In the original complaint Green named various "Doe" defendants. During the pendency of this 1

action Green was allowed to amend his complaint after he was able to identify the fictitious defendants.

Those defendants were subsequently dismissed as parties to the complaint leaving Warden Roberts as the

sole defendant to this cause of action. (See Doc. Nos. 61-64.) 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

 ____________________________

JEREMIAH W. GREEN, *

Plaintiff, *

 v. * 2:06-CV-667-WKW

 (WO)

AJA ROBERTS, *

Defendant. *

 ____________________________

RECOMMENDATION OF THE MAGISTRATE JUDGE

In this 42 U.S.C. § 1983 action, Jeremiah Green ["Green"], challenges the

constitutionality of actions taken against him during a brief incarceration at the Elmore

County Jail located in Wetumpka, Alabama. Specifically, during the approximately 24 hours

Green was housed at the Elmore County Jail, he alleges that as a result of being given red

scrubs and a "black tie" meal tray and cooler, items he claims are given only to inmates who

have AIDS, he experienced a violation of his right to privacy, a violation of his right to be

treated equally under the Americans with Disabilities Act ["ADA"], and a violation of his

right to a safe and secure environment in violation of the Eighth Amendment. Green names

as the defendant Warden Aja Roberts. He requests trial by jury and seeks declaratory and 1

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 1 of 24
2

injunctive relief and monetary damages for the alleged deprivations of his constitutional

rights. (Doc. No. 1.) 

In accordance with the orders of the court, Defendant Roberts filed an answer,

special report, supplemental special report, reply, and supporting evidentiary material in

response to the allegations contained in the complaint. The court then informed Green that

Defendant Roberts' special report, as supplemented, may, at any time, be treated as a motion

for summary judgment, and the court explained to Green the proper manner in which to

respond to a motion for summary judgment. Green filed responses to the special report and

supplemental special report filed by Defendant Roberts. This case is now pending on

Defendant Roberts' motion for summary judgment. Upon consideration of the motion, the

evidentiary materials filed in support thereof, and Green's opposition to the motion, the court

concludes that Defendant Roberts' motion for summary judgment is due to be granted.

I. STANDARD OF REVIEW

“Summary judgment is appropriate ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th

Cir.2007) (per curiam) (quoting Fed.R.Civ.P. 56(c)). The party moving for summary

judgment “always bears the initial responsibility of informing the district court of the basis

for its motion, and identifying those portions of the ‘pleadings, depositions, answers to

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 2 of 24
3

interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence showing

there is no dispute of material fact or by showing that the nonmoving party has failed to

present evidence in support of some element of its case on which it bears the ultimate burden

of proof. Id. at 322-324. 

Defendant Roberts has met her evidentiary burden and demonstrated the absence of

a genuine issue of material fact. Thus, the burden shifts to Green to establish, with evidence

beyond the pleadings, that a genuine issue material to his case exists. Clark v. Coats & Clark,

Inc., 929 F.2d 604, 608 (11 Cir.1991); Celotex, 477 U.S. at 324 (non-movant must “go th

beyond the pleadings and ... designate ‘specific facts showing that there is a genuine issue

for trial.’”); Fed.R.Civ.P. 56(e) (“When a motion for summary judgment is made and

supported ... an adverse party may not rest upon the mere allegations or denials of [his]

pleading, but [his] response ... must set forth specific facts showing that there is a genuine

issue for trial.”). A genuine issue of material fact exists when the nonmoving party produces

evidence that would allow a reasonable fact-finder to return a verdict in its favor.

Greenberg, 498 F.3d at 1263. 

In civil actions filed by inmates, federal courts 

must distinguish between evidence of disputed facts and disputed matters of

professional judgment. In respect to the latter, our inferences must accord

deference to the views of prison authorities. Unless a prisoner can point to

sufficient evidence regarding such issues of judgment to allow him to prevail

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 3 of 24
4

on the merits, he cannot prevail at the summary judgment stage.

