Amicus Curiae Brief — Christopher N. Payne, Petitioner v. Jahal Taslimi, et al.

No. 21-617

In the

Supreme Court of the United States

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

BRIEF OF UPTOWN PEOPLE’S LAW CENTER

AS AMICUS CURIAE IN SUPPORT OF

PETITIONER

A LAN MILLS

U PTOWN PEOPLE’ S

LAW CENTER

4413 N. Sheridan

Chicago, IL 60640

773-769-1411

alan@uplcchicago.org

CHARLES B. K LEIN

Counsel of Record

WINSTON & S TRAWN LLP

1901 L Street, N.W.

Washington, DC 20036

202-282-5000

cklein@winston.com

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................................i

TABLE OF AUTHORITIES ................................................... iii

INTEREST OF AMICUS CURIAE .........................................1

INTRODUCTION AND SUMMARY OF ARGUMENT ......1

ARGUMENT ...............................................................................3

I.

II.

The Fourth Circuit Ignored The WellRecognized Right To Privacy Of Medical

Information, Particularly HIV-Related

Information—Creating A Circuit Split. ............ 3

A.

The Second, Third, And Sixth Circuits

Recognize That Gratuitous Disclosure Of

HIV Status Violates A Prisoner’s

Privacy Rights. .......................................... 3

B.

The Fourth Circuit Erroneously Relied

on Hudson And Erred By Applying

Search-And-Seizure Privacy Rights

Afforded By The Fourth Amendment

Instead Of The Confidentiality Rights

Afforded By The Fourteenth

Amendment. .............................................. 8

Review Is Particularly Warranted To Prevent

Unconstitutional Disclosure Of A Prisoner’s

HIV Status, Causing Unnecessary Harassment

And Harm. ..........................................................12

ii

III.

There Is No Adverse Effect To Penological

Interests In Requiring Modest Measures To

Maintain Privacy As To HIV Status. ..............17

CONCLUSION ........................................................................ 21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Romero,

72 F.3d 518 (7th Cir. 1995) ................................................ 15

Doe v. City and Cnty. of S.F.,

2017 WL 1508982 (N.D. Cal. Apr. 27,

2017) ..................................................................................... 14

Doe v. City of N.Y.,

15 F.3d 264 (2d Cir. 1994) ................................................. 13

Doe v. Delie,

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

Doe v. Lincoln Natl’l Life Ins. Co.,

2017 U.S. Dist. LEXIS 117110 (N.D. Cal.

July 26, 2017) ...................................................................... 14

Doe v. Metro. Life Ins. Co.,

2016 U.S LEXIS 64387 (N.D. Cal. May

13, 2016)............................................................................... 14

