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James Bush <theoknock@yahoo.com> Appeal of case number 09-CV-04231 (PR) RS December 1, 2011 3:19:53 PM PST mrisher@aclunc.org counselor@aclunc.org

To Mr. Michael Risher, ACLU of Northern California: I am in receipt of your letter dated November 21st, 2011, which declines to provide legal representation for a civil suit now pending in the Ninth District Court of Appeals, and which pertains to the medical privacy rights of inmates in jails and prisons. Based on your response, I believe a more comprehensive review of aspects of this case that correspond to the interests of the ACLU would be beneficial to your decisionmaking process, and would help ensure that the goals of the ACLU National Prison Project. The following aspects of this case address your specific concerns raised by your letter: 1. This case has already been brought in the district court, but was dismissed based on a dispositive motion filed by the defendant, in spite of a stellar showing by my opposition to such. Subsequent to the dismissal, I filed a notice of appeal, which, as your letter stated, is primarily where the ACLU gets involved; 2. This case impacts the health and safety of thousands of inmates being detained by the fifth largest correctional institution in the California, namely, the Santa Clara County Department of Correction, so it clearly affects a large number of people; and, 3. This case raises several new constitutional issues, for example, such as whether the (apparent) inapplicability of the HIPAA Privacy Rule and the Uniform Health Care Act to the right of inmates to be free from the unauthorized disclosure of their HIV-positive status take away the medical privacy rights afforded them under the Due Process Clause (Const.Amend.XIV); and, whether the remedies available to inmates' whose privacy rights have been violated are sufficient to enforce such rights (they don't seem to be in my case; but, it definitely worked in two other identical cases in California in the past). This same issue raised by this case has already been litigated successfully in two other cases, which is why it is confusing that this case was dismissed. It would seem that what is needed is legal representation during the appeals process; otherwise, HIV-positive inmates will continue to be exposed to danger and ostracism, and I'm sure I speak for both of us when I say that we want this practice to stop immediately in Santa Clara County. So, please review again the information summary below to ensure that you are not passing on a golden opportunity for the ACLU, and don't forget to actually read the court filings this time; links to them are provided below. Thanks! James Alan Bush (408) 791-4866 P.S. - Who at the ACLU reviews decisions made by those at your level? In other words, to whom can I appeal any adverse decision made by you? ------------------Summary. I am seeking legal representation for an appeal of an order of dismissal of a federal civil suit that seeks an injunction to stop the Santa Clara County Department of Correction from violating inmate medical privacy rights afforded them under the Due Process Clause of the Fourteenth Amendment, specifically, the right of inmates to be free from the unauthorized disclosure of their HIV-positive status by medical staff and jail staff, and by jail staff to other inmates, which adversely affects their safety and security at the aforementioned institution. The order of dismissal is being appealed in the Ninth District Court of Appeals. Nature of Claim. Disclosure is made whenever an inmate has a scheduled appointment with the P.A.C.E. Clinic, which is known to jail staff and inmates alike for its exclusive treatment of HIV-positive patients. On the day of the appointment, medical staff (i.e., Dr. Dean Winslow, M.D.) distributes a list of inmates having an appointment with the clinic to corrections officers, who then announce to the entire unit in which an inmate is housed that he is scheduled to visit the clinic. The name of the inmate is always listed or spoken in conjunction with the name of the clinic that his HIV-positive status is made known. Also, while administering medications commonly known for the treatment of HIV/AIDS, nurses announce the names of the inmate's medications loudly enough for others to hear, allowing for other inmates to infer his condition. Steps Taken: 1. Administrative Grievance Process - filed grievance with jail administration per the requirements of the Santa Clara County Department of Correction; 2. Government Tort Claim - filed claim with Santa Clara County per the requirements of the Government Code and in the manner required by the Santa Clara County Counsel; 3. Federal Civil Complaint: a. filed a civil suit with the United States District Court for the Northern District of California, San Francisco Division, in which, upon being deemed as a valid constitutional claim, an order was issued to the defendants to file a motion for summary judgment; b. filed an opposition to the defendants' dispositive motion, which was rejected, and the case was dismissed. 4. Appeal - filed a notice of appeal with the Appellate Court, in order to appeal an order of dismissal. Relevant Legal Documents: 1. Plaintiff's Complaint: http://www.scribd.com/doc/65265970/ 2. Defendant's Motion for Summary Judgment: http://www.scribd.com/doc/74067282/ 3. Plaintiff's Opposition to the Motion for Summary Judgment: http://www.scribd.com/doc/63757284/ 4. Court's Order of Dismissal: http://www.scribd.com/doc/74087210/ Stakes. Since the time of the filing of the suit, jail officials have instituted tentative measures to decrease the dissemination of private medical information since the initial filing of the suit; however, because there is not yet a comprehensive policy that is HIPAA Privacy Rule-compliant, HIV-positive inmates still face an increased risk of danger due to improper disclosure practices. Relevance to the ACLU. This case supports the American Civil Liberties Union Prison Project's goal of "ensuring that conditions of confinement are constitutional and consistent with health, safety, and human dignity," and meets the criteria for ACLU assistance, in that: this is a civil rights case, which expands the applicability and definition of the Due Process Clause, as it pertains to prisoner rights; this is a high-impact case, affecting every inmate who is vulnerable to an increased risk of violence due to their HIV-positive status; this case is a simple question of law, with no factual disputes between the parties; this case is not resource-intensive, in that it requires no additional legal research or factual investigation; and,

