                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2001

Doe v. Delie
Precedential or Non-Precedential:

Docket 99-3019




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Recommended Citation
"Doe v. Delie" (2001). 2001 Decisions. Paper 160.
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Filed July 19, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3019

JOHN DOE,

       Appellant

v.

JOAN DELIE, Health Care Administrator;
PAUL NOEL, Medical Director; DIANE MANSON,
Medical Nurse/Grievance Officer; SOPHIE SWIKA, Medical
Nurse; KIM ZIMMERMAN, Medical Nurse, and all other
parties et al., relevant to this instant civil action against
them; JAMES PRICE, Superintendent (SCI Pittsbur gh)

Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 97-cv-01264)
District Judge: Honorable Donald E. Ziegler

Argued September 11, 2000

Before: NYGAARD, ROTH and GARTH, Cir cuit Judges

(Opinion filed: July 19, 2001)

       Martha E. Johnston, Esquire
        (Argued)
       Wolf, Block, Schorr and
        Solis-Cohen LLP
       1650 Arch Street, 22nd Floor
       Philadelphia, PA 19103-2097

        Attorney for Appellant
       D. Michael Fisher, Attorney General
       Calvin R. Koons,
        Senior Deputy Attorney General
       John G. Knorr, III,
        Chief Deputy Attorney General
       Howard G. Hopkirk, Esq.
       J. Bart DeLone, Esquire (Argued)
       Office of Attorney General of
        Pennsylvania
       Strawberry Square, 15th Floor
       Harrisburg, PA 17120

        Attorneys for Appellees

       Charles W. Kenrick, Esquire
       Vincent C. Longo, Esquire (Argued)
       Grogan, Graffam & McGinley
       Three Gateway Center, 22nd Floor
       Pittsburgh, PA 15222

        Attorneys for Appellee,
       Paul Noel

OPINION OF THE COURT

ROTH, Circuit Judge:

John Doe, a former inmate of the Pennsylvania
Department of Corrections, is HIV-positive. He was
informed by the medical staff at the State Correctional
Institution at Pittsburgh (SCIP) that his medical condition
would be kept confidential. However, because of certain
practices permitted by prison officials, Doe's condition was
not kept confidential. Doe sued under 42 U.S.C.S 1983,
claiming that prison practices violated his right to medical
privacy under the Fourteenth Amendment and under the
Pennsylvania Confidentiality of HIV-Related Information
Act, 35 P.S. S 7601 et seq. The District Court granted
defendants' motions to dismiss the S 1983 claims on the
basis of qualified immunity, declined jurisdiction over the
state claims, and dismissed the case.

Although we ultimately agree that defendants ar e entitled
to qualified immunity, we do not agree with the District

                                  2
Court's reasoning. We hold that the Fourteenth Amendment
protects an inmate's right to medical privacy, subject to
legitimate penological interests. However , because this right
was not clearly established at the time of defendants'
conduct, we will affirm the dismissal of Doe's complaint.

I. FACTS

John Doe arrived at SCIP on January 11, 1995. Shortly
thereafter, Doe was informed by the medical staff that he
was HIV-positive. After signing a written consent of
disclosure form, he was told that his medical condition
would be kept confidential and that medical r ecords
relating to his illness would be maintained separately from
his general prison file.

Because of certain procedures permitted by defendants,
Doe's condition was not kept confidential. Specifically,
when Doe was taken for sick call appointments, staf f
informed the escorting officers of Doe's medical condition.
During physician visits, staff kept the door to the clinic
room open, allowing officers, inmates, and guards in the
area to see and hear Doe and the treating physician.
Finally, while administering medication, nurses announced
his medication loudly enough for others to hear , allowing
inmates to infer Doe's condition. Doe filed administrative
grievances concerning the sick call and medication
distribution practices, but the grievances did not bring
about any change in the practices.

On July 11, 1997, Doe, proceeding pr o se, filed suit
under 42 U.S.C. S 1983 and the Pennsylvania
Confidentiality of HIV-Related Infor mation Act, 35 P.S.
S 7601 et seq. in the United States District Court for the
Western District of Pennsylvania. The complaint named as
defendants Joan Delie, Health Care Administrator at SCIP;
Dr. Paul Noel, Medical Director of SCIP; Diane Manson, a
Nurse/Grievance Officer; and Sophie Swika and Kim
Zimmerman, both nurses at SCIP. Doe claimed his
constitutional right to privacy was violated by the"open-
door" examination room policy, by the disclosure of his
medical condition to corrections officer escorts, and by the
loud announcement of the names of his medications. He

                               3
alleged that these practices made him reluctant to discuss
embarrassing symptoms with doctors, subjected him to
psychological harassment and humiliation, and caused him
to discontinue treatment. Doe requested declaratory and
injunctive relief, as well as nominal, compensatory, and
punitive damages.

On August 5, 1997, Doe filed motions for a temporary
restraining order and a preliminary injunction ordering
defendants to provide for nondisclosure of his medical
information during sick call visits and medication
distribution. The Magistrate Judge recommended that both
motions be denied pending service of the complaint and
motions on defendants. This Report and Recommendation
was adopted by the District Court on September 16, 1997.

After service of the complaint,1 defendants Delie, Manson,
and Swika, and defendant Noel by separate motion, moved
to dismiss for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). Doe was granted leave to
file an amended complaint and did so on Mar ch 3, 1998.
The amended complaint added James Price, the
superintendent of SCIP, as a defendant and otherwise
reasserted Doe's privacy claims. Defendants r easserted
their motions to dismiss based, inter alia, on the defense of
qualified immunity, which shields public officials from
actions for damages unless their conduct was unr easonable
in light of clearly established law.

The Magistrate Judge issued a Report and
Recommendation on September 21, 1998. The Magistrate
found that no clear federal constitutional right to
nondisclosure of an inmate's medical condition exists and
recommended dismissal of defendants Delie, Manson,
Swika, and Price on grounds of qualified immunity. The
Magistrate found that the only involvement alleged as to
defendant Noel was his inadequate response to Doe's
grievances, which did not give rise to a S 1983 claim. In
addition, the Magistrate Judge found, sua sponte , that
_________________________________________________________________

1. Nurse Zimmerman was never served with pr ocess in the district court.
She is not a Commonwealth employee, and was appar ently referred to
SCIP through a private nursing facility. Ef forts to locate her at that
agency were unsuccessful.

                                4
defendant Zimmerman was entitled to qualified immunity
for her alleged misconduct and recommended dismissal of
the complaint against her pursuant to 28 U.S.C.
S 1915(e)(2)(B)(ii). Finally, the Magistrate Judge
recommended that the District Court decline to exercise
supplemental jurisdiction over Doe's state law claims.

Over Doe's objections, the District Court adopted the
Magistrate Judge's Report and Recommendation and
dismissed the case on December 17, 1998. On January 13,
1999, Doe filed his notice of appeal of the District Court's
decision. We appointed counsel for Doe and have benefitted
as a result from counsel's willingness to undertake this
representation.

Shortly before oral argument, counsel informed us that
Doe was awaiting a re-trial on his conviction. Counsel has
now informed us that Doe was acquitted in his re-trial, and
therefore is no longer an inmate at SCIP .

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction over
Doe's S 1983 claims pursuant to 28 U.S.C.S 1331 and over
the state law claim under 28 U.S.C. S 1367. W e have
appellate jurisdiction over the District Court'sfinal
judgment pursuant to 28 U.S.C. S 1291. W e exercise
plenary review over the District Court's dismissal of a
complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to
state a claim. Piecknick v. Commonwealth of Pennsylvania,
36 F.3d 1250, 1255 (3d Cir. 1994). W e must accept as true
all of the factual allegations in the complaint as well as the
reasonable inferences that can be drawn fr om them. Moore
v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). We may
dismiss the complaint only if it is clear that no r elief could
be granted under any set of facts that could be pr oved
consistent with the allegations. Hishon v. King & Spalding,
467 U.S. 69, 73 (1984).

III. DISCUSSION

Because Doe is no longer an inmate at SCIP, we must
first consider whether his claims are moot before reviewing
the District Court's qualified immunity analysis.

                               5
A. MOOTNESS

The Constitution limits the power of the federal judiciary
to the resolution of "cases and contr oversies." See U.S.
Const. art. III, S 2, cl.1. Federal courts ar e not empowered
to decide moot questions. North Carolina v. Rice, 404 U.S.
244, 246 (1971) (per curiam). The mootness doctrine
requires that an actual controversy exist at all stages of
review, not merely at the time the complaint is filed. New
Jersey Turnpike Auth. v. Jersey Cent. Power & Light, 772
F.2d 25, 31 (3d Cir. 1985).

We have stated that "mootness has two aspects: (1) the
issues presented are no longer `live' or (2) the parties lack
a cognizable interest in the outcome." Id. As a result of his
acquittal, Doe is no longer an inmate at SCIP . It is clear
that any declaratory or injunctive relief with respect to the
staff at SCIP would have no impact on him, and therefore
his equitable claims are moot.

Doe argues that his case falls into the "capable of
repetition, yet evading review" exception to the mootness
doctrine. The exception is limited to cases which have two
elements: "(1) the challenged action was in its duration too
short to be fully litigated to its cessation or expiration and
(2) there is a reasonable likelihood that the same
complaining party would be subjected to the same action
again." Abdul-Akbar v. Watson, 4 F .3d 195, 206 (3d Cir.
1993) (emphasis omitted), quoting Weinstein v. Bradford,
423 U.S. 147, 149 (1975)(per curiam). Given the length of
time it took Doe, proceeding pro se and in forma pauperis,
to reach this stage of the litigation, we will assume,
arguendo, that the first element is satisfied.

However, as a result of his acquittal, we simply cannot
conclude that there is a reasonable likelihood that he would
be subjected to the same conduct. See Weinstein, 423 U.S.
at 149 (former inmate's challenge to par ole decisions
mooted upon his release from supervision); see also Abdul-
Akbar, 4 F.3d at 206 (cautioning against"conjecture" that
prisoner could again be incarcerated at maximum security
unit and holding prisoner's release from maximum security
unit mooted challenge to law library in maximum security
unit).2 Doe is no longer incar cerated at SCIP. Because there
_________________________________________________________________

2. But see Doe v. Wigginton, 21 F .3d 733, 736 (6th Cir. 1994) (no
discussion of mootness, although facts state plaintiff was released from

                               6
is no reasonable likelihood that Doe will be subjected to the
same action, Doe's acquittal has clearly mooted his claims
for declaratory and injunctive relief.

