Petition for Writ of Certiorari — Christopher N. Payne, Petitioner v. Jahal Taslimi, et al.

No.

______

IN THE

CHRISTOPHER N. PAYNE,

Petitioner,

v.

JAHAL TASLIMI; MS. SMITH, LPN,

Respondents.

_______________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

Gregory R. Nevins

LAMBDA LEGAL

Southern Regional Office

1 West Court Square

Suite 105

Decatur, GA 30030

Matthew A. Fitzgerald

Counsel of Record

Karen M. Hinkley

APPELLATE JUSTICE INITIATIVE

AT MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219

(804) 775-4716

mfitzgerald@mcguirewoods.com

i

QUESTION PRESENTED

Do inmates have a constitutional right to

privacy in their HIV status, as the Second, Third, and

Sixth Circuits have held (subject to legitimate

penological interests), or is there no such right, as the

Fourth Circuit ruled in this case?

ii

RELATED PROCEEDINGS

United States District Court (E.D. Va.):

Payne v. Taslimi, et al., 1:18-cv-00587

(E.D. Va.) (June 15, 2018)

United States Court of Appeals (4th Cir.):

Christopher N. Payne v. Jahal Taslimi; Ms.

Smith, LPN, 18-7030

998 F.3d 648 (4th Cir.) (May 27, 2021)

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

RELATED PROCEEDINGS........................................ii

APPENDIX .................................................................... v

TABLE OF AUTHORITIES ....................................... vi

PETITION FOR A WRIT OF CERTIORARI............. 1

OPINIONS BELOW ..................................................... 1

JURISDICTION............................................................ 1

CONSTITUTIONAL PROVISIONS ........................... 1

STATEMENT OF THE CASE..................................... 2

I.

Factual history................................................... 2

II.

Proceedings below.............................................. 2

REASONS FOR GRANTING THE PETITION......... 4

I.

II.

Circuits are split over whether inmates

have a constitutional right to privacy in

their HIV status................................................. 6

A.

Three circuits have recognized a

constitutional privacy right................... 6

B.

The Fourth Circuit alone holds

that an inmate never has a

constitutional right to privacy in

his HIV status....................................... 10

C.

Other circuits have taken various

views, including evading the

constitutional question on

qualified immunity grounds................ 12

The Fourth Circuit erred. ............................... 15

iv

III.

A.

The decision below conflicts with

Supreme Court cases on privacy

and wrongly views it as a Fourth

Amendment matter.............................. 15

B.

