ED STATES DISTRICT Co„ÄT FOR THE DISTRICT OF NEW JERSEY

JANE ROE, et. al., on behalf of themselves*`ancT
FILE all others similarly situated Plaintiffs,

CIVIL NO. 88-1225 (AET> CIVIL RIGHTS ACTION

v. WILLIAM H. FAUVER, et. al.
Defendants.

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WIUMM T. WAISH

CtfRK :

NOTICE OP SETTLEMENT
A proposed settlement decree has been entered in the above named case. This notice is to inform you of the settlement, to tell you how to obtain more information, and to inform you of your right, if you are a class member, to enter any objections you may have to the proposed settlement for the Court's consideration.
This lawsuit was certified as a class action on October 6, 1989. You are a class member if you have been diagnosed with AIDS or you are infected with the HIV virus. This notice is being distributed to all prisoners in the New Jersey State Prison system, because class members have not been individually identified.
The lawsuit challenged the segregation of prisoners diagnosed as having AIDS, the denial of programming and services, and the adequacy of medical care provided to prisoners diagnosed with AIDS or other HIV-related illness.
The Consent Decree submitted to the District Court for approval provides, in summary, as follows:
1. The DOC shall not designate or use the existing Special Medical Units or any other housing or medical unit exclusively for inmates with AIDS or any other stage of HIV disease. The decision to assign inmates to Medical Units in any facility in the New Jersey State Prison System shall be solely a medical decision based on the medical condition of the individual inmate.
2. Inmates shall be discharged from hospital facilities as soon as their medical condition no longer requires hospitalization and as soon as appropriate housing is available.
3. The DOC shall not deny access to programs, services, jobs, work release and furloughs to class members on the basis of their status as class members.
4. The DOC shall provide medical care to class members in conformity with community standards as guided by United States Public Health Service recommendations.
5. All inmates shall receive a health screening evaluation, including HIV-risk assessment, upon entry into the New Jersey State Prison System and thereafter in accordance with existing regulations. HIV tests shall be recommended to all inmates where indicated, and shall be available on the inmate's request at all DOC 'acuities in accordance with DOC protocols.
6. Testing for HIV shall be voluntary and confidential.

7. Health examinations and l a b o r a t o r y t e s t s for class members shall be regularly scheduled in accordance with medicallyindicated need.
8. All class members s h a l l be informed of t h e i r medical condition, t e s t r e s u l t s , prognosis and treatment plan, and shall have the opportunity to obtain or review a copy of t h e i r medical records, to have t h e i r guestions answered, and to have complaints regarding medical care investigated.
9. DOC s h a l l maintain the confidentiality of class members' medical status.
10. T r a i n i n g and e d u c a t i o n a l programs on HIV disease, transmission and risk reduction shall be .provided to a l l inmates and staff in DOC f a c i l i t i e s . Medical staff shall receive periodic and advanced training in the diagnosis, maintenance and treatment of AIDS and other HIV-related illnesses.
Procedures for Objection
If you are a class member and you agree with the proposed settlement, you do not need to take any action. If you are a class member and you disagree with the proposed settlement, you have a right to object to i t and your objections will be considered by the Court when i t reviews the Settlement on Jí>^·* i X , 1992 at 2`·oo f>*\ • Objections will be considered only if the following procedures are followed.
1. Objections must be filed with the Court by sending them regular mail to the Clerk's Office, U.S. Courthouse, 402 E. S t a t e S t . , Trenton, NJ 08608, no l a t e r t h a n
2. Objections must also be served by mail on counsel for d e f e n d a n t s , Brett Rickman, Deputy Attorney General, Federal Rights Litigation and Corrections Section, CN112, Trenton, NJ 08625, and counsel for p l a i n t i f f s , Alice K. Dueker, Assistant Deputy Public Defender, Office of Inmate Advocacy, CN 850, Trenton, NJ 08625.
3. Objections must include the name of the lawsuit (Roe v. Fauver) and the docket number (Civil No. 88-1225 (AET)), the name of the person f i l i n g t h e o b j e c t i o n , and a statement of the reasons for the objections.
For Further Information
This` is a summary of the settlement. A copy of the Consent Decree i t s e l f shall be posted in each housing a r e a . To understand the settlement fully, you should read the entire Consent Judgment. If you have any questions or want further information, you may c a l l the Office of Inmate Advocacy c o l l e c t , (609)292-1775, on Tuesdays and Thursdays, or you may write to the Office of Inmate Advocacy, CN 850, Trenton, New Jersey 08625.
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ANNE E . THOMPSON •
United States District Judge

Roe v. Fauver PC-NJ-OÕO4-OOO3"

 
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ROE V. FAUVER. C.A. No. 88-1225fAETì
CONSENT DECREE TABLE OF CONTENTS
I. GENERAL PRINCIPLES II. DEFINITIONS III. HOUSING OF CLASS MEMBERS IV. MEDICAL CARE
A. Interpretive Standard B. Community Standards C. Testing and Counseling D. Follow-up and Routine Medical Care E. Infectious Disease Specialist F. Drug Therapies G. Mental Health Services H. Acute Care I. Confidentiality and Records J. Diet K. Quality Assurance L. Miscellaneous V. EDUCATION AND TRAINING VI. REPORTING ANDVERIFICATION VII. TERMINATION AND EMERGENCY SUSPENSION OF PROVISIONS OF CONSENT DECREE

PAGE · 2 4 5 7 7 8 3 9 12 15 16 18 18 18 19 2 0 2 0 21
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Roe v. Fauver

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PC-NJ-0004-0004

ROBERT J. DEL TUFO Attorney General of New Jersey Attorney for Defendant William H. Fauver, et al, R.J. Hughes Justice Complex CN 112 Trenton, New Jersey 08625
By: Brett D. Rickman Deputy Attorney General (609) 633-3985 BR7218
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

JANE ROE, et al.,

.

)

Plaintiffs,

)

V.

)

WILLIAM H. FAUVER, et al., )

Defendants.

)

C.A. No. 88-1225(AET) Civil Action
CONSENT DECREE

WHEREAS, plaintiffs, prisoners in the New Jersey State Prison System who have been or will be diagnosed with AIDS or other HIV-related illness (the "plaintiffs"), brought this action challenging the segregation of inmates diagnosed as having AIDS, the denial of programming and services, and the adequacy of medical care provided to inmates diagnosed with AIDS or other HIV-related illness; and
WHEREAS, this matter was certified as a class action under Fed.R.Civ.P. 23(b)(2) on October 6, 1989 by the Honorable Anne E. Thompson, U.S.D.J.; and

WHEREAS, the defendants have denied the allegations

in plaintiffs' action and do not admit that they have engaged

in any illegal or wrongful activity or that any person has

sustained any damage by reason of any of the facts complained

of in this action; and

WHEREAS, the parties to this Consent Decree have

agreed through their attorneys to the resolution of all the

issues raised in this matter without additional litigation and

have consented to the form and entry of this Decree;

NOW, THEREFORE, IT IS on this

day of

1992,

ORDERED, ADJUDGED and DECREED that:

I. GENERAL PRINCIPLES

1. The disposition of this matter does not

constitute any admission of any liability or violation of any of the plaintiffs1 rights, constitutional, statutory,

regulatory or otherwise. It is not the purpose of the parties

to this Decree to assess blame against any of the parties herein, but rather to resolve the plaintiffs1 claims for

declaratory and injunctive relief.

2. By entering into this Consent Decree, defendants

and their agents and employees shall not be deemed to have

admitted any liability, wrongdoing or improper actions or

inactions with respect to the subject matter at issue in this

litigation. The fact that the defendants have agreed to a

settlement with the plaintiffs shall not be construed as an

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admission that they have engaged in any unlawful or wrongful conduct. The parties to this Consent Decree recognize that this agreement is made under the current state of the law and medical science and recognize that the state of the law and medical science may change.
3. The provisions of this Decree shall be binding on the parties, including all past and future class members, and shall be enforceable as an Order of this Court. The Court shall retain jurisdiction of the matter for the purpose of implementation and enforcement of the provisions of the Decree, subject to the provisions of Paragraph 59 below. Jurisdiction shall also be retained for the purpose of enabling any party to this Consent Decree to apply to this Court at any time for the modification of any of the provisions of this Decree pursuant to the provisions of ¶4 below.
4. The parties to this Consent Decree acknowledge that the provisions of this Consent Decree may require modification to conform with developments in sound professional medical and public health policy and practice. Counsel for the parties, either jointly or separately, may move, on good cause shown, for modification of this decree on these grounds or on any other grounds provided by law.
5. This Decree represents a full and final resolution of all constitutional and statutory claims raised by the Amended and Supplemental Complaint in this matter. Plaintiffs and plaintiffs' counsel hereby agree to waive any
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claims for damages and attorneys' fees arising out cf the Amended and Supplemental Complaint. II. DEFINITIONS
6. As used in this Consent Decree, "trained medical staff" shall mean physicians, nurse-practitioners, registered nurses, licensed practical nurses, or licensed emergency medical technicians who have received training on the medical screening procedures for and the important clinical aspect of HIV-related conditions and illnesses.
7. As used in this Consent Decree, "trained mental health staff" shall mean psychiatrists, psychologists, and social workers, who have received•training on the psychological and psychiatric aspects of HIV-related conditions and illnesses.
3. As used in this Consent Decree, "medical unit" shall mean any wing, area, group of cells, tier, or other subsection of any New Jersey Department of Corrections (hereinafter "DOC") facility used for housing inmates whose medical condition requires either close access to medical services or assistance with their activities of daily living. It is the understanding of the parties that inmates shall not be assigned to a medical unit solely because they are HIVpositive, and that no medical unit or portion of a medical unit shall be designated, formally or informally, for the housing of inmates with HIV-related illnesses.
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9. As used in this Consent Decree, "class nenbers" shall mean prisoners in the New Jersey State Prison System who have been or will be diagnosed with AIDS or other HIV-related illness. "HIV-related illness" shall include asymptomatic infection with HIV. III. HOUSING OF CLASS MEMBERS
The following provisions shall become effective within 60 days of the entry of this Decree:
10. The DOC shall not designate or use by custom or practice any housing or medical unit, area, cells or beds anywhere in the state prison system, whether general population or closed custody, exclusively for inmates diagnosed as having AIDS or any other stage of HIV disease. N.J.A.C. lOA:96.3(b)(3) shall not be construed to permit the assignment of class members to New Jersey State Prison solely because they have been identified as or are suspected of being HIV-infected.
11. The existing Special Medical Units of New Jersey State Prison and Edna Mahan Correctional Facility for Women shall not be used exclusively to house inmates who have been diagnosed as having AIDS or any other state of HIV-related illness.
12. The existing Special Medical Units (hereinafter ••S.M.U.11) at New Jersey State Prison (known as IFF and 1GG) shall become a general medical unit with facilities and services comparable to the 3B medical unit of New Jersey State
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Prison, or other non-medical uses as deemed appropriate by the DOC.
13. The decision to assign inmates to Medical Units in any facility in New Jersey State Prison System shall t solely a medical decision based on the medical condition of the individual inmate.
14. Class members shall not be assigned to Medical Units solely on the basis of having been diagnosed as having AIDS or any other HIV-related illness. Class members may be assigned to a medical unit if such assignment is appropriate to their medical condition, based on a physician's individualized assessment.
15. All class members assigned to the existing Special Medical Units in New Jersey State Prison or the Edna Mahan Correctional Facility for Women who do not have a medical condition that, based on an individualized medical assessment, requires them to be housed in a medical unit, shall be reassigned to an appropriate institution and custody status in accordance with N.J.A.C. 10A:9-3.3, e£ seq. and 10A:9-6, et seq. In reclassifying class members assigned to an S.M.U., they shall ba assigned to the institution and custody status to which they were assigned before transfer to the S.M.U., unless a different assignment is warranted for a reason other than their HIV status.
16. Class members hospitalized at St. Francis Medical Center or other non-DOC hospital facility shall be
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discharged from the hospital as soon as their medical condition no longer requires them to be in the hospital or, if appropriate housing is not immediately available, as soon as appropriate housing is available. If any class member remains in a hospital facility more than two weeks after his or her medical condition no longer requires hospitalization, the DOC shall immediately notify counsel for defendants who will notify counsel for plaintiffs of the class member's identity and the reason for the continued hospitalization. Upon discharge from St. Francis Medical Center or other hospital facility, class members shall be housed or assigned on the same basis and in the same manner as non-class members unless, based on an individualized medical determination made by a physician, their medical condition requires a different assignment.
17. The DOC shall not deny access to programs, services, jobs, work release and furloughs to class members on the basis of their status as class members. Class members shall be afforded access to programs, services, jobs, work release and furloughs in accordance with the classification guidelines and procedures implemented for non-class members. IV. MEDICAL CARE
The following provisions shall become effective within 60 days of the entry of this Decree:
A. Interpretive Standards 18. The parties have agreed to the following terms
solely for the purpose of establishing standards of medical
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care for the future for class members. The parties acknoviedae that many of the practices and procedures referred to in the following paragraphs are in place and in use by the DOC and its employees and that, by the terms of this Decree, the parties agree that these practices and procedures shall continue. 3y agreeing to this language, and further by consenting to the form and entry of this language, and further by consenting to the form and entry of this Decree, the parties specifically disavow any intent to state or imply any assessment or evaluation of the adequacy of the care provided prior to the entry of this Decree.
B. Community Standards 19. The DOC shall provide medical care to class
members in conformity with community standards as guided by United States Public Health Service recommendations. The parties recognize that the United States Public Health Service recommendations are advisory and are not intended to be strictly binding on the DOC.
C. Testing and Counseling 20. Each inmate shall receive a health screening
evaluation, including an HIV risk assessment, by trained medical or nursing staff upon entry into the New Jersey state Prison System and thereafter in accordance with the provisions of N.J.A.C. 10A:16-2.11. Inmates who are known by DOC to be HIV-infected shall be given such an evaluation at least once each year.
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21. HIV tests shall be recommended to all inmates

where suggested by clinical indications or indications of past

behavior exposing the inmate to the risk of infection, and

shall be available on request at all DOC facilities in

accordance with the protocols or memoranda described in

paragraph 27. An HIV test may be ordered only by medical

personnel.

22. Testing for HIV shall be voluntary and

confidential. All inmates tested for HIV shall be provided

with pre- and post-test counselling by New Jersey Department of

Health certified HIV counselors who are not corrections

officers and in a manner developed in consultation with the New

Jersey Department of Health.

23. All inmates requesting an HIV test shall be

given written materials in English and Spanish which describe

available medical and mental health services for HIV-related

care, the confidentiality of these services and the procedures

for gaining access to such services. The DOC shall ensure that

this information is communicated verbally in a timely manner to

illiterate inmates and by translation to inmates with a native

language other than English or Spanish.

D· Follow—UP and Routine Medical Care

24. Health examinations for class members, including

laboratory tests, shall be regularly scheduled in accordance

with a class member's medically-indicated need.