Elliott v. Lynn,

38 F.3d 188 (5th Cir. 1994) ................................................ 10

Harris v. Thigpen,

941 F.2d 1495 (11th Cir. 1991)................................... 15, 16

Henry v. Hulett,

969 F.3d 769 (7th Cir. 2020) (en banc) ............................... 9

Hudson v. Palmer,

468 U.S. 517 (1984) .................................................... passim

iv

Lambert v. Hartman,

517 F.3d 433 (6th Cir. 2008) .............................................. 11

Moore v. Prevo,

379 F. App’x 425 (6th Cir. 2010) ..................................7, 11

Nasa v. Nelson,

562 U.S. 134 (2011) ..................................................... 10, 11

Nixon v. Adm’r of Gen. Servs.,

433 U.S. 425 (1977) ............................................................ 10

Patient v. Corbin,

37 F. Supp. 2d 433 (E.D. Va. 1998) .................................. 14

Payne v. Taslimi,

998 F.3d 648 (4th Cir. 2021) ...................................... passim

Pell v. Procunier,

417 U.S. 817 (1974) ........................................................3, 18

Powell v. Schriver,

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

Roe v. City of Milwaukee,

37 F. Supp. 2d 1127 (E.D. Wisc. 1999) ............................ 14

Roe v. City of N.Y.,

151 F. Supp. 2d 495 (S.D.N.Y. 2001) ............................... 14

Turner v. Safley,

482 U.S. 78 (1987) ................................................................ 3

W.G.A. v. Priority Pharm., Inc.,

184 F.R.D. 616 (E.D. Mo. 1999) ....................................... 14

Walls v. City of Petersburg,

895 F.2d 188 (4th Cir. 1990) ..........................................8, 18

v

Whalen v. Roe,

429 U.S. 589 (1977) ..................................................... 10, 11

Statutes

5 U.S.C. § 552 ..................................................................... 19, 20

5 U.S.C. § 552(a) ....................................................................... 19

42 U.S.C. § 1983 .......................................................................... 4

Other Authorities

28 C.F.R. § 549.14(a)–(b) (2021)............................................. 18

Bureau of Prisons, Freedom of Information

Act Response (Nov. 3, 2021) ............................................. 19

BUREAU OF PRISONS, INFECTIOUS D ISEASE

MANAGEMENT 15 (2014). ................................................... 19

CENTERS FOR D ISEASE CONTROL AND

PREVENTION, EVIDENCE OF HIV

TREATMENT AND V IRAL SUPPRESSION IN

PREVENTING THE SEXUAL TRANSMISSION

OF HIV 1 (Dec. 2020).......................................................... 16

GLAAD, 2021 STATE OF HIV STIGMA 4

(2021) ................................................................................... 16

Hannah R. Fishman, HIV Confidentiality and

Stigma: A Way Forward, 16 U. PA . J.

CONST. L. 199, 201 (2013) ................................................. 12

Lance S. Rintamaki et al., Social Stigma

Concerns and HIV Medication Adherence,

20 AIDS PATIENT CARE & STD S 359

(2006) ............................................................................ 12, 13

vi

Susan Reif et al., Perceptions and Impact of

HIV Stigma Among High Risk Populations

in the US Deep South, 4 J. HIV & AIDS 1,

1–3 (2018) ..................................................................... 12, 13

U.S. Const., amend. IV...................................................... passim

U.S. Const., amend. XIV .................................................. passim

UNITED NATIONS O FFICE ON D RUGS AND

CRIME, HIV/AIDS PREVENTION , CARE,

TREATMENT , AND SUPPORT IN PRISON

SETTINGS 12 (Oct. 2006) ............................................. 15, 16

1

INTEREST OF AMICUS CURIAE 1

The Uptown People’s Law Center (“UPLC”) is a

non-profit entity that advocates for prisoners, tenants,

and disabled people denied benefits. UPLC works to

improve people’s quality of life through sound,

community-oriented lawyering and by leveraging the

law to affect social change. UPLC does not view

individual cases in isolation, but rather tries to

address the root of the underlying issues. Instead of

taking on a specific legal case, UPLC looks at the

person as a member of the community that needs help.

UPLC has represented several prisoners whose HIV

status has been disclosed to other prisoners and

civilians by prison staff.

INTRODUCTION AND SUMMARY OF

ARGUMENT

A prison doctor approached petitioner, within

earshot of other prisoners, and told him “he had ‘not

take[n] [his] HIV medications’ that day.” Payne v.

Taslimi, 998 F.3d 648, 653 (4th Cir. 2021) (alteration

in original; emphasis added). Petitioner alleges that

respondents violated his civil rights by gratuitously

disclosing his HIV status to other prisoners and

civilians. The trial court dismissed the complaint and

the Fourth Circuit affirmed in a published opinion,

holding that prisoners lack a reasonable expectation of

privacy as to their HIV status. In doing so, the Fourth

Circuit departed from holdings by the Second, Third

Pursuant to S. Ct. Rule 37.6, counsel for all parties have

consented to the filing of this brief. No counsel for a party

authored this brief in whole or in part and no person or entity

other than amicus, its members, or counsel made a monetary

contribution to its preparation or submission.

1

2

and Sixth Circuits—all of which have recognized

privacy interests of prisoners as to HIV status under

the Fourteenth Amendment. This Court’s review is

necessary to resolve that circuit split and confirm a

prisoner’s constitutional privacy rights.

Amicus submits this brief to emphasize that

review is particularly warranted here given the stigma

associated with HIV, which remains one of the most

stigmatized medical conditions in the world.

Disclosure of a prisoner’s HIV status while imprisoned

often results in threats and harassment, including

possible bodily harm. It is well documented that

incarcerated persons living with HIV face social

isolation, intolerance, and violence. This HIV stigma

persists despite medical advances having greatly

reduced the lethality and communicability of the

disease.

Only modest steps were needed here to preserve

petitioner’s constitutional rights. The doctor merely

needed to say “take your medication” instead of “take

your HIV medication” to avoid drawing undue

attention to petitioner’s HIV status. Respondents can

point to no credible penological interests in allowing

prison doctors to disclose a prisoner’s HIV status to

fellow prisoners.

Gratuitous disclosure of a prisoner’s HIV status

is a recurring problem, addressed by numerous courts

over the years. This case provides the right vehicle for

this Court to resolve the circuit split created by the

Fourth Circuit and confirm that incarcerated people

have a constitutional privacy right in their HIV status.

