                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-14493                ELEVENTH CIRCUIT
                                                              MAY 18, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                    D. C. Docket No. 08-01307-CV-J-NE

LESTER CARPENTER REED,


                                                            Plaintiff-Appellant,

                                   versus

RICHARD ALLEN,
Commissioner, Alabama Department of
Corrections,
BILLY MITCHEM,
Warden, Limestone Correctional
Facility,
DAVID TULLY,
Supervisor,


                                                         Defendants-Appellees.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________
                              (May 18, 2010)
Before BLACK, HULL and MARTIN, Circuit Judges.

PER CURIAM:

       In this 42 U.S.C. § 1983 action, Plaintiff Lester Carpenter Reed, an Alabama

state prisoner, appeals the district court’s grant of summary judgment in favor of

the Defendants – the Commissioner of the Alabama Department of Corrections

(“ADOC”), the Warden of Limestone Correctional Facility in which Reed is

incarcerated, and Reed’s supervisor at Limestone – based on qualified immunity.

Reed’s complaint alleged that the Defendants’ policies requiring HIV-positive

inmates to wear white wristbands at all times violate his Fourteenth Amendment

privacy rights because they result in the non-consensual disclosure of his HIV-

positive status to other inmates. On appeal, Reed contends the Defendants are not

entitled to qualified immunity because their penological interests in establishing

the wristband policy do not outweigh his privacy rights. Upon review, we affirm.1

       Reed is infected with Human Immunodeficiency Virus and this has caused

him to be segregated in various ways from the general prison population. Reed

tested positive for HIV in 1987 while incarcerated at another ADOC facility. Reed


       1
         “We review de novo a district court’s disposition of a summary judgment motion based
on qualified immunity, applying the same legal standards as the district court.” Durruthy v.
Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). We construe the facts in the light most favorable
to the non-moving party. Id.

                                               2
later was transferred to Limestone, where he and other HIV-positive inmates were

completely segregated from the general prison population. HIV-positive inmates

were then, and are now, housed in two dormitories specifically set aside for HIV-

positive inmates – the B- and C-Dorms on the A-side of Limestone. In 2004,

ADOC altered its full segregation policy and allowed partial integration of HIV-

positive inmates into most educational and vocational programs.

      In 2008, ADOC expanded its policy to include “full” integration of HIV-

positive inmates into the general prison population, including visitation,

educational, religious, and social programs. ADOC’s 2008 full-integration policy

also included a wristband requirement at Limestone. All Limestone inmates are

now required to wear color-coded wristbands containing their photograph, name,

prisoner number, and the date the band was issued. A white wristband, such as

Reed’s, signifies residence in the A-side, Dorms B & C. A-side D Dorm uses red

and purple wristbands. B-side SAP Dorms use green wristbands. B- and C-side

Honor Dorms use yellow and orange wristbands.

      The Defendants aver the purpose of these wristband requirements is to

facilitate the safe and efficient functioning of the Limestone facility. Color-coded

wristbands on all inmates permit prison officials to quickly visually identify

inmates based on residence assignment, which serves several purposes. First,



                                          3
inmates generally are not permitted to visit dorms in which they are not housed,

because this often leads to illicit activities such as theft, sexual relations, gambling,

and fighting. Second, color-coding allows prison officials to readily identify

inmates and their residence assignments in case of fire, severe weather, or other

emergency. It is undisputed, however, that the only inmates wearing white

armbands are, in fact, HIV-positive.2

       Reed filed this suit pursuant to § 1983, claiming violation of his Fourteenth

Amendment privacy rights. Reed claims Limestone’s color-coded wristband

policy effectively signified his HIV-positive status to other inmates and thereby

violated his privacy rights. Reed claims there is no valid penological justification

for these wristbands and that Limestone’s penological interests could be protected

by other less-intrusive means. He alleges the prison population is aware that a

white armband functionally signifies HIV-positive status. Reed allegedly suffers

from depression, obsessive-compulsive disorder, and anxiety attacks as a result of

the wristband, and he claims the constant wearing of the band causes him severe

physical pain and a swollen wrist. Reed sued the Defendants in their individual



       2
        Reed also complains about Limestone’s daily newsletter to inmates, which lists daily
healthcare appointments. HIV-positive inmates are grouped under the “Special Unit” list on the
daily healthcare appointment section. The list does not, however, explicitly identify these
inmates as being HIV-positive, and Reed does not explain whether inmates with medical
conditions other than HIV also may be listed as “Special Unit” inmates.

                                               4
and official capacities. Reed seeks damages and injunctive relief.

       The Defendants moved for summary judgment on the basis of qualified

immunity, which the district court granted. The district court reasoned Reed had

not shown the violation of a clearly-established constitutional right and thus could

not overcome the Defendants’ qualified immunity for the claims asserted against

them individually.3 Reed appealed.