Nonetheless, where a plaintiff has r equested several
forms of relief and some of the r equests become moot, the
court must still consider the viability of the r emaining
requests. Jersey Cent. Power & Light Co. v. State of New
Jersey, 772 F.2d 35, 40 (3d Cir. 1985). "[T]he availability of
damages or other monetary relief almost always avoids
mootness." Id. at 41.3 Therefore, we must review the
District Court's qualified immunity analysis with respect to
Doe's nominal and punitive damages claims.

B. A PRISONER'S RIGHT TO PRIVACY IN MEDICAL
RECORDS

Section 1983 imposes civil liability upon any person who,
acting under the color of state law, deprives another
individual of any rights, privileges or immunities secured by
the Constitution or laws of the United States. 42 U.S.C.
S 1983. This section does not create any new substantive
rights, but it provides a remedy for the violation of a federal
constitutional or statutory right conferred elsewhere. Baker
v. McCollan, 443 U.S. 137, 144 n.3 (1979).
_________________________________________________________________

prison prior to appeal). The Sixth Circuit r eached the merits to dismiss
the privacy claim of an HIV-positive prisoner , but, as discussed in
footnote six, infra, the substantive law of privacy in the Sixth Circuit
conflicts with that of the Third Circuit.

3. While the District Court did not consider the effect of S 803(d)(e) of
the
Prison Litigation Reform Act, codified at 42 U.S.C. S 1997e(e), on Doe's
claims, we have since recognized that S 1997e(e) prohibits compensatory
damages for mental or emotional injury absent allegations of physical
injury. Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000). However,
S 1997e(e) does not bar claims seeking nominal damages to vindicate
constitutional rights, nor claims seeking punitive damages to deter or
punish egregious violations of constitutional rights. Id. Therefore, while
Doe's claims for compensatory damage are barr ed by S 1997e(e), his
claims for nominal damages survive. Moreover , to the extent that Doe's
punitive damages claims stem solely from the violations of his right to
medical privacy, and not from any emotional or mental distress suffered,
those claims are not barred by S 1997e(e). See id. at 252.

                               7
When the defendant in a S 1983 action claims qualified
immunity, a court must first determine if the plaintiff 's
allegations are sufficient to establish the violation of a
federal constitutional or statutory right. W ilson v. Layne,
526 U.S. 603, 609 (1999), citing Conn v. Gabbert , 526 U.S.
286, 290 (1999).4 If the plaintif f 's allegations meet this
threshold, a court must next determine whether the right
that the defendant's conduct allegedly violated was a clearly
established one, about which a reasonable person would
have known. Id. If the plaintiff 's allegations fail to satisfy
either inquiry, then a defendant is entitled to qualified
immunity and dismissal of the case. Deciding "this purely
legal question permits courts expeditiously to weed out
suits which fail the test without requiring a defendant who
rightly claims qualified immunity to engage in expensive
and time consuming preparation to defend the suit on its
merits." Siegert v. Gilley, 500 U.S. 226, 232 (1991).

With this framework in mind, we must deter mine
whether an HIV-positive inmate has a right to privacy in his
medical information. If so, we must deter mine whether that
right was clearly established in 1995.
_________________________________________________________________

4. Notwithstanding the fact that the Supr eme Court has twice stated in
mandatory, unqualified language that "[a] court evaluating a claim of
qualified immunity must first deter mine whether the plaintiff has alleged
the deprivation of an actual constitutional right at all . . ." Wilson,
526
U.S. at 609 quoting Conn v. Gabbert, 526 U.S. at 290 (internal
quotations omitted) (emphasis added), Judge Garth's dissent would
prefer that we skip the first prong of qualified immunity analysis. See
Dissent, infra at p. 40. This practice ignor es the Supreme Court's
express language and creates an exception based on the procedural
posture of the case. While there may be pragmatic considerations
favoring Judge Garth's qualification of the Supr eme Court's unqualified
language, the Court has not yet suggested any basis for departing from
the rule articulated in Wilson. Our thr eshold task here, in qualified
immunity analysis, is to determine whether Doe has alleged a violation
of a constitutional right. We hold that he has, although the full extent
of
that right in the prison setting has yet to be delineated. Whether and
how prison officials must accommodate, or may curtail and even
extinguish that right, in light of the penological interests concerned, is
not before the Court today.

                               8
1.

An individual has a constitutional right to privacy which
protects "the individual interest in avoiding disclosure of
personal matters." Whalen v. Roe, 429 U.S. 589, 599
(1977). We have long recognized the right to privacy in one's
medical information: "There can be no question that . . .
medical records, which may contain intimate facts of a
personal nature, are well within the ambit of materials
entitled to privacy protection." United States v.
Westinghouse Elec. Corp. 638 F.2d 570, 577 (3d Cir. 1980).
The right to privacy in one's medical information extends to
prescription records. Doe v. Southeastern Pa. Transp. Auth.,
72 F.3d 1133, 1138 (3d Cir. 1995), cert. denied 519 U.S.
808 (1996) [hereinafter "Doe v. SEPT A"]. In Doe v. SEPTA,
we acknowledged 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 non-consensual dissemination of the
information." Id. at 1140.

The District Court recognized Doe's right to privacy in his
medical information, but concluded that such a right does
not exist in prison. We disagree. As the Supreme Court has
noted, prison inmates do not shed all fundamental
protections of the Constitution at the prison gates. Wolff v.
McDonnell, 418 U.S. 539, 555 (1974). Inmates r etain those
rights that are not inconsistent with their status as
prisoners or with the legitimate penological objectives of the
corrections system. Pell v. Procunier, 417 U.S. 817, 822
(1974).

For example, prisoners retain rights af forded by the First
Amendment. O'Lone v. Shabazz, 482 U.S. 342, 348 (1987).
They retain the protection of due pr ocess, Wolff, 418 U.S. at
555, and the protection against racial discrimination. Lee v.
Washington, 390 U.S. 333, 334 (1968) (per curiam). Of
course, prisoners retain the Eighth Amendment's protection
against cruel and unusual punishment. Wilson v. Seiter,
501 U.S. 294, 297 (1991). While many rights survive
incarceration, however, it is clear that some rights retained
by free citizens are necessarily extinguished by
imprisonment.

                               9
The defendants correctly assert that prisoners do not
have a Fourth Amendment right to privacy in their cells.
Hudson v. Palmer, 468 U.S. 517, 529 (1984). The Supreme
Court has concluded that the Fourth Amendment right to
privacy, to be free from unreasonable searches, is
fundamentally inconsistent with incarceration. Id. at 527.
Mindful that internal security is a chief concern in prisons,
the Court recognized that it would be impossible to prevent
the introduction of weapons, drugs and other contraband
into the premises if prisoners maintained a right of privacy
in their cells. Id. Therefore,"the Fourth Amendment has no
applicability to a prison cell." Id. at 536.

However, Doe's asserted right to privacy in his medical
information is completely differ ent than the right
extinguished in Hudson. See, e.g., Powell v. Schriver, 175
F.3d 107, 112 n.3 (2d Cir. 1999) (noting right to
confidentiality of medical information is distinct from right
of privacy implicated in Hudson); Anderson v. Romero, 72
F.3d 518, 522 (7th Cir. 1995) (same). The Hudson court
confirmed that a Fourth Amendment right to be free from
unreasonable searches and seizures is inconsistent with
incarceration. In the instant case, Doe is asserting his
Fourteenth Amendment right to privacy in his medical
information. The right to nondisclosur e of one's medical
information emanates from a different source5 and protects
_________________________________________________________________

5. The Fourth Amendment prohibits the gover nment from conducting
unreasonable searches and seizures. U.S. Const. amend. IV. While
courts and commentators have emphasized the privacy interests
protected by the Fourth Amendment, the Supr eme Court has clarified
that the Fourth Amendment "protects individual privacy against certain
kinds of governmental intrusion, but its pr otections go further, and
often
have nothing to do with privacy at all." Katz v. United States, 389 U.S.
347, 350 (1967).

There are at least two types of privacy pr otected 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, 429 U.S. at 599-600; Westinghouse, 638
F.2d at 577. Cases in the latter category describe the liberty interests
in
matters relating to marriage, procr eation, contraception, family
relationships, and child rearing and education. See e.g. Troxel v.
Granville, 120 S.Ct. 2054 (2000) (parents' rights to make decisions

                               10
different interests than the right to be free from
unreasonable searches and seizures. Compare Whalen, 429
U.S. at 598-99 with Hudson, 468 U.S. at 525.

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 pr otecting against the
dissemination of such information. See Doe v. SEPTA, 72
F.3d at 1140; Westinghouse, 638 F.2d at 577. Moreover, a
prisoner's right to privacy in this medical infor mation is not
fundamentally inconsistent with incarceration. Therefore,
we join the Second Circuit in recognizing that the
constitutional right to privacy in one's medical information
exists in prison. See Powell, 175 F.3d at 112.

We acknowledge, however, that a prisoner does not enjoy
a right of privacy in his medical information to the same
extent as a free citizen. We do not suggest that Doe has a
right to conceal this diagnosed medical condition fr om
everyone in the corrections system. Doe's constitutional
right is subject to substantial restrictions and limitations in
order for correctional officials to achieve legitimate
correctional goals and maintain institutional security.

Specifically, an inmate's constitutional right may be
curtailed by a policy or regulation that is shown to be
"reasonably related to legitimate penological interests."
Turner v. Safley, 482 U.S. 78, 89 (1987). Courts must
respect the administrative concerns underlying a prison
regulation, without requiring proof that the regulation is
the least restrictive means of addressing those concerns.
We have summarized the analysis as follows:
_________________________________________________________________

concerning care and custody of childr en); Roe v. Wade, 410 U.S. 113
(1973) (right to abortion); Loving v. Vir ginia, 388 U.S. 1 (1967)
(freedom
to marry); Griswold v. Connecticut, 381 U.S. 479 (1965) (right to marital
privacy in use of contraceptives); Pierce v. Society of Sisters, 268 U.S.
510 (1925) (parents' right to teach own childr en); Meyer v. Nebraska,
262 U.S. 390 (1923) (right to teach foreign language). As described
above, Doe's privacy interest clearly falls into the first category. Some
courts have referred to the first category as a "right to
confidentiality," to
distinguish it from the right to autonomy and independence in personal
decision making. E.g. Powell v. Schriver , 175 F.3d 107, 113-14 (2d. Cir.
1999).