The decision below ignores valid

privacy rights in favor of

prejudice and speculation.................... 17

This issue is important and recurring,

and this case provides a good vehicle for

narrow guidance on the right to privacy....... 23

CONCLUSION ............................................................ 26

v

APPENDIX

APPENDIX A: Opinion in the United States

Court of Appeals for the Fourth

Circuit (May 27, 2021) ............................. App. 1

APPENDIX B: Order Denying Motion for

Reconsideration in the United

States District Court for the

Eastern District of Virginia

(July 16, 2018)......................................... App. 19

APPENDIX C: Order in the United States

District Court for the Eastern

District of Virginia

(June 14, 2018)........................................ App. 22

APPENDIX D: Complaint in the United

States District Court for the Eastern

District of Virginia

(May 17, 2018)......................................... App. 26

APPENDIX E: Amended Complaint in the

United States District Court for

the Eastern District of Virginia

(June 21, 2018)........................................ App. 30

APPENDIX F: Notice of Appeal to the United

States Court of Appeals for the

Fourth Circuit

(August 14, 2018).................................... App. 34

vi

TABLE OF AUTHORITIES

Cases

A.L.A. v. West Valley City,

26 F.3d 989 (10th Cir. 1994) ...............................14

Alfred v. Corr. Corp. of Am.,

437 F. App’x 281 (5th Cir. 2011).................. 22, 23

Anderson v. Romero,

72 F.3d 518 (7th Cir. 1995) ........................ passim

Doe v. City of New York,

15 F.3d 264 (2d Cir. 1994) .............................. 6, 20

Doe v. Delie,

257 F.3d 309 (3d Cir. 2001)........................ passim

Doe v. Wigginton,

21 F.3d 733 (6th Cir. 1994) .................................23

Elliott v. Lynn,

38 F.3d 188 (5th Cir. 1994) .................................11

Harris v. Thigpen,

941 F.2d 1495 (11th Cir. 1991) .................. passim

Henry v. Hulett,

969 F.3d 769 (7th Cir. 2020) ...............................11

Herring v. Keenan,

218 F.3d 1171 (10th Cir. 2000) ...........................14

Houchins v. KQED, Inc.,

438 U.S. 1 (1978) ..................................................12

vii

Hudson v. Palmer,

468 U.S. 517 (1984) ....................................... 11, 16

Moore v. Mabus,

976 F.2d 268 (5th Cir. 1992) ...............................23

Moore v. Prevo,

379 F. App’x 425 (6th Cir. 2010)........ 9, 13, 22, 23

NASA v. Nelson,

562 U.S. 134 (2011) ................................... 5, 15, 24

Nixon v. Adm’r of Gen. Servs.,

433 U.S. 425 (1977) ......................................... 5, 15

Nunes v. Massachusetts Dept. of Correction,

766 F.3d 136 (2014)........................... 13, 22, 23, 25

Pell v. Procunier,

417 U.S. 817 (1974) ................................................7

Powell v. Schriver,

175 F.3d 107 (2d Cir. 1999)........................ passim

Tokar v. Armontrout,

97 F.3d 1078 (8th Cir. 1996) ...............................23

Turner v. Safley,

482 U.S. 78 (1987) ....................................... 7, 8, 18

Walls v. City of Petersburg,

895 F.2d 188 (4th Cir. 1990) ...............................10

Whalen v. Roe,

429 U.S. 589 (1977) ................................... 5, 15, 16

viii

Federal Statutes

28 U.S.C. § 1254(1) ......................................................1

28 U.S.C. § 1915A ........................................................2

42 U.S.C. § 1983 ...........................................................2

Other Authorities

CENTERS FOR DISEASE CONTROL AND

PREVENTION, EVIDENCE OF TREATMENT

AND VIRAL SUPPRESSION IN PREVENTING

THE SEXUAL TRANSMISSION OF HIV 1

(December 2020)...................................................19

CENTERS FOR DISEASE CONTROL AND

PREVENTION, HIV BASICS: BASIC

STATISTICS (last visited October 20,

2021) ......................................................................24

GLAAD, 2021 STATE OF HIV STIGMA 4

(2021) .....................................................................20

UNITED NATIONS OFFICE ON DRUGS AND

CRIME, HIV/AIDS PREVENTION, CARE,

TREATMENT, AND SUPPORT IN PRISON

SETTINGS 12 (October 2006) ................................20

U.S. DEPARTMENT OF JUSTICE, HIV IN

PRISONS, 2015 – STATISTICAL TABLES 1

(August 2017) .......................................................24

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Christopher Payne respectfully

petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Fourth Circuit.

OPINIONS BELOW

The Fourth Circuit’s opinion is at 998 F.3d 648

(4th Cir. 2021). App. 1. The United States District

Court for the Eastern District of Virginia issued two

relevant orders, both of which are unpublished. App.

19, 22.

JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§ 1254(1). The Fourth Circuit entered judgment on

May 27, 2021. App. 1. Under this Court’s COVID-19

orders, Mr. Payne timely filed this petition within 150

days, on October 25, 2021.

CONSTITUTIONAL PROVISIONS

Section 1 of the Fourteenth Amendment to the

United States Constitution reads, as relevant:

No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

2

STATEMENT OF THE CASE

I.

Factual history.

This case is about a prison doctor’s senseless

disclosure of Payne’s HIV status to other inmates and

civilians. The morning of January 16, 2018, Payne

was at his bed in an open dorm at Deep Meadow

Correctional Facility. App. 2, 28. With other inmates

and civilians less than five feet away, Dr. Jalal

Taslimi approached Payne and told him that he had

not taken his HIV medication that day. Id. Dr.

Taslimi spoke loudly enough that others stopped their

conversations and looked over. Id. Dr. Taslimi later

apologized to Payne and admitted he should not have

said what he said. App. 2.

II.

Proceedings below.

After completing the prison grievance

procedure, Payne filed a pro se action in the District

Court for the Eastern District of Virginia under 42

U.S.C. § 1983. See App. 26–29. Among other claims,

Payne alleged that Dr. Taslimi’s disclosure violated

the United States Constitution. Id.

The district court screened Payne’s complaint

under the Prison Litigation Reform Act, 28 U.S.C.

§ 1915A. The court construed Payne’s constitutional

claims “as claims for violation of his privacy” and

concluded that “neither the United States Supreme

Court nor the United States Court of Appeals for the

Fourth Circuit has recognized a constitutional right to

privacy with regards to medical records.” App. 24. It

thus concluded that Payne failed to state a cognizable

§ 1983 claim and dismissed Payne’s complaint. Id.

3

Five days later, the district court received an

amended complaint from Payne. App. 30–33. The

amended complaint clarified that Payne alleged that

the Fourteenth Amendment protects him from

unauthorized disclosure of his HIV status. App. 32.

The district court construed Payne’s amended

complaint as a motion for reconsideration and denied

the motion. App. 19–21. The court reiterated that

Payne’s “Fourteenth Amendment claim was

dismissed because neither the United States Supreme

Court nor the United States Court of Appeals for the

Fourth Circuit has recognized a constitutional right to

privacy with regards to medical records.” App. 21.

Payne timely appealed. App. 34–35.

The Fourth Circuit appointed counsel from

McGuireWoods LLP to represent Payne on appeal.

After briefing and oral argument, the Fourth

Circuit affirmed the dismissal of Payne’s complaint.

App. 18.

In analyzing Payne’s Fourteenth

Amendment privacy claim, the court determined that

circuit precedent required it to first ask whether

Payne had any reasonable expectation of privacy in

his medical records in general or HIV status in

particular.

The Fourth Circuit concluded that “Payne

lacked a reasonable expectation of privacy in his HIV

status.” App. 13. The court reasoned that no one

questioned that the prison staff should be aware of his

diagnosis and treatment. “Payne does not claim a

reasonable expectation of privacy in the initial

disclosure of his HIV diagnosis and medical records to

prison officials. . . . Payne instead challenges the

secondary disclosure from prison officials to prison

4

guards and inmates in the medical ward. App. 13–14.

It then held that “where an inmate lacks a reasonable

expectation of privacy, he lacks it for all purposes.”

App. 14.

The court added that the “type of

information” at issue—HIV status—“reduces any

possible expectation of privacy that Payne might have

had” because HIV is a “communicable disease” that

could “spread rapidly” including even to “prison

workers.” App. 15. The court also cited the “location”

of the disclosure, speculating that “it might be difficult

to ensure others would not hear” conversations in a

prison medical unit. Id.

