carriers are likely to be integrated into the general
population at any given time. As ECHC's more recent policy
attests, an inmate's HIV status alone does not make it likely
that the inmate will transmit their HIV virus to another.
See Tr.Exh. 30J at 3 (HCM 23.00.00). Rather, it is an HIV
inmate's behavior toward non-HIV inmates which carries the risk
of HIV transmission. Thus, ECHC's decision to segregate only on
the basis of an inmate's HIV status, without regard to their
behavior, while it may slightly reduce the possibility of
accidental HIV transmission, does not seriously further that
goal. Furthermore, it does not comport with ECHC's own policy,
HCM 23.00.00, which calls for segregation only after a finding
that an inmate is "behaviorally disruptive." Id. There was no
such finding in plaintiff's case. Accordingly, the court finds
that ECHC's policy of automatically segregating plaintiff in
Female Delta based solely on her HIV status was not rationally
related to the goal of reducing the risk of HIV transmission at
the Holding Center.
The court also finds that ECHC's automatic segregation policy
is an "exaggerated response" to its concerns. The policy
alternative is found in ECHC's own regulation HCM 23.00.00,
which the court has cited to repeatedly. "Housing decisions .
. . will not be made solely on the basis of the protected
individual's HIV status." Id. Segregation of HIV inmates is
permitted, however, after a finding that "the medical condition
of the protected individual is `at risk' in general population
housing or if medical needs or treatment indicate" or "[i]f a
protective individual is behaviorally disruptive and making
threatening statements/gestures due to his [or her] HIV status.
. . ." Id. This policy could be instituted with minimal
disruption. Thus, the fourth step of Turner is satisfied.
The second Turner factor also favors plaintiff, as there is
no alternative means for inmates to exercise their right to
privacy once it is lost. The third factor — the effect on
guards, other inmates, and prison resources — may favor
defendants, but not enough to sustain the policy. It should not
matter to guards whether HIV inmates are segregated, as under
universal precautions they are trained to treat all inmates as
if they might be HIV. Nor can the court discern any
significant impact on prison resources. The only potential
impact is on other inmates who now may encounter a few more
HIV inmates than they presently do. Given the fact defendants
have admitted that HIV inmates already roam within the general
inmate population, however, the court finds this incremental
impact to be insignificant.
Accordingly, ECHC's policy of automatically segregating known
HIV inmates in Female Delta is not reasonably related to
legitimate penological interests.*fn15 Plaintiff's
constitutional right to privacy was violated.
C. Due Process
Plaintiff also complains that her segregation in Female Delta
violated her constitutional right of due process under the
The first question to answer in a due process claim is
whether plaintiff has been deprived of a "life, liberty, or
property" interest. The only interest at stake here was
plaintiff's liberty. "Liberty interests protected by the
Fourteenth Amendment may arise from two sources — the Due
Process Clause itself and the laws of the States." Hewitt v.
Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675
(1983) (citing Meachum v. Fano, 427 U.S. 215, 223-227, 96 S.Ct.
2532, 2538-40, 49 L.Ed.2d 451 (1976)). I will address
plaintiff's argument that the due process clause itself created
a liberty interest first.
In Hewitt v. Helms, inmate Helms, who was suspected of
participating in a violent prison riot, was removed from his
cell and placed in administrative segregation while authorities
investigated his role in the riot. Id. at 463, 103 S.Ct. at
867. Various reports
and charges were filed during the time Helms remained in
segregation. He was ultimately found guilty by a prison
disciplinary committee of assaulting an officer and was
sentenced to six months of disciplinary confinement.
Id. at 465, 103 S.Ct. at 868. Helms sued, claiming that he was
denied due process because he should have been granted a
hearing prior to being confined in administrative segregation.
The Court of Appeals agreed, but the Supreme Court reversed,
holding that under the due process clause inmates have no
general liberty interest in remaining in the general population
of a prison. Id. at 467-68, 103 S.Ct. at 869. The Court
"[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
otherwise not violative of the Constitution, the
Due Process Clause does not in itself subject an
inmate's treatment by prison authorities to
judicial oversight." Montanye v. Haymes,
427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466
(1976). See also Vitek v. Jones, 445 U.S. 480, 493,
100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980).
It is plain that the transfer of an inmate to
less amenable and more restrictive quarters for
nonpunitive reasons is well within the terms of
confinement ordinarily contemplated by a prison
sentence. The phrase "administrative segregation,"
as used by the state authorities here, appears to
be something of a catchall: it may be used to
protect the prisoner's safety, to protect other
inmates from a particular prisoner, to break up
potentially disruptive groups of inmates, or
simply to await later classification or transfer.
