                       NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  File Name: 10a0277n.06

                                                No. 09-1307
                                                                                           FILED
                                UNITED STATES COURT OF APPEALS                          May 06, 2010
                                     FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk
TYRONE MOORE,

          Plaintiff - Appellant

v.                                                              ON APPEAL FROM THE
                                                                UNITED STATES DISTRICT
UNKNOWN PREVO, et al.,                                          COURT FOR THE WESTERN
                                                                DISTRICT OF MICHIGAN
          Defendants - Appellees


                                                           /

Before:             MARTIN, CLAY, and KETHLEDGE, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. This is a prisoner civil rights action filed pursuant

to 42 U.S.C. § 1983. Tyrone Moore was a prisoner at the Riverside Correctional Facility in Ionia,

Michigan. He alleges that, on July 2, 2007, Nurse Prevo1 and two correction officers, Simmons and

Doe, informed fellow-prisoner Franks, that Moore is HIV positive. Moore also alleges that Inspector

L. Brown asked prisoner Henton if he knew that Moore had a sexually transmitted disease,2 and that

Officer Satterlee was “involved.” On July 6, Moore was transferred to Ionia Maximum Security

Correctional Facility because the Riverside Facility was closing.

          On October 17, Moore filed a prisoner grievance form with the Michigan Department of



          1
         Because the district court sua sponte dismissed Moore’s Complaint soon after it was filed,
the current record is extremely sparse. Accordingly, the record does not contain the last and/or first
names of several prison officials and prisoners.
          2
              It is unclear from the record on what day this allegedly took place.
No. 09-1307
Moore v. Unknown Prevo
Page 2

Corrections. It was received by the grievance board on October 25. Nurse Saladin, who investigated

the grievance, did not interview Moore. On November 1, Saladin sent a memorandum to M.

Robinson, the grievance coordinator, stating that Saladin had investigated Moore’s grievance and

that Saladin found no documented encounters between Prevo and Moore on July 2, that Mr. Franks

was unknown at the health care facility, that Prevo did not recollect meeting Moore, and that Prevo

and the officers had adhered to department policies regarding the privacy of a prisoner’s medical

information. Moore was instructed that, should he wish to appeal the board’s decision, he would

need to file his appeal by December 11.

       On December 7, Moore filed an appeal with the Michigan Department of Corrections, listing

the same allegations that he had asserted in his original grievance. The grievance board did not

receive the appeal until December 17, however, which was after the filing deadline. The board

denied his appeal because it was late. Moore filed another appeal, stating that his first appeal was

late because he was being transferred to another facility. The board again denied his appeal because,

although it acknowledged that Moore was transferred during the relevant time period, it found that

the transfer did not provide a basis to reconsider his first appeal.

       On August 4, 2008, Moore filed a pro se complaint and application to proceed in forma

pauperis in the United States District Court for the Western District of Michigan, alleging that

Prevo, Simmons, Doe, Satterlee, and Brown, in their individual and official capacities, had violated

his Fourth Amendment right to privacy when they disclosed his HIV-positive status to other officers

and inmates. Magistrate Judge Ellen S. Carmody granted the request to proceed in forma pauperis

and soon thereafter, sua sponte issued a Report and Recommendation, recommending that Moore’s
No. 09-1307
Moore v. Unknown Prevo
Page 3

complaint be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and (a)(3)

and 42 U.S.C. §1997e(c). She further recommended that the dismissal of the action count as a strike

for purposes of 28 U.S.C. §1915(g) and that the court find no good-faith basis for appeal within the

meaning of 28 U.S.C. §1915(a)(3).

       Moore filed an objection on December 12, again alleging that his Fourth Amendment right

to privacy had been violated. He also asserted for the first time a common law slander per se claim

and that the Department of Corrections had violated state law and Michigan Department of

Corrections policy. On February 5, 2009, the district court issued an order and judgment holding

that Magistrate Judge Carmody had properly concluded under Supreme Court and Sixth Circuit

precedent that Moore’s constitutional right to privacy was not violated by the disclosure of his HIV

infection to others. The court further held that Moore had waived his other arguments because he

had not presented them to Magistrate Judge Carmody.

       Under 28 U.S.C. §1915(e)(2)(B), a district court may dismiss sua sponte an in forma

pauperis claim that is frivolous, malicious, or fails to state a claim upon which relief may be

granted.3 “We review de novo the dismissal of a prisoner’s complaint on the basis that it failed to

state a claim upon which relief can be granted.” Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.

2005) (citing McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)). “In determining

whether a prisoner has failed to state a claim, we construe his complaint in the light most favorable

to him, accept his factual allegations as true, and determine whether he can prove any set of facts that



        3
       The language of the statute specifies that the district court must dismiss an in forma pauperis
complaint that it finds has failed to state a claim. 28 U.S.C. §1915(e)(2).
No. 09-1307
Moore v. Unknown Prevo
Page 4

would entitle him to relief.” Id. (citing Turker v. Ohio Dep't of Rehab. & Corrs., 157 F.3d 453, 456

(6th Cir. 1998)).