       Upon review, we agree the Defendants are entitled to qualified immunity

because Reed has not shown the violation of a clearly-established constitutional

right. Qualified immunity protects government officials performing discretionary

functions not just from liability, but from suit, unless the officials’ conduct violated

“clearly established” federal statutory or constitutional rights of which a reasonable

person would have known. GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d

1359, 1366 (11th Cir. 1998). “If the official was acting within the scope of his

discretionary authority . . . the burden shifts to the plaintiff to show that the official



       3
          The district court entered final judgment for the Defendants on all of Reed’s claims,
effectively disposing of his official capacity claims even without explicitly addressing them.
Reed’s official capacity claims are not before us in this appeal for two reasons. First, Reed did
not brief them in his appellate brief, and issues not raised in the briefs are deemed waived.
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Second, even if
they were properly presented, we would be barred from considering the official capacity claims.
Official capacity claims against state officials are, in effect, claims against the State. Harbert
Int’l, Inc. v. James, 157 F.3d 1271, 1277-78 (11th Cir. 1998). The Eleventh Amendment
typically bars suit against a State in federal court unless the State has consented to the filing of
such suit, which Alabama has not done here. See id.

                                                  5
is not entitled to qualified immunity.” Skop v. City of Atlanta, 485 F.3d 1130,

1136-37 (11th Cir. 2007). To overcome qualified immunity, the plaintiff must

show both that: (1) the defendant violated a constitutional right, and (2) this right

was clearly established. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,

1264 (11th Cir. 2004). The Court is permitted to exercise its discretion in

determining which of the two prongs of this qualified immunity test is considered

first. Pearson v. Callahan, __ U.S. __, 129 S. Ct. 808, 818 (2009).

      “For a right to be ‘clearly established,’ previous case law must have

developed it in a concrete factual context so as to make it obvious to a reasonable

government actor that his actions violate federal law.” GJR Invs., Inc., 132 F.3d at

1366. The salient question is whether the state of the law at the time of the

Defendants’ alleged actions gave fair warning that those actions were

unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002).

      In Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991), a panel of this Court

considered a Fourteenth Amendment privacy-rights challenge to the ADOC’s then-

current policy of uniformly segregating HIV-positive inmates from the rest of the

general prison population. The Harris Court applied the Supreme Court’s four-part

balancing test to weigh a prisoner’s constitutional rights against the State’s

legitimate penological interests in prison policies, identifying as relevant factors:



                                           6
“(a) whether there is a ‘valid, rational connection’ between the regulation and a

legitimate government interest put forward to justify it; (b) whether there are

alternative means of exercising the asserted constitutional right that remain open to

the inmates; (c) whether and the extent to which accommodation of the asserted

right will have an impact on prison staff, inmates and the allocation of prison

resources generally; and (d) whether the regulation represents an ‘exaggerated

response’ to prison concerns.” Id. at 1516 (quoting Turner v. Safley, 482 U.S. 78,

89-91, 107 S. Ct. 2254, 2261-63 (1987)). The Harris Court “balance[d] the limited

personal privacy interests (assuming such exist) of the seropositive inmates, with

those legitimate interests that underlie the [ADOC]’s decision to segregate such

inmates from the general prison population.” Id. at 1515.

      The Harris Court concluded that an inmate’s privacy right in his HIV-

positive status may lawfully be “subject to substantial restrictions and limitations”

when balanced against legitimate penological interests. Id. at 1514-15. The Harris

Court determined that a “blanket policy” of isolating HIV-positive inmates, with its

resultant non-consensual disclosure of HIV-status, was a reasonable infringement

on the privacy rights of HIV-positive inmates when viewed in light of the prison

interests generating such a policy. Id. at 1512, 1521.

      Reed argues that Harris established a privacy right in prison inmates’ HIV-



                                           7
positive status and that Limestone’s wristband policy violated this right. Harris did

not speak so broadly. The Harris Court functionally assumed a privacy right

existed in HIV-positive status and determined that the legitimate penological

interests supporting full segregation of HIV-positive inmates outweighed the

inmates’ privacy rights, whatever they were. So even if we were to assume, as did

the Harris Court, that Reed has a protected privacy right in his HIV-positive status,

our inquiry still is whether Limestone’s wristband policy satisfies a legitimate

penological interest that outweighs Reed’s privacy right. And beyond that, the

qualified immunity test also requires Reed to show that the privacy right violated

was clearly established to a reasonable government actor at the time of violation.

       We need not consider the constitutional issue. Pearson, __ U.S. __, 129 S.

Ct. at 818. Even assuming Reed’s complaint states a constitutional violation, the

Defendants are entitled to qualified immunity because the right Reed asserts was

not clearly established. The state of law at the time the Defendants implemented

the wristband policy was that, under Harris, complete segregation of HIV-positive

prisoners was not a constitutional violation. The current policy at Limestone is

less restrictive because it disposes of segregation, except for residence, and

integrates HIV-positive inmates with the rest of the inmates. It was not then

“clearly established” to prison officials that requiring color-coded wristbands



                                           8
violated Reed’s constitutional privacy right when full segregation did not. In light

of Harris, Reed has not shown that his privacy right was “clearly established.” See

GJR Invs., Inc., 132 F.3d at 1366.

      The district court accordingly did not err in granting summary judgment for

the Defendants.

      AFFIRMED.




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