                               11
       [Turner] directs courts to assess the overall
       reasonableness of such regulations by weighing four
       factors. First, there must be a valid, rational
       connection between the prison regulation and the
       legitimate governmental interest put forward to justify
       it, and this connection must not be so remote as to
       render the policy arbitrary or irrational. Second, a
       court must consider whether inmates retain alternative
       means of exercising the circumscribed right. Third, a
       court must take into account the costs that
       accommodating the right would impose on other
       inmates, guards, and prison resour ces generally. And
       fourth, a court must consider whether there ar e
       alternatives to the regulation that fully accommodate
       the prisoner's rights at de minimis cost to valid
       penological interests.

Dehart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000) (en banc)
(internal quotations omitted).

Appellant alleges that his constitutional right to privacy
in his medical information was violated by thr ee practices:
the "open-door" examination room policy, the disclosure of
his medical condition to corrections officer escorts, and the
loud announcement of the names of his medications. Doe
concedes that the "open door" examination r oom policy
could conceivably be justified by a legitimate security
interest but contends that no such inter est has been
advanced here. In addition, Doe maintains that the other
disclosures are unrelated to any legitimate penological
interests, and thus violated his right to privacy.

Given the disposition of the case by the District Court,
defendants did not have the opportunity to come forward
with any evidence of legitimate penological inter ests, costs
of accommodating Doe's privacy interest, or availability of
alternatives to the disclosures made her e. Based on this
undeveloped record, we are unable to assess any of the
Turner factors. Rather than speculating about these factors,
we ordinarily would remand for consideration by the trial
court on those issues. However, we need not decide those
issues in this case because of our disposition of the second
prong of the qualified immunity analysis.

                               12
2.

As stated earlier, the qualified immunity doctrine shields
public officials from actions for damages unless their
conduct was unreasonable in light of clearly established
law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We
have recognized that qualified immunity applies if
"reasonable officials in the defendants' position at the
relevant time could have believed, in light of what was in
the decided case law, that their conduct would be lawful."
Good v. Dauphin County Social Servs. for Childr en & Youth,
891 F.2d 1087, 1092 (3d Cir. 1989).

Thus, having determined that Doe has alleged a violation
of a constitutional right, we must determine whether Doe's
right to privacy was "clearly established" in a
"particularized" sense. Anderson v. Cr eighton, 483 U.S. 635,
640 (1987). "The contours of the right must be sufficiently
clear that a reasonable official would understand that what
he is doing violates that right." Id. W e do not require precise
factual correspondence between the right asserted and
prior case law. Good, 891 F.2d at 1092. Whether an official
may be protected by qualified immunity tur ns on the
"objective legal reasonableness of the action, assessed in
light of the legal rules that were clearly established at the
time it was taken." Wilson v. Layne, 526 U.S. 603, 614
(1999) (internal quotes omitted). The issue is whether, given
the established law and the information available to
Defendants, reasonable prison officials in Defendants'
positions could have believed that their conduct was lawful.
See Paff v. Kaltenback, 204 F.3d 425, 431 (3d Cir. 2000).

Appellant makes three arguments in support of his
contention that his right to privacy in his medical
information was clearly established in 1995. First, Doe
argues that a Pennsylvania statute both cr eates a right and
serves to inform defendants of the existence of that right.
Second, Doe argues that, by 1995, a "gr owing consensus"
of other courts had held that inmates possess a right to
privacy in their medical records. Finally, Doe argues that
the class action settlement in Austin v. Pennsylvania Dept.
of Corrections, 876 F. Supp. 1437 (E.D.Pa. 1995), put
defendants on specific notice of the existence of a prisoner's

                               13
constitutional right to privacy in his medical infor mation.
We address each argument in tur n.

The Pennsylvania Confidentiality of HIV-Related
Information Act, 35 P.S. S 7603, became effective March 1,
1991. Under the Act, any person who obtains confidential
HIV-related information in the course of providing health or
social services, or pursuant to consent, may not disclose
the information, except by consent, or to certain designated
persons. 35 P.S. S 7607. The state right is enforceable in a
private cause of action for damages. 35 P.S.S 7610. Doe
contends that he consented to the HIV test but did not
consent to the various disclosures made by defendants.
While Doe concedes that the state statute cannot be the
basis for his federal action, he argues that prison officials
could not have been acting "reasonably" when they were in
direct violation of a clear state statute; they thus lost the
protections of qualified immunity.

This argument misinterprets the ef fect of a state law on
a federal constitutional claim. The Supreme Court has held
that officials do not forfeit qualified immunity from suit for
violation of a federal constitutional right because they failed
to comply with a clear state statute. Davis v. Scherer, 468
U.S. 183, 195 (1984); see also D.R. by L.R. v. Middle Bucks
Area Vocat'l Tech. School, 972 F.2d 1364, 1375-76 (3d Cir.
1992) (en banc) ("[I]llegality under the state statute can
neither add to nor subtract from the constitutional validity
of a state's actions.") (internal quotes and citation omitted).
To overcome qualified immunity, Doe's clearly established
right must be the federal right on which the claim for relief
is based.6 Claims for violations of the Pennsylvania
Confidentiality of HIV-Related Infor mation Act can be
vindicated in state courts, or, as Doe did here, as a
_________________________________________________________________

6. For example, state law may bear upon a claim under the Due Process
clause when the property interest pr otected by the Fourteenth
Amendment is created by state law. See Boar d of Regents v. Roth, 408
U.S. 564, 577 (1972); Acierno v. Cloutier , 40 F.3d 597 (3d. Cir. 1994). A
federal statute can provide the clearly established right when it is the
basis for the action. See, e.g. Maine v. Thiboutot, 448 U.S. 1 (1980)
(vindicating rights under Social Security Act). This case involves neither
situation.

                               14
supplemental claim. But the state statute cannot"clearly
establish" the federal right for qualified immunity purposes.

Second, a review of decisions which had addr essed the
issue by 1995 reveals that no court of appeals had held
that prisoners retained a constitutional right to the privacy
of their medical information. In fact, only a handful of
district court opinions had done so.

The earliest circuit opinion addressing the issue analyzed
a prison policy of segregating HIV-positive inmates from the
general prison population. Harris v. Thigpen, 941 F.2d
1495, 1515-1521 (11th Cir. 1991). In Harris, the Eleventh
Circuit stated that the "precise natur e and scope of the
privacy right at issue in this case is rather ill-defined." Id.
at 1513. Nevertheless, the court assumed, ar guendo, that
HIV-positive inmates had a "constitutionally-protected
privacy interest" in nondisclosure of their medical
information. The court acknowledged that "the scope of
such a right, however, is far from settled, and we need not
divine its precise parameters here," Id. at 1513 n. 26,
because it found that the Department of Corr ections'
decision to segregate such inmates from the general prison
population served a legitimate penological inter est in
reducing the transmission of HIV and reducing the threat
of violence. Id. at 1521.

Prior to 1995, other courts of appeals likewise upheld the
segregation of HIV-positive inmates fr om the general
population. See, e.g. Camarillo v. McCarthy, 998 F.2d 638,
640 n.2 (9th Cir. 1993) (reserving question of whether HIV
segregation policy is constitutional but holding officers
entitled to qualified immunity); Moore v. Mabus, 976 F.2d
268, 271 (5th Cir. 1992) (finding HIV segr egation policy
reasonably related to legitimate penological interests).7 Of
_________________________________________________________________

7. By 1995, the Sixth Circuit had explicitly held that the right of
privacy
is not implicated at all by prison official's disclosure of an inmate's
HIV
status. See Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir. 1994). However,
Sixth Circuit law conflicts with our cir cuit on this issue because the
Sixth Circuit does not recognize the right to privacy in one's medical
information in any setting. Compare J.P. v. DeSanti, 653 F.2d 1080 (6th
Cir. 1981) (no right to privacy in "social histories" and medical records)
with United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir.
1980) (right to privacy in medical recor ds).

                               15
course, the nature of the disclosures in HIV housing
segregation cases is different than the disclosures Doe
challenges here.

In 1995, the Seventh Circuit considered disclosures that
are closer to the ones that occurred in the present case.
Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995). In
Anderson, the prison superintendent told a guar d, in the
presence of another guard, to make sur e inmate Anderson
was in a cell by himself because he was HIV-positive. The
information was repeated to at least one other guard. The
Anderson court recognized a "qualified constitutional right
to confidentiality of medical records and medical
communications" outside of prison, but concluded that it
was an open question as to whether the right applied in the
prison setting. Id. at 522. The court r ejected two district
court opinions which had found that nonsystematic
disclosures of HIV status had violated HIV -positive inmates'
right to privacy and instead relied on the fact no appellate
court had yet recognized the right. Id. at 523-25 (discussing
Woods v. White, 689 F. Supp. 874 (W.D.Wis. 1988) aff 'd
899 F.2d 17 (7th Cir. 1990) (table) and Rodriguez v.
Coughlin, 1989 WL 59607 (W.D.N.Y. 1989). The Anderson
court concluded that the officials were entitled to qualified
immunity because, if such a right existed, it was not clearly
established in 1992 nor in 1995.8Id. at 524.
_________________________________________________________________

8. The appellate cases illustrate the problem identified by the Supreme
Court in qualified immunity cases: "[T]he generally sound rule of
avoiding determination of constitutional issues does not readily fit the
situation presented here [because] when liability is claimed on the basis
of a constitutional violation, even a finding of qualified immunity
requires some determination about the state of constitutional law at the
time the officer acted. What is more significant is that if the policy of
avoidance [of constitutional issues] wer e always followed in favor of
ruling on qualified immunity whenever ther e was no clearly settled
constitutional rule of primary conduct, standar ds of official conduct
would tend to remain uncertain, to the detriment both of officials and
individuals. An immunity determination, with nothing more, provides no
clear standard, constitutional or non-constitutional . . . . therefore the
better approach is to determine the right before determining whether it
was previously established with clarity." County of Sacramento v. Lewis,
523 U.S. 833, 841 n.5 (1998). See also W ilson v. Layne, 526 U.S. 603,
609 (1999).

