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Southwestern Law Review Velez Paper on Housing Prisoners With Hiv Aids 2011

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41 Sw. L. Rev. 171

Southwestern Law Review

Mark Velez [FNa1]
Copyright (c) 2011 Southwestern Law School; Mark Velez
The acquired immune deficiency syndrome (“AIDS”) /
human immunodeficiency virus (“HIV”) (“AIDS/HIV” or
“AIDS/HIV+”) is a worldwide epidemic that as of 2008 has
infected over 33,400,000 people. [FN1] The United States is
not immune from the spread of AIDS/HIV+. [FN2] For
example, in 2004 there were 38,685 cases of AIDS/HIV+
reported in thirty-three states. [FN3] By the end of 2006, it
was estimated that over one million adults and adolescents in
the United States were living with the HIV infection. [FN4] In
fact, the Center for Disease Control (CDC) estimated that in
2006 approximately 56,300 people were newly infected with
HIV. [FN5] The CDC reported that in 2006 there were
540,972 people in the U.S. living *172 with AIDS or were
HIV+, and the rate of infection increased in 2007 to 571,378.
[FN6] The CDC also determined that as of 2009 there were
1,108,611 people diagnosed with AIDS in the United States.
In 2010, the White House developed and distributed a
National AIDS/HIV Strategy for the United States
(“Strategy”). [FN8] President Obama stated, in a presidential
address he gave regarding the Strategy, that:
Thirty years ago, the first cases of human
immunodeficiency virus (HIV) garnered the world's attention.
Since then, over 575,000 Americans have lost their lives to
AIDS and more than 56,000 people in the United States
become infected with HIV each year. Currently, there are
more than 1.1 million Americans living with HIV. Moreover,
almost half of all Americans know someone living with HIV.
However, even more staggering is the infection rate in the
prison systems throughout the United States. [FN10]
The presence of AIDS/HIV+ inmates in prisons
“continues to be a major issue in correctional institutions.”
[FN11] AIDS/HIV+ infected inmates will often be the most
victimized and stigmatized group in prison. [FN12] As stated
in a United Nations Office on Drugs and Crime report:
Inside of prisons, people living with HIV/AIDS are often
the most vulnerable and stigmatized segment of the prison
population. Fear of HIV/AIDS often places HIV-positive
prisoners at increased risk of social isolation, violence, and
human rights abuses from both prisoners and prison staff. This
fear is often driven by misinformation about HIV

transmission, and the false belief that HIV infection may be
spread by casual contact. [FN13]
Unfortunately, the statistics regarding the number of
prisoners infected with AIDS/HIV+ is limited and difficult to
determine. [FN14] But, analysis of available data indicates
that the number of infected inmates in federal, state, and large
city prisons and jails is slowly increasing. [FN15] For
example, in November of 1990, there were 6,985 AIDS cases
reported in federal, state, and large city prisons and jails;
[FN16] this is a twenty-nine percent increase in the number of
AIDS cases reported in 1989. [FN17]
In 2003, it was reported that there were 22,028 infected
inmates in the United States, [FN18] and in only three years
that number increased to 22,480. [FN19] Although by the end
of 2008 the number of infected inmates dipped slightly to
21,987, [FN20] estimates for 2010 puts the number of infected
inmates at over 22,000, [FN21] which accounts for
approximately 1.5% of all prisoners. [FN22] Perhaps even
more troubling is that “each year since 1991, the rate of
confirmed AIDS cases has been higher among prisoners than
in the general population.” [FN23]
A. AIDS/HIV in Prison
There are several activities that occur in prison that
facilitates the spread of AIDS/HIV, such as sexual activity and
intravenous drug use. [FN24] However, it is difficult to
determine how many prisoners contract the disease within the
confines of the prison. [FN25] This is partly due to prisoners
keeping their HIV status private because “unnecessary
disclosure of such information can lead to avoidable, and often
devastating, repercussions.” [FN26]
The prison system has been dealing with prisoners
infected with AIDS/HIV+ for over twenty years. [FN27] Two
decades ago a debate started as to whether prisoners with
AIDS/HIV+ should be housed with other prisoners, or
segregated and given their own area to occupy. [FN28]
Unfortunately, there is no standardized policy guiding
administrators of jails and prisons on how to house AIDS/HIV
infected prisoners, and the debate over segregating HIV
infected inmates continues to be a modern day issue. [FN29]
For example, as of the writing of this Comment, the
United States Department of Justice (DOJ) is preparing to sue
South Carolina prison officials over the state's policy of
segregating all AIDS/HIV+ prisoners *175 from other
inmates. [FN30] According to the DOJ, a policy of
segregation creates a situation where infected inmates suffer
disparate treatment from other inmates without AIDS/HIV.
[FN31] Although the infected inmates perform activities with
other, non-infected inmates, such as work, school, and
religious programs, the infected inmates eat and sleep
separately. [FN32] In response to the DOJ's claims, the state's
Department of Corrections refused to acquiesce and has
argued that a policy of segregating AIDS/HIV+ inmates is in
the best interest of the inmates and employees. [FN33]
The prospect of housing infected prisoners with noninfected prisoners raises grave concerns regarding safety,
spread of disease, and liability for the prison system. [FN34]
Prison officials are obligated to provide a safe prison
environment, which includes protecting prisoners from
contracting AIDS. [FN35] Although AIDS/HIV cannot be
spread through normal everyday contact, it can be spread

though sexual activities and intravenous drug use, both of
which are common in prison. [FN36] Additionally, there have
been reports of severe beatings, stabbings, and rapes in prison,
all of which could lead to the transmission of bodily fluids,
thus facilitating the spread of AIDS/HIV. [FN37]
As a result, prison officials are forced to balance
protecting the constitutional rights of AIDS/HIV+ inmates
with protecting prison officials and other inmates from
exposure. [FN38] Unfortunately, there is no universally
defined standard that provides guidance to prison officials on
how to segregate prisoners with AIDS/HIV+. [FN39] This
lack of guidance creates a *176 conflict between maintaining
the inmate's right to privacy and the need for such information
by the other prisoners and the prison staff. [FN40] In fact,
there are many constitutional issues that are involved when
segregating prisoners, including the right to privacy, due
process, and cruel and unusual punishment. [FN41]
Prisoners who are HIV+ can either be automatically
segregated from non-infected inmates, or placed into the
general population and segregated after they are proven to be a
danger to the other inmates. [FN42] A proactive approach
would be to automatically segregate prisoners who are
infected with AIDS/ HIV+. [FN43] Those in favor of
automatic segregation argue that placing AIDS infected
inmates into the general population puts non-infected inmates
at risk. [FN44]
Those against segregation argue that a blanket policy of
segregating AIDS/HIV+ prisoners deprives those inmates of
the opportunities provided by the prison facility and violates
the prisoners' constitutional rights. [FN45] For example, in
Gates v. Rowland, HIV+ inmates challenged a prison policy of
segregating infected inmates because it denied them access to
jobs and other programs available to non-infected inmates.
[FN46] Whereas a policy of blanket segregation affirmatively
removes infected inmates from the general population, a
reactive approach is where infected inmates are segregated
only after endangering other inmates with the transmission of
HIV. [FN47]
This Comment argues that the segregation of AIDS/HIV+
infected prisoners should be based on objective criteria
relating to the prisoner's past crimes, statements, and violent
actions. Based on these three criteria, those *177 who are
likely to infect others such as guards or other prisoners should
be segregated upon reception to the facility. Likewise, those
who are not likely to infect others should be allowed to remain
in the general population. Section I describes the four stages of
progression from the initial HIV infection to AIDS. Section II
describes how the California prison system houses inmates
with AIDS/HIV+. Section III analyzes how prison systems
throughout the country have traditionally housed prisoners.
Section IV reviews the most common ways AIDS/HIV is
spread in the prison environment. Section V examines the
segregation of prisoners who have AIDS or are HIV+. Section
VI evaluates why prisoners with AIDS/HIV+ are regarded as
having a disability. Section VII scrutinizes the different
constitutional arguments for both segregating and not
segregating infected prisoners. Section VIII proposes an
alternative objective standard that prison officials can use to
segregate prisoners infected with AIDS/HIV where the
segregation of infected inmates is based on objective criteria,
such as the types of past crimes committed by the inmate,

statements made by the inmate of a desire to infect others, and
the inmate's proclivity towards violence. [FN48]
I. AIDS/HIV: The Disease
The CDC has recognized AIDS as a disease since 1981.
[FN49] HIV affects a person by destroying certain blood cells,
specifically CD4+T cells, which are crucial to helping the
body's immune system. [FN50] The progression from the
initial HIV infection to AIDS can be broken down into four
stages: 1) primary infection, 2) asymptomatic stage, 3)
symptomatic stage, and 4) progression from HIV to AIDS.
[FN51] According to the CDC, over time the HIV virus will
always develop into the full blown AIDS disease. [FN52]
*178 The first stage is referred to as the Primary HIV
infection Stage in which an acute syndrome occurs after the
initial HIV infection. [FN53] This stage will last a few weeks
and is usually accompanied by a short flu-like illness. [FN54]
At this point the immune system is attacked and the person
suffers from a decline in white blood cells. [FN55] Since there
is a large quantity of HIV in the peripheral blood, the immune
system responds by producing HIV antibodies and cytotoxic
lymphocytes. [FN56]
The second stage is called the Clinically Asymptomatic
Stage. [FN57] This stage will last for approximately ten years
and the infected person is free from major symptoms. [FN58]
However, infected people in this stage may have swollen
glands, [FN59] or suffer from fatigue and fevers. [FN60]
Although the level of HIV in the peripheral blood drops,
people are still infectious. [FN61]
The third stage is the Symptomatic HIV Infection stage,
[FN62] or Advanced HIV disease. [FN63] By this time the
immune system has been severely damaged by HIV. [FN64]
With this weakened immune system, the body is unable to
withstand certain opportunistic diseases and cancers. [FN65] It
is also during this stage that many diseases and infections can
occur throughout the body. [FN66] Although the infections, or
even cancer, can be treated, the HIV virus continues to erode
the immune system. [FN67]
The last stage is called the Progression from HIV to AIDS
Stage, [FN68] or Late Stage HIV disease. [FN69] Here, the
immune system is even more damaged *179 and illnesses
become worse, eventually leading to an AIDS diagnosis.
[FN70] At this point, it is common for diseases to appear, such
as central nervous system toxoplasmosis, and cryptococcal
meningitis. [FN71] Although there is medicine available to
help AIDS victims live longer, there is no cure for AIDS.
[FN72] Death eventually occurs due to extensive damage to
vital organs, circulatory failure, and nervous system damage.
II. The Housing of AIDS/HIV+ Inmates in California Prisons
Upon reception to a California prison, inmates are given a
score based on pre-determined criteria and then assigned to a
specific prison. [FN74] However, those infected with
AIDS/HIV+ are automatically housed in the California
Medical Facility. [FN75]
The California State Legislature has been explicit in the
danger that AIDS/HIV presents in prison populations. [FN76]
The state legislature has stated in the California Penal Code:

The spread of AIDS and hepatitis B and C within prison
and jail populations presents a grave danger to inmates within
those populations, law enforcement personnel, and other
persons in contact with a prisoner infected with the HIV virus
as well as hepatitis B and C, both during and after the
prisoner's confinement. Law enforcement personnel and
prisoners are particularly vulnerable to this danger, due to the
high number of assaults, violent acts, and transmissions of
bodily fluids that occur within correctional institutions.
The state legislature also found that HIV has the potential
to spread faster in a correctional facility than outside the
facility. [FN78] In fact, the legislature stated in the Penal
*180 HIV, as well as hepatitis B and C, have the potential
of spreading more rapidly within the closed society of
correctional institutions than outside these institutions. These
major public health problems are compounded by the further
potential of the rapid spread of communicable disease outside
correctional institutions through contacts of an infected
prisoner who is not treated and monitored upon his or her
release, or by law enforcement employees who are
unknowingly infected. [FN79]
Although there is no mandate for California prisons to test
every inmate for AIDS/HIV status, prison officials can test
inmates in certain situations, [FN80] and only in order to
control the spread of the disease in their institutions. [FN81]
Specifically, the state legislature stated:
Testing described in this title of individuals housed within
state and local correctional facilities for evidence of infection
by HIV and hepatitis B and C would help to provide a level of
information necessary for effective disease control within
these institutions and would help to preserve the health of
public employees, inmates, and persons in custody, as well as
that of the public at large. [FN82]
A. Classification of Prisoners Upon Reception to a California
Prisoners come in every age, race, and background.
[FN83] Some prisoners have committed heinous crimes and
are considered repeat offenders, while others are non-violent
and new to the prison system. [FN84] In California, the
classification of prisoners starts at the Department of
Corrections and Rehabilitation (CDCR) reception centers.
Over a sixty day period, prisoners are given a medical
examination, screened for disabilities and, after being
evaluated on a number of criteria, they receive a score. [FN86]
A counselor reviews the results and completes a *181 score
sheet. [FN87] Based on the score, the prisoner is assigned to a
particular facility, but could be re-classified at the discretion
and judgment of prison officials based on the safety of the
inmate, prison personnel and the welfare of the institution.
[FN88] An inmate's classification score is important because it
affects where the prisoner will be housed, the chances to
participate in work, and education opportunities. [FN89]
In California, the Director of Corrections has the authority
to contract with public or private agencies, either within or
outside California, for the housing of inmates infected with
AIDS. [FN90] Title 15, section 1051 of the California Code of
Regulations states that “[t]he facility administrator shall

develop written policies and procedures which require that all
inmates with suspected communicable diseases shall be
segregated until a medical evaluation is completed.” [FN91] In
determining if an inmate requires segregation at the time of
booking, the intake officer must inquire if the inmate has any
communicable diseases. [FN92]
B. The Housing of AIDS/HIV+ Prisoners
If it is determined the inmate has AIDS/HIV+, then the
housing of the inmate is dictated by the CDCR Operations
Manual. [FN93] Inmates who have AIDS or are HIV+ are
segregated from other non-infected prisoners. [FN94] As
described on the CDCR website, the mission statement for the
Central Medical Facility (CMF) states:
CMF houses a general acute care hospital, correctional
treatment center (CTC), licensed elderly care unit, in-patient
and out-patient psychiatric facilities, a hospice unit for
terminally ill inmates, housing and treatment *182 for inmates
identified with AIDS/HIV, general population, and other
special inmate housing. Additionally, the Department of
Mental Health operates a licensed, acute care psychiatric
hospital within CMF. [FN95]
In People v. Chavez, the California Court of Appeals
stated that one reason for the construction of the CMF was for
the housing and treatment of inmates infected with AIDS/HIV.
[FN96] Additionally, California Penal Code section 6102
The primary purpose of the medical facility shall be the
receiving, segregation, confinement, treatment and care of
males under the custody of the Department of Corrections or
any agency thereof who are any of the following: (a) mentally
disordered, (b) developmentally disabled, (c) addicted to the
use of controlled substances, or (d) suffering from any other
chronic disease or condition. [FN97]
Therefore, inmates who have AIDS or are HIV+ are either
housed at the CMF upon booking or, if it is later determined
that an inmate is infected, they can be transferred to the CMF
for housing. [FN98] Since the practice of segregating
AIDS/HIV+ inmates has been found to relate to a legitimate
penological goal, specifically treating inmates with a medical
condition, it has been held constitutional on several occasions.
III. The Housing of Inmates - In General
Courts have given a great amount of deference to prison
administrators so the administrators can operate their prison
facility in the most efficient manner and achieve their
penological goals. [FN100] Generally, prisoners are *183
housed in one of two different ways. The first, and most
common method, is to house prisoners in the general prison
population. [FN101] The second method is to segregate
prisoners based on a legitimate penological objective. [FN102]
A. General Population
Most prisoners are housed with other inmates in what is
known as the general population. [FN103] This means that the
prisoners who are housed in the general prison population eat,
sleep, shower, and exercise together. [FN104] The prisoners
housed in general population can include young and old, and

non-violent offenders as well as violent offenders. [FN105]
However, prison officials are allowed to change such housing
status, or segregate inmates, for any number of reasons.