These

examinations shall include blood testing for T cell profile, in

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conformity with community standards as guided by United States Public Health Service recommendations, as well as other diagnostic tests appropriate for the monitoring of the course of the HIV infection.
25. All class members shall be informed of their medical condition, test results, prognosis and treatment plan, within one week of the receipt of the test results by the institution's medical department, but in no event later than 3 0 days from the date of the test unless further delay is caused by circumstances beyond the control of the DOC. The inmates shall be informed of their test results, medical condition, prognosis and treatment plan in plain language and with an opportunity to have their questions regarding their medical condition and treatment answered by trained medical staff.
26. Inmates shall be afforded the opportunity to obtain or review a copy of their medical records. Inmates shall be permitted to raise questions with trained medical or nursing staff regarding the medical care being provided to them. Inmates may raise questions regarding their medical care and direct those questions to the DOC in writing. Written questions will be investigated by the DOC and the DOC will provide a response to the questioning inmate within thirty (30) days from receipt of the written question. Where medically appropriate, a medical doctor with experience in treating HIV related illnesses will conduct the investigation, including a
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review of the questioning inmate's medical records, and produce the response for the questioning inmate.
27. The DOC shall maintain a system of preventive care and health maintenance for class members which ensures that inmates receive and are informed of treatment, anti-viral therapy and vaccines that are medically appropriate for them. Such treatment shall follow the guidelines set forth in the January 1, 1992 DOC memorandum titled Medical Management of Human Immunodeficiency Virus (`tìlV) Infection, or memoranda or protocols adopted in the future pursuant to ¶¶29 and 3 0 below and in conformity with community standards as guided by the United States Public Health Service recommendations.
28. The DOC shall maintain a system of treatment of opportunistic infection, specialty and acute care, and referral consistent with community standards.
29. Within 90 days of the entry of this Consent Decree, the DOC shall, under the endorsement of an Infectious Disease Specialist, promulgate and implement protocols for the medical care of inmates with AIDS and other HIV-related illnesses'. That protocol shall include:
(a) Prophylaxis medical care, preventive care, testing and anti-viral therapy in conformity with community standards as guided by the United States Public Health Service recommendations; and
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(b) Management of opportunistic infection and chronic diseases, consultation and referral, pharmacy, dental care, mental health care, care of HIV-related illnesses specific to women, acute care and skilled nursing care consistent with community standards.
30. The DOC shall update all medical care protocols on a regular basis and as required by developments in the care of persons with AIDS or who are HIV-positive.
31. Each DOC facility shall institute a system for sick call by which inmates may place themselves on sick call, or obtain access to facility medical staff, without having to reveal their medical condition to non-medical prison staff. Inmates shall be able to seek emergency medical attention without revealing their HIV status to non-medical prison staff.
32. Absent an emergency, inmates placing themselves on sick call or seeking access to trained medical staff shall be seen by trained medical staff within 24 hours of the request. The triage of sick call requests shall be based on a clinical assessment by trained medical staff that includes a brief history and evaluation of vital signs, where medically appropriate, and physical condition.
E. Infectious Disease Specialist 33. The DOC shall` make an Infectious Disease
Specialist's services available to all facilities in the New
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Jersey State Prison System, as necessary, either on-site or bv consultation. Those services shall include:
(a) Clinical examination and treatment as needed upon referral by a primary care physician or a consulting physician whose services are used by the DOC; and
(b) Telephone consultation with DOC staff physicians and consulting physicians whose services are used by the DOC; and
(c) Periodic basic and advanced training of DOC medical staff in the diagnosis, maintenance and treatment of AIDS and other HIV-related illnesses; and
(d) Review, recommendation and endorsement for all protocols promulgated pursuant to paragraph 3 0 of this Consent Decree.
Infectious disease specialist services shall be provided by physicians who are board certified in infectious disease and internal medicine. Physician services shall be provided by physicians with training in the treatment of HIV-related illnesses.
34. After review of each class member's existing medical and mental health records, including those pertaining to the personal examination of the inmate, review of reports of any other specialists, and completion of such tests and assessments as are determined to be necessary, and after all
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immediately necessary care has been ordered, an individualized health care summary and treatment plan for each class menber shall be prepared by a DOC physician located at the inmate's institution, or the immediately preceding treating primary care physician, and with training in the treatment of HIV-related illnesses.
35. The individualized health care summary and treatment plan for a symptomatic class member shall be completed within ten days of the inmate's admission to a DOC facility or, for inmates diagnosed while within DOC care, within ten days of diagnosis. If all requisite laboratory reports have not been completed within this period, a tentative plan shall be prepared and revised as necessary when all laboratory reports are complete. If such an inmate is transferred to a non-DOC facility for health care treatment, a treatment plan shall be completed when the inmate returns to a DOC facility. The treatment plan for an asymptomatic class member shall, in normal circumstances, be completed within ten days of completion of requisite laboratory work, but in no event later than thirty days after such an inmate reports his or h·r HIV-positive status, or is diagnosed as HIV-positive.
36. All class members shall be routinely scheduled for follow-up health examinations and nutrition assessments at a frequency consistent with then-current professional standards.
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37. in accordance with accepted professional standards, all class members shall be routinely scheduled for all laboratory tests as are determined to be medically necessary by the treating physician in consultation, as appropriate, with an Infectious Disease Specialist.
F. Drug Therapies 38. The DOC shall offer to class members such arug
therapies (including drugs approved by the FDA for "compassionate use" and FDA-approved Treatment Investigational New Drugs ("IND")) as are determined to be medically necessary for him/her by the treating physician, in consultation with the Infectious Disease Specialist, in accordance with accepted professional standards. Such drugs shall be administered (in dosages and at frequencies) and monitored in accordance with accepted professional standards.
39. Prior to the initiation of any treatment, class members shall be informed by trained medical or nursing staff of the nature of the treatment, the possible risks, benefits and side effects of the treatments.
40. Class members may request in writing to a staff physician to participate in the clinical trial of experimental treatments or drugs, which are approved for experimental use by the FDA, so long as such trials or experiments include both incarcerated and non-incarcerated persons and are provided at no substantial additional cost to the DOC. An inmate's request shall be approved if a treating physician determines that the
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inmate is medically qualified for the trial, that the experimental treatment or drug may be of benefit to the inmate and if the inmate acknowledges his or her consent to the clinical trial in writing.
G. Mental Health Services 41. All class members shall be made aware of the
availability of mental health services by DOC staff, including those persons who do HIV test counselling, and, upon request, shall be referred to a mental health staff person for further assessment. Mental health services shall be offered to all class members, who, following assessment by DOC mental health professionals (psychiatrists, psychologists, correctional psychiatric treatment workers and psychiatric nurses), are determined to be in need of such services. HIV-related mental health services shall be provided only by appropriate mental health staff who possess that level of professional training and competence which meets the particular inmate's need for treatment. The institutional Director of Professional Services shall assign appropriately trained staff to all referrals.
42. A record describing the mental health treatment offered to, requested by and received by each class member shall b · made part of the inmate's medical record where medically appropriate.
43. The DOC health care staff shall not examine a class member or question him or her about HIV-related issues or discuss the HIV-related health care status of an HIV-infected
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inmate, while knowingly in the presence or range of hearing of other inmates, non-medical DOC staff, or other persons who are not DOC health care staff, except for the limited purposes necessary to permit informed classification decisions and parole recommendations.
44. Unsealed medical and mental health files of a class member shall be available only to the DOC medical and mental health staff directly responsible for providing care to that inmate or to a consulting specialist or outside medical provider to whom the inmate is referred for medical/mental health treatment or evaluation, or DOC administrators on a need to know basis, absent the inmate's informed written consent for disclosure of HIV-related records to a specifically-identified individual or entity, or in accordance with judicial order. In the event that the DOC receives a judicial order requiring disclosure of HIV-related records without an inmate's consent, the DOC shall give counsel for plaintiffs not less than seventy-two (72) hours notice prior to producing the records. The foregoing provision shall not limit access to such files by attorneys for the DOC, plaintiffs1 counsel in this action, or any monitoring agent designated by this Decree for the purpose of monitoring compliance with this Decree and assessing the adequacy of the care being provided by the DOC, or as necessary to permit informed classification decisions and parole recommendations.
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H. Acute Care 45. Acute and specialized care shall be provided to
all class members consistent with community standards of care. I. Confidentiality and Records 46. The DOC shall include in its periodic staff
training on AIDS issues instructional information on the obligation of DOC staff, pursuant to N.J.S.A. 26:5C-5 et sea. , or then current confidentiality statutes, and any other applicable law, to maintain confidentiality with respect to the HIV-related information contained in any inmate's records.
47. The medical records of class members shall be maintained in a manner that fully describes the tests and drugs that have been ordered for an inmate, the person who issued the order, the purpose of the order and the reaction or result of any test or drug. The files, or a copy of same, shall be readily available for use by treating and consulting medical personnel.
J. Diet 48. A nutritional assessment shall be part of the
initial comprehensive health assessment for all class members. All orders to implement any special dietary plan, including the provisions of special nutritional supplements for the class member, shall be signed by a DOC physician, placed in the inmate's medical record, and transmitted to the kitchen staff. DOC staff shall refer all inmate complaints of noncompliance with special dietary orders to the kitchen staff and the
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treating physician. Repeated complaints about noncompliance about which medical staff becomes aware shall be noted by such staff in the inmate's medical record and referred to the superintendent of the facility. The superintendent of the facility shall take reasonable steps to ensure compliance with all special dietary orders. The nutritional assessment shall be amended and supplemented as appropriate by the DOC physician.
K. Quality Assurance 49. The DOC shall maintain a system of quality assurance for medical care. This system shall include periodic review of medical records, at each correctional institution run by the DOC, by a registered nurse or medical doctor, who is/are not: currently on the staff of the respective institution, with experience in the treatment of HIV related illnesses. Review shall include compliance with the then current DOC Protocol(s) on care and treatment of HIV related illnesses. The quality assurance system shall include periodic inspection and evaluation of the medical facilities at each correctional institution run by the DOC. The DOC shall make a written record of inspections and evaluations of medical facilities and the reviews of medical care provided. The provisions of this paragraph are not intended to invoke the rights and privileges of the New Jersey Right-to-Know Law.
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L. Miscellaneous 50. If a class member is unable to obtain his/her medications through their usual method of administration due to the health or security status of the inmate, or institutional security, medical or nursing staff shall provide an alternative method of administration to ensure that the medications are obtained by the inmate. 51. The institutional superintendents and administrators shall evaluate and consider permitting inmates to participate in HIV support groups. The DOC shall consider the level of inmate interest in and the therapeutic value of such support groups as well as the security and staffing problems presented by such groups in determining whether to offer them in any facility. V. EDUCATION AND TRAINING 52. Training and educational programs on HIV disease, transmission and risk reduction shall be provided to all inmates in the DOC facilities. The programs shall be provided at appropriate intervals and shall be designed, in consultation with the State Department of Health, to be appropriate for the population of the DOC facilities. 53. Training and educational programs on HIV disease, transmission and risk reduction shall be provided to all staff in the DOC facilities. The programs shall be provided at appropriate intervals and shall be designed, in
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consultation with the State Department of Health, to be appropriate for the staff of the DOC facilities.
54. All DOC staff physicians and registered nurses shall receive periodic basic and advanced training in the diagnosis, maintenance and treatment of AIDS and other HIVrelated illnesses.
VI. REPORTING AND VERIFICATION 55. Plaintiffs' counsel may request, through counsel
for defendants, on behalf of themselves or their consultants, access to relevant documents to assist in verifying defendants' compliance with this Decree. Upon reasonable notice to the DOC, specifying the identity of inmates1 records, or other documents sought, and, where necessary, upon producing a duly executed release signed by the respective inmate, the DOC shall make the requested documents available for inspection by plaintiffs' counsel, their consultants or investigators, at the DOC facility or building within a reasonable time. This provision does not act as a waiver of the DOC·s right to assert confidentiality or applicable privileges. The DOC may, at its discretion, provida copies of the requested documents in lieu of, or in addition to an inspection.
56. To assist counsel for plaintiffs in obtaining releases for a sufficient number of inmates to verify compliance with this Decree, a release form shall be made available to inmates with instructions identifying'counsel for plaintiffs, explaining the nature, purpose and duration of the
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compliance procedures and directing inmates who volunteer to consent to disclosure of their medical conditions, records and HIV status to counsel for plaintiffs, their consultants or investigators, to sign the release and forward same to counsel for plaintiffs. If fewer than 500 inmates forward properly executed releases to counsel for plaintiffs, and counsel for plaintiffs determine that additional releases are necessary to verify compliance, the parties will seek alternative means of obtaining releases or otherwise ensuring confidentiality.
57. The terms of this Decree do not alter any other law, agreement, obligation or provision affecting the rights of the New Jersey Public Advocate to obtain access to New Jersey correctional institutions or otherwise obtain documents or information from the DOC or its institutions.
VII. TERMINATION AND EMERGENCY SUSPENSION OF PROVISIONS OF CONSENT DECREE. 58. When the DOC believes in good faith that they
have fully and faithfully implemented the provisions of this Consent Decree in their entirety and have been in substantial compliance for a period of two years, the DOC may move that some or all of the reporting and verification requirements of this decree b · discontinued, provided that no such motion may be filed prior to twenty-four months from the date this Consent Decree is entered and provided further that the DOC has given plaintiffs' counsel ninety days advance notice of their intention to file such a motion. Discontinuance of the reporting and verification requirements of this Decree will be
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granted unless, within thirty days after receipt of the DOC's motion, plaintiffs file an objection. If such objection is filed, the Court shall hold a hearing on the motion at which the defendants will be required to demonstrate that they have faithfully implemented all provisions of this Consent Decree and have maintained substantial compliance with those provisions. Nothing in this section shall be construed to preclude the reinstitution of some or all of the reporting and verification requirements of this Decree upon a showing by plaintiffs of noncompliance with this Decree and plaintiffs' counsel shall be allowed to investigate allegations of noncompliance.
59. This action shall be dismissed, with prejudice, and the reporting, notice and verification requirements shall expire three years after the entry of this Consent Decree on the condition that the DOC files with the Court and serves on counsel for plaintiffs a Certification and any appropriate supporting documentation attesting that the DOC is, at that time, in substantial compliance with the policies and procedures as set forth pursuant to the terms o£ this Consent Decree. if the Court finds, prior to the dismissal of this matter, that the defendants have failed to implement the terms of this Consent Decree, it may order such further relief as is necessary to achieve implementation of the terms of this Consent Decree.
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60. The provisions of this Consent Decree :?.ay be temporarily suspended upon the occurrence of sudden, unexpected and unforeseeable emergency circumstances. The parties intend that such emergency circumstances include only sudden events such as fires, natural disasters or riots, but shall not include any situation caused by fluctuations in inmate population. The defendants, through defendants' counsel, must provide plaintiffs' counsel with immediate telephone notice of the declaration of emergency circumstances, and written notice of the declaration of emergency circumstances. The provisions of this Consent Decree may not be suspended for such an emergency for longer than one week without leave of Court.

Date:

ANNE E. THOMPSON, U.S.D.J.

CONSENTING TO THE FORM AND ENTRY OF THIS DECREE r

For Plaintiffs;

V. Jaobbi/

:

r, ¤·\JÁo, Dolan,

rlffinger & Vecchione

WILFREDO CARABALLO PUBLIC ADVOCATE OF NEW JERSEY

Date;

Date; 3/*/f2_
Due)cer Assistant Deputy Public Defender Office of Inmate Advocacy

- 24 -

CONSENTING TO THE FORM AND ENTRY OF THIS DECREE: For Defendants

ROBERT J. DEL TUFO ATTORNEY GEN1

JERSEY

BY: Brett D. Rickman
Deputy Attorney General

Date:

- 25 -

 
 Roe v. Fauver

CRUMMY, DEL DEO, DOLAN, ¯J GRIFFINGER & VECCHIONE A Professional Corporation One Riverfront Plaza Newark, New Jersey 07102 (201) 596-4500 Attorneys for Plaintiffs
BY: John V. Jacobi (JJ3897)

PC-NJ-OOO¾¾111

JANE ROE, et al.,

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Plaintiffs,

Ptt¾ C Civil Action No. 8

ENTERED v.
WILLIAM H. FAUVER, et a

Civil Action WUN29

Defendants.

,JHE·'OOCKET Q*\ on Ç>^'`3O I9_L^¯*
WIUIAM t:jfKlSH, CL£R«
B| (Deputy Clert)

ORDER

This matter having come before the Court on the return

date of the hearing on objections to the proposed Consent Order

resolving this matter, and the Court having considered the

objection to the proposed Consent Decree submitted by the

following persons: Abdullah Wahid Muhammad; Edward Johnson;

Robert Robin Banfield; Ronald Long; Walter Oglesby; Charles

Ritter; Orlando Perez; Lloyd Johnson; Norwood White; James

Abdul Alim Abuwi; Victor Patilla; Rob Marshall; Antione Lennon;

LeRoy Thomas; Abdur Rahma Shariff; Robert Brown; John Tildman;

Alonzo Evans; Rasool Shabazz; and an anonymous parent of an

inmate; and the Court having considered the submissions and

argument of counsel for plaintiff class (Crummy, Del Deo,

Dolan, Griffinger & Vecchione, John V. Jacobi, Esq. appearing, and the New Jersey Department of the Public Advocate, Alice K. Dueker, •A.D.P.D. appearing) as well as counsel for defendants (Robert J. Del Tufo, New Jersey Attorney General; Brett Rickman, D.A.G. appearing) and the Court being satisfied that appropriate notice and opportunity to object has been given to members of the plaintiff class, and Court being satisfied that the entry of the proposed Consent Decree will serve the best interests of the plaintiff class;
IT IS on this ¿L ?¯' ' day of June, 1992. ORDERED that the Consent Decree, annexed hereto, is approved, and it is hereby ADJUDGED, ORDERED AND DECREED as provided therein.
Anne E. Thompson, U.S.D.J
- 2-

 
 Roe v. Fauver

PC-NJ-0004-0006
ALFRED A. SLOCUM, PUBLIC ADVOCATE/PUBLIC DEFENDER
Department of the Public Advocate Hughes Justice Complex, CN 850 Trenton, New Jersey 08635
BY: CATHERINE A. HANSSENS Assistant Deputy Public Defender Office of Inmate Advocacy (609) 292-1775 Attorney for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

JANE ROE, R. P., K. C., T.O., A. D. , J. H. , J. B. , J. A., A. T., F. B., L. T., and J. C. on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
WILLIAM H. FAUVER, in his official and individual capacity; GARY HELTON, in his official and individual capacity; JOHN PORKER, in his official and individual capacity; JOHN FICARRA, in his official and individual capacity; RICHARD REED, M.D. , in his official and individual capacity; JOHN BELTQN, Ph.D., in his official and individual capacity; ROBERT WALTON, in his official and individual capacity; RUDOLPH ARCHER, in his official and individual capacity; HOWARD BEYER, ±n his official and individual capacity; ANTHONY TURNER, in his official and individual capacity; LOUIS BRANDT, M.D., in his official and individual capacity; GEORGE HAYMAN, in his official and individual capacity; and JOHN DOE, in his official and Individual capacity,
Defendants.