Beard v. Banks, ___ U.S. ___, 126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006). Consequently,

to survive Defendant Roberts' properly supported motions for summary judgment, Green is

required to produce “sufficient [favorable] evidence” which would be admissible at trial

supporting his claims of constitutional violations. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986). “If the evidence [on which the nonmoving party relies] is merely colorable

. . . or is not significantly probative . . . summary judgment may be granted.” Anderson, 477

U.S. at 249-250. “A mere ‘scintilla’ of evidence supporting the opposing party’s position

will not suffice; there must be enough of a showing that the [trier of fact] could reasonably

find for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91

L.Ed.2d 202 (1986).” Walker v. Darby, 911 F.2d 1573, 1576-1577 (11 Cir. 1990). th

Conclusory allegations based on subjective beliefs are likewise insufficient to create a

genuine issue of material fact and, therefore, do not provide sufficient evidence to oppose

a motion for summary judgment. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d

1275, 1279 (11 Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11 Cir. 1997) th th

(plaintiff’s “conclusory assertions ..., in the absence of supporting evidence, are insufficient

to withstand summary judgment.”); Harris v. Ostrout, 65 F.3d 912, 916 (11 Cir. 1995) th

(grant of summary judgment appropriate where inmate produces nothing beyond “his own

conclusory allegations” challenging a defendant’s actions); Fullman v. Graddick, 739 F.2d

553, 557 (11 Cir. 1984) (“mere verification of party’s own conclusory allegations is not th

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 4 of 24
5

sufficient to oppose summary judgment . . . .”). Hence, when a plaintiff fails to set forth

specific facts supported by appropriate evidence sufficient to establish the existence of an

element essential to his case and on which the plaintiff will bear the burden of proof at trial,

summary judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at

322 (“[F]ailure of proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.”); Barnes v. Southwest Forest Industries, Inc.,

814 F.2d 607, 609 (11 Cir. 1987) (if on any part of the prima facie case the plaintiff presents th

insufficient evidence to require submission of the case to the trier of fact, granting of

summary judgment is appropriate).

For summary judgment purposes, only disputes involving material facts are relevant.

What is material is determined by the substantive law applicable to the case. Anderson, 477

U.S. at 248. “The mere existence of some factual dispute will not defeat summary judgment

unless that factual dispute is material to an issue affecting the outcome of the case.”

McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11 Cir. 2003) (citation th

omitted). To demonstrate a genuine issue of material fact, the party opposing summary

judgment “must do more than simply show that there is some metaphysical doubt as to the

material facts. . . Where the record taken as a whole could not lead a rational trier of fact to

find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the

court which is admissible on its face or which can be reduced to admissible form indicates

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 5 of 24
Green was incarcerated at the Federal Prison Camp in Atlanta, Georgia when he filed this complaint 2

on July 26, 2006. During the pendency of this action Green was released from custody.

6

that there is no genuine issue of material fact and that the party moving for summary

judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S.

at 323-324 (summary judgment appropriate where pleadings, evidentiary materials and

affidavits before the court show there is no genuine issue as to a requisite material fact);

Waddell, 276 F.3d at 1279 (to establish a genuine issue of material fact, the nonmoving party

must produce evidence such that a reasonable trier of fact could return a verdict in his favor).

Although factual inferences must be viewed in a light most favorable to the

nonmoving party, and pro se complaints are entitled to liberal interpretation by the courts,

a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine

issue of material fact. Beard, ___ U.S. at ___, 126 S.Ct. At 2576; Brown v. Crawford, 906

F.2d 667, 670 (11 Cir. 1990). In this case, Green fails to demonstrate a requisite genuine th

issue of material fact in order to preclude summary judgment. Matsushita, 475 U.S. at 587.

II. DISCUSSION

A. Injunctive Relief

Green is no longer incarcerated. The transfer or release of a prisoner renders moot 2

any claims for injunctive or declaratory relief. See County of Los Angeles v. Davis, 440 U.S.

625, 631 (1979); see also Cotterall v. Paul, 755 F.2d 777, 780 (11 Cir. 1985) (past exposure th

to even illegal conduct does not in and of itself show a pending case or controversy regarding

injunctive relief if unaccompanied by any continuing present injury or real and immediate

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 6 of 24
7

threat of repeated injury); Fisher v. Goord, 981 F. Supp. 140, 168 (W.D. N.Y. 1997) ("A

preliminary injunction cannot be issued based on past harm. The purpose of a preliminary

injunction is to prevent future irreparable harm."). As it is clear from the pleadings and

records before the court that Green is no longer incarcerated, his requests for declaratory and

preliminary and permanent injunctive relief, which were rendered moot as a result of his

transfer from the county jail and/or release from incarceration, are due to be dismissed.

