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The last thing a plaintiff in a civil rights case wants to do is break new ground, because, when it come to suing the government, novelty is fatal. Win the battle and you are sure to lose the war. By their very nature, groundbreaking civil rights cases turn out to be defeats for the plaintiffs who bring them because the governmental officials they sued are entitled to “qualified immunity” if the rights allegedly violated were not yet “clearly established.” But those same plaintiffs can take some comfort in knowing they have truly blazed a trail that others now will be able to follow with more success since the very court rulings that rejected their own cases can be cited by future plaintiffs as having finally established the right. This was illustrated last week in Doe v. Delie, in which the 3rd U.S. Circuit Court of Appeals held that prison inmates have a constitutional right to “medical privacy” and that prison officials can be sued for failing to protect the confidentiality of an inmate’s HIV-positive status. But since that right was not clearly established in 1995 when Doe was an inmate at the State Correctional Institution at Pittsburgh, the court upheld the dismissal of the suit. Nonetheless, the Delie decision breaks significant ground in the area of prisoners’ rights by holding that the breach of an inmate’s medical privacy is illegal unless it can be justified by “legitimate penological interests.” The Delie case illustrates not only the power of the qualified immunity defense, but also the catalytic role such litigation can play by forcing appellate courts to render decisions that clearly outline the parameters of constitutional and civil rights. Civil rights expert David Rudovsky of Kairys Rudovsky Epstein & Messing, who has no connection to the Delie case, said he believes litigation over qualified immunity defenses has had a positive effect ever since the U.S. Supreme Court ruled in Wilson v. Layne that courts must first address whether the right exists before considering whether to grant immunity. “At least now courts are required to articulate that rights actually exist when they do,” Rudovsky said. Until recently, Rudovsky said, courts would often dodge the question of whether the claimed right exists simply by saying only that it was not clearly established at the time of the incidents. Now, Rudovsky said, the courts are “required to pronounce whether the right exists. … And the good news there is that you won’t have that guy in the future say, ‘I just didn’t know.’ Now these rights are established.” But when it comes to immunity, Rudovsky said, “there are a lot of close cases, and I think it’s important to stress that you don’t need a case on all fours to show that a reasonable officer should have known that a right existed.” HIV PRISONER Doe, a former inmate in Pittsburgh, is HIV-positive. He claimed he was told by the prison’s medical staff that his medical condition would be kept confidential. But due to sloppy policies, Doe claimed that his status was revealed to others. He claimed that staff informed the escorting officers of Doe’s medical condition and that during physician visits, the staff kept the door to the clinic room open, allowing officers, inmates, and guards in the area to see and hear Doe and the treating physician. While administering medication, he said, nurses announced his medication loudly enough for others to hear, allowing inmates to infer that he was HIV-positive. In his suit, Doe alleged that the prison’s practices violated his right to medical privacy under the 14th Amendment and under Pennsylvania’s Confidentiality of HIV-Related Information Act. Senior Judge Donald E. Ziegler of the U.S. District Court for the Western District of Pennsylvania dismissed the suit, finding that prisoners have no constitutional right to medical privacy. Although Doe had handled the case on his own at the trial level, the 3rd Circuit appointed attorney Martha E. Johnston, a partner at Wolf Block Schorr & Solis-Cohen, to represent him in the appeal. Johnston set out to convince the court of two things — that the Constitution protects a prisoner’s right to medical privacy and that prison officials should have known that in 1995. In a splintered decision, a three-judge panel gave Johnston half a victory. Two judges agreed that the right exists, but only one found that prison officials should have recognized the right six years ago. A third judge voted to grant immunity, but he said he did not believe the court should have made any pronouncement about the existence of the right to medical privacy since it wasn’t necessary to uphold dismissal of the case. The majority opinion was authored by 3rd Circuit Judge Jane R. Roth, whose views carried the day in the form of shifting majorities. Roth was joined by 3rd Circuit Judge Richard L. Nygaard in recognizing the constitutional right, but Nygaard authored a partial dissent in which he said he would have gone further and held that the right was already clearly established by 1995 due to a “consensus of cases of persuasive authority.” Senior 3rd Circuit Judge Leonard I. Garth joined Roth in upholding the grant of immunity, but he dissented to say that he would have avoided “the creation of a constitutional right of privacy and confidentiality for prisoners.” Roth answered Garth’s dissent in a footnote that said she was simply following the U.S. Supreme Court’s clear instructions about how to handle a qualified immunity appeal. In Wilson v. Layne, Roth said, the justices stated in mandatory, unqualified language that “a court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all.” Roth said she disagreed with Garth’s argument that such a step is unnecessary when a case is dismissed under Rule 12(b)(6). “Judge Garth’s dissent would prefer that we skip the first prong of qualified immunity analysis. This practice ignores the Supreme Court’s express language and creates an exception based on the procedural posture of the case,” she wrote. “While there may be pragmatic considerations favoring Judge Garth’s qualification of the Supreme Court’s unqualified language, the court has not yet suggested any basis for departing from the rule articulated in Wilson.” Turning to the question of whether a prisoner has a right to medical privacy, Roth found that he does. MEDICAL PRIVACY The constitutional right to privacy traces back to the U.S. Supreme Court’s 1997 decision in Whalen v. Roe, which protected “the individual interest in avoiding disclosure of personal matters.” The 3rd