CIVIL NO. 88-1225 (AST)
CIVIL RIGHTS ACTION
AMENDED AND SUPPLEMENTAL COMPLAINT AND DEMAND FOR JURY TRIAL (VERIFIED BY AFFIDAVIT)
(CLASS ACTION)

I. •pp,·Rr.TMTNARY STA 1. This is a complaint for declaratory and injunctive relief brought by State prisoners diagnosed with. AIDS (acquired immune deficiency syndrome) or with AIDS-related illnesses or infection (the spectrum of these diseases are referred to herein as "HIV disease"). Prisoners whom prison medical staff have identified as having AIDS are segregated at the prison ward at St. Francis Medical Center or at the special segregation units ("Special Medical Unit" or "S.M.U.") at Trenton State Prison and at the Edna Mahan Correctional Facility (hereinafter "Correctional Institution for Women" or "C.I.W.") in Clinton. Prisoners with other stages of HIV disease are confined at various prisons across the state. Plaintiffs seek an an order and judgment to prohibit defendants' continuing violation of their rights to due process and equal protection of the laws and their right to be free from cruel and unusual punishment through plaintiffs` indefinite isolation or segregation, as well as their categorical exclusion from programs, rights and privileges afforded to other prisoners, solely on the basis of a diagnosis that they have acquired immune deficiency syndrome ("AIDS"). Plaintiffs also seek an order and judgment to prohibit defendants' continuing discrimination against prisoners with the handicap of AIDS, in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1982), through plaintiffs' systematic exclusion from any and all work, rehabilitation, education, and vocational programs and activities, as well as reduced custody consideration, solely by reason of their handicap and despite the fact that they are otherwise qualified to participate in such programs. Finally, plaintiffs seek relief from defendants' continuing violation of their right to be free from cruel and unusual punishment through

defendants' repeated denials or delays in provision of routine and emergency medical care to plaintiffs, and by defendants4 unnecessary infliction of pain and humiliation through the excessive use of physical restraints and through defendants' deliberate indifference to plaintiffs1 emotional and psychiatric needs.
2. Plaintiffs challenge defendants' policy of subjecting prisoners with an official diagnosis of AIDS (that i s , prisoners whom the prison medical staff have identified as having AIDS) to permanent segregation and other restrictions which are not rationally related to their custody status or their actual medical condition. Prisoners with an official diagnosis of AIDS are excluded from participation in virtually a l l of the programs available to other prisoners including those with AIDS-related illnesses or other serious or terminal diseases. In contrast to the treatment of other prisoners with serious illnesses, plaintiffs are confined under maximum security conditions, are confined to their cells for most of the day, are permitted only limited opportunities for recreation, exercise and visitation, and are denied direct access to the law library and other facilities. Although their place of confinement i s designated a "Special Medical Unit," the S.M.U. is in fact a segregation unit where prisoners are subjected to delayed, denied or inadequate medical care.
3. Prisoners with AIDS have been and continue to be housed at St. Francis Medical Center, as a place of confinement, for indefinite periods of time. Prisoners with AIDS are so housed due to the limited housing capacity of the S.M.U. at Trenton State Prison, the absence until recently of a special AIDS segregation unit for women, and the defendants' uniform policy of automatically and permanently segregating prisoners with an official diagnosis of AIDS. In this confinement, prisoners' visitation

rights are additionally restricted, and they are denied opportunities for any form of exercise or recreation, educational or vocational programs, meaningful law library access, or any of the other programs, privileges or rights routinely afforded other state prisoners. Defendants' policy, in turn, through the use of a limited supply of hospital beds as a place of confinement, causes serious and unnecessary delays in the provision of needed hospital care to plaintiffs. Finally, in deliberate indifference to plaintiffs1 serious medical needs, defendants* policy of limiting the administration of essential drug therapy for the treatment of AIDS to prisoners confined to the available spaces at the S.M.U. or St. Francis Medical Center arbitrarily denies prisoners with serious AIDS-related illnesses important medical care for non-medical reasons.
4. The above restrictions and conditions which defendants impose on plaintiffs and other prisoners similarly situated are not rationally related to legitimate penological or correctional goals and deprive them of their r i g h t s guaranteed by the Eighth and Fourteenth Amendments to the Constitution of the United States and by Section 5C4 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794 (1982).
5. This complaint contains three counts: a. Count One alleges that the defendants have confined and continue to confine the plaintiffs in St. Francis Medical • Center in violation of the lawful rights of the plaintiffs. This confinement extends, in many cases, many months beyond the plaintiffs1 need of hospital care, and results in the denial of plaintiffs1 ability to participate in educational, religious, visitation, vocational, legal rehabilitative and other programs available to prisoners not diagnosed with AIDS. Plaintiffs

allege that defendants* policies and practices described in Count One violate p l a i n t i f f s 1 rights secured by the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution; b. Count Two a l l e g e s t h a t the defendants i r r a t i o n a l l y and arbitrarily have segregated plaintiffs diagnosed with AIDS, and have denied p l a i n t i f f s diagnosed with AIDS access t o educational, religious, visitation, vocational, rehabilitative and other programs available to prisoners not diagnosed with AIDS. Plaintiffs a l l e g e t h a t defendants' p o l i c i e s and practices described in Count Two violate plaintiffs' rights secured by the Eighth Amendment and the Due Process and Ec[ual Protection Clauses of the Fourteenth Amendment to the United States Constitution, and by Section 5C4 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794 (1982); c. Count Three alleges that the defendants' policies and practices governing the provision of medical care to a l l plaintiffs with AIDS-related Illnesses are deficient and inadequate to a degree sufficient to establish deliberate indifference to plaintiffs' serious medical needs in violation of the Eighth Amendment of the United States Constitution. Plaintiffs bring this action pursuant to 42 U.S.C. Section 1983.
I I . JURISDICTION 6. This Court has jurisdiction pursuant to 28 U.S.C. Sections 1331, 1343(3) and 1343(4). P l a i n t i f f ' s reqniest for declaratory r e l i e f i s authorized by 28 U.S.C. Sections 2201 and 2202.

7. This suit is authorized by 42 ü.S.C. Section 1983 to redress the

deprivation, under color of state law, of rights, privileges and immunities

secured by the Constitution of the United States. This suit is also brought

pursuant to 29 U.S.C. Section 794 (1982), which prohibits the exclusion of

otherwise qualified handicapped individuals from participation in programs

operated by agencies receiving federal funds.

PI a.1 TVH •Ff p

I I I . PARTIES

8. Plaintiff Jane Roe is a citizen of the United States and is

sentenced to the C.I.¥. in Clinton, New Jersey. It is necessary that her

true name, and that of the other plaintiffs and class members, not be used

in order to preserve the privacy of her medical status and that of the other

plaintiffs and class members with AIDS. Jane Roe currently is confined on

the Special Medical Unit at the C.I.W., where she has been housed in

isolation from other prisoners since May 27, 1988. From June 12, 1987 until

May 27, 1988, she had been confined to a hospital room at St. Francis

Medical Center in Trenton long after her need for acute medical care had

ceased. She is diagnosed as having AIDS and currently is the sole resident

of the S.M.U. at Clinton. Roe has not suffered from skin rashes or open

sores since her condition was diagnosed, she does not suffer from other

incapacitating conditions and she has not been visibly symptomatic for over

a year. Nonetheless, because of her diagnosis, Roe is excluded from

participation in any of the vocational, educational, rehabilitative, or

other programs and benefits available to general population inmates.

9. Plaintiff R. P. is a citizen of the United States and was admitted

to the C.I.w. on May 10, 1986. She currently is confined in C Cottage at

the C.I.W. She is HIV positive, i.e.. known to be infected with the AIDS

virus. She has been diagnosed as having symptoms of AIDS infection, including thrush and fevers. Her physical condition permits her to function normally in general population, and she has been permitted to attend educational and rehabilitative programs.
10. Plaintiff K. C. is a citizen of the United States and was admitted to the S.M.U. at Trenton State Prison, where he currently resides, on or about October 15, 1987. He is diagnosed as having AIDS. He has experienced months of dé.¿.ay in obtaining needed dental and eye care arvi, medications which, have been prescribe" for him. He has been advised by a doctor to take vitamins, but has been told that the prison would not pay for their provision.
11. Plaintiff T. 0. is a citizen of the United States and was admitted to the S.M.U. at Trenton State Prison, where he currently resides, on or about July 9, 1987. He is diagnosed as having AIDS. He experienced a delay of several days in seeing a doctor after the onset of symptoms of pneumocystis carinii pneumonia (PCP). When he was hospitalized for this condition, he was placed in leg-irons, handcuffs and a waist chain despite the fact that he was ill and having trouble breathing; he remained in these restraints for hours. He receives only sporadically a non-dairy diet prescribed for him by a treating physician.
12. Plaintiff J. H. is a citizen of the United States and was admitted to the S.M.U. at Trenton State Prison, where he currently resides, on or about February 18, 1988. He is diagnosed as having AIDS. He had been without disciplinary infractions in over six years of incarceration and was eligible for gang minimum custody status at the time of his transfer to the S.M.U. He has experienced weeks of delay in receiving prescribed

medication, and has erroneously received medications prescribed for other prisoners.
13. J. B. is a citizen of the United States and was admitted to the S.M.U. at Trenton State Prison, where he currently resides, in or about October, 1987. He is diagnosed as having AIDS. Prior to his admission to the S.M.U., he had full minimum custody status and was confined at the Leesburg honor camp at Ancora, where he was eligible for furloughs, college studies and other educational programs, and eventually work release.
14. Plaintiff J. A. is a citizen of the United States and was admitted to the S.M.U. at Trenton State Prison, on or about May 28, 1987. He is diagnosed as having AIDS. As of June 21, 1988, he was confined to a hospital room at St. Francis Medical Center with two to three other persons. Although he is not in need of acute hospital care, he was awaiting the availability of space in the S.M.U. `While housed at the S.M.U. , he experienced extended delays in receiving care for painful, treatable medical conditions.
15. Plaintiff A. T. is a citizen of the United States and has been assigned to the S.M.U. at Trenton State Prison, where he currently resides, since its opening jL·n April, 1986. A. T. has been subjected to prolonged periods of idleness due to the severe shortage of opportunities for activity ±n the unit and the extended amount of time spent locked in a cell, as have other prisoners confined to the S.M.U. He has experienced severe pain and discomfort from misprescribed medications for which he had had prior allergic reactions. He has been forced to remain ±n full restraints for hours while awaiting emergency medical care despite the presence of armed guards. He has experienced delays of weeks and longer for treatment of infections and other routine medical needs.
8

16. P l a i n t i f f F. B. i s a c i t i z e n of the United States and was admitted to the S.M.U. at Trenton State Prison, where he currently resides, in or about since September, 1987. He i s diagnosed as having AIDS. Prior to his admission to the S.M.U. he had full minimum custody status and was on work r e l e a s e . He also was permitted to go on furloughs from the institution, and was able to spend several days at a time with his family.
17. Plaintiff A. D. i s a citizen of the United States and has been confined in the S.M.U. at Trenton State Prison, where he currently resides, since October, 1987. Although he i s confined in the S.M.U. at Trenton State Prison and had been informed prior to his transfer to the S.M.U. that he had ARC, he does not know whether he has an actual diagnosis of AIDS. He was forced to remain in full restraints for a period of about two hours for a brief hospital procedure despite the fact that approxjjnately six corrections officers accompanied him to the hospital. Like a number of prisoners assigned to the S.M.U., much of his personal property was never returned to him subsequent to his diagnosis.
18. Plaintiff L. T. is a citizen of the United States. He currently i s confined at Trenton State Prison in Unit 2EE, which i s a general population medical ward. He has been diagnosed as having ARC. He has suffered skin infections and disorders, symptoms of mental d i s t r e s s or disorder, and loss of weight. For weeks, he received only superficial responses to requests for medical attention to these symptoms. He i s not receiving azidothydine (AZT), the only approved drug that has been proven effective in the treatment of AIDS and ARC. For several years he worked as an aide in the infirmary, which required that he retrieve and tend to sick prisoners who were incontinent or bleeding. He has never received supervision, training or instructions on precautions for exposure to body

fluids as recommended by the Centers for Disease Control, and he generally did not wear protective clothing when performing his job functions.
19. Plaintiff J. C. is a citizen of the United States and has been confined in the S.M.U. at Trenton State Prison, where he currently resides, since July, 1987. Prior to his admission to the S.M.U., he was housed at the Rahway State Prison Camp, where he was classified as full minimum custody status and was on work release. He experienced extended delays prior to receiving actual treatment for developing pneumocystis carinii pneumonia (PCP). When he was hospitalized for PCP he was extremely weak, yet he was placed in full restraints for his transportation to the hospital and his wait for a bed in a hospital room. Defendants
20. Defendant William H. Fauver, as Commissioner of the Department of Corrections, has the ultimate responsibility pursuant to N.J.S.A. 3O:lB-€ to determine all matters of corrections policy and to regulate the administration of State correctional institutions, including the C.I.W. At all pertinent times, he had, and continues to have, ultimate control of plaintiffs' place of confinement and the policies and practices governing persons with AIDS, ARC and HIV infection in the prison system. Defendant Fauver either participates in or has actual knowledge of the acts alleged herein and is sued in his individual and official capacities.
21. Defendant Gary Hilton is, and at all pertinent times was, Assistant Commissioner of the Department of Corrections, and participates in and shares responsibility for formulating and implementing policies and practices concerning the custody and confinement of persons with AIDS, ARC, and HIV infection in the State prison system. These policies and practices have determined and continue to affect the conditions of confinement of
10

plaintiffs and members of the class. Defendant Hilton either participates in or has actual knowledge of the acts alleged herein and is sued in his individual and official capacities.
22. Defendant John Forker is, and at all pertinent times was, the Director of the Department of Corrections1 Office of Institutional Support Services and has responsibility for the formulation and implementation of health services policies for the State prison system, including promulgation and implementation of the Department`s protocol for the diagnosis and management of state prisoners with HIV infection, ARC and AIDS. As Director, Defendant Forker had, and continues to have, direct responsibility for plaintiffs' continued isolation or segregation at St. Francis Medical Center or at the S.M.U. at Trenton State Prison and at the C.I.W. Defendant Forker either participates in or has actual knowledge of the acts alleged herein and is sued in his individual and official capacities.
23. Defendant John Ficarra is, and at all pertinent times was, the Department of Corrections ` Coordinator of Health services within the Office of Institutional Support Services. He has responsibility for the formulation and implementation of health services policies for the state prison system, including those governing the management of State prisoners with HIV infection, ARC and AIDS. As coordinator, defendant Ficarra had and continues to have direct responsibility for determining plaintiffs' place of confinement at St. Francis Medical Center or at the S.M.ü. at Trenton State Prison or at the C.I.¥. Defendant Ficarra either participates in or has actual knowledge of the acts alleged herein and is sued in his individual and official capacities.
24. Defendant Richard Reed, M.D. is, and at all pertinent times was, the Department of Corrections1 Director of Medical Services and has
11

responsibility for formulating directives and policies governing operation of medical programs within the Department, including review and approval of the Department's protocol for the diagnosis and management of s t a t e prisoners, including plaintiffs, with HIV infection, ARC or AIDS. Defendant Reed either participates in or has actual knowledge of the acts alleged herein and i s sued in his individual and official capacities.
25. Defendant John Belton, Ph.D., is, and at all pertinent times was, the Department of Corrections ` Director of Psychological Services and has responsibility for formulating directives and policies governing the operation of mental health services within the Department. Defendant either participates in or has actual knowledge of the acts alleged herein and i s sued in his individual and official capacities.
26. Defendant Robert Walton i s , and at a l l pertinent times was, Superintendent of the C.I.W. and has responsibility for the formulation and implementation of policy and p r a c t i c e s concerning the custody and confinement of prisoners sentenced to the C.I.W., including plaintiffs Jane Roe and R. P. Defendant Walton either participates in or has a c t u a l knowledge of the acts alleged herein as they apply to the C.I.W. and i s sued in his individual and official capacities.
27. Defendant Rudolph Archer, M. D., is, and at a l l pertinent times was, the medical director of the C.I.W.. He i s directly responsible for medical care provided to a l l prisoners at the C.I.W.. Defendant Archer either participates in or has actual knowledge of the acts alleged herein as they apply to the C.I.W. and i s sued in his individual and official capacities.
28. Defendant Howard Beyer i s , and at a l l pertinent times was, Superintendent of Trenton State Prison and has responsibility for the
12

formulation and implementation of policy and practices concerning the custody and confinement of prisoners sentenced to Trenton State Prison, including plaintiffs K. C., T. 0., A. D., J. H., J. B., J. A., A. T., F. B., L. T., and J. C. Defendant Beyer either participates in or has actual knowledge of the acts alleged herein as they apply to Trenton State Prison and i s sued ±n his individual and official capacities.
29. Defendant Anthony Turner i s , and at a l l pertinent times was, Assistant Superintendert at Trenton State Prison and has responsibility for the formulation and implementation of policy and practices concerning the custody aspects of the medical department, including the transportation of prisoners for medical services, at Trenton State Prison. Defendant Turner either participates in or has actual knowledge of the acts alleged herein as they apply t o Trenton State Prison and i s sued in his individual and official capacities.
30. Defendant Louis Brandt, M.D., i s and at all pertinent times was, the medical director of the Trenton State Prison. He i s d i r e c t l y responsible for medical care provided to all prisoners at the Trenton State Prison. Defendant Brandt either participates in or has knowledge of the acts alleged herein as they apply to Trenton State Prison and i s sued in his individual and official capacities.
31. Defendant George Hayman i s the supervisor of the S.M.U. at the Trenton State Prison. He i s responsible for the dally operation of the S.M.U. and for the development and implementation of policies and procedures governing the operation of the S.M.U. Defendant Hayman either participates in or has knowledge of the acts alleged herein as they apply to the S.M.U. at Trenton State Prison and i s sued in h i s individual and o f f i c i a l capacities.
13