Further, Green fails to meet the rigid requirements for prospective injunctive relief. " See

Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)(quoting Wooden v. Board of Regents

of University System of Georgia, 247 F.3d 1262, 1284 (11th Cir. 2001) (a plaintiff is entitled

to injunctive relief only if he can show "a real and immediate - as opposed to a merely

conjectural or hypothetical - threat of future injury.")).

B. Exhaustion.

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, states that “[n]o

action shall be brought with respect to prison conditions under section 1983 of this title, or

any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility

until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

Exhaustion is mandatory, even if the process is futile or inadequate. Higginbottom v. Carter,

223 F.3d 1259, 1261 (11th Cir. 2000). This mandatory exhaustion requirement applies

“irrespective of the forms of relief sought and offered through the administrative avenues.”

Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). 

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 7 of 24
8

In Boxer X v. Harris, 437 F.3d 1107, 1110 n. 2 (11th Cir. 2006), the court noted that,

as a prudential matter, a district court should first consider whether the PLRA bars a

prisoner's case before rendering a decision on the merits. In this case, Defendant Roberts

argues that Green failed to exhaust his administrative remedies. Green, however, argues that

upon his arrival at the Elmore County Jail he was not informed of the grievance procedure

nor provided with an inmate handbook explaining the grievance procedure. Green also

submitted with his complaint copies of letters he sent to the attention of Warden Roberts

after his transfer from the county jail in which he advised her that the purpose of his initial

letter, dated May 8, 2006, was an attempt at exhausting the grievance process with respect

to the matters now made the subject matter of the instant complaint. Green sent a follow-up

letter to Defendant Roberts on May 23, 2006, indicating that he was making a final attempt

at contacting her with respect to his efforts to exhaust administrative remedies. (Doc. No. 1

at Attachments.) Green claims that his letters were never responded to nor acknowledged

and, therefore, it was impossible for him to exhaust administrative remedies. (Id.) 

Although Defendant Roberts argues that Green's inmate file contains no completed

inmate request forms, she does not dispute Green's evidence that he contacted her via

certified mail after his departure from the county jail for purposes of undertaking those steps

necessary to exhaust the jail's grievance process. Defendant Roberts further maintains that

Green did not wait for a response from her with respect to the letters he sent to her in May

2006 before filing suit against her on July 26, 2006, and, thus, she contends that he cannot

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 8 of 24
According to the Elmore County Jail policy regarding inmate grievances, there is no time period 3

specified for when an inmate must file his or her grievance with prison officials. Once an inmate has

submitted a grievance, however, jail policy reflects that after a staff member has reviewed the grievance and

written a response, a copy of the grievance with the response should be delivered to the inmate within 72

hours of the time the grievance is received, excluding weekends and holidays. (See Doc.No. 28, Attachments

at 11-12.) 

9

be said to have properly and completely exhausted all available administrative remedies.

(See Doc. Nos. 16, 42.) 

While Green may not have waited six months to receive a response from Defendant

Roberts, which Defendant Roberts points out is the time frame for processing grievances

according to the United States Department of Justice's Standards for Inmate Grievances,

there is no indication that this is the time period applicable to the inmate grievance process

at the Elmore County Jail. Further, it is unclear when or if Defendant Roberts would have 3

responded to Green's attempts to exhaust available administrative remedies despite the fact

that he did not file this lawsuit until almost three months after he initially contacted her by

letter indicating that said correspondence was his attempt to satisfy the "first tier" of the

county jail's grievance process rather than waiting, as Defendant Roberts seems to suggest,

an additional three months for her to respond. Under the circumstances, the court concludes

that Green met the PLRA exhaustion requirements. See e.g., Boyd v. Corr. Corp. of America,

380 F.3d 989, 996 (6th Cir. 2004) ("conclud[ing] that administrative remedies are exhausted

when prison officials fail to timely respond to a properly filed grievance"), cert. denied, 544

U.S. 920 (2005); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (holding prison's

failure to timely respond to grievance renders administrative remedies unavailable); Foulk

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 9 of 24
10

v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (holding prisoner exhausted available

remedies where prison officials failed to respond to his informal grievances); Underwood v.

Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (holding "available administrative remedies are

exhausted when the time limits for the prison's response set forth in the prison grievance

procedures have expired"), abrogated in part by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910

(2007) (abrogating the holding in Underwood that a district court may dismiss a civil

complaint sua sponte for failure to exhaust).

C. Official Capacity Claims

Green indicates that he seeks to sue Defendant Roberts in her official as well as her

individual capacity. Defendant Roberts, however is immune from monetary damages in her

official capacity. Official capacity lawsuits are “in all respects other than name, . . . treated

as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Under all facets

of Alabama law, a county sheriff, his jailers, and medical staff act as state officers “when

supervising inmates and otherwise operating the county jails.” Turquitt v. Jefferson County,

Alabama, 137 F.3d 1285, 1289 (11 Cir. 1998); see Ala. Const. Art. V, § 112 (designates th

sheriff as member of State’s executive department); see also Parker v. Amerson, 519 So.2d

442 (Ala. 1987) (county sheriff is executive officer of the State). “[A] state official may not

be sued in his official capacity unless the state has waived its Eleventh Amendment

immunity, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct.

900, 908, 79 L.Ed.2d 67 (1984), or Congress has abrogated the state's immunity, see

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 10 of 24
The court notes Defendant Roberts' argument that Green's complaint against her must fail because 4

he fails to demonstrate her personal involvement in the actions about which he complains. This action went

forward against the named defendant based on the allegation that the policies and/or practices at the jail, as

more fully described herein, were the moving force behind the constitutional deprivations about which Green

complains. As the warden of the county jail, Defendant Roberts is charged with the governance, discipline,

and policy of the jail and enforcing its orders, rules, and regulations. See Cottone v. Jenne, 326 F.3d 1352,

1360 (11th Cir.2003); Mandel v. Doe, 888 F.2d 783, 791 (11th Cir.1989).

11

Seminole Tribe v. Florida, [517 U.S. 44, 59], 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996).

Alabama has not waived its Eleventh Amendment immunity, see Carr v. City of Florence,

916 F.2d 1521, 1525 (11 Cir. 1990) (citations omitted), and Congress has not abrogated th

Alabama's immunity. Therefore, Alabama state officials are immune from claims brought

against them in their official capacities.” Lancaster v. Monroe County, 116 F.3d 1419, 1429

(11 Cir. 1997). th

In light of the foregoing, it is clear that Defendant Roberts is a state official entitled

to Eleventh Amendment immunity when sued in her official capacity. Defendant Roberts

is, therefore, entitled to absolute immunity from Green's claims for monetary damages

asserted against her in her official capacity.

D. Individual Capacity Claims4

1. The Privacy Claim

a. HIPPA

Green complains about a violation of his right to privacy due to the conditions of

confinement he experienced while at the Elmore County Jail pursuant to certain jail policies

and practices. To the extent Green alleges a right to privacy under the Health Insurance

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 11 of 24
In Webb, 499 F.3d at 1083-84, the court found that:

5

HIPAA aims 'to improve the . . . efficiency and effectiveness of the

health information system through the establishment of standards and 

requirements for the electronic transmission of certain health information.' 

HIPAA § 261, Pub.L. 104-191, 110 Stat. 1936 (codified at 42 U.S.C. § 1320d

notes). As the Fourth Circuit has noted, Congress intended through this

legislation to 'recogniz[e] the importance of protecting the privacy of health 

information in the midst of the rapid evolution of health information systems.' 

S.C. Med. Ass'n v. Thompson, 327 F.3d 346, 348 (4th Cir. 2003). . . . The statute

itself, however, does not specify either how to protect privacy or to transmit health

records efficiently and effectively. Instead, it authorizes the Secretary of Health

and Human Services to 'adopt standards' that will 'enable health information 

to be exchanged electronically, . . . consistent with the goals of improving the 

operation of the health care system and reducing administrative costs,' and

that will 'ensure the integrity and confidentiality of [individuals' health]

information [and protect against] ... unauthorized uses or disclosures of the

information.' See 42 U.S.C. § 1320d-2. 

12

Portability and Accountability Act, Public Law No. 104-191, 110 Stat. 1936 (1996)

["HIPAA"], this court has determined that the Act does not create a private cause of action.