. . . Accordingly, administrative segregation is
the sort of confinement that inmates should
reasonably anticipate receiving at some point in
Hewitt, 459 U.S. at 468, 103 S.Ct. at 869. The critical inquiry
in this analysis is whether "'the conditions or degree of
confinement to which the prisoner is subjected is within the
sentence imposed upon him [or her]. . . .'" Id. (quoting
Montanye v. Haymes, 427 U.S. at 242, 96 S.Ct. at 2547).
In Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254 (1980), the
Court held that the transfer of a Nebraska state prisoner to a
mental hospital was not within the range of confinement
justified by a prison sentence. The Court cited two reasons.
First, the transfer stigmatized the inmate as being mentally
ill. Second, the inmate would be subjected involuntarily to
institutional care in a mental hospital. These conditions were
found by the Court to be qualitatively different from the
punishment normally suffered by a person convicted of a crime.
Id. at 493, 100 S.Ct. at 1264. Accordingly, the inmate was
entitled to due process prior to his transfer.
Defendants argue, based on Hewitt, that plaintiff's liberty
interests were not implicated by her segregation in Female
Delta. Indeed, several courts, citing Hewitt, have rejected due
process claims brought by inmates segregated because of their
HIV status. See, e.g., Muhammad v. Carlson, 845 F.2d 175, 177
(8th Cir. 1988), cert. denied sub nom., Muhammad v. Quinlan,
489 U.S. 1068, 109 S.Ct. 1346, 103 L.Ed.2d 814 (1989); Powell
v. Department of Corrections, State of Okla., 647 F. Supp. 968,
970 (N.D.Okla. 1986); Cordero v. Coughlin, 607 F. Supp. at 10.
Plaintiff counters that her detention in Female Delta, the
"mental ward" at ECHC, was analogous to the involuntary
transfer of the prisoner in Vitek v. Jones to the state mental
The court finds that the facts of this case are much closer
to the conditions in Vitek than those in Hewitt. The inmate in
Hewitt was confined in administrative segregation in the
aftermath of a prison riot, during which time the prison
authorities were legitimately concerned that further outbreaks
could occur. Inmate Helms was suspected of participating in the
riot and was therefore secluded until the authorities could
determine exactly what had transpired. The authorities then
conducted an investigation, brought charges against Helms and,
on a finding of guilt, moved him from administrative to
disciplinary segregation. In this case, there was no prison
disturbance, nor even the threat of one. No reports were ever
issued; no charges
were ever filed. Plaintiff was placed in administrative
segregation from the moment she entered ECHC during each of her
three confinements, and she remained there, with no
administrative review, for the duration of those confinements.
In Vitek, an inmate was involuntarily transferred from prison
to the state mental hospital. The stigma of being assigned to
the mental hospital in Vitek was not dramatically different
from the stigma associated with being involuntarily placed in
Female Delta, a ward known to house inmates who were suicidal
and psychologically unstable, or who were HIV. Whether
plaintiff was thought by outsiders to need psychiatric help, or
to be HIV, both of these classifications could have engendered
serious adverse consequences for her. See Vitek, 445 U.S. at
492, 100 S.Ct. at 1263. Similarly, although Louise Nolley was
not subject to mandatory behavioral modification as the inmate
in Vitek was, she was subject to the kinds of pressures an
inmate would face in a mental hospital. The inmates in Female
Delta repeatedly tried to kill themselves, spoke often and in
gruesome detail about the murders they had committed, ate out
of the garbage, and so forth. See supra. Defendant Dray
acknowledged that inmates should not be subjected to such
conditions. This evidence indicates that confinement in Female
Delta was qualitatively different from the punishment normally
suffered by a person convicted of a crime. See Vitek, 445 U.S.
at 493, 100 S.Ct. at 1264. For these reasons, I find that
plaintiff was constitutionally entitled to due process. I do
not rest on these points alone, however.
