV virus.FN3 Doe seeks to pursue this action on behalf of a class of inmates confined in the correctional facilities of New York State who have been or will be selected by DOCS to be housed in any separate dormitory set aside at Greene Correctional Facility for inmates who have tested positive for HIV or who have acquired immune deficiency syndrome ("AIDS") or AIDS related complex ("ARC"). Although a motion for certification has not been made, the court will exercise the power given it by Fed.R.Civ.P. 23(c)(1) to certify class actions "as soon as practicable after the commencement of an action brought as a class action." See Gore v. Turner, 563 F.2d 159, 166 (5th Cir.1977); 7b C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d, § 1785 at 90-91 (1986). In exercising that power, the court has weighed carefully the factors identified as central to a certification decision.FN4
FN3. Although he has not yet been transferred to D-2, Doe clearly has standing to maintain this action. In order to satisfy the "case or controversy" prerequisite of Article III of the Constitution, "the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). Doe is a member of the class of inmates subject to involuntary placement in D-2, and during the preliminary injunction hearing DOCS officials unambiguously maintained that they intended to go forward with their program of placing HIV positive inmates in D-2. Such placement would effectively reveal Doe's medical condition to third parties without his consent, and accordingly cause him real and palpable injury.
FN4. In this case a class action is maintainable under Fed.R.Civ.P. 23(a) & (b)(2). As a threshold matter, the court notes that "the proposed class and its members are 'clearly defined and identified with particularity,' " and that plaintiff John Doe is a member of this class. Follette v. Vitanza, 658 F.Supp. 492, 505 (N.D.N.Y.1987) (citations omitted). Moreover, the putative class meets all of the requirements of subdivision (a) of Rule 23. It is apparent, given the evidence and testimony received at the injunction hearing which established that there are approximately 400 known cases where inmates have tested positive for the HIV virus, that the proposed class is "so numerous that joinder of all members is impracticable." SeeFed.R.Civ.P. 23(a)(1). The questions of law concerning the right to privacy and the reasonableness of the transfer program are common to the proposed class members while differences in factual circumstances are legally insignificant. SeeFed.R.Civ.P. 23(a)(2). The claims and defenses of each member of the class arise from the same course of conduct on the part of defendants and are based on a common legal theory, thus satisfying the typicality requirement of Fed.R.Civ.P. 23(a)(3). See Dura-Bilt v. Chase Manhattan Corp., 89 F.R.D. 87, 89 (S.D.N.Y.1981). And plaintiff's attorney, Prisoners' Legal Services, is probably the most qualified representative the plaintiff class could have, given their vast knowledge of and experience with New York State's correctional system. SeeFed.R.Civ.P. 23(a)(4).

Finally, it is clear that defendants have "acted or refused to act on grounds generally applicable to the class" as required by subdivision (b)(2). Nonetheless, to meet the Second Circuit's prudential requirements concerning (b)(2), the plaintiff must also demonstrate the existence of "additional reasons for obtaining certification." Davis v. Smith, 607 F.2d 535, 540 (2d Cir.1979). This is particularly so when declaratory or injunctive relief is sought against public officials who indicate that they will not honor a decree for prospective relief in cases involving members of the plaintiff class other than the named class representative. See Galvan v. Levine, 490 F.2d 1255, 1261-62 (2d Cir.1973), cert. denied,417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974). No assurances have been made on the record in this case, and it appears that DOCS would indeed refuse to refrain from transferring inmates to D-2 without a court order.

There are peculiar circumstances involved in this case: the members of the plaintiff's class wish to maintain anonymity. If the court does not allow a class action to go forward here, individual class members could face the prospect of having their identity and diagnosis revealed if they chose to protect their rights by filing a lawsuit. Maintaining the anonymity of class members-particularly those that testify-is difficult enough in a single class wide suit such as this. Accomplishing the same in multiple lawsuits would present even greater difficulties.
