In 1987, prisoners of the state of Alabama filed this action against the Alabama Department of Corrections in the U.S. District Court for the Middle District of Alabama; they amended the complaint on March 30, 1988. We don't have the initial complaint, but the amended complaint was a class action under 42 U.S.C. §1983. In it, the plaintiffs, represented by Southern Prisoners Defense Committee and the National Prison Project of the American Civil Liberties Union, alleged that their constitutional rights had been violated by the defendants' requirement that all inmates be subjected to testing for AIDS upon induction into, and before discharge from, the state's penal system. Specifically, the plaintiffs complained that the defendants tested them for AIDS against their will, failed to notify them of the results, failed to provide mental health counseling for inmates who tested positive, compelled the inmates who tested positive to live in segregated units that were "like leper colonies," branded them as socially unacceptable, provided them with grossly deficient medical care, and deprived them of the opportunity to participate in vocational and education programming, and the opportunity to earn good time credits under the Rehabilitation Act.

On January 8, 1990, the U.S. District Court for the Middle District of Alabama (Judge Robert Varner) denied the plaintiffs' request for relief, holding that the testing program did not amount to an invasion of constitutionally protected privacy and that the plaintiffs had shown no credible evidence of any violations of their constitutional rights. Harris v. Thigpen, 727 F.Supp. 1564 (M.D.Ala. 1990). The plaintiffs appealed.

On September 18, 1991, the U.S. Court of Appeals for the Eleventh Circuit (Judge Peter Fay, Judge Stanley Birch, and Judge Walter Hoffman) affirmed the district court's judgment in part, and vacated and remanded in part, holding that the defendants were not deliberately indifferent to the inmates' medical or psychiatric needs, that the defendants' blanket policy of isolating HIV-positive inmates from the general inmate population did not violate any of the plaintiffs' constitutional rights, and that more complete findings of fact and conclusions of law were necessary for proper resolution of the claim that they had been denied programming and good time credits under the Rehabilitation Act. Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991).

On remand, the district court (Judge Varner) again ruled in favor of the defendants, finding no violation of the plaintiffs' constitutional right to programming and good time credits under the Rehabilitation Act. The inmates appealed.

On November 4, 1997, the Eleventh Circuit (Judge Emmett Cox, Judge Phyllis Kravitch, and Judge Thomas Stagg) vacated the district court's decision and remanded the case, holding that the inmates had the burden to show that they were otherwise qualified or could be made so with reasonable accommodation, that less that significant risk of transmitting HIV did not alone justify excluding inmates from participating in programs, that determination that Rehabilitation Act rights could be subordinated to correctional concerns violated law of the case doctrine, that refusal to consider inmates' potential integration into off-site programs violated the law of case doctrine, that the cost of adding correctional officers did not make accommodation unreasonable, and that the case should be reassigned to a new judge on remand. Onishea v. Hopper, 126 F.3d 1323 (11th Cir. 1997). The defendants appealed the remand, and the Eleventh Circuit decided to hear the case en banc. Onishea v. Hopper, 133 F.3d 1377 (11th Cir. 1998).

In the rehearing en banc on April 7, 1999, the Eleventh Circuit (Judges Gerald Tjoflat, Robert Anderson, James Edmondson, Emmett Cox, Stanley Birch, Joel Dubina, Susan Black, Edward Carnes, and Stanley Marcus for the majority; Judges Rosemary Barkett, Joseph Hatchett, and Frank Hull dissenting) vacated the prior appellate decision and affirmed the district judge's decision that the prisoners' rights had not been violated. The majority of the en banc court held that "significant risk" of HIV transmission existed for any prison program in which HIV-positive inmates sought participation, that the court's finding that integrated programs would risk violence was not clearly erroneous, that the court's finding that segregation of HIV-positive inmates was not an exaggerated response was not clearly erroneous, that cost was a proper consideration in the determination of whether the hiring of additional guards to deter high risk behavior was a reasonable accommodation, and that the finding that the hiring of additional guards imposed an undue burden on the prison system was not clearly erroneous. Onishea v. Hopper, 171 F.3d 1289 (11th Cir. 1999).

The plaintiffs appealed the en banc ruling, and on January 18, 2000, the U.S. Supreme Court declined to hear the case. Davis v. Hopper, 528 U.S. 1114 (2000).

Kristen Sagar - 05/02/2006


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