Because the Fourth Circuit found categorically

that inmates lack a constitutional privacy right in

their HIV status, the court went no further. It never

considered whether any penological interest could

justify the doctor’s disclosure of Payne’s HIV status.

App. 11–12.

REASONS FOR GRANTING THE PETITION

Inmates living with HIV face social isolation,

stigma, intolerance, and violence. Their interest in

maintaining the privacy of their medical records from

senseless disclosure to fellow inmates is obvious.

For thirty years, the federal courts of appeals

have grappled with whether inmates have a

constitutional privacy right that would prevent prison

officials from sharing their HIV-related medical

information with other inmates or family members.

Since 1999, several circuits have acknowledged a

privacy right over HIV status. The Second, Third, and

Sixth Circuits have recognized that prison officials

may not disclose an inmate’s seropositivity without a

legitimate penological reason to do so.

5

The Fourth Circuit disagreed. Acknowledging

the other circuits’ different view, the court below

found itself bound to view any privacy interest

through a Fourth Amendment lens. The court then

found no cognizable privacy right. The Fourth

Circuit’s reasoning combined an incorrect view of the

root of this privacy interest with baseless speculation

about prison operations and outdated theories about

the risks HIV may pose to others. In sum, in the

Fourth Circuit now, officials may share the HIV

status of any inmate even if they have no legitimate

penological interest in doing so.

The Fourth Circuit’s decision to split from its

sister circuits is wrong. In fact, the Fourth Circuit is

wrong in a way that exacerbates the stigma of HIV.

The court relied on speculation and unwarranted fear

about transmission risk.

Lastly, the problem is important and recurring.

Nearly every circuit has been presented with this

exact problem—the medical privacy of an inmate’s

seropositivity. And the many thousands of inmates

living with HIV in this country, and tens of thousands

of new HIV diagnoses each year, suggest that the

problem is not fading.

This Court has long “assume[d]” that “the

Constitution protects a privacy right” over personal

medical information. NASA v. Nelson, 562 U.S. 134,

138 (2011) (citing Whalen v. Roe, 429 U.S. 589, 599–

600 (1977); Nixon v. Adm’r of Gen. Servs., 433 U.S.

425, 457 (1977)). The circuit split here, over a narrow

issue where privacy interests are at their zenith,

presents the proper case to finally address the issue.

6

I.

Circuits are split over whether inmates

have a constitutional right to privacy in

their HIV status.

A.

Three circuits have recognized a

constitutional privacy right.

The Second, Third, and Sixth Circuits have

each recognized that inmates have a Fourteenth

Amendment privacy right against the senseless

disclosure of their HIV status.

The Second Circuit has long recognized the

existence of this right. See Powell v. Schriver, 175

F.3d 107 (2d Cir. 1999). In Powell, the plaintiff

alleged that a corrections officer told other inmates

that the plaintiff was transgender and living with

HIV. Id. at 109. As a result, the plaintiff claimed,

“word about her sex-change operation and her HIVpositive status became known throughout the prison”

and she “became the target of harassment.” Id. The

plaintiff’s privacy claim went to trial. Id. The jury

found in her favor against one of the defendants and

awarded her compensatory and punitive damages. Id.

at 110. The district court set aside the verdict. Id.

The Second Circuit held that the plaintiff had a

constitutional right to privacy in her HIV status. Id.

at 112.

Circuit precedent had established that

“[i]ndividuals who are infected with the HIV virus

clearly possess a constitutional right to privacy

regarding their condition.” Id. at 110 (quoting Doe v.

City of New York, 15 F.3d 264, 267 (2d Cir. 1994)). The

court pointed out that “the privacy interest of persons

who are HIV positive[] is particularly compelling.” Id.

at 111. As the court recognized, “HIV status . . . is the

unusual condition that is likely to provoke both an

7

intense

desire to

preserve one’s

medical

confidentiality, as well as hostility and intolerance

from others.” Id.

And, the court reasoned, “[p]rison inmates do

not shed all fundamental protections of the

Constitution at the prison gates.” Id. at 112. “Rather,

inmates retain those constitutional rights that are not

inconsistent with their status as prisoners or with the

legitimate penological objectives of the corrections

system.” Id. (quoting Pell v. Procunier, 417 U.S. 817,

822 (1974)) (cleaned up). Prison officials thus may

only impinge on a prisoner’s right to keep her HIV

status confidential “to the extent that their actions are

‘reasonably related to legitimate penological

interests.’” Id. (quoting Turner v. Safley, 482 U.S. 78,

89 (1987)).

The court also held “that the gratuitous

disclosure of an inmate’s confidential medical

information as humor or gossip . . . is not reasonably

related to a legitimate penological interest, and it

therefore violates the inmate’s constitutional right to

privacy.” Id.

Two years later, the Third Circuit decided to

“join the Second Circuit in recognizing that the

constitutional right to privacy in one’s medical

information exists in prison.” Doe v. Delie, 257 F.3d

309, 317 (3d Cir. 2001).

In Delie, an inmate living with HIV alleged that

the door to the clinic room was left open, allowing

other inmates to see and hear the plaintiff during his

doctor appointments, and that nurses announced his

HIV medication loudly enough for other inmates to

hear and thus infer his condition. Id. at 311–12. The

8

plaintiff sued, claiming that these practices violated

his constitutional right to privacy. Id. at 311.

