The opinion of the court was delivered by: Curtin, District Judge.
Evidence in this non-jury case is now closed. The parties
have submitted proposed findings of fact and conclusions of
law, and the court has considered summation. The following
constitutes the court's findings of fact and conclusions of
Plaintiff Louise K. Nolley, a former inmate at the Erie
County Holding Center ("ECHC"), has brought this suit against
the ECHC and various administrators of the facility alleging
that their treatment of her during her confinements in 1988,
1989, and 1989/90 violated her constitutional and statutory
rights. Ms. Nolley was confined at the ECHC on three separate
(1) June 14, 1988, through November 9, 1988 ("1988
(2) February 15, 1989, through May 31, 1989 ("1989
(3) December 18, 1989, through February 13, 1990
Prior to her first incarceration, Ms. Nolley tested positive
for the human immuno-deficiency virus ("HIV"), the virus
associated with Acquired Immune Deficiency Syndrome ("AIDS").
This fact was known by the ECHC's Medical Department throughout
Nolley's three confinements. Based on this information,
defendants placed on Ms. Nolley's inmate records, medical
records, and transportation documents a red sticker to indicate
to those who came in contact with her that she was infected
with a contagious disease.
Defendants also chose to segregate Ms. Nolley from the
general population because of her HIV status. She was placed in
an area of the Holding Center known as Female Delta Medical Pod
("Female Delta"). Female Delta is a pod for female inmates who
are mentally disturbed, suicidal, or dangerous to themselves.
Ms. Nolley was also deprived of access to the ECHC's law
library and, for most of her three confinements, to the ECHC's
regularly scheduled Catholic services. Other inmates housed in
Female Delta were, at the same time, permitted to attend
religious services and the law library.
Four defendants remain in the case: Erie County, Sheriff
Thomas Higgins, Superintendent John Dray, and Nurse Jane
O'Malley. Sheriff Higgins is the policy-making official
responsible for the operation of the ECHC and the Erie County
Sheriff's Department. John Dray is the acting Superintendent of
the ECHC. He is responsible for promulgating policies for the
Holding Center and supervising its day-to-day operations. Jane
O'Malley is the Nursing Supervisor/Administrator at the ECHC.
A fifth defendant, Willie Brown, has been dropped from the
Dr. Ross Hewitt was called by plaintiff as an expert in the
diagnosis and treatment of AIDS and research regarding HIV and
AIDS. Defendants accepted his qualifications by also using Dr.
Hewitt as their expert. Dr. Hewitt has been Director of AIDS
Services at the Erie County Medical Center ("ECMC") since 1988.
Dr. Hewitt testified that AIDS is a syndrome characterized by
complications indicative of an underlying immune deficiency.
The viral agent identified with AIDS is known as HIV. It was
identified in late 1983 and was confirmed in 1984. The virus
invades the T4 cell, which is a key cell in the human body's
immune system. Over time, the number and function of these
cells decline as the virus progresses. Serious complications
can occur when an infected individual's T-cell count drops
below 200. The most common complications are: pneumocystis
pneumonia (non-contagious but potentially fatal), chronic viral
infections, bacterial infections, tuberculosis ("TB"),
meningitis, lymphoma, and kaposi sarcoma. Technically, an HIV
person is not diagnosed or described as having AIDS until she
is experiencing one or more of these complications.
Louise Nolley's T-cell count never dropped below 300 during
her three confinements at the ECHC. Nor did Ms. Nolley develop
the complications that would lead her to being diagnosed as
having AIDS. Nurse O'Malley was aware that HIV inmates are
only at risk in the general population when their T-cell count
drops below 200. She could have obtained Nolley's T-cell count
from Dr. Hewitt at any time during Nolley's confinements but
did not do so.
An infected person may be HIV for as long as ten years
before developing the full-blown complications of AIDS. Even
persons with AIDS generally do not require hospitalization
unless some acute complication of AIDS develops. Unfortunately,
there is no known cure for the disease.