Means v. Independent Life and Acc. Ins. Co., 963 F. Supp. 1131, 1135 (M.D. Ala. 1997); see

also Webb v. Smart Document Solutions, L.L.C., 499 F.3d 1078 (9th Cir. 2007). Because 5

Green has no private cause of action under HIPPA and he provides no authority to support

his claim that a private cause of action exists under HIPPA, the court is without federal

subject matter jurisdiction over this claim. 

b. Fourteenth Amendment

Green maintains that the county jail had a policy and/or practice in place designed

to identify HIV positive inmates from the general population by the manner in which these

inmates were given their meals, by their single-cell assignment, and by the color of uniform

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 12 of 24
13

they were required to wear. To the extent Green alleges a violation of his right to privacy

under the Fourteenth Amendment due to the jail's alleged policy and/or practice during his

stay at the facility which he contends resulted in the non-consenual disclosure of his HIV

status, the court finds that he is entitled to no relief. 

According to the complaint, Green disclosed to jail personnel upon his arrival at the

Elmore County Jail that he had AIDS. During the intake process Green received a red

jumpsuit and disposable slippers. Green maintains that the other inmates at the jail, either

pre-trial detainees or convicted prisoners, were wearing orange jumpsuits. Green also

received an insulated cooler that had the words "black tie" written all over it as well as

pictures of bow ties. He claims that he was not allowed to drink from the communal water

fountain, and was placed in a single cell even though other inmates had cellmates. When

other inmates approached Green's cell asking him why he was wearing a red jumpsuit and

had a "black tie" thermos, Green states that he informed them that he had a cold.

Nonetheless, Green goes on to assert that "the inmates knew that the jail had a policy of

singling out those with AIDS, placing those inmates with AIDS in red medical scrubs and

forcing them to drink from the "Black Tie" thermos/cooler." At the dinner meal, Green

maintains he was "ostracized" because he was fed on a tray which had black ties drawn all

over it, given disposable utensils while all other inmates had "regular" utensils, and provided

with a clear garbage bag with which to dispose of his food tray and utensils. Green had one

other meal at the jail served in the same manner. He asserts that to ensure his safety he

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 13 of 24
14

stayed in his cell during the 24 hours he was at the county jail. (Doc. No.1 at 8-11.) 

In her dispositive motion, Defendant Roberts maintains that the stated purpose of the

prison's policy on the color of uniforms issued to inmates at the Elmore County Jail serves

to identify their status as a state, federal, or county inmate for purposes of protection and

identification. Because Green was a federal inmate, he received a red uniform. Jail policy

further requires that inmates known to have HIV/AIDS be provided treatment for the disease

in a confidential and professional manner and also requires that precautions be taken in

seeking to protect other inmates and jail staff from exposure to the virus. With regard to the

cooler and meal trays about which Green complains, Defendant Robert states that the items

in question feature the phrase "black tie" in very discreet, subtle lettering. Defendant Roberts

further states that Green also received disposable utensils with which to eat his meals. While

disposable eating and drinking containers are likely unnecessary from a medical and health

perspective, Defendant Roberts maintains that this practice is followed at the jail due to the

"gross misconceptions" Elmore County Jail inmates have about infectious diseases. Such

misconceptions, Defendant Roberts states, lead the inmates to believe they can "catch"

communicable diseases, including sexually transmitted diseases and Hepatitis A, B and C as

well as HIV/AIDS, from subsequent use of untensils, meal trays, and drink containers

previously used by an infected inmate even where the utensil, tray, thermos, etc., has been

washed. Thus, Defendant Roberts asserts that "inmates with conditions such as HIV and

AIDS receive a designated water cooler and meal tray and use disposable eating utensils so

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 14 of 24
15

that other inmates do not believe that their eating utensils or the meal trays on which their

food is served were used previously by an inmate with HIV or AIDS. This practice is

intended to preserve institutional order and security." (Doc. No. 16, Exh. A - Roberts

Affidavit; Doc. No. 28, Attachments.)

