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NOLLEY v. COUNTY OF ERIE

October 31, 1991

LOUISE K. NOLLEY, PLAINTIFF,
v.
COUNTY OF ERIE; THOMAS HIGGINS, SHERIFF; JOHN DRAY, SUPERINTENDENT; AND JANE O'MALLEY, NURSE, DEFENDANTS.



The opinion of the court was delivered by: Curtin, District Judge.

  FINDINGS OF FACT

I. Background

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 law.

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 occasions:

  (1) June 14, 1988, through November 9, 1988 ("1988
      confinement");
  (2) February 15, 1989, through May 31, 1989 ("1989
      confinement");
  (3) December 18, 1989, through February 13, 1990
      ("1989/90 confinement").

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 case.

Plaintiff Nolley seeks damages and injunctive relief. She alleges that ECHC's policy of placing red stickers on various documents and other items violated article 27-F of New York State's Public Health Law, N.Y.Pub.Health Law § 2780 et seq. (McKinney 1991 Supp.), State Commission of Correction regulations adopted in accordance with that law, and her constitutional right to privacy. Plaintiff also argues that her segregation in Female Delta violated her state rights under article 27-F and her constitutional rights of privacy, due process, and equal protection. Further, Ms. Nolley alleges that the conditions of her confinement violated her Eighth Amendment rights. She also brings constitutional claims for ECHC's denial of access to the law library and religious services. Finally, Ms. Nolley argues that defendants discriminated against her in violation of the Rehabilitation Act, 29 U.S.C. § 794.

II. HIV and AIDS

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 her.

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 HIV person.

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 employees.

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 universal precautions.*fn2

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
  additional precautions.

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 plaintiff.

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 carrying.

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
    AIDS, right?

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: Yes, ma'am.

Higgins, Oct. 17, 1990, at 116. See also Dray, Oct. 16, 1990 at 19; O'Malley, Oct. 15, 1990, at 35-36.

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 was HIV.

V. Segregation

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 pod.

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 chicken pox.

  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 Ms. Nolley.

Finally, defendants argue that HIV inmates are isolated because of their concern that inmates might react violently to the presence of such an inmate in their midst. Defendant Dray admitted that this was merely a concern; he testified that there had never been such an incident at ECHC. He knew of no such incidents in other correctional facilities. The court finds that this concern, even if valid and not wholly speculative, does not support ECHC's practice of automatically isolating HIV inmates. Since, according to defendants' theory, it is the other inmates' knowledge of an HIV inmate in their midst that would trigger a violent response, if an inmate is not known to be HIV by the general population, there would be no risk of violence. Defendants admit that there are HIV inmates in the general population that neither ECHC nor the general population inmates know about. There is no difference in terms of security between this type of inmate and an inmate known by ECHC but unknown by the general population to be HIV.

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
  ward.

Id. at 59-60.

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 to do 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 to it.

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 thrown away.

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. HCM ...


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