There are only five known ways of transmitting the HIV virus:
(1) sharing needles with an infected person; (2) having
intimate sexual contact with an infected person; (3) carrying
a developing fetus or breast-feeding a newborn; (4) receiving
a transfusion of tainted blood or blood products; and (5) in
rare circumstances, by blood-to-blood contact initiated through
percutaneous cuts. AIDS cannot be transmitted by books, casual
contact, being present in the same room as an infected person,
toilet seats, door knobs, air conditioning, coughing, sneezing,
urine, feces, sputum, nasal secretions, saliva, sweat, tears,
or vomit. It certainly cannot be transmitted by attending
church with an infected person or by sharing books with him or
Sometime in the fall of 1986 or 1987, Dr. Hewitt gave a
presentation on AIDS at ECHC to some of the administrative
staff of the facility. This presentation was attended by
O'Malley and Dray. During that presentation, Dr. Hewitt
explained the five known means of transmitting HIV and AIDS,
and presented an overview of the disease which consisted of the
same information provided in his trial testimony. This
testimony is consistent with the findings of the National
Center for Disease Control ("CDC"). The knowledge concerning
the transmission of HIV and AIDS has not changed since the time
of his presentation.
Defendant O'Malley knew of the CDC's findings about the
transmission of HIV in 1986 and 1987 and discussed these
findings with Dray and with Deputy Judith Lips. Dray received
publications about the transmission of HIV, which he made
available to his staff. Sheriff Higgins also sent a memo to
Dray in late 1987, which emphasized that AIDS could not be
spread by casual contact. That memo contained a 1987
publication of the U.S. Department of
Justice entitled "AIDS and the Law Enforcement Officer:
Concerns and Policy Responses." This publication was also
received by O'Malley. As a result, both defendants Dray and
O'Malley knew by 1987 that AIDS could not be transmitted by
casual contact. Nevertheless, Dray, in his testimony, said that
he did not believe the information he had received about the
limited way in which HIV could be transmitted.*fn1 He believed
that HIV could be transmitted through saliva, tears, spit,
mucus, urine and feces, by casual contact, by plaintiff using
the typewriter in the law library, and even by coming into
contact with plaintiff's personal items but not plaintiff.
Dr. Hewitt testified that a drug known as AZT, which first
became available in September, 1987, is used to combat HIV. AZT
works by slowing down the process of HIV replication. It is
necessary to take AZT every four hours because, by then, it is
effectively gone from the bloodstream. Missing an entire day's
dose of AZT can lead to uncontrollable replication of the
virus, which could have long-term, serious consequences for an
After his one presentation to ECHC administrators in 1986 or
1987, the defendants did not again solicit Dr. Hewitt's
assistance, even though he was available to train ECHC staff.
Therefore, the only training of staff at ECHC about AIDS was
in-service training provided by Deputy Lips for newly hired
III. Universal Precautions
Since 1987, the CDC has recommended that universal
precautions replace a policy of special precautions in dealing
with HIV inmates. Universal precautions are a system of
infection-control that assumes that you cannot identify all
persons who are potential carriers of blood-borne diseases.
Staff are urged to take appropriate precautions with
all inmates, rather than inmates identified as HIV, to prevent
blood-to-blood contact. The population in the ECHC facility
changes frequently, and it is impossible for the staff to know
which inmates are infected with HIV. Nurse O'Malley admitted
that at any given time, in addition to the inmates identified
as being HIV, there are inmates in the general population who
are HIV or have AIDS. Thus, ECHC's policy of using special
precautions with inmates known to be HIV is less effective
than universal precautions in protecting staff from potential
infection by HIV inmates because it fails to cover inmates in
the general population who may be HIV or have AIDS.