32. Defendant John Doe is any and all other persons identified at a later date as having responsibility for the formulation or implementation of policies or practices governing the provision of medical care or the determination of confinement and security measures affecting State prisoners with AIDS, ARC or HIV infection.
IV. CLASS ACTION 33. Plaintiffs bring this action as a class action maintainable under Rules 23(a) and 23(b)(l) and (2) of the Federal Rules of Civil Procedure on their own behalf and on behalf of all persons similarly situated, that is, all inmates who now are, or who in the future will be, diagnosed as having, or believed to have AIDS or HIV infection. The class represented by plaintiffs herein is both numerous and fluctuating such that joinder of all members is impractical; there are questions of law and fact common to the class of persons with AIDS or HIV disease; claims of the representatives herein are typical of the claims of the class; and the representative parties herein will fairly and adequately protect the interests of the class. The defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final declaratory and injunctive relief with respect to the class as a whole. The class members are subject to change as persons are committed to and discharged from the custody of the Department of Corrections and as p-j.soners develop symptoms of HIV disease. 34. A class action determination will avoid the possibility of inconsistent or varying adjudications with respect to individual members of the class establishing incompatible standards of conduct for the defendants. 35. Plaintiffs1 attorney is associated with the Office of Inmate Advocacy of the New Jersey Office of the Public Defender. She is familiar
14

with the conduct of l i t i g a t i o n of t h i s kind and will afford adequate representation. By statutory authority, N.J,S.A. 52:2?E-11 g£ seq. · the Office i s authorized to represent the interests of the persons identified as plaintiffs herein as a class.
V. STATEMENT OF FACTS AND CLAIMS FOR COUNT ONE: Infliction of Cruel and Unusual Punishment and
Deprivation of Liberty Interests Caused By Pftf<=>prj¾·n†,;?' Use of St. Francis Medical Center as a Place Of Confinement for Prisoners With AIDS in Remission 36. Plaintiffs and members of the class repeat and incorporate paragraphs 1 through 35 of this Complaint as if fully set forth herein. 37. Plaintiff Jane Roe is a 33 year-old woman who was admitted to the C.I.w. in August, 1983. 38. In or about April 1986, Roe asked that she be admiJQistered a t e s t to determine the presence of AIDS antibodies. Roe decided to request the AIDS antibody test because she had a history of drug abuse preceding her incarceration and knew that this was an activity which posed a high risk of exposure to AIDS, and because she wanted to know whether in fact she was infected with the virus. Shortly after her request, she was tested for the presence of AIDS antibodies and found to be seropositive. 39. At the time that Roe was tested for AIDS antibodies she had full minimum custody status and was housed in Silzer Cottage, a minimum security building affording women prisoners considerable freedom of movement, including cooking privileges. Prisoners housed in Silzer Cottage are considered low-risk in terms of institutional security or potential for violence. Prisoners classified as full minimum custody status are eligible for work release and are typically those prisoners who are closest to a prison release date.
15

40. Roe experienced no change in her custody or housing status or in her treatment by other prisoners as a result of her positive AIDS antibody test.
41. Approximately several months after Roe learned of her positive AIDS antibody test results, she started to exhibit symptoms associated with AIDS infection, such as loss of appetite, weight loss, night sweats and a persistent cough. Nonetheless, plaintiff safely remained in minimum custody status at Silzer Cottage.
42. In 1986, subsequent to Roe`s positive AIDS antibody test result, Department of Corrections medical staff initiated monthly trips for her to an outside medical consultant for blood work to monitor the progress of her AIDS virus infection. Roe was advised in late 1986 that she had progressed to the diagnostic stage of ARC, or AIDS-Related Complex. The diagnosis of her condition as ARC had no effect on her housing or custody status, on her ability to function in a full minimum custody setting, or on her personal security or the security of the institution at large.
43. In June, 1987 plaintiff Roe became ill with pneumonia and was hospitalized at St. Francis Medical Center on or about June 12, 1987. On June 16, 1987, Roe was advised by her treating physician, Dr. Ricketti, that her condition was then diagnosed as AIDS. She recovered from the pneumonia that had necessitated her hospitalization within approximately two weeks. Notwithstanding her recovery from pneumonia, she was confined at St.Francis Medical Center for approximately 11 months.
44. By virtue of her confinement in a hospital room at St. Francis Medical Center, Roe was denied the opportunity for any outdoor or even indoor exercise or any movement beyond her room. Her participation in any educational or vocational programs, work programs, drug or alcohol
16

counseling, or other activities which, would assist her in her readiness and eligibility for parole were precluded by her place of confinement. For approximately eleven months, Roe`s activities were limited essentially to watching television and reading.
45. While confined at St. Francis Medical Center, Roe experienced either no response or extremely delayed or incomplete responses to legal research requests and requests for information on matters related to her sentence and parole. Responses to requests for information on her parole eligibility were delayed for months, and the social worker acting as an intermediary on her requests was unable to explain the information eventually provided to Roe. In the social worker's absence, a nurse was temporarily assigned to handle Jane Roe`s requests for assistance. Roe`s requests in April and May, 1968 for legal materials were never answered.
46. The only Department of Corrections staff person available to prisoners at St. Francis Medical Center is assigned to perform limited social services such as commissary requests, and is incapable of providing competent, adequate and effective legal research assistance due to lack of training and the constraints of his primary job responsibilities.
47. Roe`s only visitors, other than security and medical staff, were her mother, her sister and a chaplain. Her visits with her two family members were limited to one one-hour visit per week. Although she was permitted two visits per week, her family :nembers` employment and the length of their commute to St. Francis precluded a second visit. Unlike general population prisoners, and even those in the S.M.U. or in close custody, inmates at St. Francis are permitted visits only from immediate family members. Security staff refused a request to extend the length of plaintiff's weekly family visit beyond one hour.
17

48. Because of her confinement at St. Francis Medical Center, plaintiff experienced extreme delays aixì restrictions in the provision of needed dental care.
49. Despite the fact that plaintiff had full-minimum custody status prior to her hospitalization in 1987, she was treated as a maximum security prisoner at St. Francis Medical Center. She was denied access to basic items and personal property to which she had regular access prior to her pneumonia. She was denied the opportunity to have her hair cut for more than nine months even though the civilian hairdresser for prisoners at the C.I.W. had volunteered to attend to her. Eventually, a nurse employed at St. Francis Medical Center volunteered to cut Roe`s hair for her.
50. The only occasion on which Jane Roe was outside her room during her eleven-month confinement at St. Francis Medical Center occurred on March 8, 1988 when she was taken to a dentist, approximately six months after her request for dental care. Prior to her transport to the dentist, Jane Roe was handcuffed and shackled with leg irons and a waist chain. She was kept in these restraints for the duration of the trip to and from the dentist and during the actual treatment, a period of about 2-1/2 hours.
51. Prior to her diagnosis of AIDS and her confinement at St. Francis Medical Center, Jane Roe travelled outside the correctional facility to medical appointments in the company of a single unarmed corrections officer without either handcuffs or shackles, as is consistent with her minimum custody status.
52. Roe`s treating physician at St. Francis Medical Center had repeatedly stated that plaintiff does not require hospitalization and that he would authorize her return to C.I.W. if defendants would permit it. Roe
18

has not suffered from opportunistic infections or illnesses since June, 1987.
53. Defendant Walton and assistant supervisory staff at C.I.W. have stated that security concerns would not preclude Roe`s return to C.I.W.
54. Prisoners currently housed in Silzer Cottage at C.I.W., where plaintiff resided prior to her hospitalization, were and are aware of Roe`s condition and do not believe that their health or security would be threatened by plaintiff's return to Silzer Cottage.
55. Roe suffered, and continues to suffer, from stress and depression as a result of her isolated, extended, restrictive confinement at St. Francis Medical Center.
56. Subsequent to the opening of the S.M.U. at Trenton State Prison in April 1986 and until approximately May 1988, male prisoners with AIDS were confined at St. Francis Medical Center only when they were acutely symptomatic and in need of hospitalization.
57. Currently, and by virtue of defendants1 policy of automatically segregating all prisoners with an official diagnosis of AIDS, the S.M.U. at Trenton State Prison is filled to capacity. As a result, defendants now utilize St. Francis Medical Center as a place of confinement for male prisoners with an official diagnosis of AIDS, but who are in remission and who are not in need of hospitalization.
58. Male prisoners with an official diagnosis of AIDS who remain at St. Francis Medical Center as a place of confinement are restricted to a single room with as many as three other patients, some or all of whom may not have AIDS. These prisoners are subject to the same restrictions as were imposed on Jane Roe. On information and belief, movement within the
19

hospital room to which male prisoners are confined is either extremely limited or prohibited.
59. Defendants' use of St. Francis Medical Center as a place of confinement for prisoners with an official diagnosis of AIDS who are in remission is neither medically warranted nor rationally related to legit:ünate penological concerns and contributes to the delay of hospital care to prisoners with HIV disease who are in need of acute medical care.
60. Defendants1 use of St. Francis Medical Center as a place of confinement for prisoners with an official diagnosis of AIDS in remission has caused and continues to cause plaintiffs and members of the class to suffer severe and unnecessary emotional suffering and distress.
61. Defendants' policies and practices governing the confinement of prisoners with an official diagnosis of AIDS resulted in plaintiff Roe`s solitary confinement at St. Francis Medical Center and forced idleness without exercise, recreation, adequate legal access and access to other basic needs for a period of approximately eleven months, and have resulted in the imposition of similar restrictions on others of the plaintiff class. By these policies and practices, defendants have violated and continue to violate the rights of plaintiffs and members of the class to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution.
62. By their policy and practice of confining prisoners with a diagnosis of AIDS to St. Francis Medical Center in forced idleness without the minimum opportunities for exercise and recreation mandated by Department of Corrections Standard 430, defendants have violated and continue to violate the right of plaintiffs and members of the class to due process of
20

law as guaranteed by the Fourteenth Amendment to the United States Constitution.
63. By their policy and practice of refusing to provide plaintiffs confined indefinitely to St. Francis Medical Center with reasonable access to persons trained in the law, or to reasonable access to other means of obtaining legal research, defendants have violated and continue to violate the right of plaintiffs and members of the class to access to the courts, as guaranteed by the Fourteenth Amendment to the United States Constitution.
COUNT TWO: Discrimination Against Prisoners Handicapped With AIDS. Denial of Equal Protection. Deprivation of Punishment Caused By Defendants' P o l i c i e s and Practices Reg¾Tf^1T|^ ^•ke Special MedlCí¾l Units and the Management of Prisoners with AIDS. ARC, or HIV Infection
64. Plaintiffs and members of the class repeat and incorporate paragraphs 1 through 63 of this Complaint as if fully set forth herein.
65. Defendants have determined that the presence of prisoners with ARC or prisoners who are infected with the HIV virus in the general prison population poses no threat to the health of inmates or staff or to the security of the institution.
66. By policy and practice, inmates who are not confirmed to have AIDS but who are HIV antibody positive, or who have ARC, are returned to the institution to which they were previously assigned and appropriate prior housing status after medical evaluation and treatment.
67. At present, there are male and female prisoners with ARC or who are HIV antibody positive, some of whom exhibit symptoms of Illness and HIV disease, who are residing in general population units without causing damage to their health, to the health of other prisoners, or to the security of the prison.
21

68. The routine segregation of persons with AIDS is neither medically necessary nor medically indicated.
69. There is no reasonable basis to distinguish between persons with AIDS and persons who have ARC or who are HIV positive for purposes of infection-control precautions.
70. Unless there is a specific identified threat to the health or welfare of a person who has AIDS, ARC, or who is HIV antibody positive, there is no reasonable medical or security justification for routine segregated housing or disparate treatment of such persons.
71. By policy and practice, defendants subject plaintiffs with an official diagnosis of AIDS to segregation and to restrictions that are different and more severe than those placed on other prisoners with HIV infection.
72. By policy and practice, defendants subject plaintiffs with an official diagnosis of AIDS to segregation and restrictions that are different and more severe than those placed on other prisoners with chronic or terminal illnesses or other serious illnesses or infections.
73. By policy and practice, defendants subject plaintiffs with an official diagnosis of AIDS to restrictions and segregated housing purely on the basis of their diagnostic category. Defendants make no individual determination of whether case-specific security or medical reasons exist to segregate prisoners with AIDS. By policy and practice, such case-specific determinations are made prior to the segregation of other state prisoners, including those with other serious medical conditions.
74. In February, 1988, defendants adopted a policy governing prisoners with AIDS in remission which resulted in their continual locked confinement to their cells for up to 22 hours each day. The actual confinement of these
22

prisoners to their cells at times extended to over 30 hours due to the scheduling of recreation time. The lock-in policy applies to all prisoners with AIDS in remission regardless of their individual health status or symptoms.
75. Plaintiff Roe i s permitted out of the S.M.U. at Clinton for recreation for approximately an hour or slightly more each day.
76. Both male and female plaintiffs with an official diagnosis of AIDS are prohibited from p a r t i c i p a t i n g in any of the vocational, educational, rehabilitative or recreational programs available to general population prisoners, including other prisoners with HIV infection or disease or prisoners with other serious chronic or terminal diseases.
77. Plaintiffs with an official diagnosis of AIDS who are confined at St. Francis Medical Center are permitted and are exposed to close personal contact with non-KEV infected prisoners.
78. Plaintiffs with an official diagnosis of AIDS who are confined in the S.M.U. at Trenton State Prison or C.I.w. are not permitted, due to the policy and practice of defendants, close personal contact with non-HIV infected prisoners.
79. Defendants have failed or refused to provide plaintiffs in the S.M.U. at Trenton State Prison, and the S.M.U. at the C.I.W., with educational, vocational, rehabilitative or recreational programmatic opportunities which approxiinate those available to other prisoners with HIV infection or disease or other prisoners in general population, including those with serious illnesses.
80. The only program, other than religious services, available to plaintiffs confined in the S.M.U. at Trenton State Prison is a 10-session
23

behavior modification course offered by the prison social worker assigned to the unit.
81. There are no educational, vocational or rehabilitative programs of any kind available to Jane Roe, who currently i s the sole prisoner confined in the S.M.U. at the C.I.W. in Clinton.
82. Prisoners at Trenton State Prison who do not have AIDS but are seriously and chronically i l l Ce.g.. suffering from serious physical symptoms of ARC or HIV disease; blindness; cancer in need of chemotherapy; on dialysis) and who are unable, due to particular physical symptoms or d i s a b i l i t i e s , to remain in other general population areas may be housed in the medical wing, Unit 2EE. Prisoners housed in 2EE, including those with symptoms of HIV disease such as ARC, are permitted to work outside the medical wing, to go to the law library, and to attend school and other rehabilitative and vocational programs. They are permitted daily visits of up to two hours each day, have access to the indoor gymnasium, as well as several hours daily of outdoor recreation, and are locked into their cells only at the tine of prisoner count and at night.
83. Many of the prisoners with an official diagnosis of AIDS who are confined in the S.M.U. have no serious physical manifestations of HIV d i s e a s e ; a number of them are not on AZT. As i s stipulated in the defendants' protocol for management of AIDS cases, confinement in the S.M.U. i s l i m i t e d t o AIDS patients who have recovered from an opportunistic infection and who become asymptomatic and feel well. Notwithstanding their medical condition, these patients are limited to biweekly v i s i t s , work available within the S.M.U., and reduced, segregated recreational and rehabilitative opportunities.
24

84. The maximum security prisoners in C Cottage at the C.I.W. , including those with ARC and HIV infection, are permitted to attend educational, vocational and rehabilitative classes in C.I.W. `s Edna Mahan Hall on a daily basis. Some programmatic opportunities axe made avail able even for women confined in "super-maximum" custody in South Hall at the C.I.W.
85. Prisoners classified at different levels ("e.g. . minimum and maximum security risks) but with an official diagnosis of AIDS are all housed together in the S.M.U. at Trenton State Prison.
86. At the moment that a prisoner receives an official diagnosis of AIDS, he or she automatically and permanently is excluded from consideration for any reduction in custody status, regardless of the individual's actual health or discipline record.
87. Prisoners with an official diagnosis of AIDS who are otherwise qualified to participate in furlough and work release programs axe excluded from such participation solely on the basis of their official diagnosis and without consideration of their individual medical status or their physical ability to participate.
88. Prisoners who have been successful work release participants and who successfully have completed furloughs from the prison facility axe prohibited from continued participation in such programs once an official diagnosis of AIDS has been made, regardless of the prisoner's performance record or physical ability to work or to complete a furlough.
89. Defendants annually receive federal funds for institutional program support which are allocated to most of the State prison facilities, including Trenton State Prison and the C.I.W., for funding of educational programs.
25