this case is not resource-intensive, in that it requires no additional legal research or factual investigation; and, this case is in the appellate court, and the defendants have already proffered their arguments. Legal Basis. This issue has already been litigated successfully state-wide: 1. In Roberts v. Salano, F.Supp.2d, 2008 WL 4471003 (E.D.Cal.), the court held that the disclosure of a prisoners private medical condition to another prisoner by a corrections officer to another inmate constituted a violation of the Fourteenth Amendments Due Process Clause, supporting the prisoners 1983 claim against the corrections officer, as the Due Process Clause bars disclosure of personal matters, including medical information. In this case, Plaintiff Roberts alleges that while on the yard at California State Prison-Corcoran on August 11, 2007, Defendant Salano disclosed his private medical condition to another inmate, and that the defendant told the other inmate the plaintiff was HIV-positive so that other inmates would harass the plaintiff. Defendant Martinez, who was the building supervisor, allegedly failed to hold his officer accountable for his conduct. The court stated that the plaintiffs allegations were sufficient to give rise to a claim for relief under 1983 against Defendant Salano for revealing his HIV status to another inmate, citing Whalen v. Roe, 429 U.S. 589, 598-99, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), in which another court determined that the Due Process Clause of the Fourteenth Amendment protects individuals against the disclosure of personal matters, and that the Due Process Clause clearly encompasses medical information and its confidentiality [see also Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998) (citations omitted)]. The court further stated that the right to informational privacy applies both when an individual chooses not to disclose highly sensitive information to the government and when an individual seeks assurance that such information will not be made public [Planned Parenthood of Southern Arizona v. Lawall, 307 F.3d 783, 789-90 (9th Cir. 2002) (citations omitted)]. 2. In Moore v. Prevo, 379 Fed.Appx. 425, 2010 WL 1849208 (C.A.6 Mich.), the court ruled that a prisoner has a Fourteenth Amendment privacy interest in having his sensitive medical information kept confidential from other inmates, and thus, prison officials alleged conduct in disclosing prisoners HIV-positive status to other inmates would violate the prisoners Fourteenth Amendment rights, unless the disclosure was necessary because of legitimate penological interests. In this case, plaintiff-prisoner, proceeding in forma pauperis, filed a 1983 action against prison officials and corrections officers, alleging that they violated his constitutional right to privacy when they disclosed his HIV-positive status to other officers and inmates, and also asserted various state law claims. The court stated that, while it had never addressed whether an inmate has a Fourteenth Amendment privacy interest in having his sensitive medical information kept confidential from other inmates, other circuits precedent offered some guidance; specifically, the Third Circuit, which has held that an inmate has a constitutional privacy right guarding against disclosure of his sensitive medical information, especially to other inmates [Doe v. Delie, 257 F.3d 309, 317 (3d Cir.2001)]. The court stated further that there are at least two types of privacy protected by the Fourteenth Amendment: the individual interest in avoiding disclosure of personal matters, and the right to autonomy and independence in personal decision-making [see Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir.1995)]. As described above, the plaintiffs privacy interest clearly falls into the first category, which some courts have referred to as a right to confidentiality, in order to distinguish it from the right to autonomy and independence in personal decision making [see Powell v. Schriver, 175 F.3d 107, 113-14 (2d Cir.1999)]. The court concluded that, It is beyond question that information about ones 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 [see Doe v. Southeastern Pa. Transp. Autho., 72 F.3d 1133, 1140 (3d Cir.1995); Westinghouse, 638 F.2d at 577]. Moreover, a prisoners right to privacy in this medical information is not fundamentally inconsistent with incarceration, even though it is true that the privacy protection afforded to medical information is not absolute, and may be infringed upon a showing of proper governmental interest [Lawall, 307 F.3d at 790 (citations omitted)], and that the governmental interest in disclosure must advance a legitimate state interest and the governments action must be narrowly tailored to meet the legitimate interest [Roe v. Sherry, 91 F.3d 1270, 1274 (9th Cir.1996) (quotations and citation omitted)]; however, in this case, the court determined that the disclosure of the plaintiffs HIV-positive status to another inmate did not serve any legitimate penological or state interest, and, as a result, joined the Second Circuit in recognizing that the constitutional right to privacy in ones medical information exists in prison [see Powell, 175 F.3d at 112]; and, 3. Doe v. Delie, 257 F.3d 309, it was held that HIV-positive inmates have a Fourteenth Amendment right to privacy in their medical information, which extends to prescription records.

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