Other correctional facilities have for some time practiced a
system of universal precautions. Since December, 1988, for
example, the New York State Department of Correctional Services
("DOCS") has followed the policy of universal precautions in
New York State correctional facilities. DOCS stopped isolating
HIV inmates from the general population in 1987. Defendant
O'Malley recommended to defendant Dray that the ECHC follow
IV. The Red Sticker Policy
During Louise Nolley's three confinements, she was subject to
a written ECHC policy and procedure, promulgated as a general
order by Sheriff Higgins, known as the "red sticker alert."
See Trial Exhs. 1-4. This alert was developed by defendants
O'Malley and Dray in 1986. Tr.Exh. 1. It was reissued in
revised form on November 25, 1987. Tr.Exh. 4. This revised
order is still in effect today.
The purpose of the red sticker alert is to ensure the safety
of staff by identifying inmates known to be or suspected of
suffering from contagious or infectious diseases.
The use of the RED STICKER will alert the
Clerks, Search/Change Area Deputy, Housing Area
Deputy, Medical Department, Transportation
Division and other personnel who might come in
contact with the [contagious] inmate, to exercise
Tr.Exh. 4 at 2. A red sticker was affixed on intake to
plaintiff's paperwork, clothing bag, court papers, cell card,
and other items. It was even affixed to plaintiff's cash record
index card, which was seen by civilian personnel assigned to
handle the personal property of plaintiff — her wallet, belt,
change, keys, etc. — but who never came in physical contact
with Ms. Nolley. Thus, the red sticker was seen by dozens of
persons, many of whom may never have had any close contact with
The red sticker policy was not always in effect. It was
developed in 1986 "when AIDS became the epidemic that was
terrorizing everybody in the business, that we had to get and
sit down and [write] policy and procedure." Dray, Oct. 16,
1990, at 19. See also Higgins, Oct. 17, 1990, at 115-16. Prior
to the red sticker policy, ECHC simply isolated inmates with
infectious diseases. The deputies would be told that a
particular inmate was isolated and precautions should be taken,
but they would not be told what disease the inmate was
On its face, the red sticker does not identify any particular
disease and is used whenever an inmate is suspected or known to
be carrying an infectious or contagious disease, including
HIV, AIDS, TB, hepatitis, chicken pox, measles, or syphilis.
See Tr.Exh. 4. In practice, however, plaintiff argues that the
red dot revealed to staff and other persons who saw it that
Louise Nolley was HIV or had AIDS. This is a central
contention in the case and must be carefully evaluated.
There is no question that the red sticker policy was
developed, not in response to contagious diseases in general,
but specifically in response to the hysteria over HIV and AIDS.
Sheriff Higgins, when testifying about the development of the
general order requiring red stickers, stated:
Higgins: But when this came out — when the
AIDS came out and the fear and the excitement
and suspicions and — of all the officers both in
the holding center and in the street and
everybody that is handling these people, we had
to address this specifically.
Coleman: So it's fair to say, sir, that although
these orders speak generally of contagious
diseases, the principle [sic] focus of this was
Higgins: I would say that's a fair evaluation.
Coleman: It's fair to say also that it was
understood as such by your staff, isn't it?
Higgins, Oct. 17, 1990, at 116. See also Dray, Oct. 16, 1990 at
19; O'Malley, Oct. 15, 1990, at 35-36.
It also appears that staff people and others who saw the red
dot either knew or strongly suspected that Ms. Nolley was HIV.
Ms. Nolley testified that an inmate trustee named Leroy who
worked in the clothing room, after seeing the red dot, asked
her if she had AIDS or something contagious. Nolley, Aug. 21,
1990, at 47. On a trip to court in Cheektowaga a matron named
Vi saw the red dot and told Nolley that meant she had AIDS.