                               16
We note that Doe has cited several district court cases
which concluded, by 1995, that inmates have a right to
privacy in their medical information. See Austin v.
Pennsylvania Dept. of Corrections, 876 F . Supp. 1437
(E.D.Pa. 1995) (approving class action settlement including
policies regarding treatment of HIV positive inmates);
Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y. 1995)
(failure to provide qualified interpr eters violated deaf
inmates' right to privacy); Faison v. Parker, 823 F. Supp.
1198 (E.D. Pa. 1993) (disclosure of inmate's medical
conditions in presentence report did not violate right to
privacy); Nolley v. County of Erie, 776 F . Supp. 715
(W.D.N.Y. 1991) (HIV-positive inmate's right to privacy
violated by involuntary segregation and placing red stickers
on his documents); Doe v. Coughlin, 697 F . Supp. 1234,
1238 (N.D.N.Y. 1988) (granting preliminary injunction to
halt involuntary segregation of HIV-positive inmates);
Woods v. White, 689 F. Supp. 874, 876 (W.D. Wis. 1988),
aff 'd 899 F.2d 17 (7th Cir . 1990) (table) (gratuitous
disclosure of HIV-positive status to guar ds and inmates
violated constitutional right to privacy).

Of course, all of these opinions are factually and legally
distinguishable from the present case. Both Nolley and Doe
v. Coughlin are HIV-positive inmate segregation cases.
These cases conflict with the subsequent appellate HIV
segregation cases, which upheld the practice. 9 See
Camarillo, 998 F.2d at 640; Moor e, 976 F.2d at 271; Harris,
941 F.2d at 1515-21. Likewise, the district court decision in
White v. Woods was specifically considered and rejected by
the Seventh Circuit's opinion in Anderson v. Romero. 72
F.3d at 525 (holding prisoners had no clearly established
right to privacy in medical records in 1995). In Faison, the
district court found that disclosure of an inmate's medical
conditions in a court-ordered presentence report did not
violate the inmate's right to privacy. 823 F . Supp. at 1205.
And Clarkson v. Coughlin addressed deaf inmates, not HIV-
positive ones. 898 F. Supp. at 1024.
_________________________________________________________________

9. These opinions also conflict with other New York district court cases
which upheld the segregation of HIV-positive inmates. See Baez v.
Rapping, 680 F. Supp. 112 (S.D.N.Y. 1988); Cordero v. Coughlin, 607 F.
Supp. 9 (S.D.N.Y. 1984).

                               17
In short, none of these decisions, individually or
collectively, makes it sufficiently clear to r easonable officials
that their conduct violated a prisoner's federal
constitutional right. District court opinions may be relevant
to the determination of when a right was clearly established
for qualified immunity analysis.10 However, in this case, the
absence of binding precedent in this cir cuit,11 the doubts
_________________________________________________________________

10. See Hayes v. Long, 72 F.3d 70, 73-74 (8th Cir. 1995) (looking to all
decisional law, including Supreme Court, cir cuit courts, district courts,
and state court opinions for clearly established rights); Tribble v.
Gardner, 860 F.2d 321, 324 (9th Cir . 1988)(same). We note that the
Fourth, Tenth and Eleventh Circuits do not look to district court
decisions to determine if rights are clearly established. See, e.g., Anaya
v. Crossroads Managed Care Sys., Inc., 195 F.3d 584, 594 (10th Cir.
1999) (considering only Supreme Court, forum circuit, highest state
court, or clearly established weight of authority fr om other circuit
courts); Edwards v. City of Goldsboro 178 F.3d 231, 251 (4th Cir.
1999)(considering only Supreme Court, forum cir cuit and highest state
court); Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826
n.4 (11th Cir.) cert. denied, Jenkins ex rel. Hall v. Herring, 522 U.S.
966
(1997)(same). The Second and Seventh Circuits consider district court
opinions as evidence of the law but hold that they cannot clearly
establish the law of the circuit. Anderson , 72 F.3d at 525; Jermosen v.
Smith, 945 F.2d 547, 551 (2d Cir. 1991). The Sixth Circuit has held that
a district court must find binding precedent from the Supreme Court,
the Sixth Circuit, or from itself. Ohio Civil Serv. Employees Ass'n v.
Seiter, 858 F.2d 1171, 1177 (6th Cir . 1988).

We have held that district court decisions do not establish the law of
the circuit, and are not even binding on other district courts within the
district. Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1371
(3d Cir. 1991). Yet, as our prior decisions have illustrated, district
court
opinions do play a role in the qualified immunity analysis. See e.g. Pro
v. Donatucci, 81 F.3d 1283 (3d Cir . 1996) (affirming district court's
reliance on Fifth Circuit opinion and two district court opinions to find
clearly established right in qualified immunity analysis); cf. Brown v.
Grabowski, 922 F.2d 1097 n.13 (3d Cir . 1990) (accepting the use of out
of circuit and district court opinions in qualified immunity analysis but
reversing because opinions had been render ed after conduct in
question).

11. The absence of circuit precedent does not mean an official will always
retain the immunity defense. "The easiest cases don't even arise." United
States v. Lanier, 520 U.S. 259, 271 (1997) (citations and internal
quotation marks omitted).

                               18
expressed by the most analogous appellate holding,
together with the conflict among a handful of district court
opinions, undermines any claim that the right was clearly
established in 1995.

Finally, we address Doe's argument r egarding the
settlement in Austin v. Pennsylvania Dept. of Corrections,
876 F. Supp. 1437 (E.D.Pa. 1995). In Austin, the district
court accepted a negotiated settlement between a class of
inmates and the Pennsylvania Department of Corr ections
over numerous prison conditions, including medical care.
As part of the settlement, the DOC agreed to keep inmates'
medical information regarding their HIV status confidential
and to advocate a universal precautions policy instead of a
notification policy in future union negotiations. Id. at 1453.
Doe argues that, in light of the Austin settlement, prison
officials could not reasonably believe that non-consensual
disclosures of an inmate's HIV status wer e lawful.

We agree that, in some ways, the Austin settlement is
more persuasive than the scattered district court opinions
previously discussed. Austin has significant factual
correspondence to Doe's case. In addition, the opinion
documents the participation of the DOC in lengthy
negotiations regarding treatment of HIV-positive inmates to
settle the class action. Cf. Buckley v. Rogerson , 133 F.3d
1125, 1130-31 (8th Cir. 1998) (district court class action
judgment against Missouri state prison system clearly
established right for Iowa state prisoner to over come
qualified immunity defense).

Nevertheless, Austin is also less persuasive than other
district court opinions. Rather than providing a decision on
the legal merits of the claims, the Austin court merely
approved a settlement. As the Austin court itself noted, it
"only evaluate[ed] the probable outcome of the litigation
and [was] not required to weigh and decide each
contention." Austin, 876 F. Supp. at 1464 n.16. The Austin
court's statement about the constitutionality of disclosing
an inmate's medical information was in r esponse to
proposed, and rejected, courses of conduct.12 The legal
_________________________________________________________________

12. The Austin court stated: "One gr oup of inmates objects to the
Settlement Agreement because they believe the provisions which ensure

                               19
conclusion regarding the constitutional right to privacy was
dictum. It was not binding on the parties and it certainly
did not clearly establish a constitutional right.

Nor can the fact that the DOC agreed to settle a case
clearly establish a federal constitutional right. The law
favors settlement, particularly in class actions and other
complex cases, to conserve judicial resour ces and reduce
parties' costs. See In Re General Motors Corp. Pick-Up Truck
Fuel Tank Litig., 55 F.3d 768, 784 (3d Cir.) cert. denied,
General Motors v. French, 516 U.S. 824 (1995). Where, as in
Austin, the factual and legal issues wer e numerous, broad
and complex, the decision to settle a case cannot be
elevated to the recognition of a constitutional right.

Based on the foregoing, we cannot conclude that the
cited authorities, individually or in combination, clearly
established an inmate's constitutional right to privacy in
his medical information. Government officials must stay
abreast of constitutional developments, but they are not
"expected to predict the future course of constitutional
law." Wilson v. Layne, 526 U.S. at 617. We conclude that
the contours of defendants' legal obligations under the
Constitution were not sufficiently clear in 1995 that a
reasonable prison official would understand that the non-
consensual disclosure of a prisoner's HIV status violates
the Constitution. Accordingly, we will affir m the District
Court order granting Defendants qualified immunity from
Plaintiff 's claims.13
_________________________________________________________________

the anonymity of HIV-infected inmates ar e too stringent. These inmates
want the DOC to test all inmates and notify the general population of
those inmates who are HIV-positive. Such a notification procedure is
unrelated to any penological interest and would most likely violate state
law . . . and the Constitution of the United States." Austin, 876 F. Supp.
at 1466. With respect to the Turner factors, however, the Austin court
stated that "there was no assurance that this Court would order an
elimination of the notification provision. Although individuals have an
interest in preventing disclosure of their HIV status which is protected
by state law and the Constitution, inmates' rights must necessarily yield
to a certain extent to legitimate penological inter ests." Id. at 1467.

13. We will likewise affirm the District Court's order dismissing Nurse
Zimmerman pursuant to 28 U.S.C. S 1915(e)(2)(B)(ii) for qualified
immunity and declining supplemental jurisdiction over the state claims.

                               20
3.

Although the exact boundaries of such a right have yet to
be established, we hold today that prison inmates r etain a
Fourteenth Amendment substantive due process right to
privacy in their medical information. The exact parameters
of a prisoner's right to privacy in that infor mation will have
to be determined in a later case on a mor e complete record,
where the Turner factors can be fully considered in the
context of the penological interests concer ned. Moreover,
because we are granting qualified immunity to the
defendants, we also do not go on to the issue of the
standard that is utilized to determine whether a prisoner's
right to privacy in his medical information has been
violated. That determination too will have to wait for
another day.