protect other inmates . . . or simply to await later classification
or transfer” and, therefore, prisoners should “reasonably
anticipate receiving [it] at some point in their incarceration.”

B. Segregation

D. Managing the Prison System

Prisoners can be segregated for any number of reasons so
long as the reason is related to a legitimate prison policy.
[FN107] Prison officials in most states have the authority to
segregate prisoners based on disciplinary infractions,
protection of prisoners, and to maintain the security of the
prison facility. [FN108]
*184 However, in Doe v. Coughlin, such authority was at
issue when an HIV+ inmate challenged the New York
Department of Correctional Services' mandatory segregation
policy for inmates infected with AIDS/HIV+. [FN109] The
inmate claimed that by segregating HIV+ inmates, his right to
privacy was violated because the segregation essentially
disclosed his HIV status to the rest of the prison. [FN110] The
court ruled that the inmate was entitled to relief and enjoined
the prison officials from involuntarily segregating all HIV+
inmates. [FN111]
It has been well established that prison officials may
segregate prisoners for the prisoner's own protection and to
maintain the peace of the prison. [FN112] But the courts have
been reluctant to allow segregation based solely on race.
[FN113] For example, the Court in Korematsu v. United
States stated that “all legal restrictions which curtail the civil
rights of a single racial group are immediately suspect” and
“[t]hat is not to say that all such restrictions are
unconstitutional. It is to say that courts must subject them to
the most rigid scrutiny.” [FN114] The Court found that
“[p]ressing public necessity may sometimes justify the
existence of such restrictions, [but] racial antagonism never
can.” [FN115]

The majority in O'Lone v. Estate of Shabazz stated that
courts have clearly left the decisions about how to operate a
prison to those who are in *186 charge of the facility. [FN126]
In doing so, prison officials can limit the rights of inmates so
long as such limitations are related to penological objectives.
[FN127] But, Justice Brennan wrote a dissenting opinion and
stated that, “I therefore would require prison officials to
demonstrate that the restrictions they have imposed are
necessary to further an important government interest, and that
these restrictions are no greater than necessary to achieve
prison objectives.” [FN128]
E. The Reasonable Test Standard
Prison regulations that infringe on a constitutional right
are judged by using the “reasonable” test which is less
restrictive than the strict scrutiny test normally applied to
allegations of constitutional rights violations. [FN129] As
stated in Turner v. Safley, in any case where it is alleged that a
prison regulation infringes on a constitutional right, the court
will analyze the regulation using the following four prong test:
(1) whether there is a valid rational connection between the
regulation and a legitimate government interest; (2) whether
there are alternative means where the prisoner can assert their
constitutional right; (3) whether an accommodation to the
prisoner will impact the prison staff; and (4) whether the
regulation is an “exaggerated response” to prison concerns.
*187 IV. Transmission of AIDS/HIV Among Prisoners

C. Legitimate Reasons for Segregation
The reasoning against racial segregation, as described in
Korematsu, has been upheld by courts when reviewing the
housing of minority inmates. [FN116] In Washington v. Lee
the court ruled that a state penal system policy that housed
prisoners based solely on race was unconstitutional and
violated the Fourteenth Amendment. [FN117] However,
courts have often given *185 prison officials a great amount of
latitude in separating prisoners based on certain considerations
such as gang affiliation, [FN118] age, [FN119] and gender.
The courts have held that segregating prisoners can be
constitutional for some purposes. [FN121] For example, the
segregation of prisoners based on age (segregating juveniles
from adults), and gender (segregating males from females) has
been found to be constitutional. [FN122] Additionally, courts
have generally found that the administrative segregation of
prisoners is constitutional. [FN123] Administrative
segregation is defined as segregating prisoners into separate
areas, but it does not involve the deprivation of privileges
other than what is necessary to protect inmates and staff.
[FN124] As stated in Nolley v. County of Erie, “[t]he phrase
‘administrative segregation’ . . . appears to be something of a
catchall: it may be used to protect the prisoner's safety, to

The HIV virus is commonly transmitted through bodily
fluids such as semen, and blood. [FN131] It is well recognized
that AIDS/HIV is spread from an infected person to a noninfected person through unprotected sex, sharing needles,
[FN132] and the transmission of bodily fluids, such as blood.
HIV cannot be transmitted from person to person through
casual non-sexual contact, mosquito bites, animals, sweat,
food, or inanimate objects such a telephone or a toilet seat.
[FN134] It has been documented that in prison, AIDS/HIV is
commonly spread from infected prisoners to non-infected
prisoners through sex, drugs, tattooing, and violence. [FN135]
A. Transmission Through Sex
Sex between male prisoners occurs in prison basically in
one of two ways. [FN136] The first way is when one prisoner
forcibly rapes another prisoner. [FN137] As described in Kane
v. Winn, prisoners face several problems *188 while in prison,
one being inmate-on-inmate rape. [FN138] Many prisoners
have reported being raped while in prison. [FN139] In fact, in
United States v. Bailey, Justice Harry Blackman stated, “[a]
youthful inmate can expect to be subjected to homosexual
gang rape his first night in jail.” [FN140] Justice Blackman

continued and stated, “[w]eaker inmates become the property
of stronger prisoners or gangs, who sell the sexual services of
the victim. Prison officials either are disinterested in stopping
abuse of prisoners by other prisoners or are incapable of doing
so, given the limited resources society allocates to the prison
system. Prison officials often are merely indifferent to serious
health and safety needs of prisoners as well.” [FN141]
The rape of a youthful offender, and prison staff
indifference, was described in Redmond v. Baxley. [FN142]
In Redmond, the plaintiff, a vulnerable eighteen year old
diabetic inmate, was placed in a youthful offender section of
the prison infirmary with little supervision. [FN143] During
his first day, the plaintiff was approached twice by three other
inmates requesting sex. [FN144] When the plaintiff reported
this to the prison guard, the guard responded by “basically
telling [him] to take care of himself.” [FN145] A few hours
later, the plaintiff was forcibly raped by the three inmates,
which injured the plaintiff. [FN146] When an inmate is raped,
the chance of becoming infected is increased because “the
violent nature of the attack frequently causes severe rectal
bleeding which increase[s] the likelihood of transmission.”
*189 Another way sex occurs between prisoners is
through consensual acts between two prisoners. [FN148]
During a consensual sexual encounter there will still be an
exchange of bodily fluids with little or no trauma. [FN149]
However, no matter the manner in which the sexual conduct is
performed, the sexual activity is typically performed without
protection because prisoners do not have access to latex
condoms. [FN150]
B. Transmission Through Drug Use
The second common way that AIDS/HIV is spread in
prison is through the use of intravenous drugs. [FN151]
According to the CDC, sharing syringes and intravenous drug
equipment is a well know means of HIV transmission.
[FN152] Drug use in prison is common among inmates
because it is a way prisoners can escape the harsh reality of
prison life, boredom, and hopelessness. [FN153] The CDC
recommends that if one is going to use intravenous drugs, they
should use sterile needles, or at least clean used needles with
bleach. [FN154] Since the possession of needles and/or bleach
in prison is a violation of prison rules, those prisoners who use
intravenous drugs usually wind up sharing dirty needles to get
their next high. [FN155]
C. Transmission Through Tattooing
The third common way that HIV is spread in prison is
through amateur tattooing. [FN156] Similar to intravenous
drug use, tattooing requires the use of a *190 needle or other
makeshift needle-like instrument. [FN157] The needles used
for tattooing are considered contraband and clean needles are
not readily available. [FN158] The homemade tattooing
machines and instruments are often crafted by the inmates
and, when tattooing, the machine makes multiple incisions on
the inmate, thus increasing the risk of transmission of HIV.
D. Transmission Through Violence

Finally, violence between inmates can spread HIV.
[FN160] It is not uncommon for fights to break out between
prisoners which can result in cuts, bites, broken noses, and
bleeding, all of which can increase the risk of transmission of
HIV. [FN161] Although prison officials try to reduce the
amount of violence among prisoners, it is still common to
house multiple inmates in a cell which can contribute to
physical assaults. [FN162]
V. The Segregation of AIDS/HIV+ Inmates
There are different schemes in which AIDS/HIV+
prisoners can be housed. [FN163] The two most common
ways to segregate infected prisoners are: 1) by using an
overall blanket segregation policy, [FN164] and 2) only
segregating certain infected inmates. [FN165]
*191 A. Blanket Segregation
The first way to segregate prisoners is by using a blanket
segregation policy for AIDS/HIV+ inmates. [FN166] This
would be accomplished by creating separate sleeping and
living areas for the infected prisoners away from non-infected
prisoners. [FN167] Although this policy was popular at the
onset of the AIDS epidemic, it has lost favor over the years.
There are arguments that segregating all prisoners who
are HIV+ is beneficial. [FN169] Perhaps the main justification
for segregating HIV+ inmates is to reduce the chances of
transmitting the HIV infection to other prisoners. [FN170]
Other justifications have been offered including reducing
violence towards the infected prisoner [FN171] and helping
infected individuals receive specialized medical treatment.
[FN172] However, by segregating all HIV+ inmates, it could
have the opposite effect and increase the rate of HIV exposure
to other inmates. [FN173]
However, segregating all HIV+ inmates can be unfair and
unwarranted. [FN174] For example, inmates who are
segregated will not have access to the same facilities and
programs offered by the prison. [FN175] *192 Segregating
inmates who are HIV+ also “creates a difficult and isolating
environment for them.” [FN176] Additionally, by segregating
HIV+ inmates and forcing them to live together it can create a
“breeding ground” for other diseases that can easily be spread
among the HIV+ inmates. [FN177] Finally, segregated
prisoners may not have access to the same eating activities,
educational and vocational programs, or church services.
[FN178] For example, in Baez v. Rapping, an HIV+ inmate
alleged that by being segregated he was denied access to the
courts, law library, church, and recreation facilities. [FN179]
Also in Anderson v. Romero, an HIV+ inmate claimed that
because he was segregated, he was denied exercise yard
privileges and access to haircuts. [FN180]
B. Selective Segregation
The second method of segregating infected inmates is by
only segregating certain infected inmates on a case by case
basis. [FN181] The decision of whether to segregate certain
AIDS/HIV+ inmates would be based on considerations such
as the infected inmate's medical condition, prison/prisoner
security, and other individual needs of the inmate. [FN182]