Nolley complained of this statement to the judge, on her next
visit the matron informed Nolley's transporting officer, Deputy
Lonnie Williams, that Nolley had AIDS. Plaintiff testified that
Deputy Williams told plaintiff's cousin, Layna Williams, that
plaintiff had AIDS. Deputy Williams denied this. Nevertheless,
Nolley testified, Layna Williams subsequently asked plaintiff
if she was okay. Id. at 48-51. Deputy Williams later admitted,
with respect to a different red-dotted inmate he was
transporting, that he pressed Undersheriff Payne to confirm
whether that inmate had AIDS. He did so because he was fearful
of AIDS. Williams, Oct. 16, 1990 at 146-48. On yet another
occasion, plaintiff was being transported with another inmate
who asked her for a cigarette. One of the transporting deputies
denied the inmate's request, stating that plaintiff had AIDS.
Nolley, Aug. 21, 1990 at 53-59, 144.
Plaintiff has made a compelling case that the red stickers
placed on her documents and other items revealed her HIV status
to non-medical ECHC staff and others. This falls short of
proving that a red dot reveals to every person who sees it that
a particular inmate is HIV. Indeed, plaintiff cannot deny that
many non-HIV inmates were red-dotted. This fact, however, may
not be critical for this case. Based on all the evidence, the
court finds that the red stickers placed on Ms. Nolley's items
disclosed to non-medical ECHC staff and others that Ms. Nolley
During each of the confinements at issue in this case,
plaintiff was segregated from the general inmate population in
the five-cell ward known as Female Delta. Three of the cells in
the ward are used principally for confinement and observation
of inmates who are suicidal or who have demonstrated severe
psychiatric problems or mental illness. The other two cells are
used for inmates with infectious or contagious diseases who, in
the judgment of the medical department, do not require solitary
isolation. Inmates with highly infectious airborne diseases
such as TB, chicken pox, or measles are also segregated from
the general population, but in single cells in a different part
of the jail than Female Delta. All five inmates in Female Delta
eat together and share a lounge/television area and shower
facilities. They have frequent contact with each other. Their
movements are monitored from a control area adjacent to the
Louise Nolley was assigned to Female Delta upon intake during
each of her three confinements and remained there for the
duration of her stays. The decision to segregate her from the
general population was made by the medical department. This
decision was made solely on the basis of her HIV status. Once
plaintiff was so assigned, her segregation was never reviewed
by the medical department nor by any other administrator at the
ECHC. It was automatically renewed during Ms. Nolley's 1989 and
1989/90 confinements. Plaintiff was never afforded an
opportunity to contest her segregation. Other administrative or
disciplinary segregation decisions are appealable. Dray, Oct.
17, 1990, at 9; Lips, Oct. 15, 1990, at 161. See also Tr. Exhs.
20, 21 (inmate handbooks).
The decision to segregate HIV inmates is made pursuant to
General Order 87-14, Tr.Exh. 4, promulgated by Sheriff Higgins
in revised form on November 25, 1987, and still in effect
today. This same order was discussed above as the "red sticker
alert." Sheriff Higgins drafted General Order 87-14 on the
recommendations of a staff committee which included Nurse
O'Malley. Before recommending segregation, O'Malley spoke with
Dr. Maddi, the ECHC Chief Physician at that time, who
recommended that inmates suspected or known to be HIV be
isolated from the general population. When the 1986 version of
this order was issued, the ECHC had only one or two known AIDS
cases but had already begun isolating such inmates on the
recommendation of Dr. Pietrak, who was Dr. Maddi's predecessor.
For some time, the ECHC had a practice of isolating inmates
known or suspected of having other infectious or contagious
diseases such as TB, hepatitis, herpes, syphilis, measles, and
General Order 87-14, to the extent it calls for automatic
segregation of HIV inmates, cannot be reconciled with ECHC
Medical Policy and Procedure HCM 23.00.00, issued in
December, 1989, which states:
Housing decisions, in the Erie County Holding
Center, will not be made solely on the basis of the
protected individual's HIV status. Special housing
decisions can be made, however, for medical reasons
or for the safety and security of the facility and
the persons therein, in the same manner as any
inmate housed in general population.
Tr.Exh. 30J at 3 (emphasis in original). HCM 23.00.00 does
allow for segregation of HIV inmates, but only after a
determination 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 protected
individual is behaviorally disruptive and making threatening
statements/gestures due to his [or her] HIV status. . . ."