The Third Circuit recognized that “[i]t is

beyond question that information about one’s HIVpositive status is information of the most personal

kind and that an individual has an interest in

protecting against the dissemination of such

information.” Id. at 317. And “a prisoner’s right to

privacy in this medical information is not

fundamentally inconsistent with incarceration.” Id.

at 317. Thus, “the constitutional right to privacy in

one’s medical information exists in prison.” Id. at 317.

The court acknowledged that a prisoner’s right

to privacy in his HIV status “is subject to substantial

restrictions and limitations in order for correctional

officials to achieve legitimate correctional goals and

maintain institutional security.” Id. “Specifically,

[the right] may be curtailed by a policy or regulation

that is shown to be ‘reasonably related to legitimate

penological interests.’” Id. (quoting Turner, 482 U.S.

at 89). But the burden is on the government to

advance those interests. Id. 1

Finally, the Sixth Circuit has expressly agreed

with the Second and Third Circuits in an unpublished

In both Powell and Delie, the court ultimately ruled

against the prisoner on qualified immunity grounds. 175

F.3d at 113–14; 257 F.3d at 322. That is, the courts found

that, as of 1991 and 1995, the privacy right they identified

had not been “clearly established.” Obviously, in both

circuits the privacy right has been “clearly established”

ever since—for more than two decades now.

1

9

opinion. Moore v. Prevo, 379 F. App’x 425, 427–28 (6th

Cir. 2010).

In Moore, the plaintiff alleged that corrections

officers and a nurse violated his constitutional right

to privacy when they informed another inmate that

the plaintiff was living with HIV. Id. at 425–26. The

district court dismissed the complaint for failure to

state a claim under § 1915, just like the district court’s

dismissal under § 1915A here. Id. at 426.

The Sixth Circuit held that “we join our sister

circuits in finding that, as a matter of law, inmates

have a Fourteenth Amendment privacy interest in

guarding against disclosure of sensitive medical

information from other inmates subject to legitimate

penological interests.” Id. at 428. Responding to a

dissent, the panel majority observed that “[w]e are

aware of no other circuit to have categorically barred

a prisoner from bringing a claim against prison

officials over the unnecessary dissemination of his

sensitive medical information to other inmates.” Id.

at 427 n.4. The panel majority thus declined to extend

older Sixth Circuit precedent “in a way that would

create a circuit split.” Id.

Thus, the Moore Court reversed the district

court’s dismissal and remanded for further

proceedings on the inmate’s privacy claim. Id. at 429.

The facts of Powell, Delie, and Moore are

indistinguishable from those here. In all these cases,

inmates with HIV alleged that prison staff revealed

their diagnoses to other inmates out of meanness or

recklessness. In each case, these courts recognized

that HIV status warrants constitutional privacy

10

protection, subject only to legitimate penological

interests.

B.

The Fourth Circuit alone holds that

an inmate never has a constitutional

right to privacy in his HIV status.

In its opinion below, the Fourth Circuit held

that an inmate never has a constitutional right to

privacy in his HIV status. App. 12–16. The court

acknowledged its disagreement with the Second and

Third Circuits but found itself constrained to use a

different test for constitutional privacy—a test that

created a different outcome on near identical facts.

See id.

Exactly like the plaintiffs in Powell, Delie, and

Moore, Payne alleged a needless disclosure of his HIV

status to other inmates (and civilians). App. 32, 34.

The Fourth Circuit found that circuit

precedent required it to assess whether a

constitutional privacy right existed by asking “(1)

whether a reasonable expectation of privacy in the

information exists as to entitle it to privacy protection

and, if so, (2) whether a compelling governmental

interest in disclosure outweighs the individual’s

privacy interest.” App. 11 (quoting Walls v. City of

Petersburg, 895 F.2d 188, 192 (4th Cir. 1990)) (cleaned

up). The Fourth Circuit never reached the second part

of this test because it concluded that inmates like

Payne “lack[] a reasonable expectation of privacy in

[their] HIV medication and diagnosis.” App. 11–12.

To get there, the court first cited Hudson v.

Palmer, where this Court held that an inmate lacked

a Fourth Amendment reasonable expectation of

11

privacy from searches of his prison cell. App. 12.

(citing 468 U.S. 517, 525–26 (1984)). The Fourth

Circuit thus immediately diverged from the other

circuits, which had found that the “asserted right to

privacy in [an inmate’s] medical information is

completely different than the right extinguished in

Hudson.” Delie, 257 F.3d at 316 (citing Powell, 175

F.3d at 112 n.3; Anderson v. Romero, 72 F.3d 518, 522

(7th Cir. 1995)). Indeed, other circuits have viewed

Hudson as limited to the specific context of searching

prison cells for contraband—not any other sorts of

privacy issues. Henry v. Hulett, 969 F.3d 769, 777 (7th

Cir. 2020) (en banc) (“the Supreme Court has never

extended the scope of Hudson to exclude any aspect of

a prisoner’s life beyond her cell from the reaches of the

Fourth Amendment”); Elliott v. Lynn, 38 F.3d 188,

191 n.3 (5th Cir. 1994) (“Hudson held only that

prisoners have no justified expectation of privacy in

their prison cells”).

Going on, the Fourth Circuit reasoned that

because Payne had no privacy right shielding his HIV

status from prison officials, he also had no privacy

right shielding that status from anyone else, either.

“Where an inmate lacks a reasonable expectation of

privacy,” the court asserted, “he lacks it for all

purposes.” App. 14.