This scheme would not result in total segregation of all HIV+
inmates; segregation would be made on a case by case basis.
*193 However, even under this scheme, some inmates
have sued in court stating that failure to segregate AIDS/HIV+
inmates is unconstitutional. [FN184] For example, in Glick v.
Henderson an HIV- inmate claimed he was subjected to a
pervasive risk of contracting AIDS because: 1) he came in
contact with sweat from other inmates while on a work detail,
2) he could be bitten by mosquitoes who had bitten other
inmates, 3) a known homosexual inmate had sneezed on him,
4) an untested prison official had prepared his food, and 5)
prison officials transferred prisoners cell to cell throughout the
prison. [FN185] The inmate requested that the prison official
be forced to segregate AIDS infected inmates from the general
prison population. [FN186] However, the Eighth Circuit Court
of Appeals ruled against the inmate because the possibility of
transferring AIDS to a non-infected inmate was too remote.
Then in 1993, in Marcussen v. Brandstat, prison officials
in Iowa were sued for housing an HIV+ inmate with a noninfected inmate. [FN188] The non-infected inmate,
Marcussen, argued that his constitutional rights were violated
because the prison officials acted with deliberate indifference
when they “assigned an HIV-positive inmate to Marcussen's
cell and allowed that inmate to use Marcussen's toiletries, thus
exposing Marcussen to possible infection with the HIV virus.”
[FN189] The court stated that in order to prevail on his claim,
Marcussen would have to fulfill the two requirements outlined
in Glick v. Henderson, specifically that there was a pervasive
harm to inmates of catching AIDS, and that prison officials
acted with deliberate indifference. [FN190] The court found
that Marcussen could not prove either requirement and granted
the defendant's motion for summary judgment. [FN191] The
court also explicitly stated that failure to segregate HIV+
inmates from non-infected inmates does not violate an
inmate's constitutional rights. [FN192]
*194 VI. AIDS/HIV+ Infection as a Disability
It has been argued that discrimination based on HIV
status violates the Americans with Disabilities Act of 1990
(ADA). [FN193] Section 302 of the ADA states, “No
individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
of any place of public accommodation by any person who
owns, leases (or leases to), or operates a place of public
accommodation.” [FN194] Furthermore, the statute defines
disability as: “(1) a physical or mental impairment that
substantially limits one or more of the major life activities of
such individual; (2) a record of such an impairment; or (3)
being regarded as having such an impairment.” [FN195]
The issue of whether AIDS/HIV+ qualifies as a disability
under the ADA was answered in Abbott v. Bragdon. [FN196]
In this case the plaintiff had been infected with HIV for nine
years and was in the asymptomatic phase. [FN197] The
plaintiff had a dental appointment with the defendant and
indicated on the patient health form that she was HIV+.
[FN198] The dentist examined the plaintiff and found a cavity.
[FN199] The defendant informed the plaintiff that he would
not fill her cavity in the office, but would only treat her in a

hospital setting, in which case she would have to pay for the
use of the hospital facility. [FN200] The plaintiff then sued the
defendant for violating the ADA. [FN201]
The court stated that the application of the ADA depends
on whether an individual has a physical or mental impairment,
and whether such impairment “substantially limits one or
more of the major life activities of *195 such individual.”
[FN202] On this issue, the court stated it was “persuaded that
asymptomatic HIV constitutes a physical impairment for the
purposes of the ADA.” [FN203] Additionally, the court found
an abundant amount of authority to support the proposition
that HIV is considered a disability under the ADA. [FN204]
After the District Court ruled in favor of the plaintiff, the
defendant appealed to the Court of Appeals who affirmed the
lower court's ruling. [FN205] The U.S. Supreme Court then
granted certiorari to review: 1) whether HIV infection is a
disability under ADA at the asymptomatic stage, and 2)
whether the Court of Appeals properly granted summary
judgment. [FN206] The U.S. Supreme Court affirmed the
holding that HIV infection was a disability under the ADA,
but remanded the case stating that the lower court did not use
the proper standard for assessing the risk. [FN207]
VII. Constitutional Arguments
Section 1983 of Title 42 of the United States Code states
that a person acting under the color of authority may be held
liable under a civil cause of action if they deprive any
individual of any right secured by the Constitution or federal
law. [FN208] Therefore, prison officials could be held liable
for violating a prisoner's rights, but:
In order to state a cause of action under 42 U.S.C. § 1983,
the Supreme Court requires only two elements: First, the
plaintiff must allege that some person has deprived him of a
federal right. Second, he must allege that the person who has
deprived him of the right acted under color of state law.
*196 It has been well established and accepted that when
someone is incarcerated it becomes necessary to limit some of
their rights and privileges. [FN210] However, just because
someone is incarcerated, they do not forfeit all of their
constitutional protections. [FN211] As stated in Turner v.
Safley, “[p]rison walls do not form a barrier separating prison
inmates from the protections of the Constitution.” [FN212]
Inmates have made several constitutional arguments against
segregating HIV+ inmates stating segregation violates the
Eighth Amendment, [FN213] the Due Process Clause under
the Fourteenth Amendment, [FN214] the Equal Protection
Clause under the Fourteenth Amendment, [FN215] and the
constitutional right to privacy. [FN216] When analyzing these
challenges, the Supreme Court stated in Turner v. Safley that
rather than using a strict or intermediate scrutiny to judge the
prison's actions, the courts will examine whether a prison
official's action is “reasonably related” to a legitimate
penological interest. [FN217]
*197 A. Eighth Amendment Violation
Inmates often challenge that a policy of segregating HIV+
inmates, and even the failure to segregate HIV+ prisoners,
violates the Eighth Amendment against cruel and unusual
punishment. [FN218] The courts have made it clear that

segregating inmates for the control and management of a
prison facility does not constitute cruel and unusual
punishment. [FN219] Similarly, failing to segregate AIDS
infected prisoners from the general prison population does not
violate the Constitution. [FN220]
In deciding allegations of Eighth Amendment violations,
courts determine if there has been cruel and unusual
punishment by using the “deliberate indifference” standard.
[FN221] As stated by the U.S. Supreme Court in Farmer v.
Brennan, “[a] prison official may be held liable under the
Eighth Amendment for acting with ‘deliberate indifference’ to
inmate health or safety only if he knows that inmates face a
substantial risk of *198 serious harm and disregards that risk
by failing to take reasonable measures to abate it.” [FN222]
Furthermore in Marcussen v. Brandstat, the court stated that
“prison regulations prohibiting behavior by inmates that could
result in exposure to the AIDS or HIV virus were adequate
measures to protect the inmates [against infection].” [FN223]
Although the “deliberate indifference” standard may be
difficult to meet, not all cases of Eighth Amendment
violations have failed. [FN224]
When determining whether the actions of prison officials
violates a prisoner's Eighth Amendment rights, the courts will
use an objective and subjective test as described in Wilson v.
Seiter. [FN225] The objective test analyzes if the treatment of
the inmate is serious enough that it deprives the inmate of “the
minimal civilized measures of life's necessities.” [FN226] The
subjective test analyzes if there is prison officials act with
“deliberate indifference.” [FN227] Courts have found that the
prison administrators has an *199 obligation to protect a
prisoner's safety, and failure to do so, may rise to the level of
an Eighth Amendment violation. [FN228]
However, it would be difficult to prove that the prison
administration's failure to segregate AIDS/HIV+ inmates from
non-infected inmates would rise to the level of an Eighth
Amendment violation. [FN229] As stated in Goss v. Sullivan,
“[a]llegations of a generalize[d] fear of contracting AIDS from
allegedly aggressive HIV-positive inmates and conclusory
allegations that prison officials were aware of such intentions”
are insufficient to support an allegation that prison officials
violated the Eighth Amendment. [FN230]
The courts have made it equally clear that not segregating
HIV+ inmates does not violate a non-infected prisoner's
Eighth Amendment rights. [FN231] For example, in Goss v.
Sullivan, an inmate sued under the Eighth Amendment
alleging that prison officials endangered the entire prison
population by failing to segregate HIV+ inmates. [FN232]
Although the plaintiff argued that the prison administration
placed him in a life threatening situation by not segregating
HIV+ inmates, the court ruled that failure to segregate HIV+
inmates did not violate the Eighth Amendment. [FN233] In
dismissing the complaint, Chief Justice Johnston stated,
“[a]llegations of a generalized fear of contracting AIDS . . .
are insufficient to state a *200 constitutionally inhumane
condition of confinement or a culpable state of mind.”
In Deutsch v. Federal Bureau of Prisons, an inmate sued
claiming his Eighth Amendment rights were violated because
the inmate, unknowingly, was required to share a cell with an
inmate who was HIV+. [FN235] The plaintiff stated that if he
knew his cellmate was HIV+, he would not have shared his
personal items. [FN236] The court ruled that housing an HIV+

inmate with the plaintiff, without revealing his cellmate's HIV
status, did not violate the Eighth Amendment because the
prison officials did not act with “deliberate indifference.”
Finally, in Nolley v. County of Erie, an HIV+ inmate sued
stating that segregation violated her rights under the Eighth
Amendment. [FN238] The plaintiff was segregated in a five
cell ward, consisting of two cells for prisoners with infectious
diseases, and three cells for prisoners who were suicidal or
with psychiatric problems. [FN239] The plaintiff alleged an
Eighth Amendment violation because she was “housed with
inmates who graphically described their horrible crimes, who
were suicidal, who demonstrated severe psychiatric problems,
and who were in a state of perpetual trauma.” [FN240] The
court ruled that the conditions of confinement, “although
deplorable, did not violate plaintiff's Eighth Amendment
rights.” [FN241]
B. Fourteenth Amendment Violation - Due Process
Another constitutional claim that has been made is that
automatic segregation violates the prisoner's right of due
process under the Fourteenth Amendment. [FN242]
Specifically, the claim usually states that by being segregated
the prisoner is deprived of a “life, liberty, or property” interest
*201 without due process. [FN243] The courts have
repeatedly stated that, a prisoner may not be deprived of life,
liberty or property without due process of law. [FN244]
For example, in Wolff v. McDonnell, the Court held that
due process must be afforded to inmates when they are placed
in disciplinary cell confinement. [FN245] Additionally, in
Hughes v. Rowe, the Court held that segregating a prisoner
may violate due process if procedural protections were not
justified by a perceived emergency situation. [FN246]
In 1983, the Supreme Court in Hewitt v. Helms
recognized that whether a prisoner has a liberty interest is
determined by the language of the applicable regulations.
[FN247] However, in 1994, the Supreme Court held in Sandin
v. Conner that the main issue of whether a prisoner had a
protected liberty interest, protected by due process, depended
on whether the conditions “impose [ ] atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life.” [FN248] Whereas prior to 1994 it was fairly easy
for a prisoner to prove their liberty interest was violated, post
1994 an inmate must show that the violation constitutes an
“atypical and significant hardship” when compared to ordinary
prison life. [FN249]
As early as 1976, in Montanye v. Haymes the Supreme
Court stated that “[a]s long as the conditions or degree of
confinement to which the prisoner is subjected is within the
sentence imposed upon him and is not otherwise violative of
the Constitution, the Due Process Clause does not in itself
subject an inmate's treatment by prison authorities to judicial
*202 oversight.” [FN250] It has been held by the Supreme
Court that a prisoner has “no general liberty interest in
remaining in the general population.” [FN251]
The courts have routinely rejected due process claims
based on an inmate's HIV status. [FN252] For example, in
Muhammad v. Carlson, the court ruled that the due process
rights of an inmate infected with AIDS was not violated when
the inmate was segregated in accordance with prison policies.

But the power to segregate HIV+ inmates has not gone
unrestrained. [FN254] For example, in Vitek v. Jones, the
Supreme Court held that the involuntary transfer of an HIV+
inmate from a prison to a mental hospital was “not within the
range of conditions of confinement to which a prison sentence
subjects an individual” and upheld a lower court's ruling that
such transfer violated the Due Process Clause of the
Fourteenth Amendment. [FN255]
Similarly, the court in Nolley v. County of Erie was faced
with determining if automatically segregating HIV+ inmates
violated the Due Process Clause of the Fourteenth
Amendment. [FN256] The court in Nolley distinguished
Hewitt from Vitek because the inmate in Hewitt was confined
in the aftermath of a prison riot where prison officials were
concerned about further violence. [FN257] However, in Vitek
the inmate was involuntarily transferred from prison to the
state mental hospital.” [FN258] The court found that
automatically segregating HIV+ inmates was “qualitatively
different from the punishment normally suffered by a person
convicted of a crime” and ruled that the inmate was
“constitutionally entitled to due process.” [FN259]
*203 C. Fourteenth Amendment - Equal Protection
Inmates have also made challenges to the automatic
segregation of HIV+ inmates based on the Equal Protection
Clause of the Fourteenth Amendment. [FN260] When a
person is sentenced to prison, they don't automatically forfeit
their equal protection rights. [FN261] Because prisoners are
not a suspect class, the court will use rational basis review
when analyzing equal protection claims. [FN262] Therefore, it
is difficult to find a violation and, as stated in Nolley v.
County of Erie, “equal protection challenges to administrative
segregation by HIV+ inmates have been universally rejected.”
[FN263] In order to prove a violation of the Equal Protection
Clause, an inmate must prove: 1) the government is treating
similarly situated inmates differently, and 2) there is no
rational basis for the dissimilar treatment. [FN264] The
difficulty of such an argument is that for the inmate to invoke
the Equal Protection Clause, they must show they are similarly
situated with other inmates, [FN265] and that there is no
rational penological interest for the dissimilar treatment.
[FN266] Since the courts have found that an inmate who is
HIV+ is not similarly situated with other inmates, equal
protection claims are commonly denied. [FN267]
D. Right to Privacy
Finally, inmates have challenged the segregation of
infected prisoners based on the constitutional right to privacy,
which has been previously recognized by the Supreme Court.
[FN268] For example, in 1965, the Supreme *204 Court in
Griswold v. Connecticut laid the foundation for a person's
right to privacy. [FN269] In Griswold, the plaintiffs were
found guilty of violating Connecticut's birth control laws
because they prescribed a contraceptive device to a married
couple for use in their bedroom. [FN270] The plaintiffs
appealed arguing that the birth control laws violated their
Fourteenth Amendment rights. [FN271] By a 7-2 vote, the
Supreme Court ruled that Connecticut's state law violated a
person's right to privacy. [FN272] In writing for the majority,
Justice Douglas stated the right to privacy was found in the