Certiorari should be granted.

3

ARGUMENT

I.

The Fourth Circuit Ignored The WellRecognized Right To Privacy Of Medical

Information, Particularly HIV-Related

Information—Creating A Circuit Split.

This Court “ha[s] repeatedly held that prisons

are not beyond the reach of the Constitution. No ‘iron

curtain’ separates one from the other.” Hudson v.

Palmer, 468 U.S. 517, 523 (1984). While “lawful

incarceration brings about the necessary withdrawal

or limitation of many privileges and rights,” this Court

has insisted that “a prison inmate retains those

[constitutional] rights that are not inconsistent with

his status as a prisoner or with the legitimate

penological objectives of the corrections system.” Pell

v. Procunier, 417 U.S. 817, 822 (1974); see also

Hudson, 468 U.S. at 523. In other words, a prisoner’s

rights may be curtailed only where “[t]he curtailment

of certain rights is necessary, as a practical matter, to

accommodate a myriad of ‘institutional needs and

objectives’ of prison facilities[.]” Hudson. 468 U.S. at

524; Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen

a prison regulation impinges on

inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological

interests.”).

A.

The Second, Third, And Sixth Circuits

Recognize That Gratuitous Disclosure Of

HIV Status Violates A Prisoner’s Privacy

Rights.

Over twenty years ago, the Second Circuit was

the first to find a prisoner’s right to privacy as to HIV

status. See Powell v. Schriver, 175 F.3d 107, 111–12

4

(2d Cir. 1999). In Powell, a prisoner sued under § 1983

alleging

a corrections officer violated

her

constitutional right to privacy by telling other

prisoners she was HIV positive. Id. at 109. The

Second Circuit recognized the prisoner’s Fourteenth

Amendment right to privacy in her HIV status. Id. at

112–13.

Under Second Circuit precedent, “[i]ndividuals

who are infected with the HIV virus clearly possess a

constitutional right to privacy regarding their

condition.” Id. at 110 (citation omitted). After all,

“[a]n individual revealing that she is HIV seropositive

potentially exposes herself not to understanding or

compassion but to discrimination and intolerance,

further necessitating the extension of the right to

confidentiality over such information.” Id. at 111

(citation omitted). The Powell court extended the

constitutional privacy right as to HIV status to

transexuals and addressed, among other things,

whether prisoners lose these constitutional rights by

virtue of their incarceration.

Relying in part on this Court’s precedent, the

Second Circuit held that “[p]rison inmates do not shed

all fundamental protections of the Constitution at the

prison gates” unless they are “inconsistent with [their]

status as . . . prisoner[s] or with the legitimate

penological objectives of the corrections system.” Id.

at 112 (citing, among other cases, Turner, 482 U.S. at

95, and Pell, 417 U.S. at 822) (alterations in original).

While leaving open the possibility “of circumstances

under which disclosure of an inmate’s HIV-positive

status would further legitimate penological interests,”

such as an anti-contagion measure, the court

concluded “that the gratuitous disclosure of an

inmate’s confidential medical information . . . violates

5

the inmate’s constitutional right to privacy.” Powell,

175 F.3d at 112.

In reaching this conclusion, the court

distinguished privacy rights under the Fourth

Amendment:

“The

right

to

maintain

the

confidentiality of medical information is sufficiently

distinct from the right to privacy protected by the

Fourth Amendment[.]” Id. at 112 n.3. The court thus

distinguished its case from Hudson v. Palmer, where

this Court held that prisoners lack a privacy right

against unreasonable searches of their prison cells.

See 468 U.S. at 525–26. Considering the differences in

the privacy right at issue, the Second Circuit reasoned

that “the Supreme Court’s holding in Hudson v.

Palmer has no bearing on this case.” Powell, 175 F.3d

at 112 n.3 (citing 468 U.S. at 526). 2

Two years later, the Third Circuit “join[ed] 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).

The court emphasized “that the privacy interest in

information regarding one’s HIV status is particularly

strong because of the stigma, potential for

harassment, and ‘risk of much harm from nonconsensual dissemination of the information.’” Id. at

2 The Powell court ultimately affirmed entry of judgment against

the prisoner as to her right-to-privacy claim based on qualified

immunity, finding “that the right of a prisoner to maintain the

privacy of medical information was not clearly established on

December 31, 1991[.]” 175 F.3d at 113-14; see also id. at 110 (“As

the Supreme Court recommends, we consider [a] qualified

immunity defense only after first deciding whether [the plaintiff]

‘has alleged a deprivation of a constitutional right at all.’”