90. Pursuant to N.J.A.C. 10A:15-3, 10A:5-5, 10A:16-11, 10A:9-3 and lQA:9-4, defendants provide mandatory procedures, detailed and specific c r i t e r i a , and individual review for all prisoners placed in administrative segregation and protective custody, for placement in the S.M.U., and for consideration for reduced custody status.
91. Defendants' blanket policy of permanently segregating prisoners with an o f f i c i a l diagnosis of AIDS without regard to each prisoner `s individual medical or physical condition willfully stigmatizes plaintiffs, and reinforces the irrational fears of prisoners and correctional staff concerning AIDS. This policy has exposed plaintiffs to great risk, and has caused and continues to cause plaintiffs and members of the class to suffer psychological harm, severe and unnecessary emotional d i s t r e s s , and depression which exacerbates their medical condition.
92. Defendants' policy and practice of permanently segregating prisoners with an official diagnosis of AIDS results in their complete exclusion, on the basis of their diagnosis, from virtually a l l of the educational, vocational, rehabilitative, work and other programs available to other State prisoners who otherwise meet program requirements.
93. Defendants1 policies and practices applicable to the housing and activities of plaintiffs and other members of the class are overly harsh and r e s t r i c t i v e , result in forced idleness, and are not reasonably related to legitimate penological goals.
94. By p o l i c y and p r a c t i c e , defendants make no individual determination of medical or security risks to evaluate whether any of the plaintiffs or members of the class could reside or participate in programs in general population. All other prisoners in the New Jersey State Prison system, with the exception of prisoners with a death sentence, are
26

inüvldually evaluated and classified to determine the custody status and concomitant restrictions appropriate for each individual.
95. As recipients of federal funds utilized in whole or in part for educational programs at the various prison facilities, defendants` disparate treatment of plaintiffs and members of the class through their policy and practice of segregating prisoners with an official diagnosis of AIDS in isolation from general population and the programs and benefits available to t h a t population, and a l t e r n a t i v e l y , defendants1 failure to provide plaintiffs and members of the class who are otherwise qualified with access to educational, vocational, rehabilitative, work release and other programs or to allow prisoners who otherwise qualify to continue their participation in such programs, violates the right of plaintiffs and members of the class to be free from discrimination on the basis of t h e i r d i s a b i l i t y , i n violation of Section 504 of the Rehabilitation Act of 1973, 29 Ü.S.C. Section 794 (1982).
96. By the policies and practices described above, defendants have subjected and continue to subject plaintiffs to conditions t h a t are arbitrarily different and irrationally more severe than those imposed on other, similarly situated inmates, including those with ARC, HIV infection, and other serious, chronic or terminal diseases. By these policies and practices, defendants have violated and continue to violate the rights of plaintiffs to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution.
97. By their policies and practices, defendants have permanently confined plaintiffs and members of the class under circumstances which, because of plaintiffs1 medical status and terminal diagnosis,cause them physical and psychological harm and deterioration unrelated to the fact of
27

their incarceration and without legitimate penological purpose. Defendants thereby have violated and continue to violate the right of plaintiffs and members of the class to be free of cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
98. By their policies and practices, defendants have permanently confined plaintiffs and members of the class to a considerably more r e s t r i c t i v e environment than that in general population without the individual and periodic review afforded by State regulation to a l l other prisoners placed in administrative and medical segregation and thereby have violated and continue to violate the right of plaintiffs and members of the class to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.
COUNT THREE: I n f l i c t i o n of Cruel and Unusual Punishment Caused By Defendants' Policies and Practices Governing the Provision of Medical Care for Prisoners With AIDS. ARC or Other Stages of HIV Disease
99. Plaintiffs repeat and incorporate paragraphs 1 through 98 of this Complaint as if set forth fully herein.
100. Plaintiffs with an o f f i c i a l diagnosis of AIDS frequently experience delays or denials in response to both routine and emergency medical needs, including conditions previously diagnosed as requiring a physician`s care as well as new conditions for which treatment i s repeatedly requested or i s obviously necessary.
101. A physician v i s i t s the S.M.U. at the Trenton State Prison
approximately twice each week. The physician`s total visiting time in the S.M.U. i s approximately one hour or slightly more each week.
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102. Prisoners in the S.M.U. at Trenton State Prison see a physician less frequently than prisoners in other parts of Trenton State Prison. For example, pursuant to N. J.A.G. 10A:5-2. 5(a) , a physician visits the Management Control Unit every weekday.
103. Prisoners on AZT frequently experience delays in receiving their medication or receive an incorrect dosage.
104. Defendants create serious medical risks to prisoners in the S.M.U. at Trenton State Prison by failing to keep and utilize adequate medical records, which results in incomplete medical analysis and inconsistent medication treatment.
105. Prisoners in the S.M.U. at Trenton State Prison have experienced extended delays in receiving prescribed medication, have been given the wrong medications, or have learned that medical staff have distributed their prescribed medications to other prisoners in the unit.
106. Defendants create serious medical risks to prisoners in the S.M.U. by ignoring prisoners ` complaints of pain or by refusing to adm1.n1.ster appropriate medications or treatment despite the clear and obvious need.
107. Prisoners in the S.M.U. at Trenton State Prison who experience symptoms prior to the onset of an opportunistic infection have complained of such symptoms for weeks prior to receiving responsive medical attention.
108. Prisoners in the S.M.U. at Trenton State Prison have been unable to receive special diets on a consistent basis even when prescribed by the treating physician.
109. Defendants have created serious medical risks to prisoners with AIDS, ARC and HIV infection, by failing or refusing to inform them of their diagnosis, treatment plan, the side effects of medication, or the individual's expected course of illness.
29

110. Plaintiffs' inability to confirm the status of their diagnosis and current health has caused them severe anxiety, mental anguish and emotional suffering.
111. Plaintiffs have been, and continue to be, subjected repeatedly to cruel and sadistic comments concerning their medical status aai prognosis by medical staff. Defendants1 failure or refusal to remedy this situation has caused, and continues to cause, severe emotional and mental distress and harm to plaintiffs.
112. Corrections officers assigned to the S.M.U. at Trenton State Prison are unable or unwilling to provide emergency assistance to prisoners in the S.M.U. who experience a medical trauma or crisis. In the case of one prisoner, a dialysis patient, another prisoner was forced to provide emergency assistance in the form of a tourniquet when the dialysis patient began to bleed uncontrollably and when the officers on duty failed to provide assistance while awaiting the arrival of medical staff.
113. When prisoners are seriously ill and require hospital1zation, they are transported to St. Francis Medical Center in shackles, handcuffs and a waist rihair\ or belt, and on occasion with the addition of a cuff box that fits between the handcuffs and keeps the prisoner`s hands immobile. On information and belief, defendants employ these restraints regardless of the particular inmate `s medical condition or security status and despite the presence of armed corrections staff. Prisoners can remain restrained in this manner for many hours while awaiting medical care or assignment to a bed.
114. Prisoners restrained in the manner described above for extended hours have experienced extreme pain and discomfort, as well as emotional distress and humiliation.
30

115. Through policies and procedures leading to the painful and degrading conditions described in paragraphs 113 and 114 above, the defendants have caused prisoners in the S.M.U. at Trenton State Prison to forego needed medical treatment.
116. Defendants do not provide AZT to prisoners with ARC or HIV infection. It is defendants1 policy and practice to restrict the administration of AZT to prisoners confined to the S.M.U. at Trenton State Prison and C.I.W., or those confined at St. Francis Medical Center.
117. The only approved drug that has been proven effective to date in the treatment of patients with HIV disease, including AIDS and ARC, is AZT.
118. The administration of AZT reduces the infectlousness of persons with HIV disease.
119. Defendants fail to provide plaintiffs with adequate and meaningful access to psychological and psychiatric services despite the serious medical need of prisoners with terminal illnesses for such services.
120. Regular psychological services are provided to plaintiffs In the S.M.U. at Trenton State Prison only in the form of group counseling meetings. Plaintiffs requesting individual psychiatric care have, for the most part, been denied such services.
121. The lack of adequate psychiatric services have caused plaintiffs to suffer needless mental anguish, depression, and psychological harm.
122. As a result of defendants1 repeated and continuing denial or delay of necessary medical and psychiatric care; defendant1 failure to adequately inform plaintiffs of their current medical status; defendants failure to train, supervise and protect prisoners regarding exposure to body fluids; and defendants1 use, consent to, or authorization of excessive physical restraints and emotionally abusive practices, plaintiffs and members of the
31

class have suffered and continue to suffer unnecessary physical pain, mental ¾pgiii f¾h and unnecessary physical deterioration.
123. By t h e i r p o l i c i e s and practices governing medical care for prisoners with AIDS and other HIV disease, defendants have violated and continue to violate the rights of plaintiffs and members of the class to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment to the United States Constitution.
V I I . GROUNDS FOR DTJUIPTVF¦ p:RT.TEF1
124. The aforesaid conditions resulting from defendants' policies and practices are known to the defendants, their agents and their employees, but these conditions have been allowed to continue, without appropriate and effective efforts being made to bring about their elimination or correction, in a manner that would provide timely relief for the plaintiffs and others similarly situated.
125. The aforesaid official practices and resultant conditions are allowed to continue and are imposed by defendants acting under color of law of the State of New Jersey.
126. There is an actual controversy between plaintiffs and defendants, in that the defendants impose or allow to exist the policies and conditions above described, and these policies and conditions continue uncorrected.
127. Plaintiffs and the class they represent have no adequate remedy at law, thus making injunctive and declaratory relief appropriate.
128. Plaintiffs and members of the class are suffering and will continue to suffer immediate, substantial and irreparable injury unless injunctive relief is issued.
129. The actions and inactions of the defendants as alleged, and the claims of the plaintiffs and the class they represent, require that the
32

court declare the rights and legal relationships of the parties in respect to the treatment of prisoners diagnosed or believed to have acquired immune deficiency syndrome (AIDS) or other stages of HIV disease.
PRAYER FOR B.'Pfr.TR'F Wherefore, plaintiffs pray that this Court enter judgment on their behalf and provide the following relief:
1. Order, pursuant to Rule 23 of the Federal Rules of Civil Procedure, that this action be maintained as a class action;
2. Declare that the isolation and restrictions place on plaintiffs and other members of the class with AIDS or HIV disease deprive them of their rights under the Eighth and Fourteenth Amendments to the Constitution of the United States and under Section 504 of the Rehabilitation Act of 1973, 29 Ü.S.C. Sec+ion 794 (1982);
3. Enter an order prohibiting defendants from engaging in policies and practices governing the housing and treatment of prisoners with HIV disease which constitute discrimination on the basis of prisoners4 diagnoses;
4. Enter an order requiring that defendants cease the use of St. Francis Hospital as a place of confinement for prisoners with AIDS who do not require acute hospital care, and permit the release of plaintiffs and other members of the class from St. Francis Medical Center when it is the treating physician1 s determination that hospitalization is not medically necessary;
5. Enter an order requiring that defendants' housing, classification, and program access decisions governing prisoners with AIDS be based on individual health and security need determinations and not solely on the basis of the prisoners1 official diagnosis of AIDS, including but not limited to:
33

a. that defendants cease the automatic and permanent segregation of prisoners with AIDS and allow said prisoners to continue, as their physical health permits, in the custody status they enjoyed prior to their diagnosis of AIDS, with opportunities for periodic review and reduction of custody, and access to programs consistent with that custody status;
b. in the alternative, that defendants provide prisoners confined to S.M.U. with access to visitation, recreation, educational, vocational, rehabilitative work, and other programs, as well as work release and similar programs for those prisoners otherwise eligible, which is equivalent to that available to prisoners in general population including those with other serious, chronic or terminal illnesses;
6. Enter an order requiring that defendants develop procedures and staffing to provide plaintiffs and members of the class with prompt access to adequate, professional medical, dental, psychiatric and psychological services for routine and emergent health needs, which recognize prisoners' rights to be apprised of their medical status and to be treated with dignity and respect;
7. Enter an order requiring that defendants develop procedures to train and supervise prisoners on proper protective procedures regarding their possible exposure to body fluids implicated in the spread of disease, and to ensure that prisoners who reasonably may be expected to have such exposure be provided access to protective clothing or equipment;
8. Enter an order requiring that defendants cease the use of full restraints on ill prisoners when their security or medical status are such that full restraints are unnecessary;
34

9. Retain jurisdiction of this action until the Court is satisfied that the policies and practices complained of herein have been eliminated and that adequate safeguards have been taken to prevent their reappearance in the future;
10. Award nominal, compensatory and punitive damages to plaintiffs and class members for the physical and emotional harms, as well as for the loss of personal liberty and property, suffered by plaintiffs as a result of having been confined under the unlawful and unconstitutional conditions described herein due to defendants1 deliberate and callous indifference;
11. Award costs and attorneys fees; 12. Order such other relief as this Court deems just, proper and equitable.
JURY DEMAND Plaintiffs respectfully request a trial by jury on all issues.
ALFRED A. SL·XÜM New Jersey Public Advocate/ Public Defender Attorney for Plaintiffs Hughes Justice Complex 25 Market Street CN 850 Trenton, New Jersey 08625
By: Catherine A. Hanssens Assistant Deputy Public Defender Office of Inmate Advocacy
Dated:
35

 
 Roe v. Fauver

PC-NJ-0004-0001

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

JANE ROE, e t c . , e t a l . , Plaintiffs v.
WILLIAM H. FAUVER, e t a l . , Defendants

Civil Action No. 88-1225(AET) ORDER
CCT • 1333

This matter having come before the court on the defendants' motion for summary judgment and the plaintiffs' motion to amend the complaint, and the court having reviewed the submissions of counsel and having heard oral argument and for good cause shown;
It is on this / d a y of October, 1988, ORDERED that plaintiffs' motion to amend the complaint is granted; and
ORDERED that defendants' motion for summary judgment is denied.

ANNE E. THOMPSON, U.S.6.J.

 
 Roe v. Fauver

— — ~~ "~ • • • • • • • • • • • • • • • • • • • •
PC-NJ-0004-0002
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

JANE ROB, etc., et al.ƒ Plaintiffs

Civil Action No. 88-1225(AET)

v.

OPINION

WILLIAM H. FAUVER, et al.,

Defendants
c:¯¯.

THOMPSON^ District Judge

This matter comes before the court on a motion by defendants for summary judgment and a motion by plaintiffs for leave to file an amended complaint. This matter was previously before this court on a motion by plaintiffs for a preliminary injunction which was denied on May 13, 1988. The court will first address plaintiffs' motion to amend the complaint.
Motions to amend and supplement a complaint pursuant to F.R.C.P. Rule 15(a) and (d) are denied only when there is a strong justification for not permitting the amendment. Foman v. Davis. 371 U.S. 178, 182 (1962). If the amendment will cause undue delay, undue prejudice to the opposing party or is filed in bad faith as a dilatory move the court may disallow the filing. Id. See Also Adams v. Gould. Inc.. 739 F.2d 858, 864 (3d Cir. 1984), cert denied 469 U.S. 1122 (1985). The court cannot' find that amending this complaint will unduly prejudice the defendants. Discovery has yet to begin, the amended complaint applies to the same individuals and/or situations included in the original complaint, and it merely broadens the focus of the -

action. Furthermore, it is logical for this court to consider all these claims regarding the housing and treatment of inmates diagnosed with AIDS at once.
In the initial complaint, plaintiff Jane Roe challenged both her confinement in St. Francis Medical Center and the fact that she was treated differently from male inmates diagnosed with AIDS. She also, however, challenged "defendants' general policy which subjects her and other prisoners diagnosed with AIDs to segregation and restrictions purely on the basis of her diagnostic status". (Original Complaint ¶2, see also ¶¶ 3, 12, 44, 46, 47, 54). The allegations in the amended complaint are merely an amplification of this challenge and do not raise new and different issues which would prejudice the defendants. The amended complaint alleges that inmates diagnosed with AIDs are illegally segregated and deprived of all recreation, education, and work programs solely on the basis of their illness. The amended complaint further alleges that this segregation results in denial of adequate legal access. Lastly, plaintiffs allege that the medical care provided them constitutes deliberate indifference to serious medical needs in violation of the Eighth Amendment to the United States Constitution. The court finds that the amended complaint will not unduly prejudice the defendants. Although the amended complaint expands on the issues raised in plaintiffs' original complaint, both complaints focus on a very particular area of the law within the Department

of Correction* - - the care, treatment and rights of those inmates diagnosed with AIDS.
The court will next consider defendants' motion for summary judgment. Defendants maintain that no genuine issues of fact remain and that they are entitled to summary judgment as a matter of law. The court concludes, however, that numerous genuine issues of material fact remain and summary judgment is not warranted at this time. Although prison officials are entitled to a vast amount of discretion in their treatment and placement of prisoners, there are certain perimeters imposed by the Constitution and by Federal and State laws.
The plaintiffs in this action protest their segregation following a diagnosis of AIDs. They also protest their treatment in the Special Medical Unit (SMU) at Trenton State Prison, at the SMU at Clinton Institution for Women and in the other places where they are placed in segregation. These allegations raise two sets of questions, first whether the segregation itself is proper and second whether the treatment plaintiffs receive once they are segregated is proper. Plaintiffs maintain that their right to equal protection is being violated because they are being treated differently from those inmates in general population both in that they are segregated and in that they are denied activities and opportunities within their segregated unit.
Plaintiffs also maintain that their due process rights have been violated because they have been placed in these segregated units