“penumbras” and “emanations” of the Bill of Rights that
protects “zones of privacy.” [FN273] Justice Goldberg
concurred, stating the Ninth Amendment protected
unenumerated but traditional fundamental rights. [FN274]
Justice Harlan also wrote a concurring opinion and stated that
the due process clause of the Fourteenth Amendment
protected the right to privacy. [FN275]
Then, in Whalen v. Roe, the plaintiffs challenged a New
York statute that required a centralized database be created to
track the names and addresses of people who purchased
certain drugs. [FN276] The plaintiffs argued that both the
collection of the data, and its potential for release, violated
their constitutional right to privacy. [FN277] The Court agreed
with the plaintiffs and stated that, under the Fourteenth
Amendment, a person is protected from disclosure of personal
matters. [FN278]
The courts have continued to affirm the privacy interest in
the non-disclosure of personal matters, as exemplified in
Nixon v. Administrator of General Services [FN279] and New
York v. Ferber. [FN280]
*205 Since Whalen, courts have held that the
constitutional right to privacy includes the right to keep one's
medical information private. [FN281] For example, in Schaill
ex rel. Kross v. Tippecanoe County School Corporation, the
court found that a school district's program of randomly
administering drug tests to students did not violate the
students' right to privacy. [FN282] But, in Doe v. Borough of
Barrington, the court ruled that a police officer violated an
individual's privacy rights by disclosing the individual's HIV
status to other people, with whom the individual had little
contact. [FN283]
However, the courts have allowed the disclosure of an
inmate's HIV status if it is related to a legitimate penological
interest, [FN284] such as disclosing an inmate's HIV status to
prison guards, [FN285] and to a prison barber. [FN286]
But not all disclosures meet a legitimate penological
interest. For example, in Nolley v. County of Erie the plaintiff
argued that her constitutional right to privacy was violated
because: 1) prison officials put a red sticker on the personal
folders of all HIV+ inmates; and 2) the prison segregated her
to a specialized ward (Female Delta) that housed HIV+
inmates and those in need of medical and psychological
treatment. [FN287] The court held that the red sticker system
violated the inmate's privacy because it disclosed the inmate's
HIV status to non-medical staff. [FN288] The court stated
that, “prison inmates are protected by a constitutional right to
privacy from the unwarranted disclosure of their HIV status.”
The court further ruled that segregating inmates into a
separate AIDS ward was similar to releasing the inmate's HIV
status to the rest of the prison population. [FN290] In
determining if this segregation was constitutional, *206 the
court looked at “whether a policy of segregating all HIV+
inmates to Female Delta [was] rationally related to [a]
legitimate purpose.” [FN291] After analyzing the stated
penological purposes, the court found that the “policy of
automatically segregating known HIV+ inmates in Female
Delta [was] not reasonably related to legitimate penological
interests” and therefore the inmate's “constitutional right to
privacy was violated.” [FN292]
VIII. A Proposed New Segregation Standard

On March 28, 1991 the National Commission on AIDS
released a report titled “HIV Disease in Correctional
Facilities” in an attempt to create a national policy in response
to the AIDS epidemic. [FN293] The Commission found that
the automatic segregation of HIV+ prisoners was without
merit, and not advised. [FN294] The reality is that automatic
segregation penalizes an inmate based on nothing more than a
medical condition. [FN295]
It would be difficult, if not impossible, to argue that
AIDS/HIV+ inmates should never be segregated because some
infected inmates are a danger to others. [FN296] It is equally
difficult to argue that AIDS/HIV+ infected inmates should
always be segregated because such a policy would be unfair to
infected prisoners who pose little, or no, threat of spreading
the disease. [FN297] Therefore, prison officials must create a
new process by which infected prisoners are segregated so that
segregation is done in an objective manner that is aimed at
fulfilling each prison's objectives.
Some states, such as South Carolina, segregate all
AIDS/HIV+ inmates from non-infected prisoners. [FN298]
Other states, such as Mississippi's Department of Corrections
has terminated the practice of segregating AIDS/HIV+
prisoners altogether. [FN299] Finally some states, such as
California's Department of Corrections and Rehabilitation,
house AIDS / HIV+ inmates at their medical facility so they
have access to medical care. [FN300]
*207 However, another option is to use the approach that
Michigan uses to house AIDS/HIV+ inmates. [FN301] Under
the Michigan approach, inmates are segregated from other
inmates only after they have been disciplined for misconduct,
tested, and found to have AIDS or be HIV+. [FN302]
Unfortunately, this approach is reactive in nature and does not
proactively protect other prisoners. [FN303]
A. The Proposed New Standard
It is proposed here that prison officials base their
decisions on how to house prisoners who are infected with
AIDS / HIV+ based on objective criteria that evaluates if the
inmate is likely to spread the disease. Using an inmate's
history, or propensity to act in a particular way, is not a new
concept. [FN304]
This would require prison officials to determine what
criterion to use in determining which AIDS/HIV+ inmates are
segregated from the general population. Just as the courts have
left the administration of prisons to prison officials, [FN305]
this article also leaves to prison officials to determine what
objective criteria to use when housing prisoners with AIDS /
B. Proposed Criterion for Segregation
The decision whether to segregate an infected inmate
should be made when the inmate arrives at prison and is
processed for permanent housing. When it is determined that
the prisoner is infected with AIDS or is HIV+, then the prison
official should analyze the particular attributes of the prisoner
and determine if the inmate is likely to infect other inmates. At
a minimum, the prison official should evaluate: 1) the inmate's
past crimes, 2) statements made by the prisoner of their intent

to infect other inmates or prison staff, and 3) the inmate's
history of violence.
If it is determined that the inmate is not likely to spread
the disease, then they should be placed into the general prison
population. But, if there is a likelihood that the prisoner will
infect other inmates, the inmate should be segregated. For
example, infected inmates with convictions for crimes such as
rape and sodomy would be segregated while an infected
inmate *208 with a past conviction for fraud may not be
segregated. Similarly, an inmate who made statements
expressing their intent to infect other inmates would be
segregated while an inmate who made no such statements
would not necessarily be segregated. Finally, an infected
inmate who has been violent in the past would be segregated
while a peaceful inmate would not necessarily be segregated.
This proposed standard would have segregated the
infected inmate in Goss v. Sullivan. [FN306] In this case, an
inmate who was infected with the AIDS virus got into a fight
with the plaintiff. [FN307] As a result of the fight, the plaintiff
cut his lip and the infected inmate cut his hand. [FN308] The
plaintiff claimed that the infected inmate “deliberately wiped
his hand across [his] mouth at least twice.” [FN309] In the
complaint, the plaintiff stated that prison administration knew
that the infected inmate was dangerous and did not do
anything to segregate him. [FN310] After the fight, the
infected inmate stated he would infect “whoever I can.”
[FN311] In addition to the inmate described in Goss v.
Sullivan, this proposed new standard would segregate
AIDS/HIV+ prisoners who have committed sexual crimes
[FN312] and prisoners with a history of violence. [FN313]
Although many jails and prisons segregate prisoners
infected with HIV, others have passed statutes that segregate
HIV+ inmates “under certain circumstances.” [FN314] For
example, in 1990 the State of Michigan passed a statute that
*209 If a prisoner receives a positive test result, and is
subsequently subject to discipline by the department for sexual
misconduct that could transmit HIV, illegal intravenous use of
controlled substances, or assaultive or predatory behavior that
could transmit HIV, the department shall house that prisoner
in administrative segregation, an inpatient health care unit, or
a unit separate from the general prisoner population, as
determined by the department. [FN315]
Unfortunately, the Michigan statute is reactive in nature
because it does not segregate infected inmates until after they
face discipline. [FN316] Unlike the Michigan statute that does
not segregate infected prisoners until after they face discipline,
[FN317] the proposed new standard is proactive because
rather than waiting for a violation to occur before segregating
infected prisoners, this proposed standard seeks to segregate
AIDS/HIV infected prisoners who are likely to infect others,
before they infect others.
IX. Conclusion
Currently, when prison administrators segregate
AIDS/HIV+ inmates, they will usually take one of two
approaches. First, some prison administrators segregate all
AIDS/HIV+ infected prisoners away from the general
population. [FN318] Second, AIDS/HIV+ infected prisoners
may be segregated only after the inmate has violated a prison
rule and faces discipline. [FN319]

The proposed alternative standard, as described in this
Comment, is for the creation of a uniform standard by which
AIDS/HIV+ inmates can be segregated so that such
segregation is not arbitrary, or capricious. The proposed
standard offers a middle ground in the debate about how to
segregate HIV+ prisoners.
This proposed approach does not automatically segregate
all HIV+ inmates, because doing so would deprive them of
social interaction and opportunities to improve themselves.
Equally important is this proposed approach does not limit the
prison officials to being reactive where officials would have to
wait until the prisoner violates a prison regulation before being
Rather, this approach is proactive because upon booking
an inmate into the prison facility, an assessment is performed
to determine the likelihood *210 that a prisoner will infect
non-infected prisoners. During the intake of the AIDSHIV+
prisoner, the prison official would ask a series of questions to
determine if the inmate is likely to spread their infection to
non-infected prisoners. Based on the assessment, the
AIDS/HIV+ infected prisoner would either be placed in
general prisoner population or segregated away from the
general population.
The exact criterion is beyond the scope of this paper.
However, at a minimum, the criterion should include past
crimes committed, statements of a desire to infect others, and
the inmate's proclivity for violence. Each of these criterion
would indicate that the inmate is likely to engage in some
activity that would infect other prisoners; therefore they
should be segregated from non-infected inmates.
[FN1]. UNAIDS, Outlook Report 2010 (2010), available at
web_en.pdf; see also Mary McLean Jordan, Care to Prevent
HIV Infection in Prison: A Moral Right Recognized by
Canada, While the United States Lags Behind, 37 U. Miami
Inter-Am. L. Rev. 319, 319-20 (2006) (“HIV/AIDS is a global
epidemic. Since the epidemic began, over 60 million people
have been infected causing over 20 million deaths.”) (citing
Joint United Nations Programme on HIV/AIDS (UNAIDS
Policy Position Paper: Intensifying Prevention 7 (2005)),
available at http://
[FN2]. See Ann E. Stanley, May I Ask You A Personal
Question? The Right to Privacy and HIV Testing in the
European Community and the United States, 65 Fordham L.
Rev. 2775, 2775 (1997) (stating that AIDS/HIV has affected
millions of individuals worldwide).
[FN3]. 16 Centers for Disease Control and Prevention,
HIV/AIDS Surveillance Report, 2004 10 (2005), available at

the United States, 300 Journal of the American Medical
Association 520, 520 (2008).
[FN6]. Centers for Disease Control and Prevention,
HIV/AIDS Surveillance Report: Cases of HIV Infection and
AIDS in the United States and Dependant Areas, 2007 21
(2007), available at http://
[FN7]. Centers for Disease Control and Prevention, Basic
Statistics, available at
(citing Centers for Disease Control and Prevention, HIV
Prevalence Estimates-United States, 2006, MMWR 1073-76
[FN8]. The White House, National HIV/AIDS Strategy for the
United States (2010).
[FN9]. Id.
[FN10]. See William B. Aldenberg, Bursting at the Seams: An
Analysis of Compassionate-Release Statutes and the Current
Problem of HIV and AIDS in U.S. Prisons and Jails, 24 New
Eng. J. on Crim. & Civ. Confinement 541, 543 (1998) (stating
that as of 1995 there were over 1.6 million AIDS/HIV
prisoners in federal, state, and local jails); John D. Kraemer,
Screening of Prisoners for HIV: Public Health, Legal, and
Ethical Implications, 13 Mich. St. U. J. Med. & L. 187, 190
(2009) (stating that “[t]he prevalence of HIV/AIDS is about
five times higher among jail and prison populations than the
general public”); see also Laura M. Maruschak, U.S. Dep't of
Justice, HIV in Prisons 2006, Bureau of Justice Bulletin, 1-2
(2006), available at http:// (stating “[a]t
year end 2006, 1.6% of male inmates and 2.4% of female
inmates in state and federal prisons were known to be HIV
positive or to have confirmed AIDS”).
[FN11]. James F. Horner, Jr., Constitutional Issues
Surrounding the Mass Testing and Segregation of HIVInfected Inmates, 23 Mem. St. U. L. Rev. 369, 370 (1993)
(stating that AIDS is of grave concern because of the high
concentration of at risk individuals and the unsafe activities
that take place in prison by inmates, such as unsafe sex and
drug usage).
[FN12]. United Nations Office on Drugs and Crime,
HIV/AIDS Prevention, Care, Treatment and Support in Prison
Settings: A Framework for an Effective National Response 12
[FN13]. Id.

[FN4]. Centers for Disease Control and Prevention, HIV
Prevalence Estimates-United States, 2006, MMWR 1073-76
(2008), available at http://

[FN14]. Deborah S. Chang & Patricia E. McCooey, Out of the
Dark Ages and into the Nineties: Prisons' Responses to
Inmates with AIDS, 23 Conn. L. Rev. 1001, 1011 (1991)
(finding that the statistics related only to inmates with AIDS
and followed the Centers for Disease Control's definitions).

[FN5]. H. Irene Hall, et al., Estimation of HIV Incidence in

[FN15]. Id. at 1010.

[FN16]. Id.
[FN17]. Id.
[FN18]. Kari Larsen, Deliberately Indifferent: Government
Response to HIV in U.S. Prisons, 24 J. Contemp. Health L. &
Pol'y 251, 251 (2008).
[FN19]. Press Release, Department of Justice, Office of
Justice Programs, HIV/AIDS Cases Among State and Federal
Prison Inmates Fell for the Sixth Straight Year During 2005
(Sept. 27, 2007), available at http://
[FN20]. Laura M. Maruschak & Randy Beavers, HIV in
Prison, 2007-08, Bureau of Justice Statistics Bulletin 1 (2009),
available at http://
[FN21]. See Human Rights Watch, Sentenced to Stigma:
Segregation of HIV-Positive Prisoners in Alabama and South
Carolina 10 (2010), available at
[FN22]. See Maruschak & Beavers, supra note 20.
[FN23]. See Department of Justice, Office of Justice
Programs, supra note 19; see also Jin Hee Lee, Chapter 22:
AIDS in Prison, 31 Colum. Hum. Rts L. Rev. 355, 357 (2000)
(“The rate of confirmed AIDS within the U.S. prison
population is particularly high - more than five times higher
than the rate of the general population.”) (quoting Laura M.
Maruschak, U.S. Dep't of Justice, HIV in Prisons 1997,
Bureau of Justice Statistics Bulletin 4 (1999); Christopher
Quinn, The Right to Refuse Medical Treatment or to Direct
the Course of Medical Treatment: Where Should Inmate
Autonomy Begin and End?, 35 New Eng. J. on Crim. & Civ.
Confinement 453, 467 (2009) (stating that the HIV rate in
prison has been estimated to be ten times higher than in
society which can, in turn, lead to a higher rate of HIV
transmission); Anne S. De Groot et al., Setting the Standard
for Care: HIV Risk Exposures and Clinical Manifestations of
HIV in Incarcerated Massachusetts Women, 24 New Eng. J.
on Crim. & Civ. Confinement 353, 353 (1998) (stating that, in
prison “women are disproportionately affected by [HIV]”).
[FN24]. Richard D. Vetstein, Rape and AIDS in Prison: On a
Collision Course to a New Death Penalty, 30 Suffolk U. L.
Rev. 863, 865 (1997) (stating that anal intercourse and
intravenous drug use, two methods that spread HIV, is
omnipresent through prisons); see also Larsen, supra note 18
at 265-71.
[FN25]. Chang & McCooey, supra note 14, at 1011 (stating
that the number of AIDS cases reported by correctional
facilities can be misleading and can only be estimated).
[FN26]. Karen E. Zuck, HIV and Medical Privacy:
Government Infringement on Prisoners' Constitutional Rights,
9 U. Pa. J. Const. L. 1277, 1278 (2007).