(quoting Cnty of Sacramento v. Lewis, 523 U.S. 833, 841 n.5

(1998)).

6

315 (citation omitted). Indeed, ““[i]t 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.” Id. at 316.

Like the Second Circuit, the Third Circuit

distinguished the Fourth Amendment privacy right in

Hudson from the privacy right in one’s medical

information. Ibid. (citing Hudson, 468 U.S. at 525).

Indeed, the Third Circuit held that a prisoner’s “right

to privacy in his medical information is completely

different than the right extinguished in Hudson. . . .

The right to nondisclosure of one’s medical information

emanates from a different source and protects

different interests than the right to be free from

unreasonable searches and seizures.” Id. at 316

(citing, among other cases, Hudson, 468 U.S. at 525

and Whalen v. Roe, 429 U.S. 589, 598–99 (1977)).

Also like the Second Circuit, the Third Circuit

acknowledged the exception stated in Hudson limiting

a prisoner’s rights to those “not fundamentally

inconsistent with imprisonment itself or incompatible

with the objectives of incarceration[.]” Hudson, 468

U.S. at 523; Delie, 257 F.3d at 317. In other words, “an

inmate’s constitutional right may be curtailed by a

policy or regulation that is shown to be ‘reasonably

related to legitimate penological interests.’” Delie, 257

F.3d at 317. But “a prisoner’s right to privacy in this

medical information is not fundamentally inconsistent

with incarceration.” Ibid. Thus, while a prisoner may

not have “a right to conceal this diagnosed medical

condition from everyone in the corrections system,”

unnecessary disclosure to some may be violative. Ibid.

(emphasis added).

7

The facts in Delie are strikingly like petitioner’s

experience. In Delie, a prisoner with HIV alleged that

the door to the clinic room was left open, allowing other

incarcerated people to see and hear the content of his

doctor appointments, and that nurses announced his

HIV medication loudly enough for other incarcerated

people to hear. Id. at 311–12. While the Third Circuit

ultimately ruled against the prisoner on qualified

immunity grounds, the court left open the possibility

that the prisoner’s privacy right would have been

found to be violated if the government could not show

some legitimate penological interest. Id. at 317–22

(finding no clearly established right because, by 1995,

“no court of appeals had held that prisoners retained a

constitutional right to the privacy of their medical

information”).

The Sixth Circuit joined the Second and Third

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.” Moore v. Prevo, 379 F. App’x

425, 428 (6th Cir. 2010). In Moore, the plaintiff alleged

that corrections officers and a nurse violated his

constitutional right to privacy when they informed

another prisoner that the plaintiff was living with

HIV. Id. at 425–26. In response to a dissent, the

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

Sixth Circuit thus declined to “create a circuit split.”

Ibid.

8

B.

The Fourth Circuit Erroneously Relied on

Hudson And Erred By Applying SearchAnd-Seizure Privacy Rights Afforded By

The Fourth Amendment Instead Of The

Confidentiality Rights Afforded By The

Fourteenth Amendment.

The Fourth Circuit created a circuit split by

holding that petitioner “lacked a reasonable

expectation of privacy in his HIV status and his

compliance with his treatment plan”—and thus lacked

a right to privacy in his HIV diagnosis and

treatment—while in prison. Payne v. Taslimi, 998

F.3d 648, 658 (4th Cir. 2021). This Court should

resolve the circuit split and confirm prisoners’

Fourteenth Amendment right to privacy as to HIV

status.

The Fourth Circuit has acknowledged the

Fourteenth Amendment right “in avoiding disclosure

of personal matters.” Walls v. City of Petersburg, 895

F.2d 188, 192 (4th Cir. 1990). Outside of the context

of prisons, this right presumably extends to privacy in

one’s medical information—such as HIV status. See

id. (“The more intimate or personal the information,

the more justified is the expectation that it will not be

subject to public scrutiny.”) But in this case, the court

decided that any such right is extinguished once a

prisoner enters the prison gates. See Payne, 998 F.3d

at 655–57.

Unlike other circuits, the Fourth Circuit

invoked a “reasonable expectation of privacy” test and

thus considers the right to medical privacy under an

analysis used to consider claims for Fourth (as opposed

to Fourteenth) Amendment violations. Id. at 655–58.

Applying this test, the court broadly concluded that

prisoners lack a reasonable expectation of privacy as

9

to HIV status “for all purposes.” Id. at 659.