*1236 In making its ultimate decision on the requested injunctive relief this court treads on relatively unexplored territory. In prior cases, prisoners have typically rested their attacks on such segregated housing on either the due process or equal protection clauses of the fourteenth amendment to the United States Constitution. See, e.g., Cordero v. Coughlin, 607 F.Supp. 9, 10-11 (S.D.N.Y.1984) (rejecting first, eighth and fourteenth amendment challenges to plan segregating AIDS patients from other inmates). Perhaps chastened by the uniform failure of these attacks, plaintiff has chosen the less travelled path marked by the uncertain borders of the constitutionally protected right to privacy. Plaintiff faces an uphill battle. Not only must he demonstrate the existence of the right to privacy, but he must also show that the program as it now exists is not reasonably related to a legitimate penological objective. See Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987).
In this Memorandum-Decision and Order the court is not making a dispositive ruling on the merits of the action. Plaintiff merely seeks preliminary injunctive relief. In the Second Circuit it is well established that a party is entitled to such relief upon making either of two showings. Under either alternative, the party must first demonstrate that the injunctive relief is necessary to prevent irreparable injury. Upon meeting this initial burden, the movant must establish either that he is likely to prevail on the merits of the underlying controversy or that there exist sufficiently serious questions going to the merits as to make them a fair ground for litigation, together with a balance of hardships tipping decidedly toward the movant. Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.1985); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979).
An essential component of plaintiff's argument for injunctive relief is his belief that placement in a dormitory such as D-2 should be voluntary, based on an informed decision made by the inmate. Implicitly, plaintiff recognizes that a properly designed program which segregates patients with AIDS is a worthy objective. It is the involuntariness of the program challenged here that plaintiff believes causes the infringement of his right to privacy.
In determining whether to grant the relief plaintiff seeks, the court first must identify the privacy right implicated by the involuntary transfer of HIV positive inmates to the segregated dormitory. Defendants choose to characterize that asserted right as "the right to keep confidential the possible incidental communication of an inmate's medical diagnosis as a result of a decision by [DOCS] to house the inmates in a particular dormitory." This characterization is only partly correct. Certainly any communication of the inmate's medical diagnosis can be said to be incidental in *1237 that it would most likely be occasioned by a visual identification of the inmate with those housed in D-2 or by one of several avenues of communication, none of which would be instigated by prison officials.FN5 Nonetheless, the right asserted here is not properly described by the narrow language chosen by defendants. The means by which the communication is revealed, the "incidental communication," does not define the right; it merely summarizes the circumstances surrounding the disclosure. Quite simply, plaintiff asserts a right to privacy in preventing the non-consensual disclosure of his medical diagnosis and that of the other class members.FN6
FN5. For instance, family members visiting the inmate might be told by other visitors, or by guards, that the inmate is housed in the "AIDS dorm." In another scenario, inmates released from prison may return to their communities and "spread the word." Similarly, and as evidenced by the testimony of two inmates, other family members or relatives may be housed at Greene, creating an obvious potential for disclosure of the sick inmate's diagnosis. In each of these situations, the communication can be said to be inadvertent in that prison officials have not purposefully released the medical diagnosis.
FN6. Assuming that a right to prevent non-consensual disclosure of their medical conditions does exist, the circumstances identified by the defendants will be central to a balancing of that right against the state's interest in establishing the contested program.
So defined, that right must be analyzed in light of existing interpretations of the right to privacy. The cases setting forth the general parameters of that right are legion. See, e.g., Carey v. Population Services International, 431 U.S. 678, 684-85, 97 S.Ct. 2010, 2015-16, 52 L.Ed.2d 675 (1977); Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 875-76, 51 L.Ed.2d 64 (1977). In Whalen, Justice Stevens spoke for a unanimous court when he identified two interests encompassed by the right to privacy. "One is the individual interest in avoiding disclosure of personal matters,FN7 and another is the interest in independence in making certain kinds of important decisions." FN8 Whalen v. Roe, 429 U.S. at 599-600, 97 S.Ct. at 876-77. Both of these interests are directly implicated by the state's program.
FN7. For this proposition the Court cited California Bankers Association v. Schultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928).