[FN27]. Chang & McCooey, supra note 14, at 1004 (stating
that the AIDS disease was first diagnosed in 1981 and the
prison system has been struggling with this issue ever since);
see also Human Rights Watch, supra note 21, at 13 (“When
HIV first appeared in prison populations, prison policies were
very restrictive. HIV-positive prisoners were placed in
isolation and had no access to programs, work or activities.”).
[FN28]. See Chang & McCooey, supra note 14, at 1001-02,
[FN29]. See Human Rights Watch, supra note 21, at 39
(“Segregation is inconsistent with the position taken by
leading correctional health experts in the United States. The
National Commission on Correctional Health Care (NCCHC)
‘endorses the concept that medical management of HIVpositive prisoners and correctional staff should parallel that
offered to individuals in the noncorrectional community.”’
(quoting Nat'l Comm'n on Corr. Health Care, Position
Statement, Administrative Management of HIV in
Correctional Institutions (revised Oct. 9, 2005), http://
[FN30]. Meg Kinnard, SC Prisons Brace for Lawsuit Over
HIV Inmates, Associated Press (Sept. 21, 2010), id=11692834.
[FN31]. Id.
[FN32]. Id.
[FN33]. See id. (“South Carolina prison officials say they have
no plans to stop segregating HIV-positive inmates despite the
threat of a lawsuit by the U.S. Justice Department.”).
[FN34]. See Ayesha Khan, The Application of Section 504 of
the Rehabilitation Act to the Segregation of HIV-Positive
Inmates, 65 Wash. L. Rev. 839, 839-40 (1990).
[FN35]. D. Stuart Sowder, AIDS in Prison: Judicial
Indifference to the AIDS Epidemic in Correctional Facilities
Threatens the Constitutionality of Incarceration, 37 N.Y.L.
Sch. L. Rev. 663, 675 (1992).
[FN36]. Id. at 666-67 (“The transmission of HIV in prisons
primarily occurs in one of two ways: exchanging bodily fluids
during sexual conduct or sharing needles during intravenous
drug use. These two behaviors are documented as being the
highest-risk behaviors for HIV transmission.” (citing Urvashi
Vaid, Prisons, in AIDS and the Law 235, 237-38 (Harlon L.
Dalton et al. eds., 1987))).
[FN37]. See Larsen, supra note 18, at 255-58, 260.
[FN38]. Id. at 252; see also Doe v. Coughlin, 697 F. Supp.
1234, 1234-35 (N.D.N.Y. 1988); Simeon Goldstein, Prisoners
with AIDS: Constitutional and Statutory Rights Implicated in
Family Visitation Programs, 31 B.C. L. Rev. 967, 971 (1990).
[FN39]. Khan, supra note 34, at 848-49.

[FN40]. Larsen, supra note 18, at 281 (stating that when
analyzing if a balance has been struck between an inmate's
privacy rights and the interest of the prison staff, the court
may analyze: 1) whether the segregation was related to the
legitimate goal of reducing the transmission of HIV, 2) if
reintegration of segregated prisoners would create a threat of
violence to the HIV+ inmates, and 3) if reasonable alternatives
were rejected).

Title II of the Americans with Disabilities Act, 16 Yale L. &
Pol'y Rev. 373, 377 (1998) (describing the progression of HIV
to AIDS).
[FN52]. See Basic Information About HIV and AIDS, supra
note 50.
[FN53]. The AIDS Knowledge Base, 181 (P.T. Cohen et al.
eds, 3d. ed., Lippincott, Williams, Wilkens 1999).

[FN41]. Id. at 279-80, 288, 293.
[FN54]. The Different Stages of HIV Infection, supra note 51.
[FN42]. See Phyllis G. Donaldson, Management of
Seropositive AIDS Inmates in the Population: The Michigan
Approach, 36 Wayne L. Rev. 1589, 1593-94 (1990).

[FN55]. The AIDS Knowledge Base, supra note 53.
[FN56]. The Different Stages of HIV Infection, supra note 51.

[FN43]. See, e.g., Larsen, supra note 18, at 268 (stating that by
1985, thirty five states had policies of automatically
segregating prisoners who were HIV+).

[FN57]. Id.
[FN58]. The AIDS Knowledge Base, supra note 53, at 182.

[FN44]. Id. (stating that when AIDS first appeared in prisons,
several prisons created policies of segregating all HIV+
prisoners in an attempt to prevent the spread of AIDS/HIV).

[FN59]. The Different Stages of HIV Infection, supra note 51.
[FN60]. The AIDS Knowledge Base, supra note 53, at 182.

[FN45]. Zuck, supra note 26, at 1287-88 (stating that although
there have been several constitutional challenges to
segregating HIV infected prisoners, they have, for the most
part, been unsuccessful).
[FN46]. 39 F.3d 1439, 1445 (9th Cir. 1994) (involving HIV+
inmates who complained about the prison's blanket policy that
prevented HIV infected inmates from participating in the
prison's food service programs).

[FN61]. The Different Stages of HIV Infection, supra note 51.
[FN62]. Id.
[FN63]. The AIDS Knowledge Base, supra note 53, at 183.
[FN64]. The Different Stages of HIV Infection, supra note 51.
[FN65]. The AIDS Knowledge Base, supra note 53, at 183.

[FN47]. See Donaldson, supra note 42.
[FN66]. The Different Stages of HIV Infection, supra note 51.
[FN48]. For this Comment, the basis for segregation should
depend on the infected inmate's criminal record, statements
made by the inmate of intentions to spread the disease to
others, and the inmate's proclivity towards violence. However,
it is not proposed that these are the only criteria. Prison
officials should still have the ability to augment the proposed
standard with additional objective criteria. For example, the
proposed standard would not prevent a prison official from
segregating an infected inmate who consensually has sex with
other prisoners, thus spreading the disease. If a prison official
faced such a situation, the official should be able to add
“promiscuity” to the three criteria offered here in order to
segregate that prisoner. Additionally, if an AIDS/HIV+ inmate
is sick, or in need of medical attention, they would
automatically be housed in a medical facility.

[FN67]. Id.
[FN68]. Id.
[FN69]. The AIDS Knowledge Base, supra note 53, at 183;
see also Jeffrey Huber, HIV/AIDS Community Information
Services: Experiences in Serving Both At-Risk and HIVInfected Populations 24 (1996).
[FN70]. The Different Stages of HIV Infection, supra note 51.
[FN71]. The AIDS Knowledge Base, supra note 53, at 183.
[FN72]. See Basic Information About HIV and AIDS, supra
note 50.

[FN49]. Shawn Marie Boyne, Women in Prison with AIDS:
An Assault on the Constitution?, 64 S. Cal. L. Rev. 741, 753

[FN73]. The AIDS Knowledge Base, supra note 53, at 183.

[FN50]. Basic Information About HIV and AIDS, Ctr. for
Disease Control and Prevention (last visited Aug. 18, 2011),

[FN74]. Operations Manual, California Department of
Corrections and Rehabilitation Operations,
61010.161010.15 (2011), available at http:// Operations/docs/DOM/C
h 206 rinted C20Final C20DOM 2011.pdf.

[FN51]. The Different Stages of HIV Infection, AVERT
http:// (last visited Aug.
14, 2011); see also Armen H. Merjian, AIDS, Welfare, and

[FN75]. California Medical Facility Mission Statement,
CDCR Prisons Adult Facility Locator, (last
visited Aug. 14, 2011).
[FN76]. See, e.g., Cal. Penal Code § 7500(a) (West 2011)
(‘The public peace, health, and safety is endangered by the
spread of the human immunodeficiency virus (HIV), acquired
immunodeficiency syndrome (AIDS), and hepatitis B and C
within state and local correctional institutions.‘).

[FN92]. Id. (‘To determine if such segregation shall be made
in the absence of medically trained personnel at the time of
intake into the facility, an inquiry shall be made of the person
being booked as to whether or not he/she has or has had any
communicable diseases, including but not limited to,
tuberculosis, other airborne diseases, or other special medical
problem identified by the health authority.‘).

[FN77]. Id. § 7500(b).

[FN93]. See Operations Manual, supra note 74.

[FN78]. Id. § 7500(c).

[FN94]. See Boyne, supra note 49, at 743 (reporting that in
1988 female prisoners who were HIV+ were housed in an
AIDS unit which was segregated from the general prison

[FN79]. Id.
[FN80]. See id. 7505 (‘[T]his title shall serve as the
authority for the HIV testing of prisoners in only those local
facilities where the governing body has adopted a resolution
affirming that it shall be operative in that city, county, or city
and county.‘).
[FN81]. Id. § 7500(f).
[FN82]. Id.
[FN83]. Joan Petersilia, California's Correctional Paradox of
Excess and Deprivation, 37 Crime & Just. A Rev. of Res. 207,
218 (2008).
[FN84]. Id. (finding that approximately sixty-one percent of
offenders entering prison during any given year are parolees
who had their parole revoked and the remaining thirty-nine
percent are new convictions).
[FN85]. Operations Manual, supra note 74, § 61010.3.
[FN86]. See id. § 61010.8.2; see also id. § 61010.11.2
(describing background factors that are taken into
consideration such as age, sentence, involvement with street
gang activity, and mental illness); id. § 61010.11.4 (describing
points for prior incarceration behavior such as inciting a
disturbance, battery, and distribution of drugs); Petersilia,
supra note 83, at 219.
[FN87]. See Operations Manual, supra note 74, § 61010.8.2.
[FN88]. See id. § 61010.8; see also id. § 61010.12 (stating the
procedures to follow when a prison official disagrees with the
destination of an inmate); Petersilia, supra note 83, at 219.
[FN89]. Petersilia, supra note 83, at 221 (stating that
depending on which facility the prisoner is assigned, the
facility may differ in areas such as the types of rehabilitation
programs, and the influence of gangs).
[FN90]. Cal. Penal Code § 2692 (West 2011) (‘The Director
of Corrections may enter into contracts with public or private
agencies located either within or outside of the state for the
housing, care, and treatment of inmates afflicted with (AIDS)
[FN91]. Cal. Code Regs. tit. 15, § 1051 (2011).

[FN95]. California Medical Facility, Cal. Dep't of Corr. and
Rehab., http://
(last visited Aug. 21, 2011).
[FN96]. 73 Cal. Rptr. 3d 189, 199 (Ct. App. 2008) (finding
that the CMF also acts as an acute care hospital, elderly care
unit, psychiatric unit, hospice unit, and ‘housing and treatment
for inmates identified with AIDS/HIV ... and other special
inmate housing‘); see also Cal. Penal Code § 6100 (West
2011) (‘There is hereby established an institution under the
jurisdiction of the Department of Corrections to be known as
the Medical Facility.‘).
[FN97]. § 6102.
[FN98]. See Camarillo v. McCarthy, 998 F.2d 638, 640 (9th
Cir. 1993) (involving a challenge by an HIV+ inmate for being
transferred from general population to a segregated HIV+
[FN99]. Id.; see also Moore v. Mabus, 976 F.2d 268, 271 (5th
Cir. 1992); Muhammad v. Carlson, 845 F.2d 175, 179 (8th
Cir. 1988), cert. denied, 489 U.S. 1068 (1989); Cordero v.
Coughlin, 607 F. Supp. 9, 10 (S.D.N.Y. 1984).
[FN100]. See Jones v. N. Carolina Prisoners' Labor Union,
Inc., 433 U.S. 119, 125 (1977) (stating that courts must give
appropriate deference to the decisions of prison officials due
to the restrictive nature of confinement); see also Bell v.
Wolfish, 441 U.S. 520, 547 (1979) (“[ ]roblems that arise in
the day-to-day operation of a corrections facility are not
susceptible of easy solutions. Prison administrators therefore
should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to
maintain institutional security.”).
[FN101]. In re Barnes, 221 Cal. Rptr. 415, 416 (Ct. App.
1985) (describing general population inmates as those having
general access throughout the facility, and distinguishing them
from those inmates who are in special housing units).
[FN102]. See Haverty v. Comm'r of Correction, 776 N.E.2d
973, 990-91 (Mass. 2002) (finding that segregating prisoners
should not have been permitted because the segregation did
not clearly related to a penological goal).

[FN103]. Leslie v. Doyle, 896 F. Supp. 771, 773 n.4 (N.D. Ill.
1995) (describing general population as being able to spend
the day using the prison's facilities, having more opportunities
to participate in exercise activities, eating with other prisoners,
being able to attend movies and group religious services),
aff'd, 125 F.3d 1132 (7th Cir. 1997).
[FN104]. See id.; see also Haverty, 776 N.E.2d at 980.

equal protection clause from statutes requiring prisons to
segregate prisoners based on race). aff'd, 390 U.S. 333 (1968).
[FN117]. See id. at 333; see also Johnson v. California, 543
U.S. 499, 512-13 (2004) (finding that an unwritten policy of
racially segregating prisoners was unconstitutional).
[FN118]. See Madrid v. Gomez, 889 F. Supp. 1146, 1280
(N.D. Cal. 1995); see also Cal.Code Regs. tit. 15 § 3335(a)
(West 2011).