Because prisoners retain Constitutional rights, “[w]hen a prison regulation or practice

offends a fundamental constitutional guarantee, federal courts will discharge their duty to

protect constitutional rights.” Turner v. Safley, 482 U.S. 78, 84 (1987) (quoting Procunier

v. Martinez, 416 U.S. 396, 405-06 (1974)). However, “maintaining institutional security and

preserving internal discipline are essential goals that may require limitation or retraction of

the retained constitutional rights.” Bell v. Wolfish, 441 U.S. 520, 546 (1979). As the Court

noted in Turner:

Running a prison is an inordinately difficult undertaking that requires

expertise, planning, and the commitment of resources, all of which are

peculiarly within the province of the legislative and executive branches of

government. Prison administration is, moreover, a task that has been

committed to the responsibility of those branches, and separation of powers

concerns counsel a policy of judicial restraint. Where a state penal system is

involved, federal courts have, as we indicated in Martinez, additional reason

to accord deference to the appropriate prison authorities.

Id. 482 U.S. at 84-85. 

The proper inquiry in those cases where a prison regulation impinges on an inmate's

constitutional rights is whether the regulation is reasonably related to legitimate penological

interests. Turner, 482 U.S. at 89 (establishing this standard and applying it to a prison policy

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 15 of 24
16

prohibiting correspondence among inmates of different institutions); Thornburgh v. Abbott,

490 U.S. 401, 404, (1989) (applying this analysis to a prison policy allowing the warden to

reject publications sent to inmates in certain circumstances). This “reasonableness” test is

“less restrictive than that ordinarily applied to alleged infringements of fundamental

constitutional rights.” O'Lone v. Shabazz, 482 U.S. 342, 347-49 (1987) (holding that the

Turner v. Safley standard of review is applicable to claims that an inmate's free exercise

rights have been violated). 

In determining whether a prison regulation improperly infringes on a prisoner’s

constitutional rights, the factors to be considered include: (1) whether there is a valid,

rational relationship between the regulation and the legitimate government interest it

serves; (2) whether there are alternative means of exercising the right available to the

inmates; (3) the impact accommodation of the asserted right will have on jail staff and

other inmates; and (4) the absence of ready alternatives as evidence of reasonableness of

the regulation. Turner, 482 U.S. at 89-91; Beard, 548 U.S. at ___, 126 S.Ct. at 2578.

However, a “court is not required to weigh evenly, or even consider explicitly, each of the

four Turner factors.” Spies v. Voinovich, 173 F.3d 398, 403 (6 Cir. 1999); Freeman v.

th

Texas Department of Criminal Justice, 369 F.3d 854, 860 (5 Cir. 2004) (interpreting the th

decision in Turner as stating that a court need not weigh evenly or even consider each of

the factors as rationality is the controlling standard).

This circuit has held that the involuntary placement of HIV prisoners in separate HIV

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 16 of 24
17

dorms does not violate the prisoners' constitutional rights. Harris v. Thigpen, 941 F.2d

1495, 1521 (11th Cir. 1991); see generally Olim v. Wakinekona, 461 U.S. 238 (1983) ("an

inmate normally has no liberty interest in where he is housed."). The Eleventh Circuit upheld

the segregation policy as a reasonable infringement of the right of privacy "in light of the

inmate interests at stake (both [HIV] and general population), and the difficult decisions that

the [prison officials] must make in determining how best to treat and control . . . the spread

of a communicable, incurable, always fatal disease." Id. This was despite the potential that

inmates might possibly suffer psychological pressure, embarrassment, harassment, rejection,

or discrimination due to the involuntary disclosure of the medical information to non-medical

persons over which they had no control. See id.

Here, as noted, Green disclosed to prison officials that he had HIV/AIDS upon his

arrival at the jail. He does not claim that Defendant Roberts disclosed to anyone at the jail

his condition, but rather, that certain policies and/or practices in effect at the jail essentially

resulted in the non-consensual disclosure of his HIV/AIDS status via color of uniform,

single cell assignments, and the manner in which inmates with infectious diseases receive

their meals which violated his privacy rights. In support of his contention that jail policy

dictated that he be issued red scrubs in order to identify him as an inmate with AIDS, Green

submits the affidavit of Harvey Shenberg, a federal inmate who, on April 4, 2006, was

transported from the Federal Prison Camp in Montgomery, Alabama, to the Elmore County

Jail for an unspecified period of time. Inmate Shenberg affirms that upon his arrival at the

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 17 of 24
18

jail he was dressed out in an orange jumpsuit. (Doc. No. 20, Shenberg Affidavit.) The fact,

however, that another federal inmate, who was temporarily housed at the Elmore County Jail

two months after Green was, received an orange uniform is, in and of itself, not sufficient

evidence to demonstrate that Green received a red jumpsuit during his incarceration at the

county jail in order to specifically identify him as an inmate with a communicable disease.

