other inmates to translate for him in the course of his medical
treatment, and that the nature of his condition was disclosed to
other inmates as a result.
In his affidavit in opposition to defendants' motion, plaintiff
states that an interpreter was used on July 2, 1996. He does not
dispute, however, that the interpreter was Jose Reyes, a
Correction Counselor. Plaintiff consented to Reyes serving as an
interpreter before any discussions were had concerning Leon's
medical condition. Reyes Aff. ¶ 10; Sinha Aff. Ex. A at 16. The
use of an inmate counselor does not implicate the concerns
expressed by the Second Circuit in Powell that "disclosure [to
other inmates] might lead to inmate-on-inmate violence," 175 F.3d
at 113, and in terms of the inmate's privacy interests, is little
different from disclosure to a member of the facility's medical
staff. Moreover, this disclosure was no more damaging to
plaintiff's privacy interests than his own voluntary disclosure
of his HIV-positive status to defendant Superintendent Sally
Johnson and defendant Deputy Superintendents Carol Preiss and
Robert Kirby. See Johnson Aff. Exs. B, C, and D.
Plaintiff has identified only one occasion on which he used an
inmate to serve as an interpreter in connection with his medical
treatment. On March 19, 1997, plaintiff signed a consent to have
a particular inmate interpret for him "when seeing the medical
records." Sinha Aff. Ex. A at 17. However, there is no indication
that plaintiff was treated on that date, or that he discussed his
condition with anyone at that time. It appears only that
plaintiff wished to see his records, and that he selected a
certain inmate, whom he presumably trusted, to interpret them for
him if necessary.
At no time, then, does it appear that plaintiff was "forced" to
use an inmate to interpret for him, or that knowledge of his
condition was disseminated to inappropriate persons. Unlike
Powell, in which the plaintiff's transsexualism was
gratuitously disclosed "as humor or gossip," 175 F.3d at 107,
here defendants took reasonable steps to allow plaintiff to have
the services of a translator, with his consent, while maintaining
the confidentiality of his medical information. I therefore find
no evidence of a violation of plaintiff's rights.
Even if a violation could be found, however, defendants would
be entitled to qualified immunity for their actions. Qualified
immunity shields public officials "from civil damages liability
insofar as their conduct `does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known,' Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982), or insofar as `it [is]
objectively reasonable for them to believe that their acts d[o]
not violate those rights,' Velardi v. Walsh, 40 F.3d 569, 573
(2d Cir. 1994)." Simms v. Village of Albion, 115 F.3d 1098,
1106 (2d Cir. 1997); accord Brown v. City of Oneonta,
106 F.3d 1125, 1130-31 (2d Cir. 1997).
"Summary judgment in favor of public officials may be
appropriate when a qualified immunity defense is based upon a
showing that it was not clear at the time of the officials' acts
that the interest asserted by the plaintiff was protected by
federal law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir.
1993). Therefore, "[t]o defeat an official's claim of qualified
immunity, the individual's right must have been clearly
established at the time of the alleged violation." LaBounty v.
Coughlin, 1996 WL 711497 *1 (S.D.N.Y. 1996). (citations
omitted). In determining whether a right was clearly established,
the court should consider "(1) whether the right in question was
defined with `reasonable specificity,' (2) whether the decisional
law of the Supreme Court and the [Second Circuit] support[s] the
existence of the right in question, and (3) whether under
preexisting law a reasonable defendant official would have
understood that his or her acts were unlawful." Brown, 106 F.3d
at 1131 (quoting Jermosen v. Smith, 945 F.2d 547, 550 (2d. Cir.
1991), cert. denied,
503 U.S. 962, 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992)).
In the case at bar, the right asserted — that of an inmate not
to have his HIV-positive status or the fact that he is suffering
from AIDS — was not clearly established until Powell was
decided in 1999. The acts at issue here occurred in 1996 and
1997. Although Doe, which did not involve an inmate, was
decided in 1994, the Second Circuit in Powell made clear that
Doe did not clearly establish such a privacy right for inmates,
stating that Doe "did not address the applicability of that
right to prison inmates." Powell, 175 F.3d at 114. For this
reason and the others cited, Leon's claim based upon an alleged
violation of his right to privacy must be dismissed.
Defendants' motion for summary judgment (Docket Item 36) is
granted, and the complaint is dismissed.
IT IS SO ORDERED.