[FN105]. See Leslie, 896 F. Supp. at 773 n.4.
[FN106]. See Haverty, 776 N.E.2d at 990 (stating that
prisoners can be segregated from the general population if
officials deem it necessary in order to prevent injury or to
maintain the safe operation of the prison).
[FN107]. See Nesbit v. Dep't of Pub. Safety, 283 F. App'x.
531, 534 (9th Cir. 2008); see also, e.g., Andrew J. Theis, The
Gang's All Here: How the Supreme Court's Unanimous
Holding in Wilkinson v. Austin Utilizes Supermax Facilities
to Combat Prison Gangs and Other Security Threats, 29
Hamline L. Rev. 145, 150-51 (2006) (describing how the Ohio
prison system uses a points system to determine the security
risk of inmates and those who score high enough are
automatically segregated).

[FN119]. See Outing v. Bell, 632 F.2d 1144, 1146 (4th Cir.
1980) (stating that it was not the intent of Congress to house
adult offenders with youthful offenders).
[FN120]. Cal. Penal Code § 4110 (West 2011) (requiring that
women prisoners assigned to an industrial farm be provided
separate quarters); Id. 4002(a) (“ ersons committed on
criminal process and detained for trial, persons convicted and
under sentence, and persons committed upon civil process,
shall not be kept or put in the same room, nor shall male and
female prisoners, except husband and wife, sleep, dress or
undress, bathe, or perform eliminatory functions in the same
room.”); Klinger v. Dep't of Corr., 107 F.3d 609, 615 (8th Cir.
1997) (stating that male and female prisoners may be housed

[FN108]. See Joseph L. Gerken, Does Lewis v. Casey Spell
the End to Court-Ordered Improvement of Prison Law
Libraries?, 95 Law Libr. J. 491, 495 (2003); see also Jerry R.
DeMaio, If You Build it, They Will Come: The Threat of
Overclassification in Wisconsin's Supermax Prison, 2001 Wis.
L. Rev. 207, 209 (2001) (stating that segregation consists of
extended periods of incarceration where the prisoner is kept
alone in his cell and has little contact with the rest of the
prison population).

[FN121]. See Richardson v. City and County of Honolulu, 124
F.3d 1150, 1162 (9th Cir. 1997) (holding that a state action
that neither utilizes suspect classifications nor implicates
fundamental rights will violate substantive due process rights
only where it is shown that the action is not “rationally related
to a legitimate governmental purpose”).

[FN109]. 697 F. Supp. 1234, 1235 (N.D.N.Y. 1998).

[FN123]. See Inmates of Sybil Brand Inst. for Women v.
County of Los Angeles, 181 Cal. Rptr. 599, 607 (Ct. App.
1982) (stating that prisoners can be subject to disciplinary
segregation to ensure the safety of other prisoners and the staff
of the facility).

[FN110]. Id. at 1236.
[FN111]. Id. at 1243 (finding that those who were segregated
would likely suffer “irreparable harm”) (emphasis added).
[FN112]. O'Lone v. Estate of Shabazz, 482 U.S. 342, 344, 347
(1987) (holding that prison regulations did not violate a
prisoner's First Amendment rights because the prison did so to
maintain peace and order); see also Madrid v. Gomez, 889 F.
Supp. 1146, 1271 (N.D. Cal. 1995) (stating that prison
officials may segregate gang members so long as they are
provided with the “quantum of procedural due process
required by the Constitution”).
[FN113]. See, e.g., Korematsu v. United States, 323 U.S. 214,
216 (1944).
[FN114]. Id.
[FN115]. Id. (emphasis added).
[FN116]. See Washington v. Lee, 263 F. Supp. 327 (M.D.
Ala. 1966) (holding that prisoners are protected under the

[FN122]. See Outing, 632 F.2d at 1146; see also Klinger, 107
F.3d at 615.

[FN124]. 4002(b) (“[A]dministrative segregation means
separate and secure housing that does not involve any
deprivation of privileges other than what is necessary to
protect the inmates and staff.”).
[FN125]. 776 F. Supp. 715, 737 (W.D.N.Y. 1991).
[FN126]. 482 U.S. 342, 349 (1987); see also, e.g., Griffin v.
Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (holding that
administratively segregating a prisoner for fifteen months did
not violate the Eighth Amendment); Beverati v. Smith, 120
F.3d 500 (4th Cir. 1997) (stating that confining inmates in
administrative segregation does not create an atypical hardship
that would implicate a liberty interest); McCormick v. Stalder,
105 F.3d 1059, 1061-62 (5th Cir. 1997) (holding that
administratively segregating an inmate who had tuberculosis
was not unconstitutional because it was related to legitimate
penological interests). But see Perkins v. Kansas Dep't of
Corr., 165 F.3d 803, 810-11 (10th Cir. 1999) (holding that

segregating HIV+ inmates in such a manner where it deprived
them of outdoor exercise violated the Eighth Amendment);
Gary H. Loeb, Protecting the Right to Informational Privacy
for HIV-Positive Prisoners, 27 Colum. J.L. & Soc. Probs. 269,
272 (1994) (arguing that courts have deferred policy questions
to prison officials because prison officials only have to show a
rational relation between the regulation and the penological
[FN127]. See O'Lone, 482 U.S. at 349; see also Bell v.
Wolfish, 441 U.S. 520, 562 (1979) (“[S]olutions to often
intractable problems are better and more workable than those
of the persons who are actually charged with and trained in the
running of the particular institution under examination.”).
[FN128]. See O'Lone, 482 U.S. at 354 (Brennan J.,
[FN129]. Turner v. Safley, 482 U.S. 78, 89 (1987) (reasoning
that by subjecting the everyday judgment of prison officials to
a strict scrutiny standard, it would hinder their ability to adopt
solutions to problems they may face as the prison
[FN130]. Id. at 89-91.
[FN131]. See Lee, supra note 23, at 358 (stating the three most
common ways of transmitting HIV is through sexual
intercourse, sharing needles, and through breast feeding from
an HIV infected woman to her baby).
[FN132]. Centers for Disease Control and Prevention, DrugAssociated HIV Transmission Continues in the United States
1-2 (2002), available at http:// (stating it
is estimated that intravenous drug use has caused
approximately 36% of AIDS cases).
[FN133]. See Larsen, supra note 18, at 254; Lee, supra note
23, at 358; see also Harris v. Thigpen, 941 F.2d 1495, 1503
(11th Cir. 1991); Mary McLean Jordan, Care to Prevent HIV
Infection in Prison: A Moral Right Recognized by Canada,
While the United States Lags Behind, 37 U. Miami Inter-Am.
L. Rev. 319, 321-22 (2006).
[FN134]. U.S. Dep't of Health and Human Servs.
Understanding AIDS, at 2, HHS-88-8404 (1988); Thigpen,
941 F.2d at 1503; Lee, supra note 23, at 358.

Challenge for the Eighth Amendment Framework of Wilson v.
Seiter, 44 Stan. L. Rev. 1541, 1544 (1992); Tess M. S. Neal &
Carl B. Clements, Prison Rape and Psychological Sequelae: A
Call for Research, 16 Psychol. Pub. Pol'y & L. 284, 284
(2010) (stating that rape in prison is a pervasive problem in the
U.S. prison system); see also Philip Ellenbogen, Beyond the
Border: A Comparative Look at Prison Rape in the United
States and Canada, 42 Colum. J.L. & Soc. Probs. 335, 336
(2009) (stating sexual assaults and rapes are known to exist in
the prison system); Darryl M. James, Comment, Reforming
Prison Litigation Reform: Reclaiming Equal Access to Justice
for Incarcerated Persons in America, 12 Loy. J. Pub. Int. L.
465, 471-72 (2011); Katherine Robb, What We Don't Know
Might Hurt Us: Subjective Knowledge and the Eighth
Amendment's Deliberate Indifference Standard for Sexual
Abuse in Prisons, 65 N.Y.U. Ann. Surv. Am. L. 705, 705-07
(2010); Jerita L. DeBraux, Prison Rape: Have We Done
Enough? A Deep Look into the Adequacy of the Prison Rape
Elimination Act, 50 How. L.J. 203, 205-07 (2006) (describing
how rape can also be accomplished through coercion, pimping
out a prisoner, and as a means for control and punishment).
[FN138]. 319 F. Supp. 2d 162, 188-90 (D. Mass. 2004)
(finding that other problems prisoners confront include
physical violence, overcrowding, and unhealthy and unsafe
[FN139]. See LaMarca v. Turner, 662 F. Supp. 647, 700-06
(S.D. Fla. 1987) (finding that five prisoners had been gang
raped); Wheeler v. Sullivan, 599 F. Supp. 630, 652 (D. Del.
1984) (finding that a male prisoner was raped within twentyfour hours of arriving at prison). But see Neal & Clements,
supra note 137, at 285 (stating that the number of prison rape
victims may be underreported because of guilt, stigma, and
fear of retaliation).
[FN140]. 444 U.S. 394, 421 (1980) (Blackmun J., dissenting).
[FN141]. Id.
[FN142]. 475 F. Supp. 1111, 1114 (E.D. Mich. 1979).
[FN143]. See id. (stating the closest prison officer or guard
was in an office approximately half a football field away from
the youthful offender section).
[FN144]. See id.
[FN145]. See id.

[FN135]. See Onishea v. Hopper, 171 F.3d 1289, 1295 (11th
Cir. 1999) (stating that HIV can perpetually be spread in jail
by sex, intravenous drug use, and bloodshed).
[FN136]. Kate Dolan et. al., Evaluation of the Condom
Distribution Program in New South Wales Prisons, Australia,
32 J.L. Med. & Ethics 124, 124 (2004); see also James E.
Robertson, Cruel and Unusual Punishment in United States
Prisons: Sexual Harassment Among Male Inmates, 36 Am.
Crim. L. Rev. 1, 9 (1999) (describing the sexual harassment
and abuse of inmates).
[FN137]. See David M. Siegal, Rape in Prison and AIDS: A

[FN146]. See id. (“As a result of this experience the plaintiff
suffered some bodily injuries and drastic psychological
[FN147]. See Larsen, supra note 18, at 257.
[FN148]. Sowder, supra note 35, at 668 (stating that it is
undisputed that consensual and forced homosexual sex takes
place in most correctional facilities).
[FN149]. Larsen, supra note 18, at 258 (stating that consensual
sex is also unsafe because there will be a transfer of bodily

fluids between inmates and condoms are not available because
they are considered contraband).
[FN150]. Id.
[FN151]. Id. at 259 (stating that many criminals continue to
use drugs even after being placed in custody); see also Human
Rights Watch, supra note 21, at 10 (stating that intravenous
drug usage is a key way in which the HIV virus is spread and
that “[t]wenty percent of state prisoners in the US are held on
drug-related charges ....”); Kate Abramson, Note, Unfairly
Condemned to Disease: The Argument for Needle-Exchange
Programs in United States Prisons, 16 Geo. J. on Poverty L. &
Pol'y 695, 696 (2009) (stating that needle sharing in prison is a
“significant source of HIV transmission”).
[FN152]. Centers for Disease Control and Prevention, supra
note 132.
[FN153]. Ralf Jurgens, Sentenced to Prison, Sentenced to
Death? HIV and AIDS in Prison, 5 Crim. L.F. 763, 765 (1994)
(book review).
[FN154]. See Centers for Disease Control and Prevention,
supra note 132; see also Lee, supra note 23, at 361-62.

(involving a prison where all inmates with AIDS were “sent to
the maximum security prison and involuntarily segregated
from the general prison population pursuant to the policy of
the Department of Correction”).
[FN166]. Id. at 1012.
[FN167]. Larsen, supra note 18, at 268; see also Human
Rights Watch, supra note 21, at 2 (“Segregation policies
reflect outdated approaches to HIV that no longer have any
rational basis in science or public policy.”).
[FN168]. Human Rights Watch, supra note 21, at 2 (stating
that in 1985, forty-six out of fifty-one state and federal prisons
segregated HIV+ inmates, and that number fell to six of fiftyone in 1994).
[FN169]. Harris v. Thigpen, 941 F.2d 1495, 1516 (11th Cir.
1991) (stating that segregation may be justified if it reduces
the rate of HIV infection and it promotes the internal prison
[FN170]. See id.; see also Human Rights Watch, supra note
21, at 41 (reporting that in Alabama and South Carolina
officials “claim that segregation is necessary to reduce the risk
of HIV transmission within the prison”).

[FN155]. Larsen, supra note 18, at 260; see also Lee, supra
note 23, at 361-62.

[FN171]. Harris, 941 F.2d at 1516.

[FN156]. See Larsen, supra note 18, at 260; see also Motzer v.
Goord, 709 N.Y.S.2d 670, 671-72 (App. Div. 2000) (finding a
prisoner guilty of possession of tattooing instruments); Human
Rights Watch, supra note 21, at 11 (“Tattooing is another
common prison activity that poses a risk of HIV and hepatitis
transmission from shared needles.”).

[FN172]. Sowder, supra note 35, at 681. But see Human
Rights Watch, supra note 21, at 40 (“In the US, forty-seven
other states and the federal Bureau of Prisons provide medical
care to prisoners with HIV without segregating them from
other prisoners. These include Florida and New York, the two
states with the highest number of prisoners living with HIV.”).

[FN157]. Magar v. Parker, 490 F.3d 816, 817 (10th Cir. 2007)
(finding the prisoner possessed a tattoo gun and tattoo

[FN173]. Loeb, supra note 126, at 278 (stating that by
segregating AIDS/HIV+ inmates it could lull the other inmates
into believing that non-segregated inmates are not infected);
see also Human Rights Watch, supra note 21, at 43
(“Segregation may lead to a false sense of security among
prisoners in the general population that HIV has been
effectively removed, thereby increasing the likelihood of
unsafe sexual, injection or tattooing behaviors.”).

