when the failure to do so "represents an `[omission]
sufficiently harmful to evidence deliberate indifference to
serious medical needs.'" Lareau v. Manson, supra, 651 F.2d at
109 (quoting Estelle v. Gamble, supra, 429 U.S. at 106, 97
S.Ct. at 292). While the determination of whether the
challenged actions of prison officials rose to the level of
cruel and unusual punishment will depend on the circumstances
of the particular case, prison officials "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." Bell v. Wolfish, supra, 441 U.S. at
547, 99 S.Ct. at 1878.
Defendants argue that the decision to house an inmate who has
tested HIV positive in the general prison population without
divulging the results of the inmates' HIV test to his or her
cellmate is a reasonable practice which balances the risk that
AIDS will be transmitted to other inmates with the privacy and
security interests associated with disclosing an inmate's
medical history. Accordingly, they maintain that no
constitutional violation has been asserted by plaintiff.
In support of their summary judgment motion, defendants have
presented evidence as to the practice and procedures utilized
at Otisville with regard to housing inmates diagnosed as having
the antibodies to HIV. These procedures are based on the
general medical understanding that AIDS is not spread by casual
conduct, and provide for, inter alia, (1) medical screening of
newly sentenced inmates for infectious diseases, including HIV,
(2) counseling those inmates who test positive for HIV, (3)
prohibiting conduct, such as sexual behavior and sharing
needles, that presents a high risk of the transmission of AIDS,
(4) limiting assess to the medical information concerning HIV
test results in order to ensure the safety of the inmate who
was tested, and (5) removing inmates testing positive for HIV
from the general prison population when there is reliable
evidence that their conduct may pose a health risk to other
inmates. See Declaration of Donald M. Moore, Health Services
Administrator for Otisville, filed November 30, 1989.
Plaintiff has not disputed any material issues of fact
regarding the existence or application of these procedures at
Otisville. Nor has plaintiff asserted that any of the
defendants had specific knowledge that the cellmate might
engage in conduct which would expose Deutsch to a high risk of
contracting AIDS, yet tacitly condoned or allowed this conduct
to occur. See Feigley v. Fulcomer, 720 F. Supp. 475, 482-85
(M.D. Pa. 1989). Cf. Cameron v. Metcuz, 705 F. Supp. 454, 458-60
(N.D.Ind. 1989) (while a prison official may not intentionally
or recklessly expose a prisoner to a known risk of violence
from another inmate, the failure to segregate an inmate with
AIDS who had a known violent character was not an Eighth
Amendment violation). Deutsch has not presented the Court 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. Thus, summary
judgment must be afforded defendants on this claim.*fn6
Moreover, even if defendants' conduct might be construed as
a violation of the Eighth Amendment, federal officials are
shielded by qualified immunity from civil damages suits for
alleged constitutional violations when their "conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Harlow v.
Fitzgerald, supra, 457 U.S. at 818, 102 S.Ct. at 2738. The
question of whether a right is clearly established is one of
law, Yalkut v. Gemignani, 873 F.2d 31, 35 (2d Cir. 1989), and
the existence of immunity turns on the objective legal
reasonableness of the conduct assessed in light of the legal
rules that were clearly established at the time the conduct
occurred. Dube v. State University of New York, 900 F.2d 587,
591, 596 (2d Cir. 1990).
The right the government official is alleged to
have violated is "clearly established," and hence
beyond any qualified immunity, when the "contours"
of the right are sufficiently unambiguous so that
a reasonable official knows that what he is doing
violates that right. [quoting Anderson v.
Creighton, supra, 483 U.S. at 640, 107 S.Ct. at
3038] "This is not to say that an official action
is protected by qualified immunity unless the very
action in question has previously been held
unlawful, but it is to say that in the light of
pre-existing law the unlawfulness must be
apparent." Id. (citations omitted.) A finding of
apparent unlawfulness does not require that an
earlier decision of this court be directly on point
with the current facts; however, the absence of
such a decision militates against that finding
when, in addition, there have been no cases in this
Circuit "foreshadow[ing]" a ruling on the issue,
nor many cases in other circuits taking a certain
stand. Shabazz v. Coughlin, 852 F.2d 697, 701 (2d
Molinelli v. Tucker, 901 F.2d 13, 15 (2d Cir. 1990).
Plaintiff can hardly maintain that he had a clearly
established right to be informed of whether his cellmate had
tested positive for HIV, or to have all inmates who test
positive for HIV segregated from the general prison population.
Indeed, the question of whether prison officials may segregate
inmates who test HIV positive without running afoul of their
constitutional right to privacy is not free from doubt. See
Rodriguez v. Coughlin, No. 87 Civ. 1577E, 1989 WL 59607, 1989
U.S. Dist. LEXIS 15898 (W.D.N.Y. June 2, 1989) (contrasting
cases upholding the right of prison officials to segregate
inmates who have AIDS, with cases allowing inmates to maintain
actions alleging their constitutional right to privacy was
violated by the disclosure of AIDS test results to other
inmates). Inasmuch as Deutsch has not alleged any facts to
support finding that defendants either were specifically aware
that the cellmate might violate prison rules and engage in high
risk behavior, or that they condoned or allowed a violation of
these rules, there is simply no basis for concluding that they
violated a clearly established constitutional right.