Nonetheless, assuming, arguendo, that Green had at least a limited privacy right in the nonconsensual disclosure of his medical information under the circumstances of this case, any

encroachment on his privacy rights by the manner in which he was housed, dressed, and/or

given meals was reasonable and subject to limitation inasmuch as such privacy rights were

outweighed by the legitimate penological interests of the Elmore County Jail in determining

how to best treat and control the spread of a transmittable disease. See Harris, 941 F.2d at

1521; see also Doe v. Delie, 257 F.3d 309, 317 (3rd Cir. 2001) (acknowledging a

constitutional right to privacy in one's medical information but stating such right may be

curtailed by policy or regulation shown to be "reasonable related to legitimate penological

interests") (citing Turner, 482 U.S. at 89). Because the matters that can be said to be

attributed to Defendant Roberts were those designed to achieve legitimate correctional goals,

the court concludes that she is due to be granted summary judgment on Green's privacy

claim. 

2. Cruel and Unusual Punishment

Green complains that implementation of a policy and practice at the Elmore County

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 18 of 24
19

Jail which prescribed the manner in which he was dressed, housed, and received meals

resulted in the non-consensual disclosure of his HIV status which amounted to cruel and

unusual punishment violative of the Eighth Amendment. This claim fails to implicate a

violation of Green's constitutional rights. 

The Constitution proscribes those conditions of confinement which involve the

wanton and unnecessary infliction of pain. Hope v. Pelzer, 536 U.S. 730, 737 (2002);

Rhodes v. Chapman, 452 U.S. 337 (1981). Only actions which deny inmates “the minimal

civilized measure of life's necessities” are grave enough to establish constitutional violations.

 Id. at 347; see also Wilson v. Seiter, 501 U.S. 294 (1991) (overcrowding, without more, does

not rise to the level of a constitutional violation). The Constitution “does not mandate

comfortable prisons, but neither does it permit inhumane ones.” Farmer v. Brennan, 511

U.S. 825, 832 (1994) (quoting Rhodes, 452 U.S. at 349). Thus, it is well-settled that the

treatment a prisoner receives and the conditions under which he is confined are subject to

constitutional scrutiny. Helling v. McKinney, 509 U.S. 25 (1993). The Eighth Amendment,

however, “does not authorize judicial reconsideration of ‘every governmental action affecting

the interests or well-being of a prisoner.’ ” Campbell v. Sikes, 169 F.3d 1353, 1362 (11th Cir.

1999) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1988)). “If prison conditions are merely

‘restrictive and even harsh, they are part of the penalty that criminal offenders pay for their

offenses against society.’ ” Chandler v. Crosby, 379 F.3d 1278, 1288-89 (11th Cir.2004)

(quoting Rhodes, 452 U.S. at 347).

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 19 of 24
20

The documentary evidence before the court reflects that jail officials at the Elmore

County Jail instituted the clothing and cell assignment policies and the practice and

procedures for utilizing disposable food and drink containers, in large part, because of

safety, protection, and security concerns. The fact that Green felt ostracized, degraded,

humiliated, and/or insecure as a result of those policies and practices does not modify them

from a safety, protection, and security measure. As previously noted, “the legitimate

government interest in the order and security of penal institutions justifies the imposition

of certain restraints.” Procunier, 416 U.S. at 412-413. Consequently, enforcement of

valid security and safety regulations and procedures does not in and of itself amount to an

Eighth Amendment violation for the purposes of an inmate’s right to be free from cruel and

unusual punishments and it does not do so in this case. Moreover, there is no evidence

before the court that the challenged policies and practices resulted in the unnecessary and

wanton infliction of pain prohibited by the Eighth Amendment. See Wilson v. Seiter, 501

U.S. 294, 297 (1991); Farmer v. Brennan, 511 U.S. 825, 834 (1994); Whitley v. Albers,

475 U.S. 312, 319 (1976). Defendant Roberts is, therefore, entitled to summary judgment

on Green's Eight Amendment claim.