There is an additional factor that leads me to conclude that
due process was violated here. In Hewitt, the Court concluded
that an inmate's liberty was not constrained by administrative
segregation because this was the "sort of confinement that
inmates should reasonably anticipate receiving at some point in
their incarceration." Hewitt, 459 U.S. at 468, 103 S.Ct. at 869
(emphasis added). The Court later added in a footnote, that:
Of course, administrative segregation may not be
used as a pretext for indefinite confinement of an
inmate. Prison officials must engage in some sort
of periodic review of the confinement of such
Id. at 477 n. 9, 103 S.Ct. at 874 n. 9. This language indicates
that indefinite administrative confinement of an inmate without
review by prison officials is outside "the terms of confinement
ordinarily contemplated by a prison sentence." Id. at 468, 103
S.Ct. at 869. Louise Nolley was segregated in Female Delta
under just those conditions. She was placed there upon
admission during each of her three confinements and remained
there throughout. Her segregation was never reviewed by
defendants. Such confinement, based solely as it was on her HIV
status, could not have been contemplated as part of a normal
prison sentence. Accordingly, for the reasons cited above, the
court finds that plaintiff's due process rights were violated.
This conclusion is underscored by the second prong of
Hewitt, in which the Court held that even if no liberty
interest was created by the United States Constitution, an
inmate could be protected by a state-created liberty interest.
Hewitt held that procedural "guidelines" are insufficient to
create such an interest; state or local regulations must be of
an "unmistakably mandatory character, requiring that certain
procedures `shall,' `will,' or `must' be employed" before a
liberty interest may be created. Hewitt, 459 U.S. at 471, 103
S.Ct. at 871. See also Kentucky Dep't of Corrections v.
Thompson, 490 U.S. 454, 461-63, 109 S.Ct. 1904, 1909-10, 104
L.Ed.2d 506 (1989); Muhammad v. Carlson, 845 F.2d at 177.
Plaintiff argues that the inmate handbooks for ECHC, Tr.Exhs.
20, 21, and ECHC policy and procedures created a protected
Two inmate handbooks were introduced into the record. One is
dated May, 1987, Tr.Exh. 21; the other is dated March, 1989,
Tr.Exh. 20. The first handbook contains a confusing discussion
of administrative segregation, see 9 N.Y.C.R.R. § 7006.1(b)(1),
but does not limit the discretion of prison officials to
segregate inmates. See Tr.Exh. 21 at 20. The latter handbook,
heading "Administrative Segregation," states that
The status of any inmate placed in
Administrative Segregation will be reviewed every
seven days to determine whether the reasons for
initial placement in the unit still exist and a
decision will be rendered at that time as to
whether the inmate will remain in Administrative
Segregation or moved to general population.
Tr.Exh. 20 at 28 (emphasis added and in original). This
provision appears analogous to those found in Pennsylvania
under which a state-created liberty interest was found in
Hewitt. See Hewitt, 459 U.S. at 470 n. 6, 103 S.Ct. at 871 n.
6. Stronger language is found in ECHC medical policy and
procedure HCM 23.00.00, effective as of December, 1989, which
has been quoted in full above. See supra (Findings of Fact §
V). It states that housing decisions "will not be made solely
on the basis of the protected individual's HIV status. Special
housing decisions can be made, however, . . . in the same
manner as any inmate housed in general population." Id.
(emphasis in original). Neither the handbook nor HCM 23.00.00
prohibits defendants from segregating HIV inmates. Both,
however, like the provisions in Hewitt, require particular
administrative findings before initiating, and while
continuing, such segregation.
Based on these ECHC regulations, I find that, as of their
effective dates, the Holding Center created a liberty interest
for plaintiff to be placed in the general inmate population
absent a proper finding that she needed to be segregated. No
such finding was ever made. There was never a medical
determination made that she was "at risk" in the general
population nor that her medical needs or treatment required
segregation. No review of the decision to segregate her was
ever undertaken. She was segregated upon entry during her 1988
confinement solely because she was HIV. The decision to
segregate her was automatically renewed for her 1989 and
1989/90 confinements. Accordingly, plaintiff's state-created
liberty interests, and thus her constitutional due process
rights, were violated during her 1989/90 confinement.
Finally, defendants argue that their actions are protected
under the Turner v. Safley test discussed above. That analysis,
however, does not apply here. This is not a situation where an
otherwise valid regulation impinges on plaintiff's
constitutional rights, but where the defendants failed to
follow even their own regulations. Thus, Turner does not apply.
Even if it did, for the reasons stated in § II(B), the court
finds that plaintiff's segregation in Female Delta was not
reasonably related to legitimate penological interests.
D. Equal Protection
Plaintiff also challenges her segregation on equal protection
grounds. Similar equal protection challenges to administrative
segregation by HIV inmates have been universally rejected.