The Fourth Circuit then added that HIV is a

“communicable disease,” comparing it to COVID-19.

App. 15. It concluded by speculating that it might be

difficult to avoid others overhearing a doctor-patient

conversation in a prison medical unit. Id.

The Fourth Circuit admitted that other circuits

“have found a right to privacy in this context.” App.

16 n.10. Conceding that it was creating a circuit split,

12

the Fourth Circuit stated that the other circuits had

found this constitutional privacy right “to be

‘completely different’ than . . . Hudson’s reasonableexpectation-of-privacy test.” Id. (quoting Delie, 257

F.3d at 316–17). The Fourth Circuit concluded:

“Whatever the merits of that position, we are

constrained to apply our [circuit precedent] to the

contrary.” Id.

C.

Other circuits have taken various

views,

including

evading

the

constitutional question on qualified

immunity grounds.

Some courts, including the Eleventh and First

Circuits, have acknowledged that a constitutional

privacy right for inmates with HIV likely exists, but

decided (on facts far different from those here) that

legitimate penological interests justify certain

disclosures of HIV status.

In Harris v. Thigpen, the Eleventh Circuit held

that it was “clear that prison inmates, in spite of their

incarceration, ‘retain certain fundamental rights of

privacy,” although those rights are “rather illdefined.” 941 F.2d 1495, 1513 (11th Cir. 1991)

(quoting Houchins v. KQED, Inc., 438 U.S. 1, 5 n.2

(1978)).

The Thigpen Court “believe[d] and assume[d]

arguendo that seropositive prisoners enjoy some

significant constitutionally-protected privacy interest

in preventing the non-consensual disclosure of their

HIV-positive diagnoses to other inmates, as well as to

their families and other outside visitors to the

facilities in question.” Id. But the court ultimately

upheld (in 1991) Alabama’s use of segregation of

13

inmates living with HIV from others, in order to

combat “the spread of a communicable, incurable,

always fatal disease.” 941 F.2d at 1521 (finding the

segregation policy reasonably related to legitimate

penological interests).

In 2014, the First Circuit considered an inmate

challenge to a new Massachusetts prison policy of

dispensing HIV medications only in single doses at

dispensing windows. Nunes v. Massachusetts Dept. of

Correction, 766 F.3d 136, 138 (2014). The inmates

alleged that the policy change violated their right to

privacy by exposing them to disclosures of their HIV

status to other inmates. Id. at 143.

The First Circuit acknowledged that “three

other circuits have found that prisoners have at least

a limited constitutional right against gratuitous

disclosures of medical information.” Id. (citing Powell,

175 F.3d at 112; Delie, 257 F.3d at 317; and Moore,

379 F. App’x at 428). But it declined to decide whether

a constitutional right to privacy exists, instead relying

on the reasonableness of the DOC’s policy. Id. at 144;

141–42 (citing extensive evidence that the single-dose

dispensing at windows was cost-efficient and

“contributed to a material improvement in the health

of the HIV prisoners as a group”).

Last, some circuits have rested their holdings

entirely on qualified immunity. On one hand, the

Seventh Circuit granted qualified immunity while

expressing great skepticism of any underlying privacy

right.

On the other hand, the Tenth Circuit

recognized a privacy right for probationers, but

granted qualified immunity based on the clarity of the

law in the early 1990s.

14

In Anderson v. Romero, a prison guard warned

another inmate to stay away from the plaintiff

because he had AIDS, and the same guard told an

inmate barber not to cut the plaintiff’s hair because

he had AIDS. 72 F.3d at 520. The Seventh Circuit

stated that the “only question” in the case was

qualified immunity. Id. at 523. The court found

qualified immunity because “[n]either in 1992 nor

today [in 1995] was . . . the law clearly established

that a prison cannot without violating the

constitutional rights of its HIV-positive inmates

reveal their condition to other inmates and to guards

in order to enable those other inmates and those

guards to protect themselves from infection.” Id. at

524. The core of the court’s reasoning was that, in

1995, HIV was “communicable,” “invariably fatal[,]

and ha[d] already reached epidemic proportions.” Id.

Following a different path, the Tenth Circuit

embraced a constitutional privacy right in HIV status

for arrestees and probationers, but found the law

unclear enough as of the early 1990s to grant qualified

immunity. In Herring v. Keenan, the court noted that

“[t]here is no dispute that confidential medical

information is entitled to constitutional privacy

protection.” 218 F.3d 1171, 1175 (10th Cir. 2000). But

the court granted a probation officer qualified

immunity for informing a probationer’s sister and

employer that he had tested positive for HIV because

that right was not clearly established in 1993. See

also A.L.A. v. West Valley City, 26 F.3d 989 (10th Cir.

1994) (recognizing an arrestee’s privacy right in his

HIV status).

15

II.

The Fourth Circuit erred.

A.

The decision below conflicts with

Supreme Court cases on privacy and

wrongly views it as a Fourth

Amendment matter.

Several times, this Court has referred to a

constitutional privacy right in personal information.

NASA, 562 U.S. at 138 (outlining the Court’s history

with this issue). Three times, the Court has found

that right not infringed by a careful government

program designed to gather necessary information

and protect against its needless public disclosure.