Circuit, she said, extended privacy rights to include medical information in its 1980 decision in U.S. v. Westinghouse Elec. Corp. Since then, Roth said, the 3rd Circuit has extended that right to include prescription records and to acknowledging a privacy interest in one’s HIV status. Judge Ziegler of the Western District of Pennsylvania recognized Doe’s right to privacy in his medical information but concluded that such a right does not exist in prison. Roth disagreed, saying, “prison inmates do not shed all fundamental protections of the Constitution at the prison gates. Inmates retain those rights that are not inconsistent with their status as prisoners or with the legitimate penological objectives of the corrections system.” Lawyers for the prison cited the U.S. Supreme Court’s 1984 decision in Hudson v. Palmer, which held prisoners do not have a Fourth Amendment right to privacy in their cells because an expectation of freedom from unreasonable searches is fundamentally inconsistent with incarceration. But Roth found that “Doe’s asserted right to privacy in his medical information is completely different from the right extinguished in Hudson.” Roth said there could be no question that information about one’s HIV status is “information of the most personal kind” and that an inmate has an interest in protecting against the dissemination of such information. “Moreover, a prisoner’s right to privacy in this medical information is not fundamentally inconsistent with incarceration,” she wrote. As a result, Roth said, the 3rd Circuit would “join the 2nd Circuit in recognizing that the constitutional right to privacy in one’s medical information exists in prison.” But Roth also said she recognized that a prisoner does not enjoy a right of privacy in his medical information to the same extent as a free citizen. “We do not suggest that Doe has a right to conceal this diagnosed medical condition from everyone in the corrections system. Doe’s constitutional right is subject to substantial restrictions and limitations in order for correctional officials to achieve legitimate correctional goals and maintain institutional security,” Roth wrote. Under the Supreme Court’s 1987 decision in Turner v. Safley, Roth said, an inmate’s constitutional right may be curtailed by a policy or regulation that is shown to be “reasonably related to legitimate penological interests.” Since the lower court dismissed the suit early on, Roth said, the prison was never given a chance to come forward with the evidence that would satisfy the Turner factors. Ordinarily, Roth said, the appellate court would send the case back to consider those issues. But in Doe’s case, she said, there was no need, since the appellate court ultimately agreed that all of the defendants were entitled to qualified immunity. Johnston argued that an inmate’s right to privacy in his medical information was clearly established in 1995. First, she said, a Pennsylvania statute both creates a right and served to inform prison officials of the existence of that right. And by 1995, she said, a “growing consensus” of other courts had held that inmates possess a right to privacy in their medical records. Finally, Johnston argued that the class action settlement in Austin v. Pennsylvania Department of Corrections in 1995 put the defendants on specific notice of the existence of a prisoner’s constitutional right to privacy in his medical information. But Roth found that the law was not so clear. The state law didn’t help Doe, Roth said, since “officials do not forfeit qualified immunity from suit for violation of a federal constitutional right because they failed to comply with a clear state statute.” The earliest opinions dealing with HIV-positive inmates actually upheld segregating them from the general population, Roth noted. And by 1995, the 6th U.S. Circuit Court of Appeals had explicitly held that the right of privacy is not implicated at all by prison officials’ disclosure of an inmate’s HIV status. Roth said Johnston cited several pre-1995 cases that held inmates have a right to privacy in their medical information, but the judge said each case was distinguishable from Doe’s. “In short, none of these decisions, individually or collectively, makes it sufficiently clear to reasonable officials that their conduct violated a prisoner’s federal constitutional right,” Roth wrote. “District court opinions may be relevant to the determination of when a right was clearly established for qualified immunity analysis. However, in this case, the absence of binding precedent in this circuit, the doubts expressed by the most analogous appellate holding, together with the conflict among a handful of district court opinions, undermines any claim that the right was clearly established in 1995.” But in dissent, Nygaard said he believed Roth was looking for too much. For a right to be “clearly established,” Nygaard said, the plaintiff only had to show that the “contours” of the right were “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” To make that showing, Nygaard said, the plaintiff does not need to cite a case with “precise factual correspondence” to his own. “Government officials are not barred from the protection of qualified immunity if they fail to predict fluctuations in legal debates. They will not, however, be granted immunity if they fail to make obvious inferences from a generally established right, to its application in particular situations,” Nygaard wrote. Looking to the state of the law in 1995, Nygaard said, he would hold that members of the Pennsylvania Department of Corrections “should have known from 1995 through 1997 that prisoners possessed a right to the privacy of their medical records.” By that time, he said, prison officials should have known that a constitutional right to privacy in medical records exists, particularly for HIV-related information; and that under Turner, prisoners do not forfeit constitutional rights except when those rights cannot reasonably be reconciled with legitimate penological objectives. “With these two premises well known, I would expect reasonable prison officials to infer that they cannot arbitrarily violate a prisoner’s right to privacy in medical information. In this situation, the contours of the right were sufficiently clear,” Nygaard wrote. Nygaard also said he believed that a “consensus of cases of persuasive authority” had been established by 1995 that presumed the existence of a right to privacy in HIV-related medical information for prisoners.

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