Accordingly, defendants are immune from suit.
2. Common law tort claims
On November 18, 1988, the FTCA was amended to provide for
absolute immunity to "any employee of the [federal] Government"
who acts within the scope of his or her employment, for
monetary damages arising from common law torts causing personal
injury or loss of property. Federal Employees Liability Reform
and Tort Compensation Act of 1988, Pub.L. No. 100-694, § 5, 102
Stat. 4563, 4564. See also Yalkut v. Gemignani, supra, 873 F.2d
at 34. "[A]s long as an official is acting within the scope of
his or her employment, the official's tortious actions are
protected." Id. In order to determine whether an act is within
an agent's employment, the court must first decide if there is
a reasonable connection between the act and the agent's duties
and responsibilities, and second, whether the act is manifestly
or palpably beyond the agent's authority. Id.
Plaintiff has presented nothing from which the Court could
infer that defendants acted in any manner outside the scope of
their employment. On the contrary,
in the few instances in the complaint where specific conduct by
an individual defendant is alleged, this conduct is directly
and reasonably related to the official duties of the defendant
and well within the scope of the official's authority.
Furthermore, the acts complained of were in accord with the
policy of the Federal Bureau of Prisons, and "the existence of
a policy authorizing defendants' action leaves no doubt that
their actions were not `manifestly or palpably' beyond their
authority." Id. at 35. Therefore, defendants are immune from
suit based on common law claims, and these claims must be
The claims against the Federal Bureau of Prisons and the
individual defendants in their official capacities are
dismissed for lack of jurisdiction. The constitutional claims
against the individual defendants personally are dismissed
because plaintiff has failed to present any facts to support
finding a constitutional violation, and, in the alternative,
because defendants are shielded by qualified immunity from such
claims. The common law tort claims against the individual
defendants personally are dismissed because federal officials
are absolutely immune from liability for common law torts
committed within the scope of their employment. Accordingly,
defendants' motion is granted and the action is dismissed.
It is so ordered.
*fn2 In addition, defendants J. Michael Quinlan and Jessie R.
James argue that the claims against them should be dismissed
pursuant to Rule 12(b)(5) for lack of proper service of
process. Defendant J. Michael Quinlan also argues that the
claims against him should be dismissed pursuant to Rule
12(b)(2) for lack of personal jurisdiction. Because the Court
concludes that the complaint must be dismissed as against all
defendants, it does not address these individual grounds for
*fn3 In his response to this motion, Deutsch asserts that he
had "bodily fluids such as blood exchanged with the
[cellmate]." Reply Memorandum, filed February 23, 1990 at ¶ 9.
No additional facts regarding his contact with the cellmate
have been supplied.
*fn4 Plaintiff has not alleged that Coe knew of the cellmate's
HIV test results prior to July 30, 1988.
*fn5 Instead, plaintiff defends his failure to present his
claim to the agency by arguing that participating in any
administrative proceedings would have been fruitless since the
director of the agency was a defendant in this action. Even
assuming that the failure to file an administrative claim might
be excused under certain circumstances, plaintiff has presented
no facts in support of his naked assertion of agency bias, and
it, standing alone, is woefully insufficient to support an
inference that resort to the administrative process would have
been futile. Cf. Riley v. Ambach, 668 F.2d 635, 640 (2d Cir.
1981) (exhaustion not required under Education for the
Handicapped Act where the exercise of administrative remedies
would be futile). Indeed, the exhaustion requirement of the
FTCA would be effectively nullified if a plaintiff could bypass
the administrative process simply by listing the director of
the agency as a defendant.
*fn6 This result is in harmony with the conclusions of various
courts that have considered claims under the Eighth Amendment
by prisoners who seek to have inmates who test positive for HIV
segregated from the general prison population. See Glick v.
Henderson, 855 F.2d 536, 540 (8th Cir. 1988) (prison officials'
decision not to institute a wholesale AIDS testing and
segregation program was not unreasonable); Feigley v. Fulcomer,
supra, 720 F. Supp. at 482 ("failure to segregate automatically
those inmates who have tested positive for HIV or who are
suffering from any stage of AIDS does not violate [plaintiff's]
Eighth Amendment right to be free from cruel and unusual
punishment"); (Davis v. Stanley, 740 F. Supp. 815 (N.D.Ala.
1987) (the enforcement of rules against intravenous drug use
and sexual behavior in jail is sufficient to combat the risk of
contracting AIDS and testing all inmates for the virus is not
constitutionally required); Jarrett v. Faulkner, 662 F. Supp. 928,
929 (S.D.Ind. 1987) ("problem of protecting prisoners from
AIDS is best left to the legislature and prison