       The district court correctly held that, under our precedent, inmates have no constitutional

privacy right barring disclosure of an inmate’s HIV-positive status to corrections officers. See Doe

v. Wigginton, 21 F.3d 733, 740 (6th Cir. 1994) (holding that prison officials did not violate an

inmate’s right to privacy when they disclosed his HIV status to a prison correction officer).

However, the district court did not distinguish this from Moore’s allegation that officers told other

inmates about Moore’s HIV status. In this case, the distinction makes a difference.4

       We have never addressed whether an inmate has a Fourteenth Amendment privacy interest

in having his sensitive medical information kept confidential from other inmates. However, other

circuits’ precedent offers some guidance. The Third Circuit has held that an inmate has a

constitutional privacy right guarding against disclosure of his sensitive medical information,


       4
          The dissent points to both Wigginton and J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1995) to
contend that we have already held that prisoners have no constitutional right to privacy with regard
to their personal information, period. We do not contest that those cases can be read to speak in such
broad terms, so neither the dissent’s nor the Third Circuit’s reading of our cases can be called
unreasonable. But we believe those cases’ actual holdings, as opposed to their dicta, rest on
narrower grounds that do not foreclose Moore’s claim. Furthermore, adopting the dissent’s reading
would, it seems, create a circuit split over whether inmates may bring a claim against jail officials
over the disclosure of their sensitive medical information to other inmates. As stated above, both
the Second and Third Circuits have held that a prisoner would be able to bring such a claim sounding
in the constitutional right to privacy. The Seventh Circuit has expressed doubt over whether a
prisoner could bring such a claim under the Fourth Amendment’s right to privacy, but suggested that
the Eighth Amendment’s cruel and unusual punishment clause might give rise to such a claim.
Anderson v. Romero, 72 F.3d 518, 522-23 (7th Cir. 1995). We are aware of no other circuit to have
categorically barred a prisoner from bringing a claim against prison officials over the unnecessary
dissemination of his sensitive medical information to other inmates. Where our precedents do not
squarely foreclose Moore’s suit, we see no reason to extend them in a way that would create a circuit
split.
No. 09-1307
Moore v. Unknown Prevo
Page 5

especially to other inmates. Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001). We adopt its reasoning

in full.

           There are at least two types of privacy protected by the Fourteenth Amendment: the
           individual interest in avoiding disclosure of personal matters, and the right to
           autonomy and independence in personal decision-making. See Whalen [v. Roe], 429
           U.S. [589,] 599-600 [(1977)]; [United States v.] Westinghouse [Elec. Corp.], 638
           F.2d [570,] 577 [(3d Cir. 1995)] . . . . As described above, [the appellant’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).

           It is beyond question that information about one’s HIV-positive status is information
           of the most personal kind and that an individual has an interest in protecting against
           the dissemination of such information. See Doe v. [Southeastern Pa. Transp.
           Autho.], 72 F.3d [1133,] 1140 [(3d Cir. 1995)]; Westinghouse, 638 F.2d at 577.
           Moreover, a prisoner’s right to privacy in this medical information 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 [the
           appellant] has a right to conceal this diagnosed medical condition from everyone in
           the corrections system. [The appellant’s] constitutional right is subject to substantial
           restrictions and limitations in order for correctional officials to achieve legitimate
           correctional goals and maintain institutional security.


Delie, 257 F.3d at 317 (finding that prison officials who disclosed an inmate’s HIV-positive status

to officers, guards, and inmates had violated the inmate’s constitutionally protected privacy right).

The Second Circuit also has held that “prison officials can impinge upon [the right to maintain the

confidentiality of previously undisclosed medical information] only to the extent that their actions

are ‘reasonably related to legitimate penological interests.’” Powell, 175 F.3d at 112 (finding that
No. 09-1307
Moore v. Unknown Prevo
Page 6

a prisoner had a privacy interest in keeping his transsexual status from other inmates).

        We join our sister circuits in finding that, as a matter of law, inmates have a Fourteenth

Amendment5 privacy interest in guarding against disclosure of sensitive medical information from

other inmates subject to legitimate penological interests. Accordingly, the district court erred in

finding that Moore’s privacy claims failed as a matter of law. It remains to be seen if Moore’s

allegations have any factual support.6


        5
        Moore alleges that the defendants invaded his Fourth Amendment privacy right and makes
no mention of a Fourteenth Amendment claim. In light of the substantial leeway that we afford pro
se pleadings, Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005), we construe Moore’s
complaint as grounding his claim in the Fourteenth Amendment.
        6
         The district court refused to consider Moore’s state-law claims alleging common law slander
per se, violation of Michigan statutory law, and violation of Michigan Department of Corrections
regulations on the ground that they were not raised until Moore filed his objections to the Magistrate
Judge’s Report and Recommendation. In so doing, the court relied upon our statement in Murr v.
United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000), that “issues raised for the first time in
objections to magistrate judge’s report and recommendation are deemed waived. . . [h]ence,
Petitioner’s failure to raise this claim before the magistrate constitutes waiver.”