In denying petitioner a right to privacy in his

HIV status, the court compared disclosing petitioner’s

medical information to the physical search of a

prisoner’s cell in Hudson, and subjected petitioner’s

claims to the same “reasonable expectation of privacy”

analysis used in Fourth Amendment challenges to

searches and seizures. Id. at 657–58. The court thus

considered “(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.” Id. at 657 (quoting

Walls, 895 F.2d at 192) (cleaned up).

By invoking this Fourth Amendment analysis,

the Fourth Circuit significantly diverged from other

circuits. As discussed, the Second and Third Circuits

expressly declined to view the right to privacy as to an

prisoner’s HIV status through a Fourth Amendment

lens, finding that the “asserted right to privacy in [a

prisoner’s] medical information is completely different

than the right extinguished in Hudson.” Delie, 257

F.3d at 316 (citations omitted); see also 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 Supreme Court's

holding in Hudson v. Palmer has no bearing on this

case.”).

Likewise, the Fifth and Seventh Circuits have

viewed Hudson as limited to the specific context of

searching prison cells for contraband—refusing to

extend Hudson to other privacy interests. Henry v.

Hulett, 969 F.3d 769, 777 (7th Cir. 2020) (en banc)

(“the Supreme Court has never extended the scope of

10

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”).

The Fourth Circuit stands alone in extending

Hudson’s Fourth Amendment analysis to the context

of medical-information privacy, and its position

conflicts with holdings by the Second, Third, Fifth, and

Seventh circuits. This circuit split has not been lost on

the court, which acknowledged “the merits” of the

“position” taken by other circuits, but held “we are

constrained to apply our holding in Walls to the

contrary.” Payne, 998 F.3d at 660 n.10 (citing Walls,

895 F.2d at 188).

This Court, of course, is not so constrained.

Indeed, the Court’s own precedent upholding privacy

rights is consistent with confirming a prisoner’s right

to privacy as to HIV status. See 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 v. Adm’r of Gen. Servs., 433 U.S. 425,

457-59 (1977) (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”); See Nasa v. Nelson, 562 U.S. 134, 155–56

(2011) (upholding a questionnaire for NASA workers

that was “subject to substantial protections against

disclosure to the public”).

Given the caution with which this Court

approaches pronouncements regarding constitutional

11

right of informational privacy, it bears noting that the

Sixth Circuit’s decision in Moore comports with that

circuit’s demanding standard for privacy protection,

limited to private information that “relates to one of

those personal rights that can be deemed fundamental

or implicit in the concept of ordered liberty.” 379 F.

App’x at 429 (quotation marks omitted). It has been

held specifically that this standard is met “where the

release of personal information could lead to bodily

harm[.]” Lambert v. Hartman, 517 F.3d 433, 440 (6th

Cir. 2008) (citing Kallstrom v. City of Columbus, 136

F.3d 1055 (6th Cir. 1998)). An almost ubiquitous

concern in the case law regarding a prisoner’s HIV

status, along with transmission risk, is the risk of

violence or other harm to incarcerated people living

with HIV at the hands of other incarcerated people

learning that fact.

Since the Court has thus far declined to weigh

in on the constitutional right of privacy, the circuit

courts have taken up the mantle. See Nelson, 562 U.S.

at 138 (“We assume, without deciding, that the

Constitution protects a privacy right of the sort

mentioned in Whalen and Nixon[.]”). Through that

process, there has emerged a rationale for holding in

favor of petitioner’s privacy right in a minimalist

manner. This Court should, at a minimum, agree with

the Sixth Circuit and hold that a privacy right exists

when it “relates to one of those personal rights that can

be deemed fundamental or implicit in the concept of

ordered liberty.” See Moore, 379 F. App’x at 429

(quotation marks omitted). The “at a minimum”

qualification would make clear that the Court is not

foreclosing the possibility of privacy claims under less

onerous standards and thus does not pretermit

percolation of more complex questions. Even such a

12

minimalist ruling could do much to rein in extreme

decisions like the Fourth Circuit’s here.

II.

Review Is Particularly Warranted To

Prevent Unconstitutional Disclosure Of A

Prisoner’s

HIV

Status,

Causing

Unnecessary Harassment And Harm.

The stigma attached to one’s HIV-positive

status—and the prejudice that those infected face—is

deep-rooted and well-known in the United States.

Since the onset of the HIV epidemic in the 1980s,

individuals with HIV have been subjected to pervasive

discrimination.

Hannah R. Fishman, HIV

Confidentiality and Stigma: A Way Forward, 16 U. PA .

J. C ONST. L. 199, 201 (2013).

In addition to the physical elements of their

medical condition, those living with HIV often “have

been forced to keep their illness secret to avoid losing

jobs and being socially alienated.” Ibid. The stigma

surrounding HIV “has been labeled as the most

important social and psychological issue of the HIV

experience” and can have dire consequences on an

HIV-positive person’s mental and physical health.