without an individual hearing or a showing that they are a risk to themselves or others.
In Cordero v. Couahlin. 607 F. Supp. 9 (S.D.N.Y. 1984), a district court in the Southern District of New York found that segregating prisoners diagnosed with AIDs did not violate their rights under the Eighth or Fourteenth Amendments. The court notes that Cordero was decided four years ago and that in the past four years great progress has been made in our understanding of how AIDs is transmitted and of the course the disease takes. More importantly the court in Cordero only briefly discusses a number of the issues raised by the case before this court. While the Cordero court concludes that the decision to segregate is reasonable it does not examine whether the deprivation of recreation, education, and work is rationally related to a legitimate governmental end nor does the court discuss whether the deprivation of recreation itself is a violation of the Eighth Amendment. Although Cordero does discuss some of the legal precedents which this court will also rely on, the court is not bound by the holding in Cordero particularly as it knows little if anything of the factual circumstances upon which the court based its holding.
While it is true that prison officials have the authority to transfer prisoners and alter their custody status, Hewitt v. Helms. 459 U.S. 460 (1983), they do not have the authority to place them in a disciplinary unit without a hearing. Furthermore, although Hewitt v. Helms, authorizes prison

officials to place inmates in more restricted situations for administrative reasons without allowing them the due process outlined in Wolff v. McDonnell. 418 US 539 (1974), it does require an informal evidentiary review of the reasons for placing the individual inmate in the segregated unit. Hewitt v. Helms. 459 at 476. More importantly, Hewitt v. Helms focuses on the placement of individual inmates in existing administrative segregation units. The matter before this court involves the creation of a new restricted unit which mirrors a disciplinary unit for a particular class of prisoners. Questions remain as to the basis for the determination of the class and as to the reasons for the restrictive nature of the unit. At this time the defendants have not shown why within the unit prisoners could not be given the work, education, good time credits, visits and legal access they were entitled to in general population before they were diagnosed as having AIDs.
Gibson v. Lvnch. 652 F.2d 348 (3d Cir. 1981), is also not applicable to this case. Gibson concerns an individual who was held for three months in the type of custody "normally associated with prisoners who are under disciplinary sanction or who require protection". Id. at 3 54. As the court notes in Gibson the inmate was placed in this unit because of a housing crisis, "a unique circumstance[s].. •which we are told n'ever occurred prior to or since, that time." Id.. Mr. Gibson was held in this unit because there was no space available for him in the prison to which he was assigned. Id. at 356. Unlike the inmates

in this case his placement was not permanent. In addition, Gibson, like Hewitt v. Helms, involves an individual prisoner placed in a particular restricted unit for administrative reasons. The case before this court concerns a special "disciplinary like" unit created for a certain class of prisoners. A genuine issue of material fact remains as to whether this situation is purely administrative or is more like a situation involving "disciplinary cases, protective custody cases and severe risk cases" in which, as Gibson notes, the authority and discretion of prison officials is more limited. Id. at 358.
This case actually looks more like Perez v. Neubert. 611 F. supp. 830 (D.N.J. 1985), than like Hewitt or Gibson. In Perez prison officials had placed an entire class of inmates, all Marielitos(Cuban aliens) in MCUs in various state prisons. This court held "[i]f we had found that the conditions of confinement of the plaintiffs were substantially similar to those affecting inmates in the general population we would be proceeding no further. Mere sequestration under "separate but equal1* conditions would not in the prison context, be cognizable under §1983." Perez. 611 F. Supp. at 837. The Perez court also noted that a hearing was required and in this instance held, following the placements in MCU, Id. at 838, but the court remained "troubled by the wholesale treatment of the plaintiffs". Id· at 839. This court ordered new hearings for all those Marielitos being held in MCUs and noted that an inmate's interest in non-administrative confinement becomes "more significant as

its duration becomes longer or more indefinite". Id· at 840. Based on th· analysis above, the court must conclude that genuine issues of material fact remain regarding the procedures and justifications for segregation of this class of inmates and regrading the reasons for confining them under conditions "unequal" to those existing in general population units.
The court also notes that the confinement of some number of males diagnosed with AIDs in remission to St. Francis Medical Center because the SMU is full raises genuine issues of fact concerning their treatment in comparison not only to inmates in general population but also to other inmates with AIDs in remission. The court notes that in our opinion of May 13, 1988 on the motion for a preliminary injunction, the court did note that the DOC had failed to show that denying an individual being housed in St. Francis Medical Center but not in need of hospitalization access to the outdoors for extended lengths of time was rationally related to a legitimate state purpose. The court also notes that these inmates at St. Francis are alleged to be housed in the same rooms with inmates not suffering from AIDs (Affidavit of A.T. ¶I4; Affidavit of T.A., ]2) a fact which would belie the defendants' position that these groups are both at risk from any contact with one another.
The court also notes that plaintiffs have alleged violations of their rights under § 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794, which prohibits recipients of Federal

Funds from discriminating against otherwise qualified handicapped individuals. Th· united states Supreme Court has held that § 504 applies to individuals with contagious diseases. School Board of Nassau County v. Arline. 107 S. Ct. 1123 (1987). The Ninth Circuit Court of Appeals has held that AIDs is a contagious disease under § 504. Chalk v. U.S. District Court Cent. Djst of California. 840 F.2d 701, (9th Cir. 1988) Sec. 504 has been applied to state prisons. Sites v. McKen¾i<». 423 F. Supp. 1190 (N.D.W. Va. 1976). LaFault v. Smith. 834 F.2d 389 (4th Cir. 1987)(Court held claim under the Act was moot but not that plaintiff, a prisoner, could not make a claim under the Act). The defendants have not, at this time shown why it is not applicable in this matter. In Sites the court specifically noted that "any exclusion of Plaintiff [a prisoner] from participation in a vocational rehabilitation program simply because of his handicap is forbidden by the Act." Sites. 423 F. Supp at 1197. The court finds that a genuine issue of fact remains as to whether the plaintiffs are entitled to relief pursuant to § 504.
Plaintiffs also allege violations of the Eighth Amendment. They maintain that they are not receiving adequate medical car·. Under Estelle v. Gamble. 429 U.S. 97 (1978), the court must determine whether there has been deliberate indifference to a serious medical need. The defendants themselves cite to Burn v. Head Jailor of Lasalle county Jail. 576 F. Supp. 618, 620 (N.D. 111. 1984), in which the court indicates that in determining whether deliberate indifference
8

exists it must review the following factors: (1) the severity of the medical problem; (2) the potential for harm if the medical care is denied or delayed; and (3) whether any such harm resulted from the lack of medical attention. The fact that the inmates have gotten some medical care does not mean they cannot maintain a claim for inadequate medical care.
Plaintiffs allege that they were not always given the correct dosages of AZT, sometimes did not get it at the correct time and sometimes did not receive it all. (Aff. of Jane Roe, ¶9, Aff. of A.D., ¶l; Aff. of A.T. ¶ll; Aff. of J.H. ¶¶ 5, 6, 7) . AZT is the only medication that has proved successful in treating AIDs now distributed in the U.S. Plaintiffs1 affidavits allege a number of occasions on which they have not been treated for ailments or occasions when treatment did not occur until they had complained of symptoms for a number of months. The court cannot grant summary judgment for the defendants because the allegations presented to it thus far raise genuine issues of material fact as to whether plaintiffs1 Eighth Amendment rights have been violated.
Lastly the plaintiffs maintain that their rights to legal access set forth in Bounds v. Smith. 430 U.S. 817 (1977), are being violated. Plaintiffs allege that they do not have actual access to a law library or to anyone who is trained in the law and that their requests for legal materials are not always honored. (Aff. of Jane Roe, ¶¾ 2, 3, 4; Aff. of K.C. ¶ 9 ) . Defendants argue that they have an adequate system of legal

access, although the only information which they provide about the progra· is a page from the Policy/Procedure Manual which states that adequate access will be provided and that an inmate paralegal will conduct interviews with inmates in the unit (Da17a). This document tells the court lit<¯le about the way the legal access program functions. As this court noted in its Memorandum and Order in Long v. Bever. civ. Act. No. 87-1301, dated August 11, 1987, "a service which only supplied...[an inmate] with that material which from his cell he is able to cite adequately, may not satisfy the demands of Bounds^, id. p. 3. Although an inmate may not have actual access to the library, he or she must have direct contact with individuals who can provide "legal research assistance sufficient to provide meaningful access to the courts." Id.., p. 5. Plaintiffs allege that they have not had direct access to anyone who can provide actual research and that, on occasion, they have not received the materials they request. The fact that the Public Advocate's office is assisting the plaintiffs in this action does not mean their other needs for legal access are being met.
The court finds that genuine questions of material fact remain as to plaintiffs' claims regarding legal access. The defendants have failed to provide the court with adequate information regarding how many inmate paralegals service the SMU, how often they visit the unit, whether they are prison library staff or members of the Inmate Legal Association. Without this information the court cannot adequately review the program.
10

àiSfl

V, Poyor> Civ. Action No. 85-4401 ((Aguguust 7,

1987). Th· court will deny defendants' motion for summary

judgment.

October 7, 1988

11

 
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12BE, CLOSED
U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:88-cv-01225-AET

Roe v. Fauver, et al Assigned to: Judge Anne E. Thompson Demand: $0 Cause: 42:1983 Prisoner Civil Rights Plaintiff Jane Roe
V. Defendant William H. Fauver

Date Filed: 03/11/1988 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by JOHN V. JACOBI GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE, PC ONE RIVERFRONT PLAZA NEWARK, NJ 07102-5496 (973) 596-4611 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN OFFICE OF NJ ATTORNEY GENERAL DEPARTMENT OF LAW & PUBLIC SAFETY RICHARD J. HUGHES JUSTICE COMPLEX PO BOX 086 TRENTON, NJ 08625-0116 (609) 292-9086 Email: brett.rickman@dol.lps.state.nj.us
TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO THE LEGATO LAW FIRM LLC 757 ROUTE 202/206 NORTH SUITE 103 BRIDGEWATER, NJ 08807 908-725-9800 Email: legatolaw@aol.com

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Defendant Gary Hilton
Defendant Robert Walton
Defendant John Forker
Defendant Richard Reed

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN (See above for address) TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN (See above for address) TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN (See above for address) TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN (See above for address) TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant John Belton
Defendant Robert Walton
Defendant Rudolph Archer
Defendant Howard Beyer
Defendant Anthony Turner

represented by BRETT D. RICKMAN (See above for address) TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN (See above for address) TERMINATED: 04/19/1995 ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN (See above for address) TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN (See above for address) TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN (See above for address)

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Defendant Louis Brandt
Defendant George Hayman
Plaintiff RASHEED A. MUJAHID
V. Defendant WILLIS H. MORTON ADMININSTRATOR OF THE NEW JERSEY STATE PRISON AND AN EMPLOYEE OF THE DOC. Defendant CORRECTIONAL MEDICAL

TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN (See above for address) TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRETT D. RICKMAN (See above for address) TERMINATED: 04/19/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARIANNE LEGATO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOHN V. JACOBI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by STEPHEN D. HOLTZMAN

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SERVICES
Defendant GEORGE JAMES REGIONAL ADMINISTRATOR OF NEW JERSEY STATE CENTRAL REGION FOR CORRECTIONAL MEDICAL SERVICES Defendant M.D. JAMES J. NEAL REGIONAL STATE MEDICAL DIRECTOR FOR CORRECTIONAL MEDICAL SERVICES Cross Claimant CORRECTIONAL MEDICAL SERVICES
Cross Claimant GEORGE JAMES
Cross Claimant M.D. JAMES J. NEAL
Intervenor Defendant USA

HOLTZMAN & MCCLAIN, PC 819 NEW ROAD PO BOX 869 NORTHFIELD, NJ 08225 (609) 601-0900 Fax: (609) 601-0990 Email: sholtzman2000@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by STEPHEN D. HOLTZMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by STEPHEN D. HOLTZMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by STEPHEN D. HOLTZMAN (See above for address) ATTORNEY TO BE NOTICED
represented by STEPHEN D. HOLTZMAN (See above for address) ATTORNEY TO BE NOTICED
represented by STEPHEN D. HOLTZMAN (See above for address) ATTORNEY TO BE NOTICED
represented by IRENE E. DOWDY UNITED STATES ATTORNEY'S OFFICE 402 EAST STATE STREET SUITE 430 TRENTON, NJ 08608 (609) 989-2190 Fax: (609) 989-2360 Email: irene.dowdy@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Date Filed 05/29/1991 10/02/1991 10/21/1991 10/23/1991 10/23/1991 02/04/1992
03/03/1992
04/08/1992

MICHAEL J. HAUNGS US DEPARTMENT OF JUSTICE FEDERAL PROGRAMS BRANCH CIVIL DIVISION PO BOX 883 WASHINGTON, DC 20044 (202) 514-4652 TERMINATED: 03/19/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM R. KIRSCHNER U.S. DEPARTMENT OF JUSTICE FEDERAL PROGRAMS BRANCHCIVIL DIVISION P.O. BOX 883, RM 1047 WASHINGTON, DC 20044 202-616-2035 LEAD ATTORNEY ATTORNEY TO BE NOTICED

#

Docket Text

Case closed (ss) (Entered: 05/29/1991)

87 ORDER reopening action, filed. ( signed by Judge Anne E. Thompson ) (ss) (Entered: 10/23/1991)

88 LETTER REQUEST and ORDER extending parties time to resolve remaining issues. ( signed by Judge Anne E. Thompson (ss) (Entered: 10/23/1991)

Case reopened (ss) (Entered: 10/23/1991)

ALL PREVIOUS ENTRIES ON PAPER DOCKET. (ss) (Entered: 10/23/1991)

89 Minute entry: Proceedings recorded by Ct-Reporter: None; Minutes of: 2.4.92; The following actions were taken STATUS CONFERENCE. SETTLEMENT CONFERENCE HELD. COUNSEL REPORTED THAT A SETTLEMENT CONFERENCE CANNOT BE ACHIEVED AT THIS TIME, By Judge Anne E. Thompson (ss) (Entered: 02/05/1992)

90 Minute entry: Proceedings recorded by Ct-Reporter: Vincent Russoniello; Minutes of: 3.3.92; The following actions were taken; STATUS CONFERENCE: Counsel reported this action settled. Consent Degree submitted. By Judge Anne E. Thompson (ss) (Entered: 03/06/1992)

91 ORDER In Re: Notice of settlement, filed. ( signed by Judge Anne E.

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04/08/1992
04/08/1992
05/28/1992 05/28/1992 05/28/1992 06/03/1992
06/03/1992 06/03/1992 06/03/1992 06/04/1992 06/04/1992 06/08/1992 06/17/1992 06/29/1992 06/30/1992 07/07/1992 04/10/1995

Thompson ) (ss) (Entered: 04/13/1992)
92 Minute entry: Proceedings recorded by Ct-Reporter: Vincent Russoniello; Minutes of: 4.8.92; The following actions were taken; Hearing on application for an order directing notice of proposed settlement. Ordered motion granted. By Judge Anne E. Thompson (ss) (Entered: 04/15/1992)
93 ORDER directing Notice of Proposed Settlement and setting dates for submissions of objections no later than 6/5/92 and a final hearing to enter the proposed settlement on 6/12/92 @ 2:00am. ( signed by Judge Anne E. Thompson ) (ss) (Entered: 04/15/1992)
94 RESPONSE in opposition of non-party, Victor F. Patilla to [91-1] order & [93-1] order re: SETTLEMENT. (mgr) (Entered: 05/28/1992)
95 RESPONSE in opposition of non-party, Robert Robin Banfield to [91-1] order & [93-1] order re: SETTLEMENT. (mgr) (Entered: 05/28/1992)
96 RESPONSE of non-party, Antoinette R.B. Lennon in opposition to [911] order & [93-1] order re: SETTLEMENT. (mgr) (Entered: 05/28/1992)
97 RESPONSE of non-parties, Leroy Thomas, Abdur R. Shariff, Robert Brown, John A. Tillman, ALonzo M. Evans, Raul D. Slime in opposition to [91-1] order, [93-1] order (mgr) (Entered: 06/03/1992)
98 RESPONSE of non-party, Rob Marshall in opposition to [91-1] order, [93-1] order (mgr) (Entered: 06/03/1992)
99 RESPONSE of non-party, Ronald Long in opposition to [91-1] order, [93-1] order (mgr) (Entered: 06/03/1992)
100 RESPONSE of non-party, Edward Johnson in opposition to [91-1] order, [93-1] order (mgr) (Entered: 06/03/1992)
101 RESPONSE of non-party, Norwood L. White in opposition to [91-1] order, [93-1] order (mgr) (Entered: 06/05/1992)
102 RESPONSE of non-party, James Abdul Alim Abuwi in opposition to [91-1] order, [93-1] order (mgr) (Entered: 06/05/1992)
103 RESPONSE of non-party, Lloyd Johnson in opposition to [91-1] order, [93-1] order (mgr) (Entered: 06/09/1992)
104 RESPONSE (UNSIGNED) BY NON-PARTY EDWARD JOHNSON in opposition to [91-1] order, [93-1] order (AC) (Entered: 06/30/1992)
105 ORDER for Settlement with Consent Decree Annexed. ( signed by Judge Anne E. Thompson ) (NM) (AC) (Entered: 06/30/1992)
Case closed (AC) (Entered: 06/30/1992)
106 LETTER by non-party, Orlando Perez dated 6-28-92. (mgr) (Entered: 07/07/1992)
107 LETTER by pltf. informing the court that SUSAN RISNER PUBLIC