See, e.g., Judd v. Packard, 669 F. Supp. 741, 743 (D.Md. 1987);
Powell v. Department of Corrections, 647 F. Supp. at 971;
Cordero v. Coughlin, 607 F. Supp. at 10; Brickus v. Frame, 1989
WL 83608, 1989 U.S. Dist. LEXIS 8510 (E.D.Pa. July 24, 1989).
For plaintiff to invoke the equal protection clause, she must
show that she was similarly situated with other inmates. Plyler
v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786
(1982). As an HIV inmate carrying a contagious disease, she
has not made this showing. Accordingly, plaintiff's equal
protection claims are denied. Judd, 669 F. Supp. at 743;
Cordero, 607 F. Supp. at 10.
III. CONDITIONS OF CONFINEMENT
Plaintiff argues that the conditions of her confinement were
cruel and unusual punishment in violation of the Eighth
Amendment. There is no question that the conditions in Female
Delta were extremely stressful. Louise Nolley 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. Plaintiff was
asked on many occasions to assist ECHC staff in controlling
these inmates. Plaintiff also complains that at times she did
not get the medicine she needed, especially AZT, a critical
drug for combatting AIDS, or received it late.
Just this last term, the Supreme Court held that for
conditions of confinement to violate the Eighth Amendment,
prison officials creating those conditions must have possessed
a culpable state of mind. Wilson v. Seiter, ___ U.S. ___, 111
S.Ct. 2321, 2323-26, 115 L.Ed.2d 271 (1991). "[T]he offending
conduct must be wanton." Id. 111 S.Ct. at 2326 (emphasis in
original). "[W]hether [the offending conduct] can be
characterized as `wanton' depends upon the constraints facing
the official." Id. (emphasis in original). Drawing on the
holding of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976), which held that "deliberate indifference to
serious medical needs of prisoners" violates the Eighth
Amendment, id. at 104, 97 S.Ct. at 291, the Court found "no
significant distinction between claims alleging inadequate
medical care and those alleging inadequate `conditions of
confinement.'" Wilson, 111 S.Ct. at 2326. Therefore,
"Whether one characterizes the treatment received
by [the prisoner] as inhumane conditions of
confinement, failure to attend to his medical
needs, or a combination of both, it is appropriate
to apply the `deliberate indifference' standard
articulated in Estelle."
Id. at 2327 (quoting LaFaut v. Smith, 834 F.2d 389, 391-92 (4th
Aside from announcing a subjective component for Eighth
Amendment jurisprudence, Wilson reaffirmed the longstanding
objective requirement. "The Constitution, we said, `does not
mandate comfortable prisons,' [Rhodes v. Chapman, 452 U.S. 337,
349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981),] and only
those deprivations denying `the minimal civilized measure of
life's necessities,' id., at 347, 101 S.Ct. at 2399, are
sufficiently grave to form the basis of an Eighth Amendment
violation." Wilson, 111 S.Ct. at 2324. See also Deutsch v.
Federal Bureau of Prisons, 737 F. Supp. 261, 266 (S.D.N Y
1990), aff'd without opinion, 930 F.2d 909 (2d Cir. 1991);
Cordero v. Coughlin, 607 F. Supp. at 11. Applying this objective
standard to the stressful environment in Female Delta, the
court finds that the overall conditions in the pod, although
severe, were not sufficiently traumatic to violate the Eighth
Amendment. See Griffin v. Coughlin, 743 F. Supp. 1006, 1018
(N.D.N.Y. 1990) (finding noise level and stress of environment
insufficient for Eighth Amendment violation); Cordero, 607
F. Supp. at 11. Plaintiff does not complain that the stress of
being incarcerated in Female Delta caused her any physical
harm. Nor is there any evidence that ECHC failed to clothe her,
or feed her, or provide her with sufficient warmth. Moreover,
plaintiff was able to escape some of the stress of her
environment by entering her cell and closing the door.
The several instances where plaintiff's AZT was either not
delivered or was delivered late, did, however, deprive
plaintiff of a necessity of life under the Eighth Amendment.
See Roe v. Fauver, No. 88-1225, slip. op. at 9, 1988 WL 106316
(D.N.J. Oct. 7, 1988). AZT is an absolutely vital medication
for HIV persons because it is the only medication known to
slow the advance of the disease. Id. With the objective
component of an Eighth Amendment violation thus proven, the
question is whether defendants' late delivery or nondelivery of
AZT amounted to "deliberate indifference." The court finds that
it did not. The most that plaintiff has proven is that the
Holding Center was negligent in its delivery of medications.