[FN158]. Larsen, supra note 18, at 260.
[FN159]. Id.
[FN160]. Id.
[FN161]. See id. at 260-61; see also James J. Stephan &
Jennifer C. Karberg,Census of State and Federal Corrections
Facilities 2000, Bureau of Justice Statistics 9-10 (Aug. 24,
2003), http://
(stating that in 2000, 34,355 inmate-on-inmate assaults were
reported by prisoners in state and federal prisons).
[FN162]. See Larsen, supra note 18, at 260-61.
[FN163]. Chang & McCooey, supra note 14, at 1012.
[FN164]. Larsen, supra note 18, at 268-69 (finding that while
segregating infected inmates is unnecessary, many prisons still
choose to segregate infected).
[FN165]. See, e.g., Chang & McCooey, supra note 14, at 1002

[FN174]. See Howard Messing, AIDS in Jail, 11 N. Ill. U. L.
Rev. 297, 308 (1991) (stating that it is universally accepted
that healthy HIV+ inmates pose little, or no, danger to other
inmates); see also Human Rights Watch, supra note 21, at 13
(stating that in the beginning of the AIDS/HIV epidemic,
HIV+ inmates were placed in isolation and had no access to
programs, work, or activities).
[FN175]. Chang & McCooey, supra note 14, at 1002 (finding
that inmates with AIDS who were segregated “had virtually no
access to the dining room, barber shop, library, educational
programs, vocational programs, church services, or
[FN176]. Id. at 1015 (describing how inmates with AIDS were
“[f]orced to endure extended periods of idleness, despair, and

[FN177]. See Loeb, supra note 126, at 278 (stating that by
forcing HIV+ inmates to live together it creates an
environment where diseases, such as tuberculosis, can be
easily spread from prisoner to prisoner); see also Human
Rights Watch, supra note 21, at 43 (“[S]egregation of HIVpositive prisoners is not recommended as a matter of public
health. Prisons generally can be incubators for infectious
disease, but close confinement of individuals with
compromised immune systems may spread infection more
rapidly through this more vulnerable population.”).

[FN193]. See Abbott v. Bragdon, 912 F. Supp. 580, 595 (D.
Me. 1995) (finding that a dentist's refusal to treat an AIDS
infected patient in his office violated the Americans with
Disabilities Act) aff'd, 107 F.3d 934 (1st Cir. 1997) vacated,
524 U.S. 624 (1998); see also Merjian, supra note 51, at 374
(discussing the unequal provision of social welfare benefits
and services to an AIDS recipient).
[FN194]. Americans with Disabilities Act of 1990 § 320, 42
U.S.C. § 12182(a) (2006).
[FN195]. Id. § 12102(2).

[FN178]. Chang & McCooey, supra note 14, at 1002; see also
Onishea v. Hopper, 171 F.3d 1289, 1292 (11th Cir. 1999)
(stating that inmates segregated due to being HIV+ may not be
able to participate in programs including farm jobs, facility
maintenance, and vocational training such as auto mechanics
classes, construction trade classes, and barber jobs); Scott
Burris, Prisons, Law and Public Health: The Case for A
Coordinated Response to Epidemic Disease Behind Bars, 47
U. Miami L. Rev. 291, 314 (1992) (finding that segregating
HIV+ inmates deprives them of access to prison activities and
programs, and identifies their HIV status to guards, staff, and
other prisoners).

[FN196]. See 912 F. Supp. at 580. But see Timothy D.
Johnston, Reproduction Is Not A Major Life Activity:
Implications for HIV Infection As A Per Se Disability Under
the Americans with Disabilities Act, 85 Cornell L. Rev. 189,
193-94 (1999) (arguing the U.S. Supreme Court in Bragdon
incorrectly decided whether a person who is HIV+ is disabled
under the ADA because the Court focused on the act of
reproduction when analyzing what constitutes a major life
[FN197]. Abbott, 912 F. Supp. at 585.

[FN179]. 680 F. Supp. 112, 114 (S.D.N.Y. 1988).

[FN198]. Id.

[FN180]. 72 F.3d 518, 520 (7th Cir. 1995).

[FN199]. Id.

[FN181]. See Chang & McCooey, supra note 14, at 1012; see
also Larsen, supra note 18, at 268 (stating that by the year
2001, the trend had changed, and many prison systems had
moved away from the practice of segregation, “in part due to
the heightened understanding about transmission of the virus
and the belief that isolation was not medically necessary”).

[FN200]. Id.
[FN201]. Id.
[FN202]. 585.
[FN203]. Id.

[FN182]. Chang & McCooey, supra note 14, at 1002.
[FN183]. See id. (stating that some HIV+ inmates would still
be housed with HIV- inmates).

[FN204]. Id.; see also Gates v. Rowland, 39 F.3d 1439, 1446
(9th Cir. 1994); Austin v. Pennsylvania Dep't of Corrs., 876 F.
Supp. 1437, 1465 (E.D. Pa. 1995); Glanz v. Vernick, 756 F.
Supp. 632, 635 (D. Mass. 1991).

[FN184]. See, e.g., Marcussen v. Brandstat, 836 F. Supp. 624,
626 (N.D. Iowa 1993) (involving an HIV- inmate who sued
prison officials for assigning an HIV+ inmate as his cellmate).

[FN205]. See Abbot v. Bragdon, 107 F.3d 934, 934 (1st Cir.
1997), vacated, 524 U.S. 624 (1998).

[FN185]. 855 F.2d 536, 539 (8th Cir. 1988).

[FN206]. Bragdon v. Abbott, 524 U.S. 624, 628 (1998).

[FN186]. See id. at 539.

[FN207]. See id. at 650 (stating that assessment of risk of
infection must be made from the standpoint of a reasonable
health care professional “without deferring to their individual
judgments ....”).

[FN187]. Id.
[FN188]. 836 F. Supp. at 626.
[FN189]. See id. (alleging that the HIV+ inmate used his
razor, cigarette roller, and drinking cup).
[FN190]. See 855 F.2d at 539-40.
[FN191]. See Marcussen, 836 F. Supp. at 627.
[FN192]. Id. at 628.

[FN208]. 42 U.S.C. § 1983 (2010) (“Every person who, under
color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress ....”).

[FN209]. See Wilson v. Vannatta, 291 F. Supp.2d 811, 814
(N.D. Ind. 2003).
[FN210]. See Price v. Johnston, 334 U.S. 266, 285 (1948)
(“Lawful incarceration brings about the necessary withdrawal
or limitation of many privileges and rights, a retraction
justified by the considerations underlying our penal system.”);
Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119,
129 (1977) (“[T]his Court has repeatedly recognized the need
for major restrictions on a prisoner's rights.”).
[FN211]. See Bell v. Wolfish, 441 U.S. 520, 545 (1979)
(stating convicted prisoners do not forfeit all constitutional
protections by reason of their conviction and confinement in
prison, and “[t]here is no iron curtain drawn between the
Constitution and the prisons of this country.”) (quoting Wolff
v. McDonnell, 418 U.S. 539, 555-56 (1974)); Turner v.
Safley, 482 U.S. 78, 84 (1987); Pell v. Procunier, 417 U.S.
817, 824 (finding a prisoner does not forfeit the right to free
exercise of religion); Cruz v. Beto, 405 U.S. 319, 322 (holding
that a prisoner's First Amendment right was violated when
prison officials “denied [him] a reasonable opportunity of
pursuing his faith”); Meachum v. Fano, 427 U.S. 215, 225
(1976) (“[A] convicted felon does not forfeit all constitutional
protections by reason of his conviction and confinement in
prison.”); Walker v. Sumner, 917 F.2d. 382, 385 (9th Cir.
1990) (“ risoners, despite their conviction and confinement,
do not forfeit all constitutional rights.”). But see Sarah E.
Frink, AIDS Behind Bars: Judicial Barriers to Prisoners'
Constitutional Claims, 45 Drake L. Rev. 527, 532 (1997)
(stating that despite these court holdings, prisoner claims of
constitutional violations have not fared well).
[FN212]. 482 U.S. at 84.
[FN213]. U.S. Const. amend. VIII (“Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”).
[FN214]. Id. amend. XIV, 1 (“No State shall ... deprive any
person of life, liberty, or property, without due process of
[FN215]. Id. (“No state shall ... deny to any person within its
jurisdiction the equal protection of the laws.”).
[FN216]. See, e.g., Whalen v. Roe, 429 U.S. 589, 596 (1977)
(stating that although the right to privacy is not recognized in
the Constitution, it has been judicially noticed).
[FN217]. 482 U.S. at 78 (stating that, in the past, strict
scrutiny was used to resolve prisoners' constitutional
complaints, but when such complaints are brought before a
court, “a lesser standard is appropriate whereby inquiry is
made into whether a prison regulation that impinges on
inmates' constitutional rights is ‘reasonably related’ to
legitimate penological interests”). But see Loeb, supra note
126, at 273 (arguing that a higher standard should be used
when analyzing the disclosure of an inmate's HIV related
[FN218]. See Goss v. Sullivan, 839 F. Supp. 1532, 1534 (D.

Wyo. 1993) (involving an inmate who was attacked by an
HIV+ inmate and thereafter claimed the Director of the
Department of Corrections violated his Eighth Amendment
rights by failing “to protect the general prison population from
the risk of contracting AIDS, by failing to inform the inmate
population ‘as to which inmates pose a deadly threat,’ and by
failing to ensure the health and well-being of the inmates”);
Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 263
(S.D.N.Y. 1990) (involving an inmate who stated that being
forced to share a cell with an HIV+ inmate violated the Eighth
Amendment); Nolley v. Cnty of Erie, 776 F. Supp. 715, 71718 (W.D.N.Y. 1991) (involving an HIV+ inmate who claimed
her conditions of confinement violated the Eighth
Amendment); Harris v. Thigpen, 941 F.2d 1495, 1501 (11th
Cir. 1991) (involving an HIV+ inmate who sued stating his
segregation violated the Eighth Amendment); Feigley v.
Fulcomer, 720 F. Supp. 475, 476 (M.D. Pa. 1989) (involving
an inmate who sued under the Eighth Amendment alleging the
prison did not protect the inmates because the prison did not
segregate HIV+ prisoners).
[FN219]. In re Henderson, 101 Cal. Rptr. 479, 484 (Ct. App.
1972) (stating a policy that allows for segregating inmates is
“perfectly proper and lawful and its administration requires
the highest degree of expertise in the discretionary function of
balancing the security of the prison with fairness to the
individuals confined”).
[FN220]. Robbins v. Clarke, 946 F.2d 1331, 1332 (8th Cir.
1991) (stating that failure to segregate HIV prisoners is not
cruel and unusual punishment); Johnson v. United States, 816
F. Supp. 1519 (N.D. Ala. 1993) (stating that having a policy of
not segregating prisoners with AIDS did not violate the Eighth
Amendment); Davis v. Stanley, 740 F. Supp 815, 817 (N.D.
Ala. 1987) (rejecting the claim of an Eighth Amendment
violation for housing an AIDS infected prisoner with a noninfected prisoner); Welch v. Sheriff, Lubbock Cnty. Tex., 734
F. Supp. 465 (N.D. Tex. 1990) (stating the U.S. Constitution
does not require HIV positive inmates to be segregated from
the general population); see Feigley, 720 F. Supp. at 475
(holding that prison officials did not violate the Eighth
Amendment by not segregating AIDS infected inmates).
[FN221]. Johnson v. California, 543 U.S. 499, 511 (2005)
(stating that violations of the Eighth Amendment should be
made “under the ‘deliberate indifference’ standard, rather than
Turner's ‘reasonably related’ standard); see also Substantive
Rights Retained by Prisoners, 34 Geo. L.J. Ann. Rev. Crim.
Proc. 915, 932 (2005) (“The Supreme Court has adopted the
‘deliberate indifference’ standard to determine whether
officials display the requisite culpable state of mind with
respect to conditions of confinement and medical care.”).
[FN222]. 511 U.S. 825, 825 (1994) (holding that a state
official may be liable under the Eighth Amendment if the state
official fails to protect an inmate from a known sexually
violent predatory cellmate).
[FN223]. 836 F. Supp. 624, 628 (N.D. Iowa 1993); see also
Portee v. Tollison, 753 F. Supp. 184, 187 (D.S.C. 1990)
(holding the “South Carolina Department of Corrections
practices and policies governing the admission of prisoners

and the handling of prisoners with AIDS do not violate the
Eighth Amendment's prohibition against cruel and unusual
punishment”), aff'd, 929 F.2d 694 (4th Cir. 1991).

take any action were insufficient to show a deliberate
indifference to the other inmates).
[FN230]. Id. at 1537.

[FN224]. See Billman v. Ind. Dep't of Corrs., 56 F.3d 785,
788-89 (7th Cir. 1995) (holding that the failure to protect an
inmate from an HIV+ cellmate with a propensity for rape
violates an inmate's Eighth Amendment rights); see also
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (holding that if
prison officials act with deliberate indifference to an inmate's
serious medical needs, then such actions would violate the
Eighth Amendment).
[FN225]. 501 U.S. 294, 299 (1991); see also Camarillo v.
McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (holding that a
prison policy that segregated HIV+ inmates from the prison's
general population is not unconstitutional); Substantive Rights
Retained by Prisoners, supra note 221, at 938 (stating that
when analyzing Eighth Amendment claims, courts will
consider objective and subjective components. The objective
component looks at whether the act rises to a level sufficient
enough to implicate the Eighth Amendment, and the
subjective component determines if the official had a
sufficiently culpable state of mind.); Williams v. Benjamin, 77
F.3d 756, 761 (4th Cir. 1996) (holding that “[E]ighth
Amendment analysis necessitates inquiry as to whether the
prison official acted with a sufficiently culpable state of mind
(subjective component) and whether the deprivation suffered
or injury inflicted on the inmate was sufficiently serious
(objective component)”); Brown v. Bargery, 207 F.3d 863,
867 (6th Cir. 2000) (finding an Eighth Amendment claim
required proving objective and subjective allegations); Riley
v. Olk-Long, 282 F.3d 592, 595 (8th Cir. 2002) (ruling a
female inmate's claim that a guard raped her was allowed
because the inmate satisfied both the objective and subjective
components); Freitas v. Ault, 109 F.3d 1335, 1339 (8th Cir.
1997) (stating an inmate's sexual harassment claim against
prison officials could not proceed because the objective
component was not satisfied).
[FN226]. See Wilson, 501 U.S. at 298 (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)).
[FN227]. See id. at 301-03. But see Doe v. Wigginton, 21 F.3d
733, 738 (6th Cir. 1994) (stating that because the prison
official did not act with deliberate indifference when failing to
follow the prison's policy of administering an AIDS test to a
prisoner, there was not a violation of the Eighth Amendment).