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04/19/1995
04/26/1995 05/27/1997
09/24/1997
09/24/1997 09/24/1997 09/24/1997 09/24/1997 09/24/1997 09/24/1997
09/24/1997

DEFENDER no longer represent the pltf. as co-counsel filed. (SA) (Entered: 04/11/1995)
108 Substitute attorney for John Belton, Louis Brandt, John Forker, George Hayman, Gary Hilton, Richard Reed, Anthony Turner, Robert Walton, Rudolph Archer, Howard Beyer, William H. Fauver ; Terminated attorney BRETT D. RICKMAN ; Added MARIANNE DAG LEGATO (SA) (Entered: 04/20/1995)
109 CONSENT ORDER, for protective order (signed by Chief Judge Anne E. Thompson)(NM) (SA) (Entered: 04/28/1995)
110 Notice of MOTION to enforce [105-1] Order for Settlement with Consent Decree Annexed , to impose sanctions for contempt of Court by RASHEED A. MUJAHID, Motion hearing set for 10:00 7/21/97 on [1101] motion, for 10:00 7/21/97 on [110-2] motion . (Brief/PO Subm) (PER CHAMBERS) (SA) (Entered: 06/26/1997)
111 ORDER denying as moot [110-1] motion to enforce [105-1] Order for Settlement with Consent Decree Annexed denying as moot [110-2] motion to impose sanctions for contempt of Court; directing said motion to be considered as an original complaint and directing all papaers filed in connection with this matter be dated from the date of this order filed. (signed Chief Judge Anne E. Thompson)(NM) (SA) (Entered: 09/24/1997)
112 ORDER, granting pltf. leave to file an amended complaint , granting defts. leave to file an answer to said amended complaint (signed by Chief Judge Anne E. Thompson)(NM) (SA) (Entered: 09/24/1997)
113 Substitute attorney for RASHEED A. MUJAHID ; Terminated him as pro se; Added JOHN V. JACOBI (SA) Modified on 11/10/1997 (Entered: 09/24/1997)
114 AMENDED COMPLAINT by RASHEED A. MUJAHID , amending [110-1] complaint adding WILLIS H. MORTON, CORRECTIONAL MEDICAL SERVICES, GEORGE JAMES, JAMES J. NEAL (SA) Modified on 09/24/1997 (Entered: 09/24/1997)
115 Notice of MOTION for preliminary injunction by RASHEED A. MUJAHID, Motion hearing set for 10:00 10/6/97 on [115-1] motion . (Brief/PO Subm) (SA) (Entered: 09/24/1997)
116 CERTIFICATION of RASHEED MUJAHID Re: supporting [115-1] motion for preliminary injunction (SA) (Entered: 09/24/1997)
117 Notice of CROSS-MOTION for summary judgment in favor of defts. CORRECTIONAL MEDICAL SERVICES, INC., GEORGE JAMES, and DR. JAMES J. NEAL , for sanctions Motion hearing set for 10:00 10/6/97 on [117-1] motion, set for 10:00 10/6/97 on [117-2] motion . (Brief/PO Subm) (SA) (Entered: 09/24/1997)
118 ANSWER TO AMENDED COMPLAINT with CROSSCLAIM and ANSWER TO ALL CROSSCLAIMS by CORRECTIONAL MEDICAL,

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09/24/1997 10/15/1997 10/15/1997 10/20/1997 10/20/1997 10/20/1997 10/20/1997
11/03/1997
11/07/1997 12/02/1997

GEORGE JAMES, JAMES J. NEAL (SA) (Entered: 09/24/1997)
119 Notice of CROSS-MOTION to dismiss pltf.'s complaint as to deft. WILLIAM H. FAUVER , for sanctions Motion hearing set for 10:00 10/6/97 on [119-1] motion, set for 10:00 10/6/97 on [119-2] motion . (PO Brief Subm) (SA) Modified on 09/24/1997 (Entered: 09/24/1997)
120 ORDER, for writ of habeas corpus as to deft. RASHEED A. MUJAHID, SP#203777 returnable 10/20/97 at 2:00 P.M. (signed by Chief Judge Anne E. Thompson)(NM) (SA) (Entered: 10/15/1997)
WRIT of Habeas Corpus issued as to deft. RASHEED A. MUJAHID #203777 returnable 10/20/97 at 2:00 P.M. (copies to USM) (SA) (Entered: 10/15/1997)
121 ORDER, for writ of habeas corpus as to deft. RASHEED A. MUJAHID, SP#203777 returnable 10/23/97 at 9:30 A.M. (signed by Chief Judge Anne E. Thompson)(NM) (SA) (Entered: 10/21/1997)
WRIT of Habeas Corpus issued as to RASHEED A. MUJAHID returnable 10/23/97 at 9:30. (Copies to USM) (SA) (Entered: 10/21/1997)
122 Minute entry: Proceedings recorded by Ct-Reporter: RUSSONIELLO; Minutes of: 10/20/97; The following actions taken, Hearing held on [1101] and [110-2] motions. Ordered hearing adjourned to 10/23/97. By Chief Judge Anne E. Thompson (MB) (Entered: 10/22/1997)
123 Minute entry: Proceedings recorded by Ct-Reporter: RUSSONIELLO; Minutes of: 10/20/97; The following actions were taken, mooting [110-1] motion to enforce [105-1] Order for Settlement with Consent Decree Annexed, mooting [110-2] motion to impose sanctions for contempt of Court, terminating [110-3] hearing Motion hearing set for 10:00 7/21/97 on [110-1] motion, for 10:00 7/21/97 on [110-2] motion; hearing had begun; case settled. Order to be submitted. (By Chief Judge Anne E. Thompson) (SA) (Entered: 10/27/1997)
124 Minute entry: Proceedings recorded by Ct-Reporter: NONE; Minutes of: 11/03/97; The following actions were taken, [119-1] motion to dismiss pltf.'s complaint as to deft. WILLIAM H. FAUVER taken under advisement, [119-2] motion for sanctions taken under advisement, [1171] motion for summary judgment in favor of defts. CORRECTIONAL MEDICAL SERVICES, INC., GEORGE JAMES, and DR. JAMES J. NEAL taken under advisement, [117-2] motion for sanctions taken under advisement, [115-1] motion for preliminary injunction taken under advisement (By Chief Judge Anne E. Thompson) (SA) (Entered: 11/07/1997)
125 ORDER directing RASHEED MUJAHID receive medical attention; withdrawing [115-1], [117-1], [117-2], [119-1] & [119-2] motions. (signed by Chief Judge Anne E. Thompson) (NM) (ms) (Entered: 11/07/1997)
126 Notice of MOTION for immediate termination of [105-1] Consent

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12/22/1997 02/02/1998 03/02/1998 03/09/1998 03/18/1998 03/19/1998 04/06/1998
04/06/1998 04/15/1998 04/15/1998
06/09/1998

Decree by John Belton, Louis Brandt, John Forker, George Hayman, Gary Hilton, Richard Reed, Anthony Turner, Robert Walton, Rudolph Archer, Howard Beyer, H. Fauver, Motion hearing set for 10:00 1/20/98 on [126-1] motion . (Brief/PO Subm) (SA) (Entered: 12/03/1997)
127 Letter Order noticing USA of this case. (signed by Chief Judge Anne E. Thompson) (NM) (ms) (Entered: 12/22/1997)
128 CERTIFICATE OF SERVICE of pltf., RASHEED A. MUJAHID for Brief and Appendix opposing [126-1] motion to terminate Consent Decree. (CC) (Entered: 02/02/1998)
129 Notice of MOTION to intervene by USA , Motion hearing set for 10:00 4/6/98 on [129-1] motion . (Brief Subm) (ms) (Entered: 03/03/1998)
130 Notice of MOTION for leave of deft, CORRECTIONAL MEDICAL SERVICES to intervene ; Motion ret'ble 10:00 4/6/98 on [130-1] motion . (Brief/PO Subm) (CLERK'S NOTE: Applicant to intervene is already a defendant in this case) (ms) (Entered: 03/09/1998)
131 ORDER granting [129-1] motion to intervene by USA (signed by Chief Judge Anne E. Thompson)(NM) (SA) (Entered: 03/18/1998)
132 Substitute attorney for USA ; Terminated attorney MICHAEL J. HAUNGS; Added, WILLIAM R. KIRSCHNER (SA) (Entered: 03/20/1998)
133 Minute entry: Proceedings recorded by Ct-Reporter: RUSSONIELLO; Minutes of: 04/06/98; The following actions were taken, [130-1] motion for leave of deft, CORRECTIONAL MEDICAL SERVICES to intervene taken under advisement (By Chief Judge Anne E. Thompson) (SA) (Entered: 04/08/1998)
134 Minute entry: Proceedings recorded by Ct-Reporter: RUSSONIELLO; Minutes of: 04/06/98; The following actions were taken, [129-1] motion to intervene by USA taken under advisement (By Chief Judge Anne E. Thompson) (SA) (Entered: 04/08/1998)
135 OPINION (by Chief Judge Anne E. Thompson)(NM) (ss) Modified on 04/17/1998 (Entered: 04/15/1998)
136 ORDER granting [130-1] motion for leave of deft, CORRECTIONAL MEDICAL SERVICES to intervene; directing defts'. motion to terminate pursuant to the Prison Litigation Reform Act is deferred until the conclusion of an evidentiary hearing which will commence after the conclusion of discovery, etc. (signed by Chief Judge Anne E. Thompson) (NM) (ss) (Entered: 04/15/1998)
137 ORDER terminating [126-1] motion for immediate termination of [1051] Consent Decree and all other matters currently pending. (signed by Chief Judge Anne E. Thompson)(NM) (SA) (Entered: 06/09/1998)

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PACER Service Center
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Billable Pages:

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09/16/2005 15:10:20

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3:88-cv-01225-AET Start date:

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 Roe v. Fauver, Not Reported in F.Supp. (1988)
1988 WL 47359 Only the Westlaw citation is currently available.
United States District Court, D. New Jersey.
Jane ROE, on behalf of herself and all others similarly situated, Plaintiff, v.
William H. FAUVER, in his official capacity, Gary Hilton, in his official capacity, Robert Walton, in his official capacity, John Forker, in his official capacity, and Richard Reed, M.D. in his official
capacity, Defendants.
CIV. No. 88–1225 (AET). | May 13, 1988.
Attorneys and Law Firms
Alfred A. Slocum, Public Advocate/Public Defender, Department of the Public Advocate, Trenton, New Jersey by Catherine A. Hanssens, Assistant Deputy Public Defender, Office of Inmate Advocacy, for plaintiffs.
Stephen P. Tasy, Dep. Atty. Gen., Trenton, N.J., for defendants.
Opinion
OPINION
THOMPSON, District Judge.
*1 This matter comes before the court on a motion by plaintiff Jane Roe for a preliminary injunction enjoining defendants William Fauver, et al. from continuing her confinement in isolation at the St. Francis Medical Center. Plaintiff wishes to be returned to the Corrections Institute for Women in Clinton [“Clinton”] where she was imprisoned prior to the diagnosis of AIDS. Plaintiff has been diagnosed as having Acquired Immune Deficiency Syndrome (AIDS) and was initially hospitalized for pneumonia. She has now recovered from pneumonia and the parties agree that her AIDS is in remission at this time. Current prison policy prohibits the return of an inmate diagnosed as having AIDS to the general prison population. Male prisoners with AIDS who are in remission are placed in the Special Medical Unit attached to Trenton State Prison. At the moment there is no similar facility for female prisoners suffering from AIDS, although prison officials indicate that such a facility is under construction on the grounds of the prison in Clinton. Plaintiff argues that confining an inmate with AIDS to a hospital room violates her Eighth Amendment right to be free from cruel and unusual punishment and

her Fourteenth Amendment right to equal protection. Furthermore, plaintiff argues that using St. Francis Medical Center as a place of confinement for female prisoners with AIDS in remission is contrary to sound public policy.
In reviewing an application for a preliminary injunction the court must examine four factors:
(1) whether the moving party has shown a reasonable chance of success on the merits;
(2) whether the moving party will suffer irreparable harm if the motion is denied;
(3) whether the preliminary injunction would result in greater harm to the defendants; and
(4) whether an injunction is in the public interest.
Monmouth County Correct. Inst. Inmates v. Lanzaro, 643 F.Supp. 1217, 1222 (D.N.J.1986), aff’d 834 F.2d 326 (3d Cir.1987). See also Pilgrim Medical Group v. New Jersey State Board of Medical Examiners, 613 F.Supp. 837, 845 (D.N.J.1985).
A hearing was held on March 31, 1988 and April 1, 1988 in which witnesses for the respective parties testified in support of their opposing positions.
Plaintiff presented the following witnesses:
Chaplain Carol Bamesberger—Chaplain at both St. Francis Medical Center and at the special unit at Trenton State Prison. Testified to the spartan, bare conditions of Jane Doe’s hospital room, the deterioration of the plaintiff’s mental state, depression, etc.
Father Dennis O’Brien—Chaplain at Youth Correctional Facility at Bordentown and volunteer chaplain at St. Francis.
Dr. Robert Swenson—Medical witness with broad experience in infectious diseases.
The defendants called the following witnesses:
Mr. Gary Hilton—Assistant Commissioner of Corrections
Dr. Isabel Guerrero—Author of the New Jersey Department of Corrections AIDS protocol.
Dr. Richard Reed—Medical Director of the New Jersey Department of Corrections.
*2 Federal courts have held that prison officials have
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Roe v. Fauver, Not Reported in F.Supp. (1988)
significant discretion in determining a prisoner’s particular placement, her custody status, and her access to rehabilitation projects or work. See Dozier v. Hilton, 502 F.Supp. 1299, 1306 (D.N.J.1981) and Hluchan v. Fauver, 480 F.Supp. 103, 108 (D.N.J.1979). Furthermore, once a prisoner’s basic entitlements are met, prison officials are permitted to place certain restrictions on an inmate’s recreation, work opportunities, interaction with other inmates and visitation. See Rowe v. Fauver, 533 F.Supp. 1239, 1244 (D.N.J.1982). Plaintiff argues that her confinement to a hospital room for the past nine months has precluded opportunities for meaningful exercise or recreation and deprived her of the privileges she had as a minimum security prisoner at Clinton. She argues that confinement under these conditions violates her Eighth Amendment right to be free from cruel and unusual punishment. Furthermore, she argues that there is no medical reason to keep her confined to a hospital room.
Plaintiff’s doctors argue that a person with AIDS does not have to be isolated from other people for her own benefit, to protect her from bacteria and other sources of infection in the environment. They maintain that isolation serves no protective purpose because the “opportunistic infections which endanger persons with AIDS and ARC are not characteristically airbourne and in fact usually arise from organisms already present within the individual’s respiratory or digestive tract.”
Plaintiff’s doctors also contend that the depression plaintiff suffers in isolation undermines her health. Plaintiff is not entitled under the Constitution to a particular amount of recreation indoors or outdoors. The decisions of this court and the Third Circuit Court of Appeals cited by the plaintiff do not hold that all inmates are entitled to certain amounts of recreation or to a certain amount of time out of doors. These cases concerning recreation are specifically in the context of inmates who are in overcrowded prisons. In cases involving double-celling the courts have held that a way to mitigate the effects of the overcrowding is to allow one hour of recreation a day. Inmates of Allegheny County Jail v. Wecht, 745 F.2d 120 (3d Cir.1985); Union County Jail Inmates v. DiBuono, 713 F.2d 984, 996 n. 17, 1000–1 n. 29 (3d Cir.1983), cert. denied 465 U.S. 1102. Monmouth County Correctional Inst. Inmates v. Lanzaro, 595 F.Supp. 1417, 1435 (D.N.J.1984). In the instant case the plaintiff is not in an overcrowded cell, she is alone in a hospital room. There has been no showing that she is not free to leave her bed and to move around the room nor that there is not adequate space in the room to walk around. Indeed, there was testimony that the plaintiff’s hospital room is approximately 12 x 16. The court is mindful of the fact that plaintiff is not permitted to go outdoors and will address the equal protection problems with that restriction later on in its opinion.
The fact that plaintiff is for most of the day in solitary