Although this was deplorable conduct in the care of an HIV
inmate, there is not enough evidence that defendants possessed
the culpable state of mind necessary to be found guilty of an
Eighth Amendment violation. See Wilson, 111 S.Ct. at 2328.
Accordingly, plaintiff's Eighth Amendment claims must be
IV. LAW LIBRARY and RELIGIOUS SERVICES
Plaintiff alleges that defendants' decision to deny her
access to ECHC's law library and to communal religious services
her constitutional rights. I will take up each argument in
During each of her three confinements, plaintiff was denied
direct access to the ECHC law library. The only time she was
even allowed in the library was on four occasions during her
1989/90 confinement, but this was only to use the typewriter.
Plaintiff was not permitted to touch the law library's books.
To receive materials from the library, she was required to
submit written requests for specific cases to staff librarians
who, in turn, would copy those cases for her. The process was
tedious, time-consuming, and not productive. The court has been
informed that ECHC no longer denies HIV inmates direct access
to the law library.
"It is now established beyond doubt that prisoners have a
constitutional right of access to the courts." Bounds v. Smith,
430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977).
We hold, therefore, that the fundamental
constitutional right of access to the courts
requires prison authorities to assist inmates in
the preparation and filing of meaningful legal
papers by providing prisoners with adequate law
libraries or adequate assistance from persons
trained in the law.
Id. at 828, 97 S.Ct. at 1498. See also Griffin v. Coughlin, 743
F. Supp. at 1019-25 (discussing elements of constitutional
violation in great detail); Harris v. Thigpen, 941 F.2d at
This constitutional right was denied. Plaintiff was never
permitted direct access to any of the volumes in the law
library. Plaintiff was also denied face-to-face contact with
inmate law clerks. See Griffin, 743 F. Supp. at 1022-24. The
system whereby plaintiff was required to request copies of
specific materials without being able to conduct general
research or work with inmates who could help with that research
was woefully inadequate. Thus, plaintiff was not given adequate
access to a law library nor adequate assistance from a person
trained in the law. By now choosing to alter these practices,
defendants have essentially admitted that the prior practice
was misguided. Current ECHC policy is that no inmate will be
denied access to programs based solely on their HIV status. See
Tr.Exh. 30J at 3 (HCM 23.00.00).
The denial of access to the law library is also not justified
under the Turner v. Safley test. As I discussed in my findings
of fact, plaintiff was denied access to the law library as a
result of an ad hoc policy implemented by defendant Dray. ECHC
policies and procedures were not followed. Thus, there can be
no argument that she was denied access pursuant to a regulation
reasonably related to legitimate penological interests. See
Turner, 482 U.S. at 89, 107 S.Ct. at 2261-62. Moreover,
defendant Dray apparently believed in the face of overwhelming
evidence to the contrary, see supra note 1 and accompanying
text (quoting Dray's testimony), that plaintiff could transmit
the HIV virus to others by using the law books in the library
or by using the typewriter found there. He required plaintiff
to wear plastic gloves on the four occasions she was permitted
to use the library typewriter. The evidence at trial
established that plaintiff could not infect other inmates in
this way. Therefore, there was no rational connection between
the legitimate goal of limiting the possibility of HIV
transmission and denying plaintiff access to the library.
Accordingly, plaintiff's constitutional right of access to the
courts was denied.
Plaintiff also claims that defendants abridged her First
Amendment right to free exercise of religion by denying her
access to congregate religious services.
The right to attend congregate religious services is not
absolute. The Supreme Court has held that where denial of
access to such services is reasonably related to legitimate
penological objectives, it is valid. O'Lone v. Estate of
Shabazz, 482 U.S. at 353, 107 S.Ct. at 2407. See also Matiyn v.
Henderson, 841 F.2d 31, 37 (2d Cir.), cert. denied,
487 U.S. 1220, 108 S.Ct. 2876, 101 L.Ed.2d 911 (1988); Griffin v.
Coughlin, 743 F. Supp. at 1025 & n. 17; Aliym v. Miles,
679 F. Supp. 1, 2 (W.D.N.Y. 1988) (Curtin, J.). These cases
have upheld denial of access to communal services based in part
on the serious security concerns of the prison.
O'Lone, 482 U.S. at 351, 107 S.Ct. at 2405-06; Griffin, 743
F. Supp. at 1025 n. 17; Aliym, 679 F. Supp. at 2. Those are not
the reasons advanced here, however.