Lance S. Rintamaki et al., Social Stigma Concerns and

HIV Medication Adherence, 20 AIDS PATIENT CARE &

STD S 359, 360 (2006); see also Susan Reif et al.,

Perceptions and Impact of HIV Stigma Among High

Risk Populations in the US Deep South, 4 J. HIV &

AIDS 1, 1–3 (2018). Indeed, “[k]nowing that bias and

stigmatization are often consequences of infection,

people with high concerns for stigma may be less likely

to disclose their HIV status to others either out of

shame or fear of persecution.” Rintamaki et al., supra,

at 360.

This desire to conceal one’s HIV status often

13

extends to concealment from medical professionals

and results in “less use of health and social services,

anxiety, negative body-image, and poorer medication

adherence among individuals living with HIV and

with avoiding or delaying HIV testing among those at

high risk for HIV.” Ibid.; Reif et al. supra, at 1–3. As

a 2006 study among HIV patients revealed, a strong

link exists between a patient’s concern for the social

stigma surrounding HIV and the patient’s adherence

to his HIV medication regimen. See Rintamaki et al.,

supra, at 364–66.

Situations such as a doctor’s visit, which risks

revealing a person’s HIV status, “create dilemmas for

people living with HIV in which they must weigh the

costs of taking their medications against others

learning about their diagnosis.” Id. at 361. Often, a

patient with HIV will forgo treatment in favor of

nondisclosure. Ibid. Due to these concerns, “many

experts believe that ensuring patients’ confidentiality

in their HIV-related information will encourage

testing and reduce the spread of HIV.” Fishman,

supra, at 201.

Indeed, various circuits and district courts

across the country have recognized a privacy interest

in one’s HIV-positive status given the stigma and risks

associated with public disclosure. See, e.g., Delie, 257

F.3d at 315 (“[T]he privacy interest in information

regarding one’s HIV status is particularly strong

because of the stigma, potential for harassment, and

‘risk of much harm from non-consensual dissemination

of the information.’”) (quoting Doe v. Se. Pa. Transp.

Auth., 72 F.3d 1133, 1140 (3d Cir. 1995); Powell, 175

F.3d at 111 (“HIV . . . is the unusual condition that is

likely to provoke both an intense desire to preserve

one’s medical confidentiality, as well as hostility and

14

intolerance from others.”); Doe v. City of N.Y., 15 F.3d

264, 267 (2d Cir. 1994) (“An individual revealing that

she is HIV seropositive potentially exposes herself not

to understanding or compassion but to discrimination

and intolerance, further necessitating the extension of

the right to confidentiality over such information.”);

Doe v. City and Cnty. of S.F., 2017 WL 1508982, at *2

(N.D. Cal. Apr. 27, 2017) (permitting the plaintiff to

proceed anonymously “to protect Plaintiff from injury

or personal embarrassment, based on Plaintiff's HIVpositive status”); Doe v. Lincoln Natl’l Life Ins. Co.,

2017 U.S. Dist. LEXIS 117110, at *2 (N.D. Cal. July

26, 2017) (“Although public discourse, understanding,

and acceptance of such issues has improved in recent

years, the Court recognizes that society continues to

place at least some stigma on those diagnosed with

HIV, and fear of negative treatment due to HIV

remains reasonable and understandable.”); Doe v.

Metro. Life Ins. Co., 2016 U.S LEXIS 64387, at *2

(N.D. Cal. May 13, 2016) (finding the plaintiff’s HIVpositive status to be “of a sufficiently sensitive and

personal nature such that the use of a pseudonym is

appropriate ‘to protect a person from harassment,

injury, ridicule or personal embarrassment.’” (citation

omitted)); Roe v. City of N.Y., 151 F. Supp. 2d 495, 510

(S.D.N.Y. 2001) (finding that “HIV-positive plaintiffs

are in a highly sensitive position and therefore should

be allowed to proceed anonymously.”); Roe v. City of

Milwaukee, 37 F. Supp. 2d 1127, 1129 (E.D. Wisc.

1999) (“I believe that in modern society one’s HIVpositive status, unlike most other medical conditions,

is still considered a stigma. The plaintiff’s HIVpositive status cannot be viewed as a ‘common

disorder;’ such that disclosure can be viewed as

inconsequential.”); Patient v. Corbin, 37 F. Supp. 2d

433, 433 (E.D. Va. 1998) (“Being HIV positive carries

15

a significant stigma in many parts of today’s society.”);

W.G.A. v. Priority Pharm., Inc., 184 F.R.D. 616, 617

(E.D. Mo. 1999) (“It is understandable that plaintiff

does not wish to be publicly identified as a[n]

individual with AIDS, which is a personal matter of

the utmost intimacy. Persons with AIDS may be

subjected to discrimination in the workplace, schools,

social settings and public accommodations.”).