IV. CONCLUSION

We hold that the Fourteenth Amendment pr otects an
inmate's right to medical privacy, subject to legitimate
penological interests. However, because this right was not
clearly established at the time of defendants' conduct, we
will affirm the District Court's dismissal of Doe's complaint
on the basis of qualified immunity.

                               21
NYGAARD, concurring and dissenting:

I agree with Judge Roth's conclusion that prisoners have
a right to privacy in their medical information, and that
this right may be compromised only if it conflicts with a
legitimate penological objective that satisfies the criteria
outlined in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254
(1987). I would conclude, however, that Doe's right to
privacy in medical matters was clearly established at the
time of the alleged violations such that Appellees, as
reasonable employees of the Pennsylvania Department of
Corrections, should have known that the right existed and
therefore cannot be dismissed from defending these
allegations on the basis of qualified immunity. Hence, I
dissent from the conclusions contained in Section III, B. 2
of Judge Roth's opinion.

It is now axiomatic that the doctrine of qualified
immunity bars government officials fr om liability for
damages unless they disobeyed "clearly establish[ed]
statutory or constitutional rights of which a r easonable
person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 2738 (1982). Debates over
defendants' qualified immunity typically tur n on this
"clearly established right" clause. The Supr eme Court has
unpacked the meaning of Harlow by pr oviding the following
analytic parameters: For a right to be clearly established,
the "contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right," Anderson v. Creighton, 483 U.S. 635,
640, 107 S.Ct. 3034, 3039 (1987). Nonetheless, at the same
time, a court need not have ruled on a case bearing a
"precise factual correspondence" with the one under
consideration. Assaf v. Fields, 178 F .3d. 170 (3d Cir. 1999),
cert. denied, 120 S.Ct. 374 (1999). Thus, gover nment
officials are not barred from the protection of qualified
immunity if they fail to predict fluctuations in legal debates.
They will not, however, be granted immunity if they fail to
make obvious inferences from a generally established right,
to its application in particular situations.

The question is whether these members of the
Pennsylvania Department of Corrections should have
known from 1995 through 1997 that prisoners possessed a

                               22
right to the privacy of their medical recor ds. I proceed to
my conclusion as follows:

First, we have recognized the right to confidentiality in
medical records since 1980. United States v. Westinghouse
Elec. Corp., 638 F.2d 570, 577 (3d Cir . 1980). We stated in
Westinghouse that medical recor ds, which "may contain
intimate facts of a personal nature, ar e well within the
ambit of materials entitled to privacy protection.
Information about one's body and state of health is a
matter which the individual is ordinarily entitled to retain
within the private enclave where he may lead a private life."
Id. at 577 (citations omitted). Those infected with HIV are
often subjected to discrimination, ridicule, and violence,
and therefore by 1995 we recognized the heightened
importance of respecting the medical privacy of HIV
carriers. See Doe v. Southeastern Pennsylvania Transp.
Auth., 72 F.3d 1133, 1140 (3d Cir . 1995) (noting not only
the importance of maintaining the privacy of medical
records but also the corollary r esponsibility of maintaining
the confidentiality of prescriptions for medications used to
treat AIDS.); see also Doe v. City of New Y ork, 15 F.3d 264
(2d Cir. 1994); Doe v. Borough of Barrington, 729 F. Supp.
376 (D.N.J. 1990). Thus the constitutional right to privacy
of medical information in the non-prison context was well
established at the time the defendants here"leaked" the
information about Doe.

Likewise, the standard for determining the legitimacy of
an infringement on a prisoner's constitutional right, such
as the right to confidentiality in medical r ecords, was well
established by 1995. In Turner, 482 U.S. at 89, 107 S.Ct.
at 2257, the Supreme Court determined that any alleged
violation of a prisoner's right will be unwarranted unless it
is determined to be "reasonably r elated to legitimate
penological interests." See also W ashington v. Harper, 494
U.S. 210, 110 S.Ct. 1028 (1990); O'Lone v. Estate of
Shabazz, 482 U.S. 342, 107 S.Ct. 2400 (1987); Monmouth
County Corr. Inst. v. Lanzara, 834 F .2d 326, 343 (3d Cir.
1987). Turner provided four questions to guide our analysis.
First, is there a valid and rational connection between the
regulation or activity and the legitimate gover nmental
interest? Second, is there an alter native means for the

                               23
prisoner to exercise the right? Third, will accommodating
the right cause an unreasonable burden on the staff, other
inmates, or prison resources? Fourth, is there another
obvious means to accomplish the prison's objective? The
Court's intention in fashioning this test was "to formulate
a standard of review for prisoners' constitutional claims
that is responsive both to the policy of judicial restraint
regarding prisoner complaints and [to] the need to protect
constitutional rights." Turner, 482 U.S. at 89, 107 S.Ct. at
2257 (citations omitted).

Although we have given "[p]rison officials . . . broad
discretion in fashioning appropriate r esponses to legitimate
penological objectives consistent with the constitutional
rights of inmates," Monmouth County, 834 F.2d at 343,
Turner demands that the responses at issue reasonably
serve a valid penological interest. The courts must not,
therefore, allow our analysis to be obscur ed by bald
assertions from prison officials who claim that the policy in
question serves a legitimate end. Expressing some
frustration that the Turner standar d was being misapplied,
the Supreme Court restated its purpose and application in
Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028 (1990).
"We made quite clear," Justice Kennedy admonished, "that
the standard of review we adopted in Turner applies to all
circumstances in which the needs of prison administration
implicate constitutional rights." Id. at 223, 110 S.Ct. at
1038.

Well before 1995, therefore, officials for the Pennsylvania
Department of Corrections should have known 1) that a
constitutional right to privacy in medical r ecords exists,
particularly for HIV-related infor mation, and 2) that under
Turner, prisoners do not forfeit constitutional rights except
when those rights cannot reasonably be r econciled with
legitimate penological objectives. With these two premises
well known, I would expect reasonable prison officials to
infer that they cannot arbitrarily violate a prisoner's right to
privacy in medical information. In this situation, the
"contours of the right [were] sufficiently clear" for Appellees
to understand that they were violating Doe's
constitutionally protected right. Anderson , 483 U.S. at 640,
107 S.Ct. at 3039.

                               24
Next, I believe that a "consensus of cases of persuasive
authority" had been established by 1995. W ilson v. Lane,
526 U.S. 603, 616, 119 S.Ct. 1692, 1700 (1999). The
Eleventh Circuit Court of Appeals had pr esumed the
existence of the right to privacy in HIV-r elated medical
information for prisoners by 1991. See Harris v. Thigpen,
941 F.2d 1495 (11th Cir. 1991). Likewise, in 1992 the
Court of Appeals for the Fifth Circuit r eviewed segregation
of HIV-positive inmates under the Tur ner test, finding that
the identification and segregation of HIV -positive prisoners
"obviously serves a legitimate penological inter est," and
thereby acknowledging the existence of a prisoner's right to
privacy in medical information that can only be abrogated
by a legitimate penological objective. Moor e v. Mabus, 976
F.2d 268, 271 (5th Cir. 1992).

In 1993, the Eastern District of Pennsylvania held that
inmates have a constitutionally protected privacy interest in
nondisclosure of confidential medical infor mation
concerning their HIV status. Faison v. Parker, 823 F. Supp.
1198 (E.D. Pa. 1993). Although the court recognized this
right, it ultimately held that the disclosur e of such
information in a presentencing report served the state's
compelling and countervailing interest of utilizing this
knowledge to provide an appropriate sentence and care
regimen. The balance of interests favor ed disclosure
because the medical information was not included in the
public record, was treated as confidential, and was
provided only to the appropriate officials. Thus, by 1993 the
Eastern District of Pennsylvania recognized the right to
privacy in inmates' HIV-related medical information and
further understood that this right could be compr omised
only by the need to meet a compelling and incompatible
government interest. The Eastern District of Pennsylvania
reinforced this ruling in Austin v. Pennsylvania Dept. of
Corr., 876 F. Supp. 1437 (E.D. Pa. 1995), which I will
discuss in more detail below.

A series of other District Courts reached the same
conclusion by 1995. Clarkson v. Coughlin, 898 F. Supp.
1019, 1041 (S.D.N.Y. 1995) ("Prison inmates retain a
constitutional right to privacy concerning medical
information about them."); Nolley v. County of Erie, 802 F.

                               25
Supp. 898 (W.D.N.Y. 1992); Inmates of N.Y. State with
Human Immune Deficiency Virus v. Cuomo, No. 90-CV-252,
1991 WL 16032, *3 (N.D.N.Y. Feb. 7, 1991)("[T]he federal
Constitution protects against the unwarranted and
indiscriminate disclosure of the identity of HIV-infected
individuals and of their medical records; that is to say, the
court accepts . . . the proposition that the constitutional
right of privacy extends to such matters, and that prisoners
enjoy such a privacy right. . . ."); Bor ough of Barrington,
729 F.Supp. at 384 ("The government's interest in
disclosure here does not outweigh the substantial privacy
interest involved. The government has not shown a
compelling state interest in breaching the Does' privacy.");
Woods v. White, 689 F. Supp. 874 (W.D. Wis. 1988), aff 'd
without opinion, 899 F.2d 17 (7th Cir . 1990);1 Rodriguez v.
Coughlin, No. 87 Civ. 1577E, 1989 WL 59607 (W .D.N.Y.
June 2, 1989); Doe v. Coughlin, 697 F . Supp. 1234, 1238
(N.D.N.Y. 1988) ("[I]n recognition of the particularly
personal nature of the information potentially subject to
disclosure under the state's program, the court determines
that the prisoners subject to this program must be afforded
at least some protection against the non-consensual
disclosure of their diagnosis.")

Appellees argue, and Judge Roth agrees, that these cases
do not constitute a proper consensus. T o the contrary, I
agree with the Court of Appeals for the Eighth Circuit,
which explained that "[i]n the absence of binding precedent,
a court should look to all available decisional law, including
decisions of state courts, other circuits and district courts."
Norfleet v. Arkansas Dep't of Human Services , 989 F.2d
289, 291 (8th Cir. 1993); see also Buckley v. Rogerson, 133
F.3d 1125, 1129-30 (8th Cir. 1998) (finding a right clearly
established on the basis of decisions from out of circuit
district courts). We should remember that the Supreme
Court has recently made clear that all that is required to
defeat claims of qualified immunity is a "consensus of cases
of persuasive authority," and not a consensus of binding
authority. Wilson, 526 U.S. at 616. Thus although a lone
_________________________________________________________________

1. Judge Roth states that the Seventh Circuit "rejected" Woodsin
Anderson v. Romero, 72, F.3d 518 (7th Cir. 1995). This is not entirely
accurate. The court in Anderson merely declined to reach the question.