Whalen, 429 U.S. at 600–02 (upholding a government

program to gather prescription medicine information

against a privacy challenge because it provided

meaningful safeguards against public disclosure of

the private medical information); Nixon, 433 U.S. at

457–59 (upholding the government sorting of millions

of pages of presidential documents against a privacy

challenge in part because the government would

protect against “undue dissemination of private

materials”); NASA, 562 U.S. at 155–56 (upholding a

questionnaire for NASA workers that was “subject to

substantial protections against disclosure to the

public”).

The Fourth Circuit’s decision here conflicts

with these three cases. In particular, the Fourth

Circuit reasoned that once an inmate’s HIV status is

known to prison officials and medical staff, there can

be no right to keep it from anyone else. App. 14

(describing the challenge as one to a “secondary

disclosure” to other inmates and holding that “[w]here

an inmate lacks a reasonable expectation of privacy,

16

he lacks it for all purposes.”). That ruling clashes with

Whalen, Nixon, and NASA—all of which considered

safeguards against public disclosure important to

accepting the government intrusions on privacy in

those cases. All of those three rulings from this Court

rejected the Fourth Circuit’s exact theory. Each

upheld the required disclosures to the government

because the information would still remain private

from everyone else.

The Fourth Circuit’s odd error in refusing to

distinguish between disclosing information to the

government and disclosing it to fellow inmates grew

from its error of viewing the constitutional privacy

right here as a Fourth Amendment creature. App. 6–

12.

Clearly, inmates have minimal, if any,

“reasonable expectation of privacy” from searches of

their person or cells. Hudson, 468 U.S. at 536. But

open disclosure of private medical information is not

a “search” or “seizure” under the Fourth Amendment.

This Court has grounded the privacy interest mostly

elsewhere. E.g., Whalen, 429 U.S. at 606 (referring to

“any right or liberty protected by the Fourteenth

Amendment”).

The Fourth Circuit seemed to

understand that the privacy right here is different

from Fourth Amendment interests—but after an

extensive discussion of circuit precedent rules, held

itself bound to the Fourth Amendment lens. App. 9

n.7.

Other circuits, not being so bound, have placed

the privacy right properly in the Fourteenth

Amendment. Powell, 175 F.3d at 112 n.3 (“The right

to maintain the confidentiality of medical information

is sufficiently distinct from the right to privacy

protected by the Fourth Amendment such that the

17

Supreme Court’s holding in Hudson v. Palmer has no

bearing on this case.”); Delie, 257 F.3d at 316 (“[The

plaintiff’s] asserted right to privacy in his medical

information is completely different than the right

extinguished in Hudson . . . [it] emanates from a

different source and protects different interests than

the right to be free from unreasonable searches and

seizures.”); Anderson, 72 F.3d at 522 (reasoning that

Hudson v. Palmer’s holding “was with reference to the

Fourth Amendment and it would be premature to

assume that the [Supreme] Court meant to extinguish

claims of privacy of an entirely different kind.”).

B.

The decision below ignores valid

privacy rights in favor of prejudice

and speculation.

After wrongly conceiving of this privacy

interest as a Fourth Amendment matter, the decision

below relied on categorical speculation and prejudice

to reject any privacy right in an inmate’s HIV status.

In short, the court asserted that Payne was at his bed

in a “prison medical unit” (the complaint called it an

“open dorm”). App. 32. The court speculated that it

might be difficult in some prison settings to avoid

others overhearing a doctor-patient conversation. The

court then speculated that if Payne failed to take his

medicine, in theory his HIV could at some point

become communicable, and thus dangerous. On these

grounds—with no need to even consider any

penological objective or qualified immunity—the court

found no privacy right in Payne’s HIV status.

But nothing in the record shows that either the

tight-space or communicability concerns exist in this

case.

18

First,

incarceration does

not

nullify

constitutional privacy rights. Turner v. Safley allows

prison administration to weigh penological interests

and prison practicalities against inmate rights. 482

U.S. at 90. But a theoretically overcrowded prison

would not be reason to deny privacy rights in the first

instance. Instead, crowding would be a reason the

government could present to try to overcome privacy

rights, by proving a legitimate penological interest in,

say, numerous inmates standing within five feet of a

doctor discussing medication with another inmate.

See App. 32. But that would be a step in the analysis

that the Fourth Circuit entirely foreclosed by finding

no right to privacy in the first instance.

Regardless, the Government did not even argue

that its doctor had to meet with Payne within earshot

of other inmates. And the doctor’s later apology to

Payne suggests that no prison security or space

required the doctor to say what he said in front of

others. App. 2.

Second, nor did the Government ever assert

that Payne was contagious. Nor does any evidence

here suggest that Payne’s supposed failure to take one

day’s HIV medicine by late morning would make him

contagious. Contra App. 15 (theorizing that “a

prisoner might forgo taking the medicine and thus

become contagious again, just as Payne apparently

did here” when Payne alleged one instance of being

reminded to take his medicine one morning).

The bare facts here are that one morning, Dr.

Taslimi said loudly to Payne: “You did not take your

HIV meds today.” App. 28. The only plausible

assumption from this is that Payne was on a daily HIV

19

medicine regimen, and the doctor was reminding him

to take his daily pill.

The Centers for Disease Control has recognized

that treated HIV is not a danger to others. CENTERS

FOR DISEASE CONTROL AND PREVENTION, EVIDENCE OF

TREATMENT AND VIRAL SUPPRESSION IN PREVENTING

THE SEXUAL TRANSMISSION OF HIV 1 (December

2020). 2 According to the CDC, “[p]eople with HIV who

take HIV medicine as prescribed and get and keep an

undetectable viral load (or stay virally suppressed)

have effectively no risk of transmitting HIV to their

HIV-negative sexual partners.” Id. Modern medicine

means that most Americans living with HIV pose no

transmission risk. And the basic features of prison

health care—a prison’s duty to administer medicine

and monitor patients over time—provides a setting

conducive to proper treatment.