This stigma persists in prison settings, where

the risks of violence and isolation against those living

with HIV are especially high. “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 HIVpositive prisoners at increased risk of social isolation,

violence, and human rights abuses from both prisoners

and prison staff.” U NITED NATIONS O FFICE ON D RUGS

AND

CRIME,

HIV/AIDS

PREVENTION,

CARE ,

TREATMENT, AND S UPPORT IN PRISON SETTINGS 12 (Oct.

2006) [hereinafter UNODC].

Various circuits have recognized these prisonspecific risks as well. See, e.g., Powell, 175 F.3d at 115

(“[D]isclosure [of an inmates HIV-positive status] . . .

could constitute deliberate indifference to a

substantial risk that such inmate would suffer serious

harm at the hands of other inmates.”); Anderson v.

Romero, 72 F.3d 518, 523 (7th Cir. 1995) (assuming

disclosure of a prisoner’s HIV-positive status would

make him “a likely target of violence by other

inmates”); Harris v. Thigpen, 941 F.2d 1495, 1520 n.36

(11th Cir. 1991) (“The close quarters and heightened

occurrences of high-risk activity in prisons

undoubtedly accentuate ‘AIDS phobia’ for those who

must continually deal with the presence of HIV in the

correctional context; ‘when patients with AIDS or HIV

16

are discovered in the prison system, there is a

crescendo of concern leading to panic on the part of

prisoners, correctional staff, as well as the medical

staff.’”)

(citation

omitted

and

alterations

incorporated).

The prejudice that individuals with HIV face is

due, in large part, to a lack of understanding and

myriad misinformation concerning the disease.

UNODC, supra, at 12; GLAAD, 2021 S TATE OF HIV

STIGMA 4 (2021). Indeed, as the Eleventh Circuit has

explained, “widespread” “[i]gnorance and prejudice

concerning the disease” greatly exacerbates the risks

of disclosing a positive HIV diagnosis. Thigpen, 941

F.2d at 1514. Chief among misunderstandings are

those concerning the transmissibility of HIV.

UNODC, supra, at 12; GLAAD, supra, at 4. Through

modern advancements, HIV medicine can now

suppress the virus to an undetectable level, preventing

infected individuals from transmitting the virus to

CENTERS FOR DISEASE C ONTROL AND

others.

PREVENTION, EVIDENCE OF HIV TREATMENT AND VIRAL

SUPPRESSION

IN

PREVENTING

THE

SEXUAL

TRANSMISSION OF HIV 1 (Dec. 2020). Nonetheless,

most of the United States population does not believe

that medication can prevent transmission. GLAAD,

supra, at 5. Even further, a common—yet mistaken—

belief is that HIV may be transmitted through casual

contact. UNODC, supra, at 12.

The Fourth Circuit’s opinion dangerously

reflects that mistaken belief. In finding that “Payne

lacked a reasonable expectation of privacy in his HIV

status,” the Fourth Circuit noted that “[t]he limits on

an inmate’s expectations of privacy are particularly

strong where the information he seeks to protect

relates to the institutional safety of the prison.”

17

Payne, 998 F.3d at 658–59. Indeed, while recognizing

“HIV and its spread can be controlled by medicine,” the

court—in the same breath—compared HIV to the

COVID-19 virus, suggesting that HIV “can spread

rapidly” within a prison. Id. at 659. Thus, the court

found it “hard to see how Payne would have a

reasonable

expectation

of

privacy

in

his

communicable-disease status within a medical unit.”

Ibid.

Resting on beliefs unsupported by modern

scientific understanding of the transmissibility of HIV,

the Fourth Circuit’s decision serves only to perpetuate

the harmful misconceptions surrounding HIV and the

pervasive stigma that accompanies a positive

diagnosis. This decision not only strips prisoners of

their privacy rights based on misinformation, but

opens the door for the widely known and significant

risks that will accompany the disclosures that the

decision permits.

III.

There Is No Adverse Effect To Penological

Interests In Requiring Modest Measures

To Maintain Privacy As To HIV Status.

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 incarcerated person’s HIV status, no matter

why a prison guard or doctor may choose to disclose it,

or to whom. This is contrary to what the constitution

demands.