                               26
District Court opinion may not secure a right, when that
opinion is combined with opinions from the Supr eme Court,
Courts of Appeals, and a variety of District Courts, then I
would conclude that the right was established to an extent
sufficient to notify the officials.

Two other factors render the officials' failure to recognize
Doe's right to privacy in his medical recor ds still more
unreasonable. First, The Pennsylvania Confidentiality of
HIV-Related Information Act, 35 P .S. S 7603, which became
effective on March 1, 1991, provides a statutory right to
nondisclosure. Section 7607 states:

       (a) Limitations on disclosure.--No person or employee,
       or agent of such person, who obtains confidential HIV-
       related information in the course of pr oviding any
       health or social service or pursuant to a release of
       confidential HIV-related information under subsection
       (c) may disclose or be compelled to disclose the
       information.

The statute makes no exception for inmates, as it states
that HIV-related information can be disclosed to

       [e]mployees of county mental health/mental
       retardation agencies, county childr en and youth
       agencies, county juvenile probation departments,
       county or State facilities for delinquent youth, and
       contracted residential providers of the above-named
       entities receiving or contemplating residential
       placement of the subject, who:

        (i) generally are authorized to receive medical
       information; and

        (ii) are responsible for ensuring that the subject
       receives appropriate health care; and

        (iii) have a need to know the HIV-r elated information
       in order to ensure such care is pr ovided.

Id. Because no exception is made for adult prisoners, and
all other exceptions are clearly stated, the Department of
Corrections should have known by March 1991 that
prisoners possess a right to the privacy of their HIV-related
information. Considering the specificity of the statute, and

                               27
its precise applicability to the facts of this case, the right
under review was clearly established in 1991.

Appellees, and Judge Roth, claim that a state statute is
irrelevant to the issue of qualified immunity on a federal
claim. See Davis v. Scherer, 468 U.S. 183, 194-97, 104
S.Ct. 3012, 3019-21 (1984). I disagree. As the Supreme
court explained in Elder v. Halloway, Davis held that

       an official's clear violation of a state administrative
       regulation does not allow a S 1983 plaintiff to overcome
       the official's qualified immunity. Only in this context is
       the Court's statement comprehensible: `A plaintiff who
       seeks damages for violation of constitutional or
       statutory rights may overcome the appellee official's
       qualified immunity only by showing that those rights
       were clearly established . . .' Davis, in short, concerned
       not the authorities a court may consider in
       determining qualified immunity, but this entirely
       discrete question: Is qualified immunity defeated where
       an appellee violates any clearly established duty,
       including one under state law, or must the clearly
       established right be the federal right on which the
       claim for relief is based? The Court held the latter.

510 U.S. 510, 515, 114 S.Ct. 1019, 1023 (1994) (citations
omitted).

The reason why I disagree with Judge Roth is that
although a state statute will not, by itself, place an official
on notice of a federal right, to me such a statutory right
should raise the official's awareness that a parallel federal
right may exist. Such a warning should facilitate a
reasonable official's ability to make the inference discussed
above. This position is congruent with the objectives of the
doctrine of qualified immunity. If a state statute clearly
articulates a right, and places those within its jurisdiction
on notice of that right, and if that right per fectly coincides
with a federally protected right, then why would we not
consider the statute's existence when determining whether
the offender should have known of the federal right? I think
we should. Indeed it seems to me that a state statute,
locally promulgated, and free from many of the
uncertainties of case law, most effectively notifies the
community of a protected right, and reinforces federal law.

                                28
Regardless of how a person learned of the right, and
regardless of whether she thought she was violating state
or federal law, she knew that a right existed and that she
was violating it. The purpose of qualified immunity is to
protect government officials fr om having to defend
themselves in litigation over rights and duties that they did
not know they were violating. Here, the Appellees were
clearly notified by the 1991 statute that Doe was entitled to
the privacy of his medical records under state law. The
inference that prisoners were entitled to the same right
under federal law was implicit by 1995. If we allow the state
statute to play no role in assessing whether or not the
officials should have known of the federal right, then we
allow officials to turn a blind eye to the general state of the
law and discourage them from making a good faith effort to
recognize such implicit principles. I consider this good faith
effort to be within the responsibilities of a "reasonable
official."

In addition, as powerful evidence that these officials
knew they were violating Doe's right to privacy, in an
opinion establishing a right to privacy for inmates' HIV-
related medical records, Austin v. Pennsylvanian Dep't of
Corr., the very agency and officials before us now were also
appellees in that case. In that opinion in January 1995, the
Court stated that the "DOC has agreed to keep inmates'
medical information regarding HIV status confidential and
to advocate a universal precautions policy in place of the
current Contagious Disease Notification Policy in its
forthcoming negotiations with the union repr esentative of
its custody staff." Austin, 876 F . Supp. at 1453. This
decision alone directly notified Appellees of their obligation
to protect Doe's privacy right. As Judge Roth correctly
states, court approval of a settlement does not provide a
legal decision regarding the constitutionality of the
elements of the settlement. But that is not the test. The
court clearly warned the very institution before us in this
matter that it risked constitutional violations by disclosure.
Indeed the language the Court used was that disclosure of
a prisoner's HIV-related medical infor mation, if "unrelated
to any penological interest . . . would most likely violate
state law, and the Constitution of the United States." Id. at
1437. Austin explained that "[a]lthough individuals have an

                               29
interest in preventing disclosure of their HIV status which
is protected by state law and the Constitution, inmates'
rights must necessarily yield to a certain extent to
legitimate penological interests," and then clearly stated the
criterion of the Turner test. Id. In light of this notification,
it seems disingenuous to claim that the officials here
deserve protection from Doe's claims because they did not
know that they could not arbitrarily disclose a prisoner's
medical information.2

       In summary, the combination of the preponderance of
case law, the state statute, and the Pennsylvania
Department of Corrections' previous agr eement to respect
privacy in prisoners' HIV-related materials, clearly
established the right in question. I would find that, taken
together, these factors defeat Appellees' claim to qualified
immunity. I therefore respectfully dissent from this aspect
of the Majority's decision.
_________________________________________________________________

2. Finally, I note that the manner in which this delicate information was
disseminated indicates to me that the officials knew they were
misbehaving, but persisted in doing so regar dless of the fact that they
were mistreating Doe.

                               30
GARTH, Circuit Judge, dissenting and concurring.

I agree with Judge Roth that the District Court's decision
dismissing Doe's complaint should be affir med because the
defendants have qualified immunity from Doe's claims.
However, I cannot agree that, on this r ecord brought before
us on a Rule 12(b)(6) motion,1 we can or should declare
that "a constitutional right to privacy in one's medical
information exists in prison." (Roth Op. at 11.) This case is
one of first impression, and Judge Roth's holding, with
which Judge Nygaard concurs as to the constitutional right,2
may have a multitude of ramifications in this Cir cuit where
major prisons abound. It is for that reason that I write
separately contesting the creation of a constitutional right
of privacy and confidentiality for prisoners. 3

It is true that, in so holding, Judge Roth qualifies this
statement, observing that "Doe's constitutional right is
subject to substantial restrictions and limitations in order
_________________________________________________________________

1. A motion brought pursuant to Federal Rule of Civil Procedure 12(b)(6)
is granted only if: "taking the allegations of the complaint as true, . .
.
and viewing them liberally giving plaintiffs the benefit of all inferences
which fairly may be drawn therefrom, . . .`it appears beyond doubt that
the plaintiff[s] can prove no set of facts in support of [their] claim
which
would entitle [them] to relief.' "Bogosian v. Gulf Oil Corp., 561 F.2d
434,
444 (3d Cir. 1977) (internal citations omitted).

2. For ease of reference, I will r efer to Judge Roth's holding throughout
this dissent and concurrence, although Judge Nygaard constitutes her
majority with respect to the establishment of a constitutional right to
privacy in prison.

3. In her footnote 3, relevant to her discussion of mootness, (see Roth
Op., Part III.A), Judge Roth asserts that S 1997e(e) of the Prison
Litigation Reform Act ("PLRA") does not bar claims for punitive damages,
relying on Allah v. Al-Hafeez, 226 F .3d 247, 251 (3d Cir. 2000). I
disagree with her analysis, because I believe that this case is far more
similar to Davis v. District of Columbia, 158 F.3d 1342 (D.C.Cir. 1998),
where the D.C. Circuit held that an inmate's punitive damages claims
were barred by the PLRA. We distinguished Davis in Allah "because
those claims [in Davis] stemmed fr om the allegations of emotional and
mental injury [suffered as a r esult of the violation of Davis'
constitutional
right to privacy]." 226 F.3d at 252. As a consequence, contrary to Judge
Roth, I would hold that Doe's punitive damages claim is barred by the
PLRA, although I agree that the claim for nominal damages prevents our
dismissing Doe's action as moot.
31
for correctional officers to achieve legitimate correctional
goals and maintain institutional security." (Roth Op. at 11.)
Nevertheless, because she and I agree that such a
constitutional right of privacy in prison has not been and is
not clearly established, the prudential and wiser course of
action in this case is to decline to determine that such a
constitutional right has been established at all .

I.