[FN231]. Robbins v. Clarke, 946 F.2d 1331, 1334-35 (8th Cir.
1991) (dismissing a claim that “involuntary and unprotected
exposure to HIV-positive prisoners is violative of his Eighth
Amendment right against cruel and unusual punishment”); see
also Kathleen Knepper, Responsibility of Correctional
Officials in Responding to the Incidence of the HIV Virus in
Jails and Prisons, 21 New Eng. J. on Crim. & Civ.
Confinement 45, 81-86 (1995).
[FN232]. 839 F. Supp. at 1534.
[FN233]. Id. at 1538 (finding that the plaintiff could not
demonstrate “that the [prison administrator's] failure to
segregate those inmates who have tested HIV-positive from
the general inmate population, or that the failure to disclose
which inmates have tested HIV-positive to the general prison
population, are clearly established violations of the Eighth
Amendment in this Circuit....[A]lthough the law is clearly
established that prison officials must protect inmates from
others known to be violent risks, plaintiff has failed to
establish that these individual defendants were aware of any
propensity on the part of Inmate Fitzhugh to attempt to infect
other inmates, or that any one of these individuals had any
personal involvement whatsoever in the events ....”).
[FN234]. Id. at 1537.
[FN235]. 737 F. Supp. 261, 263-64 (S.D.N.Y. 1990) (alleging
that he was forced to share a cell with an HIV+ cellmate, and
that during the first three days he shared several of his
personal belongings with his cellmate, but on the fourth day
the plaintiff's cellmate disclosed to him that he was HIV+).
[FN236]. Id. at 264.
[FN237]. Id. at 267 (“Deutsch has not presented the [c]ourt
with any facts or allegations from which it might be inferred
that the decision to house the cellmate with Deutsch without
informing him of the HIV test results evidenced a deliberate
indifference to his serious medical needs.”).
[FN238]. 776 F. Supp. 715, 717-18 (W.D.N.Y. 1991).
[FN239]. Id. at 721.

[FN228]. Berry v. City of Muskogee, 900 F.2d 1489, 1493-97
(10th Cir. 1990) (holding that a prisoner's Eighth Amendment
rights were violated when he was murdered while in custody);
Harris v. Maynard, 843 F.2d 414, 416 (10th Cir. 1988)
(holding that “wanton or obdurate disregard of or deliberate
indifference to the prisoner's right to life as a condition of
confinement is a substantive Constitutional deprivation
whether it falls under the due process clause or the Eighth
[FN229]. See, e.g., Goss v. Sullivan, 839 F. Supp. 1532, 1537
(D. Wyo. 1993) (stating allegations that prison officials were
aware of the risk posed by an infected inmate, but failed to

[FN240]. Id. at 739.
[FN241]. Id. at 743.
[FN242]. Id. at 736; see also Haines v. Kerner, 404 U.S. 519,
520 (1972) (involving an inmate who claimed he was denied
due process in the steps leading to being assigned to solitary
[FN243]. Nolley, 776 F. Supp. at 717-18.
[FN244]. In re Davis, 599 P.2d 690, 699 (Cal. 1979); Inmates

of Sybil Brand Inst. for Women v. Cnty. of Los Angeles, 181
Cal. Rptr. 599, 609 (Ct. App. 1982) (holding that such due
process includes a hearing with advance notice, the
opportunity for the inmate to present evidence, providing the
inmate with written reasons for the segregation, and counsel if

[FN257]. Id. at 737.
[FN258]. Id.
[FN259]. Id. at 738.

[FN245]. 418 U.S. 539, 556-57 (1974).

[FN260]. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412,
415 (1920) (stating that the Equal Protection Clause requires
that people who are similarly situated must be treated alike).

[FN246]. 449 U.S. 5, 11 (1977) (“Segregation of a prisoner
without a prior hearing may violate due process if the
postponement of procedural protections is not justified by
apprehended emergency conditions.”).

[FN261]. Michael F. Williams & Edward Joyce, Substantive
Rights Retained by Prisoners, 88 Geo. L.J. 1716, 1746 (2000).

[FN247]. 459 U.S. 460, 472 (1983), overruled in part by
Sandin v. Conner, 515 U.S. 472 (1995).
[FN248]. 515 U.S. 472, 484 (1995); see also Michael Z.
Goldman, Sandin v. Conner and Intraprison Confinement: Ten
Years of Confusion and Harm in Prisoner Litigation, 45 B.C.
L. Rev. 423, 423-25 (2004).
[FN249]. See Sandin, 515 U.S. at 483; see also Wilkinson v.
Austin, 545 U.S. 209, 210 (2005); Estate of DiMarco v.
Wyoming Dep't of Corrs., 473 F.3d 1334, 1342 (10th Cir.
2007) (stating that some factors to analyze to determine if
conditions impose an atypical and significant hardship
include: 1) if segregation furthers a legitimate penological
interest; 2) if the placement of the prisoner is extreme; 3) if the
placement increases the duration of confinement; and 4) if the
placement is indeterminate).
[FN250]. 427 U.S. 236, 242 (1976); see also Lekas v. Briley,
405 F.3d 602, 603 (7th Cir. 2005) (holding that placing an
inmate in disciplinary segregation is not atypical and
significant, and therefore, was not a deprivation of a liberty
[FN251]. Nolley v. Cnty. of Erie, 776 F. Supp. 715, 737
(W.D. N.Y. 1991) (referring to the holding in Hewitt v.
Helms, 459 U.S. 460, 467-68 (1983)).
[FN252]. See, e.g., Cordero v. Coughlin, 607 F. Supp. 9, 10
(S.D.N.Y. 1984); Powell v. Dep't of Corrs., State of Okla., 647
F. Supp. 968, 970 (N.D. Okla. 1986); see also Daniels v.
Williams, 474 U.S. 327, 331-33 (1986) (holding that even an
official's negligent act which causes a loss of life, liberty, or
property will not invoke a due process claim); Cordero v.
Coughlin, 607 F. Supp. 9, 10 (S.D.N.Y. 1984) (holding that
transferring an inmate to a more restrictive quarters for
nonpunitive reasons does not violate the due process clause
because it is within the terms of confinement ordinarily
contemplated by an inmate).
[FN253]. 845 F.2d 175, 179 (8th Cir. 1988).
[FN254]. See, e.g., Vitek v. Jones, 445 U.S. 480, 481 (1980).

[FN262]. Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997)
(holding that prisoners are not a suspect class); Pryor v.
Brennan, 914 F.2d 921, 923 (7th Cir. 1990) (holding that
prisoners are not a suspect class under the Fourteenth
[FN263]. 776 F. Supp 715, 739 (W.D.N.Y 1991) (emphasis
added); see, e.g., Judd v. Packard, 669 F. Supp 741, 743 (D.
Md. 1987) (holding that placing an inmate in a prison hospital
while being tested for AIDS did not violate his constitutional
rights); see also Cordero v. Coughlin, 607 F. Supp. 9, 10
(S.D.N.Y. 1984) (stating that an equal protection claim did not
apply because inmates with AIDS are not similarly situated
with other prisoners); Moore v. Mabus, 976 F.2d 268, 271 (5th
Cir. 1992).
[FN264]. Williams & Joyce, supra note 261, at 1747.
[FN265]. Plyer v. Doe, 457 U.S. 202, 216 (1982) (“[T]he
Equal rotection Clause directs that ‘all persons similarly
circumstanced shall be treated alike.”’) (quoting F.S. Royster
Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).
[FN266]. Williams & Joyce, supra note 261, at 1746.
[FN267]. See Nolley, 776 F. Supp. at 739; see, e.g., Judd, 669
F. Supp. at 743.
[FN268]. See, e.g., Whalen v. Roe, 429 U.S. 589, 596 (1977);
Houchins v. KQED, Inc., 438 U.S. 1, 15-16 (1978); see also
Woods v. White, 689 F. Supp. 874, 876 (W.D. Wis. 1988)
(stating that even after being convicted of a crime, a prisoner
retains their right to privacy), aff'd, 899 F.2d 17 (7th Cir.
[FN269]. 381 U.S. 479, 485-86 (1965).
[FN270]. Id. at 480.
[FN271]. Id.
[FN272]. Id. at 485. Justices Black and Stewart dissented
stating there was no right to privacy in the Constitution, and
criticized the interpretations of the Ninth and Fourteenth
amendments. Id. at 510, 527.

[FN255]. Id. at 481.
[FN273]. Id. at 484.
[FN256]. 776 F. Supp 715, 717 (W.D.N.Y 1991).
[FN274]. Id. at 486-88.

[FN295]. Id. at 1016.
[FN275]. See id. at 500.
[FN296]. See id. at 1017-18.
[FN276]. 429 U.S. 589, 591 (1977).
[FN297]. Id. at 1018.
[FN277]. Id. at 598, 600.
[FN298]. Kinnard, supra note 30.
[FN278]. Id. at 599.
[FN299]. See human rights watch, supra note 21, at 1.
[FN279]. 433 U.S. 425, 465 (1977) (stating that in upholding a
congressional statute authorizing the review of Presidential
materials, the President's constitutional right to privacy was
not violated).
[FN280]. 458 U.S. 747, 773-74 (1982) (finding a criminal
statute prohibiting the distribution of child pornography to be
[FN281]. See, e.g., Doe v. Coughlin, 697 F. Supp. 1234, 123637, 1238 n.6, (N.D.N.Y. 1988) (granting a preliminary order
enjoining a prison from involuntarily segregating an HIV+
inmate in part because such segregation could violate the
inmate's constitutional right to privacy by disclosing his HIV
status); Nolley v. Cnty. of Erie, 776 F. Supp. 715, 728-31
(W.D.N.Y. 1991); see also Matson v. Bd. of Educ. of City
Sch. Dist. of N.Y., 631 F.3d 57, 64 (2d Cir. 2011) (stating that
although the privacy of medical records varies depending on
the person's condition, a person infected with AIDS/HIV does
have an expectation of privacy).

[FN300]. Operations Manual, supra note 74.
[FN301]. Donaldson, supra note 42, at 1613.
[FN302]. Id.
[FN303]. Id. (stating that AIDS/HIV+ infected inmates are
segregated only after they have been disciplined for
[FN304]. See, e.g., Theis, supra note 107 (describing how the
Ohio prison system looks at an inmate's criminal history and
gang affiliation to determine if a prisoner should be
[FN305]. Id. at 158.
[FN306]. 839 F. Supp. 1532, 1534 (D. Wyo. 1993).
[FN307]. Id.

[FN282]. 864 F.2d 1309, 1321, 1324 (7th Cir. 1988).
[FN308]. Id.
[FN283]. 729 F. Supp. 376, 382 (D. N.J. 1990).
[FN309]. Id.
[FN284]. See, e.g., Doe v. Delie, 257 F.3d 309, 317 (3d Cir.
2001); see also Seaton v. Mayberg, 610 F.3d 530, 534-35 (9th
Cir. 2010) (stating that the constitutional right of prisoners to
keep their medical records private is not violated if prison
officials need such information to protect other prisoners and
prison staff, or to manage rehabilitative efforts).
[FN285]. Doe v. Wigginton, 21 F.3d 733, 736 (6th Cir. 1994).
[FN286]. Anderson v. Romero, 72 F.3d 518, 524-26 (7th Cir.
[FN287]. 776 F. Supp. 715, 731-36 (W.D.N.Y. 1991).
[FN288]. Id. at 728.
[FN289]. Id. at 731.
[FN290]. Id. at 734.

[FN310]. Id. at 1535.
[FN311]. Id.
[FN312]. See, e.g., Hubbart v. Super. Ct., 969 P.2d 584, 586
(Cal. 1999) (involving a prisoner with a long history of violent
and bizarre sex crimes against women); People v. Roberge, 62
P.3d 97, 99 (Cal. 2003) (involving a violent sexual offender
suffering from a sexual disorder where the offender got
aroused from perverse, unorthodox encounters); Kansas v.
Hendricks, 521 U.S. 346, 346 (1997) (involving a prisoner
convicted for being a sexually violent predator); Com. v.
Birdsong, 650 A.2d 26 (Pa. 1994) (involving someone who
was convicted of first degree murder, aggravated assault,
involuntary deviate sexual intercourse, and rape). Although
none of these prisoners were infected with AIDS/HIV+, if
they were infected, then according to the proposed new
standard, they would have been segregated upon reception to
the prison.

[FN291]. Id. at 735.
[FN292]. Id. at 736.
[FN293]. Chang & McCooey, supra note 14, at 1025-26.
[FN294]. Id. at 1026.

[FN313]. See, e.g.,Marshall v. State, 915 So. 2d 264, 266-67
(Fla. Dist. Ct. App. 2005) (involving an inmate who, on one
occasion, assaulted an inmate and then inserted his finger into
the victim inmate's rectum, and on another occasion assaulted
an inmate and inserted a tooth brush into the victim inmate's
rectum). Although this prisoner was not infected with
AIDS/HIV+, had he been, then under the proposed new

standard, he would be segregated upon reception to a prison.
[FN314]. Donaldson, supra note 42.
[FN315]. Mich. Comp. Laws Ann. § 791.267(3) (West 1998).
[FN316]. Id. (stating that if a prisoner is HIV+, and is
subsequently subject to discipline, then they can be
[FN317]. Id.
[FN318]. See, e.g., Boyne, supra note 49, at 743-44.
[FN319]. See, e.g., § 791.267(3).
[FNa1]. I would like to thank my wife for her support and
sacrifices during the writing of this Comment. I would also
like to thank Leslie Kolafa for her proofreading and
suggestions on how I could improve this Comment. Mark
Velez has been involved in law enforcement for over twenty
years, and is a third year evening student at Southwestern Law
School. Mark holds a Bachelor's degree in Business
Management from the University of Redlands, a Master's
degree in Public Administration from California State
University, Dominguez Hills, and a PhD in Public
Administration from the University of Southern California.
(c) 2012 Thomson Reuters. No Claim to Orig. US Gov. Works