The facts of this case are straightforward. Dr.

Taslimi said loudly to petitioner: “You did not take

your HIV meds today.” App. 28. Dr. Taslimi did not

have to specify what type of medication petitioner

18

needed to take to convey the necessary information to

petitioner. Requiring prison officials, whether guards

or doctors, to refrain from disclosing a prisoner’s HIV

status to other incarcerated people or civilians would

not adversely affect penological interests because nondisclosure would keep the person living with HIV safer

and the Fourth Circuit’s understanding of

communicability is not supported by science.

Though Respondents “ha[ve] the burden to

prove that a compelling governmental interest in

disclosure outweighs the individual’s privacy interest,”

the absence of any legitimate penological interest in

this case is notable. Walls, 895 F.2d at 192. Further,

the unnecessary disclosure of a prisoner’s HIV status

would not only fail to serve penological interests but

would be contrary to them. As this Court has

recognized, “central to all other corrections goals is the

institutional consideration of internal security within

the corrections facilities themselves.” Pell, 417 U.S. at

823. And as discussed supra, disclosure of one’s HIV

status can lead to violence, isolation, mental and

physical health issues, and nonadherence to medical

regimens. These risks are directly at odds with the

interests in a facility’s security.

Current Bureau of Prisons (“BOP”) regulations

and policy show that prisons already recognize the

serious security concerns regarding disclosing a

prisoner’s HIV status. BOP regulations require that

“[a]ny disclosure of test results or medical information

is made in accordance with . . . The Privacy Act of 1974

. . . [and] The Correction Officers Health and Safety

Act of 1998[.]” Confidentiality of Information, 28

C.F.R. § 549.14(a)–(b) (2021). And as the BOP has

decided in implementing this regulation, “[a]ll parties,

with whom confidential medical information regarding

19

another individual is communicated, will be advised

not to share this information, by any means, with any

other person. Medical information may be

communicated among medical staff directly concerned

with an inmate’s case in the course of their

professional duties.” B UREAU OF PRISONS, INFECTIOUS

DISEASE MANAGEMENT 15 (2014).

Further, Freedom of Information Act (“FOIA”)

responses from the BOP confirms there is no

penological interest in disclosing a prisoner’s HIV

status:

“The Federal Bureau of Prisons has an

obligation to maintain the safe, secure,

and orderly operation of an institution,

and an inmate’s possession of any

document discussing HIV status,

regardless of whether it is positive or

negative, could raise substantial security

concerns. Therefore, we request as long

as the subject inmate is in the custody of

the Federal Bureau of Prisons that the

subject not be provided with any

document

containing

information

3

regarding HIV status.”

In making this request, the BOP invokes certain

exemptions to the information that the FOIA

mandates agencies to make publicly available. Ibid.;

see 5 U.S.C. § 552(a). Specifically, the BOP invokes

exceptions that permit it to refused public disclosure

of:

“[P]ersonnel

and

medical

files

and

3 U.S. Department of Justice Federal Bureau of Prisons, Freedom

of Information Act Response (Nov. 3, 2021).

20

similar files the disclosure of which

would constitute a clearly unwarranted

invasion of personal privacy.” § 552(b)(6).

“[R]ecords or information compiled for

law enforcement purposes” that “could

reasonably be expected to constitute an

unwarranted invasion of personal

privacy[.]” § 552(b)(7)(C).

“[R]ecords or information compiled for

law enforcement purposes” that “would

disclose techniques and procedures for

law enforcement investigations or

prosecutions,

or

would

disclose

guidelines

for

law

enforcement

investigations or prosecutions if such

disclosure could reasonably be expected

to risk circumvention of the law[.]

§ 552(b)(7)(E).

“[R]ecords or information compiled for

law enforcement purposes” that “could

reasonably be expected to endanger the

life or physical safety of any individual[.]”

§ 552(b)(7)(F).

Neither of these current regulations allow the

needless disclosure of a prisoner’s HIV status to other

prisoners. Since current BOP regulations already

recognize the importance of keeping a prisoner’s HIV

status confidential, there can be no adverse effect to

penological interests by requiring prison officials and

doctors to do the same.

21

CONCLUSION

For these reasons, the Court should grant the

petitioner’s request for a writ of certiorari.

November 23, 2021

Respectfully submitted,

CHARLES B. KLEIN

Counsel of Record

WINSTON & STRAWN LLP

1901 L STREET, N. W.

WASHINGTON , DC 20006

TELEPHONE: 202-282-5000

FAX: 202-282-5100

cklein@winston.com

COUNSEL FOR AMICUS C URIAE