Ex-inmate with HIV gets $150K for getting harsher punishment from prison
The state also agreed to change policy in assessing inmates with HIV, the proposed settlement says
By John Agar
The Grand Rapids Press
GRAND RAPIDS, Mich. — A former inmate with HIV will receive $150,000 after he was given a harsher penalty for alleged sexual activity than a non-infected partner.
The state agreed to change policy in assessing inmates with HIV, the proposed settlement says.
John Dorn, 47, said he spent 11 months in administrative segregation, was given a higher security classification then sent to a prison in the Upper Peninsula. The other prisoner only lost privileges for 30 days.
Dorn contended he had an undetectable viral load because of anti-retroviral medication he was taking.
The Centers for Disease Control and Prevention said that those "living with HIV who take HIV medicine as prescribed and get and keep an undetectable viral load have effectively no risk of transmitting HIV to their HIV-negative sexual partners."
The proposed settlement awaits approval by a judge.
It says that the state Department of Corrections will pay Dorn $150,000 and supplement his prison record to show that if a new policy directive had been in place in 2012 he would not have been classified to a higher level of security. The agreement is not an admission by either party of any wrongdoing, court records show.
Corrections officials will also review circumstances of others with HIV who are subjected to a higher classification.
The agreement "should not be construed as an admission by either party of any wrongdoing or any liability of any kind, all liability and wrongdoing being expressly denied," it said.
DOC spokeswoman Holly Kramer said that "all parties are satisfied with the resolution."
The lawsuit alleged violations under the Americans with Disabilities Act and Rehabilitation Act.
"The changes in medical treatment have really changed legal standing in a lot of ways," Chris Davis, an attorney for Michigan Protection & Advocacy Service Inc. in Lansing, told MLive/The Grand Rapids Press.
"Medical treatment has come so far that many are living with undetected HIV levels. It's manageable, it has extended the life time expectations for people with HIV to near the same as HIV negatives. It doesn't have to be a death sentence. It's a manageable kind of illness."
If Dorn had been assessed after he was accused of sexual activity, "there never would have been a finding that he posed a significant risk of transmitting the virus," Davis said.
He said sexual activity remains a violation of rules but those with HIV should not face tougher penalties without first undergoing an assessment to determine their risk of transmitting the virus.
"They have to assess whether (there is) risk of transmission, and not just assess," Davis said. "Pretty much they were assuming without a real evaluation of the situation."
He said that the policy in place was appropriate years ago before advancement in treatment. Those with HIV can still face harsher penalties for sexual activity in prison if they're putting others at risk, he said.
"If somebody is HIV positive and knows they are HIV positive and they have a viral load, and they were not taking precautions to prevent the spread of HIV, that conceivably would be subject to discipline above and beyond and could be placed in Ad Seg," he said.
The Michigan Protection & Advocacy Service Inc. and Lambda Legal Defense and Education Fund, Inc., represented Dorn. Lambda seeks to protect civil rights of gay men, lesbians, bisexual and transgender people and those living with HIV.
Dorn was originally classified as a Level 1 inmate, the lowest security level, but was sent to a high-security prison in the Upper Peninsula.
Davis contends that the lawsuit is "more than just the money," with the DOC "changing internal policy."
Dorn doesn't admit to the sex act. Two other inmates reported that he and another inmate engaged in oral sex. The witnesses recanted but Dorn and the other man were found guilty of engaging in sexual conduct, the lawsuit said.
Dorn was paroled in October 2014 after he was convicted in Kalamazoo County Circuit Court of assault with intent to commit great-bodily harm less than murder.
He said he was a model prisoner who had a great deal of freedom - including a prison job, outdoor recreation, indoor activities, education and religious activities, access to a telephone and daily showers - before he was accused.
He lost all privileges in administrative segregation.
He said he was confined to his cell 23 hours a day, five days a week, and 24 hours the other days. He would be restrained whenever he left his cell, his said. Once he left segregation, he was transferred from Carson City Correctional Facility to Baraga Correctional Facility near the western edge of the Upper Peninsula.
He was locked up in a single-man cell 23 hours a day, the lawsuit said.
He said in the lawsuit he has lived with HIV since 1992, and had "an extremely low - possibly non-existent - risk of transmitting HIV to others."
State laws requires HIV-positive inmates to be placed in administrative segregation "if a prisoner receives a positive test result (for HIV) and is subsequently subject to discipline by the (MDOC) for sexual misconduct that could transmit HIV, illegal intravenous use of controlled substances or assaultive or predatory behavior that could transmit HIV, the department shall house that prisoner in administrative segregation, an inpatient health care unit, or a unit separate from the general prisoner population, as determined by the department."
MDOC has a policy based on those statutory requirements to prevent transmission of serious communicable blood-borne diseases such as HIV.
The state contended in the lawsuit that Dorn "did not suffer a significant and atypical hardship ... "