As with the denial of access to the law library, plaintiff
was not permitted to attend Catholic services as a result of an
ad hoc policy implemented by defendant Dray. Current ECHC
policy and procedure, which was also in effect during
plaintiff's 1989/90 confinement, would have permitted plaintiff
to attend communal services. Dray did not follow this policy,
apparently because he feared that plaintiff might infect other
inmates with HIV during church services. As Dray admitted at
trial, however, he substituted his own layman's understanding
of how the HIV virus can be transmitted for expert medical
opinions on the subject. See supra note 1. Mr. Dray's opinions
in this regard were completely contradicted by Dr. Hewitt, who
testified on the limited way in which the HIV virus can be
passed. Accordingly, although preventing the spread of HIV
infection is certainly a legitimate penological objective,
there was no evidence introduced by defendants which would show
that the decision to deny plaintiff access to church services
was reasonably related to that purpose. See Walker, 917 F.2d at
386. This conclusion is reinforced by the fact that ECHC now
permits HIV inmates (and Louise Nolley during the last segment
of her 1989/90 confinement) to attend communal services. The
court finds that plaintiff's First Amendment rights were
abridged.*fn16 Her denial of rights was mitigated
significantly, however, by the fact that throughout her three
confinements, plaintiff was permitted one-on-one meetings in
Female Delta with a Catholic priest. Cf. Griffin, 743 F. Supp.
V. REHABILITATION ACT
Plaintiff's last claim is that defendants denied her access
to programs at the Holding Center in violation of the
Rehabilitation Act, 29 U.S.C. § 794. Section 794 states:
No otherwise qualified individual with handicaps
in the United States, as defined in section 706(8)
of this title, shall, solely by reason of his or
her handicap, be excluded from the participation
in, be denied the benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance. . . .
29 U.S.C. § 794(a) (emphasis added). The statute goes on to
define "program or activity" as "all of the operations of —
(1)(A) a department, agency, special purpose district, or other
instrumentality of a State or of a local government . . . any
part of which is extended Federal financial assistance."
29 U.S.C. § 794(b). Defendants have admitted that in each of the
three years plaintiff was confined, Erie County received
approximately $779,060.00 in federal funds for the detention of
federal prisoners at the ECHC. Defendants argue, however, that
the Act does not apply to them because the federal funds
received by Erie County were a payment, at fair market value,
for detention services at the ECHC, and thus did not constitute
"Federal financial assistance" under the Act. 29 U.S.C. § 794.
The phrase "Federal financial assistance" is not defined in
the Rehabilitation Act. Nevertheless, several courts have held
that "an entity receives financial assistance when it receives
a subsidy." DeVargas v. Mason & Hanger-Silas Mason Co.,
911 F.2d 1377, 1382 (10th Cir. 1990), cert. denied, ___ U.S. ___,
111 S.Ct. 799, 112 L.Ed.2d 860 (1991). See also Hingson v.
Pacific Southwest Airlines, 743 F.2d 1408, 1414 (9th Cir.
1984); Jacobson v. Delta Airlines, Inc., 742 F.2d 1202, 1208-09
(9th Cir. 1984), cert. dismissed, 471 U.S. 1062, 105 S.Ct.
2129, 85 L.Ed.2d 493 (1985); Bachman v. American Soc'y of
Pathologists, 577 F. Supp. 1257, 1264 (D.N.J. 1983); Cook v.
Budget Rent-A-Car Corp., 502 F. Supp. 494, 496 (S.D.N.Y. 1980).
Cf. 34 C.F.R. § 104.3(h) (1990) (Department of Education
regulations defining "Federal financial assistance"). Payment
of fair market value for services rendered does not constitute
a subsidy. Jacobson, 742 F.2d at 1210;*fn17 Cook, 502 F. Supp.
at 498. There is no evidence that the federal funds received by
Erie County in 1988, 1989, and 1990 to detain federal prisoners
in the ECHC exceeded the fair market value for this service.
Thus, ECHC did not receive "Federal financial assistance"
during the years plaintiff was confined. Accordingly,
plaintiff's claim under the Rehabilitation Act is denied.
With this long opinion, the court has drawn the following
conclusions, here reiterated in abbreviated form:
I. Red Sticker Policy
A. Defendants' red sticker policy violated
plaintiff's privacy rights under article 27-F of
New York's Public Health Law and CoC
B. Defendants' red sticker policy also violated
plaintiff's constitutional right to privacy. The
policy was not reasonably related to legitimate