Tr.Exh. 30J at 3.*fn3 None of these findings was made in
Louise Nolley's case.
Defendants have offered several reasons to support their
isolation policy for HIV inmates. The first reason ECHC
isolates HIV inmates is to protect the non-HIV general inmate
population from the possibility of exposure to the virus. This
purpose is undercut by ECHC's policy of housing HIV inmate
with non-HIV inmates in Female Delta. In the court's view, it
would appear that the prospects for accidental transmission of
HIV to non-HIV inmates are greater in Female Delta than in the
general population, given the volatility of the inmates housed
there. See infra (discussing conditions in Female Delta).
Louise Nolley testified to instances where an inmate with whom
she was housed tried to commit suicide by cutting herself with
her dentures. ECHC staff subsequently asked Ms. Nolley to take
the inmate's dentures from her should she contemplate another
attempt at suicide. Ms. Nolley also was approached by a Female
Delta inmate to engage in homosexual activity.*fn4
Defendants also argue that Louise Nolley was isolated to
protect her from contracting opportunistic viruses from the
general inmate population. The court finds this argument
unsupported by the record for two reasons. First, if
defendants' purpose was to protect Ms. Nolley, the decision to
house her in close proximity with inmates known to carry
communicable diseases was peculiar indeed. Second, the court
heard expert testimony that an HIV inmate is not at risk until
their T-cell count drops to a level below 200. Louise Nolley's
T-cell count never dropped below 300 — a safe level — during
any of her three confinements. Nurse O'Malley was aware of
these facts, yet never inquired as to Ms. Nolley's T-cell count
to determine if she, in fact, would be at risk in the general
population. In other words, there was never a finding pursuant
to HCM 23.00.00 that "the medical condition of the protected
individual [wa]s `at risk' in general population housing or
[that] medical needs or treatment indicate[d]" segregation for
The court also finds that defendants' alleged concern with
violence is undercut by the fact that Ms. Nolley was
intentionally housed with inmates known to be psychologically
unstable and often violent, although Mr. Dray testified that
those housed in Female Delta were only violent toward
themselves. Inmates known to be violent toward others are
isolated completely, he stated.
Plaintiff argues that the ECHC, by segregating Louise Nolley
in Female Delta, revealed to staff and other inmates that
plaintiff was HIV or had AIDS. There is little question that
Female Delta was known by staff and at least some of the ECHC
inmate population to house HIV inmates. One inmate, for
example, testified that several sheriff's deputies told her
that Louise Nolley had AIDS. It is also clear that ECHC inmates
going to sick call in the Medical Department must pass by
Female Delta. They can see into the unit and communicate with
inmates housed there. These factors might lead all those who
passed Female Delta to assume that each inmate therein had
AIDS. This assumption would be wrong because Female Delta also
housed non-HIV inmates, but it would not be significantly off
the mark given the small number of inmates confined there.
Thus, although the court finds that segregation in Female Delta
did not conclusively reveal plaintiff's HIV status to ECHC
inmates, it did strongly suggest to these persons that she was
HIV. The question whether Ms. Nolley's isolation in Female
Delta revealed her HIV status to ECHC staff will be discussed
more fully below. See infra § II(A).
VI. Conditions of Confinement
Plaintiff also complains that her confinements amounted to
cruel and unusual punishment. As noted, plaintiff was
segregated for the duration of each of her confinements in the
Female Delta Medical Pod. Medical treatment was not provided in
Female Delta, however, but only in the Medical Department.
Plaintiff testified that at times she did not get her medicine,
especially her AZT, or received it late.
The overall conditions in Female Delta were extremely
stressful. Three of the five cells in the unit were used to
confine inmates who were suicidal or who demonstrated severe
psychiatric problems. Louise Nolley was under constant pressure
from these inmates. As plaintiff testified, "[i]t was a lot of
pressure. It was hectic and it was crazy. It was depressing."