The risk of

transmission today for anyone on HIV medicine is

lower than ever before, and nothing in the record of

this case suggests Payne posed a meaningful danger

to anyone.

The Fourth Circuit’s ruling thus relies on the

same prejudices that cause the stigma around HIV to

persist. In the Fourth Circuit’s world, HIV is like

COVID-19: highly infectious and a danger to everyone

nearby. The Fourth Circuit does not support its

position with science or medicine, and it could not do

so. Yet the Fourth Circuit’s broad reasoning would

apply to any prison setting and any inmate with HIV,

no matter how thoroughly treated.

2 https://www.cdc.gov/hiv/pdf/risk/art/cdc-hiv-art-viral-

suppression.pdf

20

The Fourth Circuit’s theories wrongly ignore

that a person’s HIV-positive status falls within the

heartland of any imaginable privacy interest. On one

hand, HIV carries a significant stigma from

historically being a fatal illness perceived to be linked

to certain modes of transmission. On the other hand,

HIV is now more treatable than ever—to the point

that many treated HIV patients live full lives and

suppress the virus so that it cannot endanger others.

But the stigma remains. See GLAAD, 2021 STATE OF

HIV STIGMA 4 (2021) (“The findings paint a troubling

picture of the general US population’s overall

awareness about HIV, including . . . persistent stigma

toward people living with HIV.”). 3

This problem is even worse for inmates. “Inside

of prisons, people living with HIV/AIDS are often the

most vulnerable and stigmatized segment of the

prison population. Fear of HIV/AIDS often places

HIV-positive prisoners at increased risk of social

isolation, violence, and human rights abuses from

both prisoners and prison staff.” UNITED NATIONS

OFFICE ON DRUGS AND CRIME, HIV/AIDS PREVENTION,

CARE, TREATMENT, AND SUPPORT IN PRISON SETTINGS

12 (October 2006). 4

Recognizing this, courts have long appreciated

the extreme sensitivity of an HIV diagnosis and who

should be privy to that information. See, e.g., Doe v.

City of New York, 15 F.3d at 267 (“An individual

revealing that she is HIV seropositive potentially

exposes herself not to understanding or compassion

3 https://www.glaad.org/sites/default/files/HIV-

StigmaStudy_2021_081621%20%281%29.pdf

4 https://www.unodc.org/documents/hiv-aids/HIV-

AIDS_prisons_Oct06.pdf

21

but to discrimination and intolerance.”). Moreover,

the need for privacy intensifies in prison, considering

the potential for violence from other inmates. See

Anderson, 72 F.3d at 523 (noting that inmates

identified as HIV-positive are “a likely target of

violence by other inmates”); Powell, 175 F.3d at 115

(“under certain circumstances the disclosure of an

inmate’s HIV-positive status . . . could place that

inmate in harm’s way”); Thigpen, 941 F.2d 1517 n.32

(noting that the prison policies there aimed to

“minimize the possibility of altercation”).

The Eleventh Circuit has also explained that

“[i]gnorance and prejudice concerning the disease are

widespread; the decision of whether, or how, or when

to risk familial and communal opprobrium and even

ostracism is one of fundamental importance.”

Thigpen, 941 F.2d at 1514. The Thigpen Court

acknowledged that “there are few matters of a more

personal nature, and there are few decisions over

which a person could have a greater desire to exercise

control, than the manner in which he reveals [an HIV]

diagnosis to others.” Id. at 1513–14. Informing others

of an HIV diagnosis or treatment “is clearly an

emotional and sensitive [decision] fraught with

serious implications.” Id. at 1514. “Certain family

members may abandon the [seropositive] victim while

others may be emotionally unprepared to handle such

news. Within the confines of the prison the infected

prisoner is likely to suffer from harassment and

psychological pressures.” Id. In sum, it “is beyond

question that information about one’s HIV-positive

status is information of the most personal kind and

that an individual has an interest in protecting

against the dissemination of such information.” Delie,

257 F.3d at 317.

22

In the modern era, the ability to treat and

suppress or erase HIV viral loads has vastly reduced

the risks of HIV as a “communicable disease.” Harsh

prison segregation policies, justified by an incurable

and “always fatal” disease portending a “nightmarish

death,” have faded away. Harris, 941 F.2d at 1519,

1521; see also Anderson, 72 F.3d at 524, 525

(describing HIV in 1995 as “invariably fatal”).

Even under the reasoning of these 1990s cases,

HIV status should be more private today than ever.

Anderson, 72 F.3d at 524 (noting that a “person with

a noncommunicable disease is a danger only to

himself, and the compelled disclosure of his condition

to others is unlikely to further a legitimate interest of

the state.”). This statement is as true today as it was

in 1995—except today, twenty-five years after

antiretroviral treatments for HIV—it strongly favors

a privacy right.

Thus, as time went on and medicine advanced,

the trend in circuit rulings has increasingly favored

acknowledging or assuming the constitutional privacy

right in HIV status and then focusing on either the

penological interests involved or qualified immunity.

E.g., Powell, 175 F.3d at 112 (1999) (acknowledging

the privacy right); Delie, 257 F.3d at 317 (2001)

(acknowledging the privacy right); Moore, 379 F.