This, of course, is generally the rule, but it is a rule that assumes the context of the normal civil case.
It assumes, at least, that the plaintiff (probably represented by counsel) has filed a complaint, that
the complaint has been served, that the defendant has responded by way of either answer or
dispositive motion, and that the plaintiff is aware that the matter has been referred to a magistrate
for report and recommendation. Under these circumstances, an appreciable amount of time has
normally passed, and the plaintiff has been put on notice by the defendant’s responsive pleading of
any potential deficiencies in his complaint that might necessitate a need to amend.

In this case, however, the only thing that occurred was Moore filing his complaint pro se on August
4, 2008. The complaint was never served or responded to, and the magistrate judge sua sponte
recommended dismissal on September 18. In this posture, Federal Rule of Civil Procedure 15(a)
would have allowed Moore to amend his complaint once as a matter of course, at least up until the
magistrate judge issued the Report and Recommendation. Furthermore, as a pro se litigant, we
afford Moore considerable latitude in both the substance of his pleadings and his compliance with
procedural rules. Spotts, 429 F.3d at 250; United States v. Willis, 804 F.2d 961, 963 (6th Cir. 1986).
In light of these circumstances, we believe it proper to construe Moore’s presentation of additional
No. 09-1307
Moore v. Unknown Prevo
Page 7

       For the reasons above, we AFFIRM the district court’s judgment to the extent that it

dismisses Moore’s privacy claims regarding disclosure of medical information to correctional staff.

However, we VACATE the district court’s dismissal of Moore’s state law claims and REMAND

with instructions to consider whether to allow amendment under the standards of Federal Rule of

Civil Procedure 15. We additionally REVERSE for further proceedings on Moore’s claims

regarding disclosure of medical information to other inmates.




claims in his objection to the report and recommendation as an implicit request for leave to amend,
and that Murr’s automatic waiver rule must yield.
No. 09-1307
Moore v. Unknown Prevo
Page 8

       KETHLEDGE, Circuit Judge, dissenting. Moore claims that prison officials violated his

constitutional rights by telling other prisoners that he is infected with HIV. The district judge

thought this claim barred by our precedents, notably Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994).

I think so too, and therefore respectfully dissent.

       The majority distinguishes Wigginton on the ground that it involved the disclosure of an

inmate’s HIV status by one prison official to another, whereas here the plaintiff alleges that prison

officials disclosed his HIV status to other inmates. But nothing in Wigginton turned on the recipient

of the message. Instead, Wigginton involved merely a straightforward application of our holding in

J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981), under which private information receives no

constitutional protection unless it relates to one of “those personal rights that can be deemed

‘fundamental’ or ‘implicit in the concept of ordered liberty.’” Id. at 1090; see also Kallstrom v. City

of Columbus, 136 F.3d 1055, 1061-62 (6th Cir. 1998). DeSanti itself involved a claim of

constitutional protection for reports of “social histories” prepared by probation officers in juvenile-

court cases. See 653 F.2d at 1081-82. We held that dissemination of those reports did not violate

the juveniles’ constitutional rights of privacy, because the information they contained was “far

afield” from any fundamental right. Id. at 1090. Thus, when we stated in Wigginton that the

inmate’s “privacy argument [was] indistinguishable from that made in DeSanti,” 21 F.3d at 740, we

meant that the information at stake—the fact of an inmate’s HIV infection—did not implicate a

fundamental right and thus did not trigger any constitutional protection at all. That, in my view,

renders irrelevant the distinction between the recipient in Wigginton and the recipient here.
No. 09-1307
Moore v. Unknown Prevo
Page 9

       Our decision in Jarvis v. Bellman, 52 F.3d 125 (6th Cir. 1995), confirms the point. In Jarvis,

we rejected a rape victim’s claim that prison officials violated her constitutional privacy rights by

permitting her assailant to view her medical records and those of her infant child. Id. at 125-26.

Relying on DeSanti and Wigginton, we reasoned broadly that “[d]isclosure of plaintiff’s medical

records does not rise to the level of a breach of a right recognized as ‘fundamental’ under the

Constitution.” Id. at 126. The same logic compels dismissal in this case, because the plaintiff’s

claim here is based solely on prison officials’ disclosure of a particular detail from his medical

records.

       The Third Circuit reads our precedents the same way I do. In Doe v. Delie, 257 F.3d 309 (3d

Cir. 2001)—upon which the majority relies here—the Third Circuit acknowledged that the “Sixth

Circuit had explicitly held that the right of privacy is not implicated at all by prison officials’

disclosure of an inmate’s HIV status.” Id. at 319 n.7 (emphasis added) (citing Wigginton, 21 F.3d

at 740). Indeed the court observed that the “Sixth Circuit does not recognize the right to privacy in

one’s medical information in any setting.” Id. (emphasis added).

       For these reasons, I respectfully dissent.