The record before us in this case is naked of anything
other than Doe's allegations in his complaint--allegations
which complain of a lack of privacy and confidentiality as
well as a violation of his grievance/appeal rights. 4 However,
_________________________________________________________________

4. That statement of Doe's claim alleges:

       - Doe is a death row prisoner;

       - After submitting to a blood test, Doe was informed by the prison
       medical staff that he was HIV-positive and that this medical
       condition would be kept confidential;

       - He has undergone medical examinations and tests in the open
       presence of correctional officers and other inmates;

       - The clinic door is kept open when Doe is seen by doctors and
       specialists from the Centers for Disease Contr ol (CDC), so that
       correctional officers can see Doe;

       - When Doe has an appointment with a CDC specialist, the
       correctional officers who escort him to the appointment are
       informed of the nature of the appointment;

       - On one occasion, a nurse announced aloud the names of the
       medications being delivered to Doe in the pr esence of other
       inmates and that nurse told a corrections officer about Doe's
       condition;

       - In connection with Doe's internal grievance about the sick call
       procedure, he was interviewed by a medical grievance officer
       whom Doe told that another inmate twice over heard a nurse
       stating the name of Doe's medication when delivering it to him;

       - Doe's internal grievance, which contained information about his
       HIV-positive status, was forwarded to the superintendent of the
       prison;

                               32
we have not been informed and do not know whether Doe,
who was a death penalty prisoner, was r equired to be
closely guarded at all times by prison guar ds, thereby
virtually ensuring that the guards would be privy even to
private conversations. We do not know the construction and
dimensions of the medical area or medication dispensary at
SCI-Pittsburgh--whether there ar e communal examination
rooms or private examination cubicles. W e do not know the
location of Doe's death penalty cell in the Restricted
Housing Unit ("RHU"), or the route, access, and distance
from his cell to the medical area. W e do not know the
circumstances under which medication is dispensed at sick
call--the structure and configuration of the dispensary, the
location in the dispensary of physicians, nurses, guards,
and other prisoners, or the manner in which prisoners
receive medication (are they separately scheduled or are
they scheduled in a group or in an open line?). Nor do we
know the administrative complexities encounter ed by
prison authorities in ensuring the manner in which each
prisoner receives the correct medication. We do not know
the state of the security precautions in the dispensary area
as compared to the security in the RHU, nor do we know
the required provisions for security in the passageways
between the two areas.

All that we do know from Doe's complaint is 1) that the
clinic door is kept open when Doe is seen by doctors and
CDC specialists so that Doe may be viewed by corr ections
officers,5 and 2) that, when Doe receives his medication, the
medication is sometimes referred to by name. Moreover,
_________________________________________________________________

       - Prison officials responded to Doe's internal grievance by
       informing him that the nurses denied his allegations and that the
       door had to be left open when Doe was being examined by
       specialists and doctors due to a "security issue"; and

       - His appeal rights had been affected by being obliged to go
       through the superintendent prior to appeal tofinal review.

(App. 15a-19a.)

5. Judge Roth acknowledges that Doe has conceded that this practice
may be justified by the prison's legitimate security concerns. (Roth Op.
at 12.)

                               33
because, on a Rule 12(b)(6) motion, no response or
information is available from, in this case, the prison
authorities, we have no knowledge of the physical,
structural, or security conditions in prison that contribute
to and may generate a diminished expectation of privacy or
confidentiality.6

Prisons are communal environments in which a large
number of inmates and prison employees coexist in a
confined living space. For this reason, inmates have little
physical privacy, and the circumstances of medical
treatment may not conform to private, non-prison norms.
Prisoners must do everything in close proximity to other
inmates and prison personnel, including sleeping, eating,
dressing, bathing, and, to a certain extent, r eceiving
medical attention.

II.

Another reality of prison life is the fact that prison
_________________________________________________________________

6. Because, as noted, this is an appeal fr om a Rule 12(b)(6) dismissal,
the defendants have not been able to inform us of their actions,
procedures, regulations, explanations, or justifications in response to
Doe's complaint. (See text infra, discussing the inadvisability of
creating
constitutional rights based on a naked recor d consisting only of the
prisoner-plaintiff 's allegations.) It is not only impossible to analyze
the
factors identified in Turner (connection between regulation and
justification; alternative means of exer cising right; costs of
accommodating right; and alternatives to the r egulation), as even Judge
Roth acknowledges (see Roth Op. at 12 ("defendants did not have the
opportunity to [produce] any evidence of legitimate penological interests,
costs. . . , or availability of alternatives. . .")), but it is similarly
hopeless
to draw upon instruction from the "privacy?" cases cited by both Judge
Roth and Judge Nygaard. This is so because, her e, there are no factual
circumstances that can be likened or compar ed to the circumstances
described in the cases my colleagues have cited, almost all of which are
non-prison cases or are inapposite for some other reason and, therefore,
are not relevant in any event. See, e.g., Doe v. Southeastern Pennsylvania
Transp. Auth., 72 F3d 1133 (3d Cir . 1995) (non-prison case); United
States v. Westinghouse Elec. Corp., 638 F .2d 570 (3d Cir. 1980) (non-
prison case); Moore v. Mabus, 976 F .2d 268 (5th Cir. 1992) (does not
establish privacy right); Harris v. Thigpen, 941 F.2d 1495 (11th Cir.
1991) (does not establish privacy right).

                               34
resources are limited. Prison systems are generally in this
day and age overcrowded and understaf fed. Therefore,
accommodation of prisoners' privacy and confidentiality
demands, their needs, and even their rights cannot be
assumed or declared in a vacuum. Considering the
communal nature of prison existence, similar in many
privacy (or lack of privacy) aspects to life in the military,
together with the limited and often insufficientfinancial
resources of prisons, I believe it to be rash and imprudent
to hold at this time, without much more infor mation about
prison security concerns, that Doe has a constitutional
right to privacy in his HIV-positive status, any more than
he has a constitutional right of privacy in his cell. See
Hudson v. Palmer, 468 U.S. 517, 525-26 (1984).

I recognize, of course, that the rationale of Hudson,
analyzed under the Fourth Amendment, dealt with the lack
of privacy an inmate has in his cell accommodation,
whereas here our attention is drawn to rights under the
Fourteenth Amendment and the "penumbras" of rights
encompassing privacy. See Griswold v. Connecticut, 381
U.S. 479, 484 (1965) (holding that "specific guarantees in
the Bill of Rights have penumbras," one of which is the
right of privacy). However, certainly Doe's expectation of
privacy and confidentiality of medical infor mation in a
communal dispensary setting cannot be deemed to be
greater than his expectation of privacy in his cell,
depending, of course, on all of the circumstances which I
have noted above and as to which we have no infor mation.

Indeed, I take issue with Judge Roth's assertion that
"Doe's asserted right to privacy in his medical information
is completely different than the right extinguished in
Hudson." (Roth Op. at 10.) After all, in Hudson, the
Supreme Court declined to declare a constitutional right
because "[t]he recognition of privacy rights for prisoners in
their individual cells simply cannot be reconciled with the
concept of incarceration and the needs and objectives of
penal institutions," 468 U.S. at 526, wher eas, here, Judge
Roth has declared a constitutional right, but has held that
"Doe's constitutional right is subject to substantial
restrictions and limitations in order for correctional officials
to achieve legitimate correctional goals and maintain

                                35
institutional security." (Roth Op. at 11.) If there are
concerns, as evidently Judge Roth has her e, that
"legitimate correctional goals" and "institutional security"
may be jeopardized by the exercise of Doe's purported
constitutional right, it would seem to me only prudent that
we should withhold declaring a constitutional right of
privacy until we have obtained the information we lack.

That is the course of action that the Supreme Court took
in Hudson, where the Court decided the very limited
question of a prisoner's Fourth Amendment privacy right in
his cell on an appeal from a grant of summary judgment,
not a Federal Rule of Civil Procedure 12(b)(6) motion, and
even Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999), which
Judge Roth cites in support of her declared constitutional
right, went to full trial before the Second Cir cuit announced
that a constitutional right had been established.

I believe that we can analogize Doe's situation to the
Supreme Court's rationale in Hudson, where the Court, as
noted, held that prisoners do not have a Fourth
Amendment right to privacy in their cells. Doe's complaint
includes claims of violation of his privacy, violation of
confidentiality, and violation of his rights under the
grievances and appeal procedures. My r eading of Doe's
complaint reveals that it is the privacy aspect on which Doe
has focused and which has caused his distress. But, the
question that then arises is whether Doe had a legitimate
expectation of privacy concerning his HIV -positive status.
In this respect, I believe we can look to Hudson, where the
Court stated:

       Determining whether an expectation of privacy is
       "legitimate" or "reasonable" necessarily entails a
       balancing of interests. The two inter ests here are the
       interest of society in the security of its penal
       institutions and the interest of the prisoner in privacy
       within his cell. The latter interest, of course, is already
       limited by the exigencies of the circumstances: A prison
       "shares none of the attributes of privacy of a home, an
       automobile, an office, or a hotel room." We strike the
       balance in favor of institutional security, which we
       have noted is "central to all other corrections goals." A
       right of privacy in traditional Fourth Amendment terms

                               36
       is fundamentally incompatible with the close and
       continual surveillance of inmates and their cells r equired
       to ensure institutional security and inter nal order. We
       are satisfied that society would insist that the
       prisoner's expectation of privacy always yield to what
       must be considered the paramount interest in
       institutional security. We believe that it is accepted by
       our society that "[l]oss of freedom of choice and privacy
       are inherent incidents of confinement."

Hudson, 468 U.S. at 527-28 (internal citations omitted)
(emphasis added). So too is the privacy inter est implicated
in this case "limited by the exigencies of the
circumstances," namely the communal natur e of prison life,
the logistical problems with prisoner confidentiality in
prison medical facilities, and the need for prisoners,
especially death row prisoners such as Doe, to be watched
closely by prison guards. Therefor e, I believe that,
depending upon the prison information as to which we are
still ignorant, Doe's right to privacy in the communication
of his medical information may be "fundamentally
incompatible with the close and continual surveillance of
inmates" as was the Fourth Amendment right in Hudson.7
_________________________________________________________________

7. I should note that the connection between the prison's security
interest and the deprivation of Doe's right to privacy is less direct here
than in the Fourth Amendment context. In Hudson , the Supreme Court
observed that prison officials must be able to maintain prison safety by
entering inmate's cells to search for weapons and contraband. Here,
Doe's right to privacy is overshadowed and diminished by the general
need to monitor and guard prisoners and by the very nature of a forced
communal living environment, both of which make it difficult to preserve
a prisoner's privacy.

Moreover, I believe that the balancing of interests prescribed by the
Supreme Court in Hudson whereby expectations of privacy must be
balanced against legitimate penological and security interests cannot be
undertaken unless and until those interests ar e known and spread upon
the record. Until that time, I cannot subscribe to or hold that prisoners
have the same privacy interests as the general non-prison population
enjoys. I also believe that, when the balancing equation is completed, it
will weigh in favor of institutional security and against prisoners'
unrealistic expectations of privacy as it does in the Fourth Amendment
context.