confinement, i.e., alone in a single room, is obviously not the preferable custody placement for an inmate who is not being placed in such a situation because of disciplinary problems but rather because she has had the misfortune to contract an incurable disease. The prison’s position is that isolating her from the general population is a reasonable medical approach which is in the best interest of the plaintiff and the rest of the prison population. Testimony showed that there is dispute both medically and ethically as to whether other approaches could be devised within a prison setting which would be both more humane and would protect all relevant individuals from harm. Plaintiff has not shown that the defendants’ reasons are so insupportable and the treatment is so cruel as to constitute deliberate indifference to plaintiff’s medical needs or cruel and unusual punishment. The court cannot at this time find that plaintiff has shown a probability of success on the merits of her allegations that her confinement to a hospital room is a violation of her Eighth Amendment rights.
*3 Furthermore, plaintiff does not appear to have a probable chance of success on the merits on her claim of inadequate dental care. In order to show inadequate dental care which rises to the level of a constitutional violation plaintiff must show that there has been deliberate indifference to her serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). The dentist who has been treating the plaintiff indicates that he is proceeding with her dental care pursuant to his own diagnosis. She has been fitted for two new crowns and when the crowns are in place he will fit her for upper and lower dentures. Based upon the evidence before it the court cannot find that plaintiff has a probable chance of success on the merits on her claim of inadequate medical care. The precautions being taken by defendant may be excessive but it cannot be said that they are so definitively excessive given the state of medical knowledge as to be callously indifferent to serious medical needs or the malicious imposition of pain.
Plaintiff alleges that her rights to equal protection under the Constitution have been violated because she is not treated the same as male prisoners with AIDS in remission. Male inmates with AIDS are housed in a Special Medical Unit where they do have limited opportunities for recreation and for interaction with the other inmates in the unit. Plaintiff argues that male prisoners assigned to the Special Medical Unit are not subject to the restrictions placed on her. Pursuant to prison policy once an inmate is diagnosed as suffering from AIDS he or she is not permitted to return to the general prison population. Male AIDS victims are confined to the Special Medical Unit and, at the moment, female AIDS victims are confined to St. Francis Medical Center. The Department of Corrections [“DOC”] has begun the process of constructing a Special Medical Unit for female AIDS victims on the grounds of Clinton
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according to the testimony of Gary Hilton. Prison officials have indicated that at least in terms of the privileges allowed, plaintiff’s confinement is similar to that of the male AIDS victims in the Special Medical Unit. The male inmates are allowed two contact visits per week as is the plaintiff. Male inmates are shackled and handcuffed when they travel outside the prison as was the plaintiff when she was taken to the dentist. Male inmates are allowed unlimited attorney visits and permitted to make legal telephone calls. The plaintiff has not complained that these rights have been denied her.
Plaintiff argues that she has not had legal access in the form of access to a law library. She does not, however, make any showing that she has requested legal access and it has been denied. The court notes that pursuant to Bounds v. Smith, 430 U.S. 817 (1977), plaintiff has a constitutional right to legal access. She does not, however, have a right to actually go to a prison law library. Those prisoners who do not have physical access to a law library must obtain their legal access either through access to reference materials and requests from the law library and/or through access to prisoner paralegals or other research assistance.
*4 Unlike male inmates plaintiff does not have the opportunity to speak with other inmates. It appears that plaintiff is, at this time, the only female AIDS patient in remission identified in the prison system. Even if she were in a unit identical to the men’s unit, there is no indication that she would have any other inmates to talk with. The court cannot find that this particular situation violates the equal protection clause.
Male inmates do get one hour of recreation a day and if the temperature is over 32 degrees they are allowed outdoors. Plaintiff does apparently have space to move around in her hospital room, but is never permitted

out-of-doors for recreational purposes. As far as the court can tell from the evidence presented, apart from her trips to the dentist plaintiff has not been outside for nine months.
The Department of Corrections has not, at this time, shown that denying plaintiff any access to the outdoors for nine months is rationally related to a legitimate state purpose. Although defendants state that “Roe’s desire for additional recreation must inevitably yield to the greater need to protect her life and health,” the defendants have not shown that allowing plaintiff some opportunity to have outdoor recreation would put her life at risk.
Based on the evidence now before the court, we cannot find that plaintiff is suffering irreparable harm in any area other than the deprivation of recreation comparable to the male AIDS victims. Plaintiff has not shown a probability of success on the merits on her claims of violations of her rights under the Eighth Amendment or on her claims that she may be suffering violations of the equal protection clause. Without a showing of a violation of her constitutional rights, plaintiff has not shown irreparable harm. Plaintiff has not met the two crucial criteria for obtaining a preliminary injunction—probability of success on the merits and irreparable harm except with respect to outdoor recreation. The court will deny the plaintiff’s motion for an injunction returning plaintiff to Clinton at this time and requests that the parties meet with the court on May 27, 1988 at 10:00 a.m. for a status conference and a report on the construction of the new unit at Clinton.
Defendants are to submit an order consistent with this opinion within ten (10) days.
	  

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 Roe v. Fauver, Not Reported in F.Supp. (1988)
1988 WL 106316 Only the Westlaw citation is currently available.
United States District Court, D. New Jersey.
Jane ROE, etc., et al., Plaintiffs, v.
William H. FAUVER, et al., Defendants.
CIV. A. No. 88–1225 (AET). | Oct. 11, 1988.
Opinion
OPINION
ANN E. THOMPSON, District Judge.
*1 This matter comes before the court on a motion by defendants for summary judgment and a motion by plaintiffs for leave to file an amended complaint. This matter was previously before this court on a motion by plaintiffs for a preliminary injunction which was denied on May 13, 1988. The court will first address plaintiffs’ motion to amend the complaint.
Motions to amend and supplement a complaint pursuant to F.R.C.P. Rule 15(a) and (d) are denied only when there is a strong justification for not permitting the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). If the amendment will cause undue delay, undue prejudice to the opposing party or is filed in bad faith as a dilatory move the court may disallow the filing. Id. See Also Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir.1984), cert denied 469 U.S. 1122 (1985). The court cannot find that amending this complaint will unduly prejudice the defendants. Discovery has yet to begin, the amended complaint applies to the same individuals and/or situations included in the original complaint, and it merely broadens the focus of the action. Furthermore, it is logical for this court to consider all these claims regarding the housing and treatment of inmates diagnosed with AIDS at once.
In the initial complaint, plaintiff Jane Roe challenged both her confinement in St. Francis Medical Center and the fact that she was treated differently from male inmates diagnosed with AIDS. She also, however, challenged “defendants’ general policy which subjects her and other prisoners diagnosed with AIDS to segregation and restrictions purely on the basis of her diagnostic status”. (Original Complaint ¶ 2, see also ¶¶ 3, 12, 44, 46, 47, 54). The allegations in the amended complaint are merely an amplification of this challenge and do not raise new and

different issues which would prejudice the defendants. The amended complaint alleges that inmates diagnosed with AIDs are illegally segregated and deprived of all recreation, education, and work programs solely on the basis of their illness. The amended complaint further alleges that this segregation results in denial of adequate legal access. Lastly, plaintiffs allege that the medical care provided them constitutes deliberate indifference to serious medical needs in violation of the Eighth Amendment to the United States Constitution. The court finds that the amended complaint will not unduly prejudice the defendants. Although the amended complaint expands on the issues raised in plaintiffs’ original complaint, both complaints focus on a very particular area of the law within the Department of Corrections—the care, treatment and rights of those inmates diagnosed with AIDs.
The court will next consider defendants’ motion for summary judgment. Defendants maintain that no genuine issues of fact remain and that they are entitled to summary judgment as a matter of law. The court concludes, however, that numerous genuine issues of material fact remain and summary judgment is not warranted at this time. Although prison officials are entitled to a vast amount of discretion in their treatment and placement of prisoners, there are certain perimeters imposed by the Constitution and by Federal and State laws.
*2 The plaintiffs in this action protest their segregation following a diagnosis of AIDs. They also protest their treatment in the Special Medical Unit (SMU) at Trenton State Prison, at the SMU at Clinton Institution for Women and in the other places where they are placed in segregation. These allegations raise two sets of questions, first whether the segregation itself is proper and second whether the treatment plaintiffs receive once they are segregated is proper. Plaintiffs maintain that their right to equal protection is being violated because they are being treated differently from those inmates in general population both in that they are segregated and in that they are denied activities and opportunities within their segregated unit. Plaintiffs also maintain that their due process rights have been violated because they have been placed in these segregated units without an individual hearing or a showing that they are a risk to themselves or others.
In Cordero v. Coughlin, 607 F.Supp. 9 (S.D.N.Y.1984), a district court in the Southern District of New York found that segregating prisoners diagnosed with AIDs did not violate their rights under the Eighth or Fourteenth Amendments. The court notes that Cordero was decided four years ago and that in the past four years great progress has been made in our understanding of how AIDs is transmitted and of the course the disease takes.
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Roe v. Fauver, Not Reported in F.Supp. (1988)
More importantly the court in Cordero only briefly discusses a number of the issues raised by the case before this court. While the Cordero court concludes that the decision to segregate is reasonable it does not examine whether the deprivation of recreation, education, and work is rationally related to a legitimate governmental end nor does the court discuss whether the deprivation of recreation itself is a violation of the Eighth Amendment. Although Cordero does discuss some of the legal precedents which this court will also rely on, the court is not bound by the holding in Cordero particularly as it knows little if anything of the factual circumstances upon which the court based its holding.
While it is true that prison officials have the authority to transfer prisoners and alter their custody status, Hewitt v. Helms, 459 U.S. 460 (1983), they do not have the authority to place them in a disciplinary unit without a hearing. Furthermore, although Hewitt v. Helms, authorizes prison officials to place inmates in more restricted situations for administrative reasons without allowing them the due process outlined in Wolff v. McDonnell, 418 US 539 (1974), it does require an informal evidentiary review of the reasons for placing the individual inmate in the segregated unit. Hewitt v. Helms, 459 at 476. More importantly, Hewitt v. Helms focuses on the placement of individual inmates in existing administrative segregation units. The matter before this court involves the creation of a new restricted unit which mirrors a disciplinary unit for a particular class of prisoners. Questions remain as to the basis for the determination of the class and as to the reasons for the restrictive nature of the unit. At this time the defendants have not shown why within the unit prisoners could not be given the work, education, good time credits, visits and legal access they were entitled to in general population before they were diagnosed as having AIDs.
*3 Gibson v. Lynch, 652 F.2d 348 (3d Cir.1981), is also not applicable to this case. Gibson concerns an individual who was held for three months in the type of custody “normally associated with prisoners who are under disciplinary sanction or who require protection”. Id. at 354. As the court notes in Gibson the inmate was placed in this unit because of a housing crisis, “a unique circumstance[s] ... which we are told never occurred prior to or since, that time.” Id. Mr. Gibson was held in this unit because there was no space available for him in the prison to which he was assigned. Id. at 356. Unlike the inmates in this case his placement was not permanent. In addition, Gibson, like Hewitt v. Helms, involves an individual prisoner placed in a particular restricted unit for administrative reasons. The case before this court concerns a special “disciplinary like” unit created for a certain class of prisoners. A genuine issue of material fact remains as to whether this situation is purely administrative or is more like a situation involving “disciplinary cases, protective custody cases and severe

risk cases” in which, as Gibson notes, the authority and discretion of prison officials is more limited. Id. at 358.
This case actually looks more like Perez v. Neubert, 611 F.Supp. 830 (D.N.J.1985), than like Hewitt or Gibson. In Perez prison officials had placed an entire class of inmates, all Marielitos (Cuban aliens) in MCUs in various state prisons. This court held “[i]f we had found that the conditions of confinement of the plaintiffs were substantially similar to those affecting inmates in the general population we would be proceeding no further. Mere sequestration under “separate but equal” conditions would not in the prison context, be cognizable under § 1983.” Perez, 611 F.Supp. at 837. The Perez court also noted that a hearing was required and in this instance held, following the placements in MCU, Id. at 838, but the court remained “troubled by the wholesale treatment of the plaintiffs”. Id. at 839. This court ordered new hearings for all those Marielitos being held in MCUs and noted that an inmate’s interest in non-administrative confinement becomes “more significant as its duration becomes longer or more indefinite”. Id. at 840. Based on the analysis above, the court must conclude that genuine issues of material fact remain regarding the procedures and justifications for segregation of this class of inmates and regrading the reasons for confining them under conditions “unequal” to those existing in general population units.
The court also notes that the confinement of some number of males diagnosed with AIDs in remission to St. Francis Medical Center because the SMU is full raises genuine issues of fact concerning their treatment in comparison not only to inmates in general population but also to other inmates with AIDs in remission. The court notes that in our opinion of May 13, 1988 on the motion for a preliminary injunction, the court did note that the DOC had failed to show that denying an individual being housed in St. Francis Medical Center but not in need of hospitalization access to the outdoors for extended lengths of time was rationally related to a legitimate state purpose. The court also notes that these inmates at St. Francis are alleged to be housed in the same rooms with inmates not suffering from AIDs (Affidavit of A.T. ¶ 14; Affidavit of T.A., ¶ 2) a fact which would belie the defendants’ position that these groups are both at risk from any contact with one another.
*4 The court also notes that plaintiffs have alleged violations of their rights under § 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794, which prohibits recipients of Federal Funds from discriminating against otherwise qualified handicapped individuals. The United States Supreme Court has held that § 504 applies to individuals with contagious diseases. School Board of Nassau County v. Arline, 107 S.Ct. 1123 (1987). The Ninth Circuit Court of Appeals has held that AIDs is a contagious disease under § 504. Chalk v. U.S. District
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Roe v. Fauver, Not Reported in F.Supp. (1988)
Court Cent. Dist of California, 840 F.2d 701, (9th Cir.1988) Sec. 504 has been applied to state prisons. Sites v. McKenzie, 423 F.Supp. 1190 (N.D.W.Va.1976). LaFault v. Smith, 834 F.2d 389 (4th Cir.1987) (Court held claim under the Act was moot but not that plaintiff, a prisoner, could not make a claim under the Act). The defendants have not, at this time shown why it is not applicable in this matter. In Sites the court specifically noted that “any exclusion of Plaintiff [a prisoner] from participation in a vocational rehabilitation program simply because of his handicap is forbidden by the Act.” Sites, 423 F.Supp. at 1197. The court finds that a genuine issue of fact remains as to whether the plaintiffs are entitled to relief pursuant to § 504.
Plaintiffs also allege violations of the Eighth Amendment. They maintain that they are not receiving adequate medical care. Under Estelle v. Gamble, 429 U.S. 97 (1978), the court must determine whether there has been deliberate indifference to a serious medical need. The defendants themselves cite to Burn v. Head Jailor of Lasalle County Jail, 576 F.Supp. 618, 620 (N.D.Ill.1984), in which the court indicates that in determining whether deliberate indifference exists it must review the following factors: (1) the severity of the medical problem; (2) the potential for harm if the medical care is denied or delayed; and (3) whether any such harm resulted from the lack of medical attention. The fact that the inmates have gotten some medical care does not mean they cannot maintain a claim for inadequate medical care.
Plaintiffs allege that they were not always given the correct dosages of AZT, sometimes did not get it at the correct time and sometimes did not receive it all. (Aff. of Jane Roe, ¶ 9, Aff. of A.D., ¶ 1; Aff. of A.T. ¶ 11; Aff. of J.H. ¶¶ 5, 6, 7). AZT is the only medication that has proved successful in treating AIDS now distributed in the U.S. Plaintiffs’ affidavits allege a number of occasions on which they have not been treated for ailments or occasions when treatment did not occur until they had complained of symptoms for a number of months. The court cannot grant summary judgment for the defendants because the allegations presented to it thus far raise genuine issues of material fact as to whether plaintiffs’ Eighth Amendment rights have been violated.
Lastly the plaintiffs maintain that their rights to legal access set forth in Bounds v. Smith, 430 U.S. 817 (1977), are being violated. Plaintiffs allege that they do not have actual access to a law library or to anyone who is trained in the law and that their requests for legal materials are not always honored. (Aff. of Jane Roe, ¶¶ 2, 3, 4; Aff. of K.C. ¶ 9). Defendants argue that they have an adequate system of legal access, although the only information

which they provide about the program is a page from the Policy/Procedure Manual which states that adequate access will be provided and that an inmate paralegal will conduct interviews with inmates in the unit (Da–17a). This document tells the court little about the way the legal access program functions. As this court noted in its Memorandum and Order in Long v. Beyer, Civ.Act. No. 87–1301, dated August 11, 1987, “a service which only supplied ... [an inmate] with that material which from his cell he is able to cite adequately, may not satisfy the demands of Bounds ”. Id. p. 3. Although an inmate may not have actual access to the library, he or she must have direct contact with individuals who can provide “legal research assistance sufficient to provide meaningful access to the courts.” Id., p. 5. Plaintiffs allege that they have not had direct access to anyone who can provide actual research and that, on occasion, they have not received the materials they request. The fact that the Public Advocate’s office is assisting the plaintiffs in this action does not mean their other needs for legal access are being met.
*5 The court finds that genuine questions of material fact remain as to plaintiffs’ claims regarding legal access. The defendants have failed to provide the court with adequate information regarding how many inmate paralegals service the SMU, how often they visit the unit, whether they are prison library staff or members of the Inmate Legal Association. Without this information the court cannot adequately review the program. See also Valentine v. Beyer, Civ. Action No. 85–4401 (August 7, 1987). The court will deny defendants’ motion for summary judgment.
ORDER
This matter having come before the court on the defendants’ motion for summary judgment and the plaintiffs’ motion to amend the complaint, and the court having reviewed the submissions of counsel and having heard oral argument and for good cause shown;
It is on this 7th day of October, 1988,
ORDERED that plaintiffs’ motion to amend the complaint is granted; and
ORDERED that defendants’ motion for summary judgment is denied.
	  

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