recognizing that although the Fourth Amendment preserves a prisoner’s “privacy expectation in his body,” the government’s interest in protecting inmate health and safety justified the minimal bodily intrusion occasioned by the blood test
How later courts described this case
- recognizing that although the Fourth Amendment preserves a prisoner’s “privacy expectation in his body,” the government’s interest in protecting inmate health and safety justified the minimal bodily intrusion occasioned by the blood test
- holding that a prison’s substantial interest ascertaining the extent of contagion constitutes a legitimate penological purpose that outweighed reduced privacy interest of prisoner, and justified coercive blood testing for AIDS
- finding that the Court “will not supply additional facts, nor will [it] construct a legal theory for [a pro se] plaintiff that assumes facts that have not been pleaded” (citation omitted)
- explaining that even for a pro se plaintiff, the court “will not supply additional facts” nor “construct a legal theory for plaintiff that assumes facts that have not been pleaded”
Written by the judges who cited it.
The opinion
McKAY, Circuit Judge,
dissenting:
This case was dismissed for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), Fed.R. Civ.P. That fact is the analytical key to this case. It alone dictates my dissent.
Plaintiff has alleged that there is no treatment or segregation for persons testing positive for AIDS in the prison where *1199 he is held. While under prevailing cases the prison would have to make only a small showing to justify AIDS testing, they must show some penological interest — not just curiosity or statistics gathering — to justify overcoming the plaintiffs Fourth Amendment interest in the integrity of his body. Levoy v. Mills, 788 F.2d 1437 (10th Cir.1986). No matter how serious a disease, unwilling prisoners may not be made mere guinea pigs for its study. The state must show some penal interest.
The effect of the majority opinion is far too sweeping. It in effect suggests that because of the known seriousness of AIDS, the prison need not even show its claimed interest. The prison has not even replied. I believe the unavoidable mandate of Levoy is that in the face of an allegation that the prison does not treat or segregate AIDS victims, responsive evidence or other showing of some penal interest is required. If treatment or segregation is in fact part of the prison program this testing clearly can survive a section 1983 claim. The majority cites language in the recent Supreme Court case, Turner v. Safley, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987), which indicates that as long as there is even a remote connection between the policy at issue and the asserted goal, the policy is not arbitrary or irrational and is therefore sustainable. However, the Supreme Court emphasized that whether a regulation was reasonably related to legitimate penological interests was determined by analyzing various relevant factors. * Here we only decide whether this pro se petitioner has stated a claim upon which relief can be granted under 12(b)(6).
Treating this pro se pleading with the perspective mandated by the Supreme Court, Hughes v. Rowe, 449 U.S. 5, 9 , 101 S.Ct. 173, 175 , 66 L.Ed.2d 163 (1980), and Haines v. Kerner, 404 U.S. 519, 520 , 92 S.Ct. 594, 595 , 30 L.Ed.2d 652 (1972), I believe plaintiff has made a sufficient allegation of a protected religious interest in not being tested to survive a Rule 12(b) dismissal. Plaintiff alleged that he declined on “religious grounds”. He further cited to an Oklahoma statute which specifies some grounds for exemption from traditional medical treatment. Okla.Stat. tit. 63, § 1-516.1 (1984). This is sufficient to state a claim even if the statute itself ultimately may not apply to him. His citation to the statute makes sufficiently clear his grounds, especially in light of the great expansion of the coverage of the First Amendment in Frazee v. Illinois Dep’t of Employment Sec., — U.S. -, 109 S.Ct. 1514 , 103 L.Ed.2d 914 (1989). The Supreme Court in Frazee made clear that “we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.” — U.S. at -, 109 S.Ct. at 1516-17 . While, under Fra-zee, a plaintiff must show he or she holds a “sincere religious belief,” that determination is a question of fact. It is inherent in a free exercise claim that one is contending that one has a sincere religious belief and that the challenged conduct violates it. It is not necessary to attach a copy of one’s sacred texts to one’s pleading. I believe this pro se complaint states a cause of action for violation of the First Amendment which, of course, could be rebutted by an appropriate state interest.
In determining reasonableness, relevant factors include (a) whether there is a “valid, rational connection” between the regulation and a legitimate and neutral governmental interest put forward to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational; (b) whether there are alternative means of exercising the asserted constitutional right that remain open to inmates, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials’ expertise; (c) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, on inmates’ liberty, and on the allocation of limited prison resources, which impact, if substantial, will require particular deference to corrections officials; and (d) whether the regulation represents an "exaggerated response” to prison concerns, the existence of a ready alternative that fully accommodates the prisoner’s rights at de min-imis costs to valid penological interests being evidence of unreasonableness. 482 U.S. at 84-91 , 107 S.Ct. at 2259-62 .