App’x at 428–29 (2010) (acknowledging the privacy

right and narrowing older Sixth Circuit precedent

which seemed to deny any such right); Alfred v. Corr.

Corp. of Am., 437 F. App’x 281, 285–86 (5th Cir. 2011)

(finding that an HIV-positive inmate pleaded a nonfrivolous constitutional claim based on a prison

attorney disclosing his HIV status to another inmate);

Nunes, 766 F.3d at 141–42 (2014) (extensively

23

considering the legitimate penological interest

supporting a certain method of HIV medication

dispensing before approving it).

The Fourth Circuit’s decision below thus

wrongly reverses the modern trend on privacy rights

in inmates’ HIV status.

III.

This issue is important and recurring, and

this case provides a good vehicle for

narrow guidance on the right to privacy.

The circuit split here also warrants certiorari

because the issue is important and recurring. The

inherently narrow question presented here—limited

to the privacy right around one specific, highly

stigmatized illness in a single context (prison)—

creates an ideal vehicle for this Court to weigh in.

First, federal appeals courts have wrestled with

whether and when constitutional privacy rights

protect inmates from disclosures of their HIV status

for over thirty years. E.g., Harris v. Thigpen (decided

in 1991); Moore v. Mabus, 976 F.2d 268 (5th Cir.

1992); Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994);

Anderson v. Romero (decided in 1995); Tokar v.

Armontrout, 97 F.3d 1078 (8th Cir. 1996); Powell v.

Schriver (decided in 1999); Doe v. Delie (decided in

2001); Moore v. Prevo (decided in 2010); Alfred v.

Corrections Corp. of America (decided in 2011); Nunes

v. Massachusetts Department of Correction (decided in

2014); Payne v. Taslimi (decided in 2021).

Second, HIV is not going away. More than a

million Americans are HIV-positive, including many

thousands of state and federal inmates. “HIV remains

a persistent problem for the United States.” CENTERS

24

FOR DISEASE CONTROL AND PREVENTION, HIV BASICS:

BASIC STATISTICS. 5 In 2019, roughly 1,189,700 people

in the United States were HIV-positive, with 36,801

people receiving a new HIV diagnosis that year. Id.

In the prison context, about 17,150 inmates in state

and federal custody were known to be living with HIV

at the end of 2015. U.S. DEPARTMENT OF JUSTICE, HIV

IN PRISONS , 2015 – STATISTICAL TABLES 1 (August

2017). 6 The simple fact that there has been a stream

of cases, all specifically addressing privacy rights for

HIV-positive inmates, reflects that this issue requires

this Court’s attention.

Third, HIV status should represent a zenith in

constitutional privacy protections. While medical

advances have greatly reduced the harms of the

disease, it remains one of the most stigmatized

illnesses in the world. Along with that stigma comes

the risk of violence against inmates living with HIV.

Even on the narrowest view of a constitutional privacy

right—one limited expressly to deeply rooted

fundamental rights and liberties—protecting from the

release of private medical information that could

cause bodily harm would be covered.

Now is thus a better time than ever before for

this Court to acknowledge what some circuits have for

decades—that a constitutional right to privacy

protects inmates from open disclosures of their HIV

status, subject to legitimate penological interests. See

NASA, 562 U.S. at 756 n.10 (noting that long

assuming the existence of privacy rights under far

5 https://www.cdc.gov/hiv/basics/statistics.html (last

visited October 20, 2021).

6 https://bjs.ojp.gov/content/pub/pdf/hivp15st.pdf (2020

statistics forthcoming).

25

more wide-ranging scenarios had never caused the

sky to fall). Given the extreme nature of the privacy

right in HIV status, and the narrow facts presented

here, this case presents a far better vehicle for this

Court to address the right in the first instance than

any of this Court’s earlier three cases. All of those

involved various pieces of information of varying

degrees of sensitivity, and thus would have required

far more development of the doctrine in the first

instance than this case would.

Last, the Fourth Circuit’s categorical, noprivacy-right-exists holding opens the door to much

more mean-spirited acts than what Payne alleged

here. By refusing to recognize any privacy right in

HIV status, the decision below preempted any

consideration of legitimate penological interests.

Under the Fourth Circuit’s view, no protection exists

for an inmate’s HIV status, no matter why a prison

guard or doctor may choose to disclose it, or to whom.

The point is, prison practices that reveal an

inmate’s HIV status should be subject to some judicial

scrutiny short of the Eighth Amendment’s cruel and

unusual punishment clause. See Anderson, 72 F.3d at

523 (suggesting that an extreme case, such as the

“branding or tattooing [of] HIV-positive inmates,”

may give rise to an Eighth Amendment claim for cruel

and unusual punishment).

Several circuits are already providing such a

review, either by acknowledging the privacy right or

assuming it and then considering legitimate

penological interests. E.g., Powell, 175 F.3d at 112;

Nunes, 766 F.3d at 144.

26

The Fourth Circuit’s refusal to join them

warrants this Court’s review and reversal.

CONCLUSION

This Court should grant the petition for a writ

of certiorari.

Respectfully submitted,

Matthew A. Fitzgerald

Counsel of Record

Karen M. Hinkley

APPELLATE JUSTICE INITIATIVE

AT MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219

(804) 775-4716

mfitzgerald@mcguirewoods.com

Gregory R. Nevins

LAMBDA LEGAL

Southern Regional Office

1 West Court Square

Suite 105

Decatur, GA 30030

October 25, 2021