The opinion of the court was delivered by: LEONARD B. SAND
HONORABLE LEONARD B. SAND, U.S.D.J.
Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. §§ 1983 and 1985 alleging that the defendants violated his constitutional rights by failing to provide him with an HIV antibody blood test before misdiagnosing him as having AIDS, and by segregating him in an AIDS Room in the prison infirmary. Plaintiff also alleges that defendants violated Section 504 of the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988), by virtue of his segregation in the AIDS room. Finally, plaintiff brings a state law claim for negligence for the misdiagnosis. He requests an award of damages for the alleged violations.
The action was discontinued as to defendant Smith Kline Biomedical Laboratories by stipulation of both parties on July 26, 1990. The complaint against defendant Dr. Saul Rosenblum was dismissed by written opinion on April 13, 1993.
Defendants DOCS, Thomas A. Coughlin, III, Commissioner of DOCS (as sued in his personal capacity), and Charles Scully, Superintendent of Green Haven Correctional Facility (as sued in his personal capacity), now move for summary judgment dismissing the complaint against them pursuant to Fed. R. Civ. P. 56. For the reasons detailed below, defendants' motion is granted in part and denied in part.
Plaintiff, Edward Timmons, is an inmate who has been in the custody of DOCS since 1984. Plaintiff's Complaint ("Compl.") P 13. During the period in question, he was confined to the Green Haven Correctional Facility ("Green Haven"), in Stormville, New York. Thomas A. Coughlin, III, was the Commissioner of DOCS and Charles Scully was the Superintendent of Green Haven during the relevant time period. Defendants' Rule 3(g) Statement ("Def. 3(g) St."), dated Dec. 22, 1993, P 2.
After plaintiff developed skin lesions in August 1986, a physician's assistant at Green Haven took a biopsy and sent it to Smith Kline Laboratories. Deposition of Ellen Youssef ("Youssef Dep."), dated Aug. 19, 1992, at 40, attached to Def. 3(g) St. as Exhibit A. The pathological diagnosis was "consistent with early Kaposi's Sarcoma". Compl. P 23; Youssef Dep. at 41. Based on that diagnosis alone, plaintiff was informed by Green Haven medical staff on or about November 5, 1986 that he had AIDS. Green Haven did not make use of a widely-available HIV antibody blood test to confirm the diagnosis of AIDS because a diagnosis of Kaposi's Sarcoma in a young black male such as plaintiff was characterized by the Center for Disease Control at that time as a reliable indicator of an immuno-compromised individual. Youssef Dep. at 45. Defendants have provided evidence that the use of the HIV antibody blood test during this period was controversial. See Appendix 2 to Defendants' Reply Memorandum of Law (National Institute of Justice, AIDS in Correctional Facilities 37 (April 1986)).
After being told that he had the AIDS virus, plaintiff was informed that he could choose between continuous cell confinement for 24 hours a day in the psychiatric unit,
or he could be confined with other AIDS-afflicted inmates in the infirmary's AIDS Room. Affidavit of Edward Timmons ("Timmons Aff."), dated March 22, 1994, PP 9-10. Plaintiff elected the AIDS Room.
Inmates were assigned to the AIDS Room upon a medical diagnosis of AIDS. Youssef Dep. at 12. It was DOCS policy to place AIDS patients in special-needs units, and Green Haven policy to house them in an AIDS Room in the prison infirmary. See Exhibit 2 to Deposition of Charles Scully ("Scully Dep."), dated July 31, 1992 (DOCS Policies, Procedures and Guidelines Manual, Item #57, AIDS (Dec. 23, 1985)); see also Youssef Dep. at 15. Apart from being concerned about the medical needs of AIDS patients, prison officials were concerned about the safety of AIDS patients from general population inmates owing to the fact that, in 1986, there was great fear about the spread of AIDS. Youssef Dep. at 15; Scully Dep. at 30. Since June 1987, a greater effort has been made to place medically-cleared AIDS/HIV prisoners into the general population. Def. 3(g) St. P 5. Currently, inmates with AIDS or HIV infection are not segregated from the general population. Youssef Dep. at 7.
Plaintiff alleges that, while in the AIDS Room, he was shunned by medical staff, correctional staff and other inmates for fear of infection. Timmons Aff. PP 13-15. It is undisputed that he was not provided with the same educational, recreational and rehabilitative programming afforded inmates of the general prison population. However, the patients in the AIDS Room were afforded amenities not granted other infirmary patients or the general population, such as their own bathroom and shower, a television and a hotplate. Affidavit of Ellen Youssef ("Youssef Aff."), dated June 30, 1994, P 9.
Plaintiff claims that, subsequent to his assignment to the AIDS Room, he asked the prison medical staff for an HIV antibody blood test to confirm the AIDS diagnosis, and that his request was denied. Plaintiff further claims that Dr. Rosenblum, Green Haven's medical director at the time, said that if he wanted another test he would have to pay for it himself. Timmons Aff. P 21.
In or about February 1987, plaintiff filed an inmate grievance seeking further testing for AIDS. On March 10, 1987, plaintiff was re-tested and examined for the presence of the HIV antibody at Albany Medical Center. The initial test was negative for HIV, as were repeat tests for both HIV and Kaposi's sarcoma. Plaintiff was ...