Nolley, Aug. 21, 1990, at 59-60.
People were attempting to commit suicide. It was
just never quiet. Somebody was always crying or
trying to hurt theirselves [sic] and they didn't
shut their doors, you know, they couldn't lock in
their rooms because the officers had to be able to
get right into their cells if anything happened,
so they were always running around, even at night
when I could lock in they could come out of their
cells and be running around and asking for
cigarettes and trying to kill theirself [sic], and
officers always had to come up there to rescue one
of them and it would take a while. It was a mental
During her 1988 and 1989 confinements, plaintiff was housed
with an inmate who was accused of murdering her four children.
This inmate attempted suicide on a number of occasions,
including at least one instance where she used her dentures to
attempt to cut her wrists. After that, sheriff's deputies asked
plaintiff to take her dentures away from her if she spoke of
suicide. The inmate frequently described the murder of her
children in gruesome detail, even while plaintiff was eating.
Often the staff asked the plaintiff to give her medicine, to
take spoons away from her (which she attempted to swallow), or
other things which plaintiff claims the staff was afraid to do.
During her 1989 confinement, plaintiff was housed with
another inmate who was accused of murdering her child. This
inmate also spoke frequently about the murder. Plaintiff
testified that staff asked her to give this inmate medication
too. In the 1989 and 1989/90 confinements, plaintiff was housed
with an inmate accused of helping her boyfriend commit murder.
This inmate also spoke graphically of her crime. Another inmate
housed with plaintiff was homosexual and approached plaintiff
for sex on several occasions. Still another inmate repeatedly
ate out of the garbage. Plaintiff had to get her out of the
garbage and place it outside the door where she could not get
Defendant Dray was fully aware of the distressing conditions
in Female Delta. He acknowledged that inmates should not be
subjected to such behavior.
VII. Law Library and Religious Services
Throughout her 1988 and 1989 confinements, plaintiff was not
permitted direct access to the ECHC law library, despite her
repeated requests. The library is available to female general
population inmates once each week on Friday mornings. During
her 1989/90 confinement, plaintiff was allowed in the law
library on four occasions after she requested to use a
typewriter, but was required to wear plastic gloves while
typing and was not permitted to touch the law library's books.
In June, 1988, plaintiff sent a letter to defendant Dray asking
for use of the law library. Dray sent an official to explain to
plaintiff that she would not be allowed to go the law library
but could request the staff librarians to copy specific cases
to be delivered to her in Female Delta. Plaintiff was also
denied face-to-face contact with inmate law clerks. Although
plaintiff was able to correspond with inmate clerks and staff
librarians, the process of being forced to request specific
materials without being able to conduct general research caused
undue delay. Many times the materials she needed would not be
delivered because the librarians did not understand what she
wanted. Other non-HIV inmates who were housed in Female Delta,
even those with red stick-ers, were permitted to use the law
library on the same basis as those in the general population.
During her 1988 and 1989 and most of her 1989/90
confinements, plaintiff was not permitted to attend Catholic
mass with inmates from the general population, even though she
identified herself as a Catholic and frequently asked for
permission to attend. She was finally granted permission to
attend communal services during the last weeks of her 1989-90
confinement. The Catholic chaplain was permitted to meet with
plaintiff in Female Delta during each of her confinements to
distribute communion and hear her confessions, albeit not in a
private place. He testified, however, that it was also very
important for a Catholic to attend church. Other inmates from
Female Delta were permitted to attend mass.
During her confinements, plaintiff was not permitted access
to the general library maintained at the ECHC. Instead of being
permitted to borrow any book from the library, plaintiff was
brought books which were torn, outdated, and marked with an "X"
on the cover. After she was finished with them, the books were
ECHC policy and procedure HCM 10.09.01, effective December
10, 1987, provides that the decision to deny an inmate housed
in Female Delta access to the law library or other ECHC
programs is to be made by the Medical Department. Tr.Exh. 25.