FN8. Here the Court cited such cases as Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
Those who are currently at D-2 and those who would be placed in D-2 all share a common characteristic. Each is fully aware that he is infected with a disease which at the present time has inevitably proven fatal. In the court's view there are few matters of a more personal nature, and there are few decisions over which a person could have a greater desire to exercise control, than the manner in which he reveals that diagnosis to others. An individual's decision to tell family members as well as the general community that he is suffering from an incurable disease, particularly one such as AIDS, is clearly an emotional and sensitive one fraught with serious implications for that individual. Certain family members may abandon the AIDS victim while others may be emotionally unprepared to handle such news. Within the confines of the prison the infected prisoner is likely to suffer from harassment and psychological pressures. Beyond the prison's walls the person suffering from AIDS is often subject to discrimination.FN9
FN9. The New York Legislature has recently enacted legislation which strictly limits the circumstances under which the identity of those suffering from AIDS may be revealed. The legislature's action was designed in part to limit the risk that those infected with AIDS will be discriminated against if their diagnosis is known to others. 1988 N.Y.Laws 9265-A.
As Justice Stevens has observed, "the concept of privacy embodies the 'moral fact that a person belongs to himself and not others nor to society as a whole.' " *1238 Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 777 n. 5, 106 S.Ct. 2169, 2175 n. 5, 90 L.Ed.2d 779 (1986) (Stevens, J., concurring) (quoting Fried, Correspondence, 6 Phil. & Pub.Affairs 288-89 (1977)). Implicitly, the Court recognizes the value of making independent decisions concerning one's self. It may be even more essential for a prisoner than a person who enjoys the freedoms associated with life outside of prison, and the personal strength derived from those freedoms, that the prisoner be accorded the ability to protect and shape his identity to as great a degree as possible.FN10 There is little question but that the prisoner identified as having AIDS will be severely compromised in his ability to maintain whatever dignity and individuality a prison environment allows.
FN10. The court is aware that as a general rule, the privacy rights of prisoners are not as extensive as those enjoyed by individuals outside of prison. See, e.g., Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Bell v. Wolfish, 441 U.S. 520, 556-57, 99 S.Ct. 1861, 1883-84, 60 L.Ed.2d 447 (1979); Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974). Nonetheless, the court is concerned about the means by which DOCS selects inmates for the contested program. Testimony at the hearing held on September 27, 1988 and October 6, 1988 established that at least some of the prisoners selected for placement in D-2 were chosen on the basis of results from voluntarily taken blood tests. Each of the prisoners who testified concerning these blood tests indicated his understanding that the test results were to be known only to his doctor, the warden and his counselor. SeeN.Y.Comp.Codes R. & Regs. tit. 7, §§ 5.24, 5.25 (1987) (limiting those persons to whom an inmate's medical records shall be made available).

Testimony from defendant Broaddus indicated that some of those chosen for placement in D-2 were selected on the basis of blood samples taken from prisoners when they were treated by physicians outside the prison. It was not made clear how that information was conveyed to prison officials; thus it is uncertain whether the inmates consented to the release of their medical records. Without concluding that the physician/patient relationship is one entitled to constitutional protection, the court observes that many states, including New York, have enacted statutes protecting the confidentiality of communications made between physician and patient. SeeN.Y.Civil Practice Law and Rules § 4504 (McKinney 1963, Supp.1988); See, e.g.,Cal.Evidence Code §§ 990 et seq. (West 1980); Mich.Comp.Laws §§ 600.2101-600.2952 (West 1986); 42 Pa.Cons.Stat.Ann. § 5929 (Purdon 1982); Wis.Stat.Ann. § 905.04 (West 1975, Supp.1987).

On a full hearing on the merits of this action, the court would require a fuller explanation of how DOCS compiled its list of inmates who are infected with the HIV virus. At this stage there remain serious questions concerning breaches of confidentiality, and possible pendent state law bases for attacking these breaches which would supplement the federal constitutional grounds discussed in this Memorandum-Decision & Order.