E. Americans With Disabilities Act Claim

Green alleges in conclusory fashion that he was subjected to discrimination while

incarcerated at the Elmore County Jail in violation of the Americans with Disabilities Act

["ADA"] by "his scarlet colored 'garb' and his vividly marked food tray and his exclusive

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 20 of 24
21

water cooler," which he claims effectively disclosed his HIV/AIDS status. (Doc. No. 20 at

5; see also Doc. No. 1 at 11.) The ADA prohibits the exclusion of otherwise qualified

participants from any program or benefits on account of their disability. 42 U.S.C. § 12132.

Title II, 42 U.S.C. § 12132 provides, in relevant part, that “no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in or be denied

the benefits of the services or activities of a public entity or be subjected to discrimination

by such entity.” Prisons and jails are public entities covered by the ADA. See, e.g.,

Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206 (1998). To state a claim under

Title II of the ADA, Green must allege that: (1) he is a ‘qualified person with a disability’;

(2) he was either excluded from participation in or denied the benefits of a public entity's

services, programs or activities, or was otherwise discriminated against by the public entity;

and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.

See Miller v. King, 384 F.3d 1248, 1265 (11th Cir. 2004). 

Defendant Roberts argues that it is debatable whether Green may be considered a

"qualified individual with a disability" for purposes of the ADA and further maintains that

Green has not alleged nor demonstrated how he was excluded or denied services, programs,

or activities because of any disability. (Doc. Nos. 16, 42.) Green responds in a conclusory

manner that he is a qualified person with a disability, he has been discriminated against by

a public entity, and the discrimination was a result of his disability. (Doc. No. 20 at 5.) Citing

to Bragdon v. Abbott, 524 U.S. 624, 2d 540 (1998), Green states that HIV is a “disability”

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 21 of 24
22

under the ADA and that he is in the so-called symptomatic phase - "better known as full

blown AIDS." (Id.)

Contrary to Green's position, in Bragdon the Supreme Court declined to address the

issue of whether an HIV infection is a per se disability under the ADA. Id, 524 U.S. at 641-

42 (1998). Indeed, “[i]t is insufficient for individuals attempting to prove disability status .

. . to merely submit evidence of a medical diagnosis of an impairment.” Toyota Motor Mfg.,

Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002). Since § 12102(2) defines disability

“with respect to an individual,” the existence of a disability is to be determined in “a case-bycase manner.” Id. at 198. Consequently, Green cannot establish the existence of a

“disability” under the ADA merely by stating that he suffered from AIDS during the relevant

period of time. Nonetheless, in this case, even assuming that Green's affliction with

HIV/AIDS is a disability within the meaning of the ADA and that he may be considered a

"qualified individual" as such is defined under the ADA, see Waddell v. Valley Forge Dental

Associates, Inc., 276 F.3d 1275, 1279 n.4 (11th Cir. 2001), he would not have a cause of

action because he has not demonstrated exclusion from a service, program, or activity, nor

has he shown any discrimination, which is required by the ADA. Green acknowledges that

he was provided food, clothing and shelter at the county jail but claims it was not provided

in a discreet manner thereby allowing his medical condition to become known to others. The

court finds that this allegation fails to state a claim under the ADA. Therefore, Defendant

Roberts is due to be granted summary judgment on Green's ADA claim. 

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 22 of 24
23

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. Defendant Roberts' motion for summary judgment, as supplemented (Doc. No. 16),

be GRANTED;

2. Judgment be ENTERED in favor of Defendant Roberts and against Plaintiff;

3. The costs of this proceeding be TAXED against Plaintiff for which execution may

issue.

It is further 

ORDERED that on or before October 19th, 2008, the parties may file objections to

the Recommendation. Any objections filed must specifically identify the findings in the

Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or

general objections will not be considered by the District Court. The parties are advised that

this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and advisements in the

Magistrate Judge's Recommendation shall bar the party from a de novo determination by the

District Court of issues covered in the Recommendation and shall bar the party from

attacking on appeal factual findings in the Recommendation accepted or adopted by the

District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d

33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 23 of 24
24

banc), adopting as binding precedent all of the decisions of the former Fifth Circuit 

handed down prior to the close of business on September 30, 1981.

Done, this 6th day of October 2008.

/s/ Wallace Capel, Jr.

WALLACE CAPEL, JR.

UNITED STATES MAGISTRATE JUDGE

Case 2:06-cv-00667-WKW-WC Document 70 Filed 10/06/08 Page 24 of 24