                               37
See Pell v. Procunier, 417 U.S. 817, 822 (1974) ("challenges
to prison restrictions that are asserted to inhibit First
Amendment interests must be analyzed in ter ms of the
legitimate policies and goals of the corrections system, to
whose custody and care the prisoner has been committed
in accordance with due process of law").

Thus, the realities of prison life compel a holding that
Doe has not established a constitutional right to privacy on
the record here--and certainly not in the current posture of
this case. Though the Supreme Court has held that
prisoners retain "those [constitutional] rights not
fundamentally inconsistent with imprisonment itself or
incompatible with the objectives of incarceration," Hudson
v. Palmer, 468 U.S. 517, 523 (1984), the Court has also
observed repeatedly that "[l]awful incar ceration brings
about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the
considerations underlying our penal system." 8 Price v.
Johnston, 334 U.S. 266, 285 (1948). These "considerations"
include "deterrence of crime, rehabilitation of prisoners,
and institutional security," DeHart v. Hor n, 227 F.3d 47, 50
(3d Cir. 2000), as well as, I believe, allocation of limited
prison resources. Indeed, the Supr eme Court has stated:
"because the `problems of prisons in America are complex
and intractable,' and because courts are particularly `ill
equipped' to deal with these problems, we generally have
_________________________________________________________________

Hence, I am neither influenced nor persuaded by Judge Roth's reliance
on Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999), a Second Circuit case
not binding in this Circuit and completely distinguishable because: 1)
Powell was decided only after a full jury trial, whereas here we have a
Rule 12(b)(6) motion which takes the allegations of the complaint as
true, see note 1, supra; 2) Powell extrapolated its privacy holding from
Doe v. City of New York, 15 F.3d 264 (2d Cir. 1994), which is a non-
prison case of privacy; and 3) Powell's emphasis was wholly on
transsexualism--a condition with its unique pr oblems not relevant in
Doe's case.

8. The Supreme Court reaffirmed this principle most recently in Shaw v.
Murphy, stating that "constitutional rights that prisoners possess are
more limited in scope than the constitutional rights held by individuals
in society at large." 121 S.Ct. 1475, 1479 (2001).

                               38
deferred to the judgments of prison officials in upholding
these regulations against constitutional challenge." Shaw v.
Murphy, 121 S.Ct. 1475, 1480 (2001) (inter nal citations
omitted) (holding that a prisoner has no First Amendment
right to provide legal assistance to other inmates and that,
therefore, prison officials did not violate the prisoner's
constitutional rights when they intercepted a letter
containing legal advice that he sent to another prisoner).

III.

I also note that a decision in this case that 1) the record
is not sufficient to establish a constitutional right but that
2) the right was not clearly established in any event is
consistent with the Supreme Court's dir ective in Wilson v.
Layne, 526 U.S. 603 (1999). In Wilson , the Court stated
that "[a] court evaluating a claim of qualified immunity
`must first determine whether the plaintiff has alleged the
deprivation of an actual constitutional right at all, and if so,
proceed to determine whether that right was clearly
established at the time of the alleged violation.' " 526 U.S.
603, 609 (1999) (quoting Conn v. Gabbert, 526 U.S. 286,
290 (1999)). The Court explained that "[d]eciding the
constitutional question before addressing the qualified
immunity question . . . promotes clarity in the legal
standards for official conduct, to the benefit of both the
officers and the general public." 526 U.S. at 609.

However, Wilson arose in the context of a district court's
ruling on a summary judgment motion, not on a Rule
12(b)(6) motion to dismiss, as did the other cases cited by
the Court in Wilson. See Conn v. Gabbert, 526 U.S. 286
(1999); County of Sacramento v. Lewis, 523 U.S. 833
(1998); see also Siegert v. Gilley, 500 U.S. 226 (1991).9 This
doctrine makes sense in the context of a summary
_________________________________________________________________

9. Powell v. Schriver, see note 5, supra, in which the Second Circuit held
that a transsexual prisoner had a constitutional right to privacy in that
medical information but that the constitutional right to privacy in prison
was not clearly established, arose in the context of a district court's
grant of judgment notwithstanding the verdict to the defendant. In that
case, unlike this one, the Second Circuit had the benefit of a full
factual
record after a full jury trial.

                               39
judgment motion, which occurs at the close of discovery
when a court may make a decision on the existence of a
constitutional right with the benefit of the r elevant facts.

Hence, it seems to me that the Wilson rule is not
appropriately extended to rulings on Rule 12(b)(6) motions
to dismiss, where the factual recor d is as scant as it is
here. In my opinion, to construct a constitutional right out
of the whole cloth without analysis and without any
knowledge of the institutional factors or security concerns
attendant to a prison population or to a penal envir onment
appears to me to be not only improvident but, as I have
stated, rash. Indeed, I find it highly unusual that a court
should decide the existence of a constitutional right when
it has essentially no record befor e it and no basis on which
it may balance the claims made by the prisoner of privacy
expectations against legitimate security inter ests of the
prison. Such a decision does not "promote[ ] clarity in the
legal standards for official conduct, to the benefit of both
the officers and the general public," W ilson, 526 U.S. at
609, but instead causes uncertainty and confusion by
establishing an hitherto undeclared constitutional right
with no discernable standards.

Judge Roth in her majority opinion has responded to this
critique and my thesis by citing two Supreme Court cases
and declaring that the Supreme Court unequivocally
demands that, in qualified immunity cases, the
constitutional right first be declared befor e we address
whether that right has been clearly established. (Roth Op.
at 8 n.4.) I quite agree with her that the doctrine she
invokes requires the declaration of a constitutional right as
the first order of business. However, and this is a major
"however," those cases to which she r efers were not cases
decided by a district court on a Rule 12(b)(6) motion. See
Wilson v. Layne, 526 U.S. 603, 608 (1999) ("The District
Court denied respondents' motion for summary judgment
on the basis of qualified immunity."); Conn v. Gabbert, 526
U.S. 286, 289 (1999) ("[Defendants] moved for summary
judgment on the basis of qualified immunity, and the
District Court granted the motion."). The very nature of a
Rule 12(b)(6) motion, as contrasted with a summary
judgment motion, with its concomitant standar d of review

                               40
(accepting all of the plaintiff 's allegations as true), is alien
to certain types of judicial declarations (namely,
declarations of constitutional rights).

The Seventh Circuit, albeit in a differ ent context, has
recently held that district court judges should not apply the
Rule 12(b)(6) standard of accepting a plaintif f 's allegations
as true when they determine whether to certify a class. The
Seventh Circuit instructed that, "[b]efore deciding whether
to allow a case to proceed as a class action, .. . a judge
should make whatever factual and legal inquiries ar e
necessary under Rule 23." Szabo v. Bridgeport Machines,
Inc., 249 F.3d 672 (7th Cir. 2001). Similarly, I suggest that
the Rule 12(b)(6) standard cannot be applied by district
courts in first determining the existence of a constitutional
right, because the facts and circumstances of the case, as
they bear upon penological interests and concer ns, must be
explored before a court can unequivocally announce a
constitutional right.

Moreover, I have great difficulty, as I envisage the bench
and bar will also have, in identifying the contours and
parameters of an asserted constitutional right of prison
privacy that is still subject to the restrictions and
limitations of penal security interests. Even Judge Roth
admits that these restrictions, limitations, and
accommodations have yet to be delineated. In particular,
since the relevant penological interests are presently not
known and may, by their very nature, cause the
constitutional right at issue here to disappear into thin air
or be diminished to a point of nothingness, it seems to me
far better that we know precisely the right with which we
are dealing before creating such a right liable to be
dismissed on its first documented challenge.

Certainly the Supreme Court could never have intended
that a fundamental constitutional right be cr eated with no
regard for the framework or circumstances relevant to its
application. It is for that reason, I suggest and strongly
urge, that it is far more prudent and r esponsible to await
the development of an appropriate recor d before plunging
ahead to create a fundamental right which may not ever be
sustainable in a communal prison context.

                               41
Judge Roth acknowledges that the record in this case is
undeveloped just as Doe himself "concedes that the `open
door' examination room policy [see note 3, supra] could
conceivably be justified by a legitimate security interest but
contends that no such interest has been advanced here."
(Roth Op. at 12.) Judge Roth, recognizing that we would
ordinarily remand for consideration by the trial court of
issues concerning legitimate penological inter ests, security
concerns, costs of accommodating Doe's privacy interest,
availability of alternatives, etc., did not take that course
because the right which she has declared was not clearly
established.

I would hold that, if a record is undeveloped, as this one
is, it cannot suffice to form the basis for the declaration of
a constitutional right. The announcement of a
constitutional right--an announcement which is never
lightly reached and which inevitably has far -reaching and
unpredictable consequences--should be gr ounded on
unassailable legal principles and formulated based on a full
factual record. Had Judge Roth just assumed arguendo
that a constitutional right existed in prison, as the Eleventh
Circuit did in Harris v. Thigpen, 941 F .2d 1495, 1513 (11th
Cir. 1991), (which was admittedly decided before the
Supreme Court's holding in Wilson v. Layne, 526 U.S. 603
(1999)), while I would have been uncomfortable, I would not
have resisted her announcement as I have. But, to
announce without reservation a full-fledged constitutional
right of privacy in prison, as a matter of first impression,
without a factual record, and without any substantial or
persuasive case support, I believe transcends our r ole as
reviewing judges. I think the declaration made in this case
is wrong and is a grave mistake to publish as this Circuit's
precedent. I think that we will ultimatelyfind it necessary
to retreat from the constitutional position this panel has
taken.

IV.

Accordingly, in my opinion, we are corr ect in disposing of
this case on qualified immunity grounds, not only because
the constitutional right was not clearly established but
because, at this time and in the posture of the present

                               42
case, we should not announce a constitutional right which
cannot be defined at this stage of the proceedings.

I therefore respectfully dissent fr om Judge Roth's
constitutional holding but concur in the final judgment,
because I agree with Judge Roth that such a right has not
been, and is not, clearly established and that, ther efore, the
District Court's dismissal of Doe's action should be
affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               43
