Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, April 21, 1991 TAG: 9104210079
SECTION: VIRGINIA PAGE: C1 EDITION: STATE
SOURCE: LESLIE TAYLOR STAFF WRITER
DATELINE: LENGTH: Long
Zaczek, who has a heart condition, claims he was confined in daily close contact with AIDS-infected inmates and those dying of end-stage AIDS.
Though the AIDS-infected inmates slept in separate quarters, they were allowed to mingle freely with other patients during the day, and some engaged in sexual activity with newly admitted non-infected inmates, he claims in a lawsuit filed in U.S. District Court in Roanoke.
The AIDS-infected inmates, unable to control their bladders and bowels, would spill feces and bloody urine on the floors and vinyl furniture of the medical unit, exposing him to the disease, Zaczek claims.
Zaczek, 47, charges that the Virginia Department of Corrections put him at risk by failing to segregate AIDS-infected inmates. To his knowledge, he has not contracted the disease.
"I was sentenced to two years for abduction and four years for use of a firearm," Zaczek said in a phone interview from Keen Mountain Correctional Center in Oakwood, where he is serving the last few months of his sentence.
"I wasn't sentenced to death."
Zaczek's claims raise legal questions that address the conflicting rights of HIV-positive and AIDS-infected inmates - who oppose what they view as discriminatory treatment - and those inmates who believe they are at risk of contracting the disease through the integration of infected inmates into the general inmate population.
"The trend is toward desegregation, and states that don't are finding themselves open to lawsuits based on discrimination," said Judy Greenspan, AIDS information coordinator of the American Civil Liberties Union's National Prison Project.
"Now that AIDS is considered a handicap, those institutes who continue to segregate are embroiled in lawsuits," Greenspan said.
"But these types of lawsuits are repeatedly dismissed. If anything, [Zaczek] should be suing for more comprehensive AIDS education measures. Prisoners need preventive measures to stop AIDS. Segregation is not a preventive measure."
The number of states that do segregate inmates has dropped in the past two years, as new information about the disease becomes available and as lawsuits force policy modifications.
Five states segregate inmates who actually have AIDS. Virginia is not one of them. In those five states, inmates with AIDS-related complex or who are asymptomatic HIV-positive remain in the general prison populations.
Four states - Alabama, Mississippi, Colorado and California - segregate all three categories of inmates from prison populations.
Colorado and California are working toward reintegrating prisoners, Greenspan said.
In California, reintegration was a result of a class-action lawsuit brought by prisoners at the California Medical Center in Vacaville who were against the automatic segregation of inmates.
In Alabama, the decision to segregate inmates was made five years ago and upheld three years later after inmates who opposed it lost a class-action lawsuit.
"As soon as the first HIV case showed up, some decision had to be made on that or the number would continue to grow," said John Hale, public information officer with the Alabama Department of Corrections.
The case is on appeal.
HIV-positive patients are not segregated in Virginia unless it is medically necessary, said Dr. Balvir L. Kapil, the Virginia Department of Corrections' chief physician.
"We rely on experts at the Medical College of Virginia," Kapil said. "None of them thinks segregation is of any value. I share that belief. Education is the single-most important tool to prevention of spread of the disease."
But Greenspan says proper AIDS education of inmates appears to be lacking.
"There's nothing unusual about this lawsuit. Unfortunately it's based on poor education," she said. "The fact is, if prisoners and staff were given comprehensive AIDS education, these types of suits would not be filed. They would know that AIDS is not transmitted through urine or feces."
The state Department of Corrections has an extensive AIDS education program involving staff and inmates, Kapil said.
Inmates receive an orientation at prison reception centers. It consists of a videotape on AIDS plus a question-and-answer session, Kapil said. Inmates also receive handouts, posters, pamphlets and periodic visits from volunteer community groups.
"They are told that it's available," Kapil said. "If they are interested, they just sign up. Some take advantage of it."
Zaczek filed a motion April 8 asking a judge to grant summary judgment in his favor, find that the Department of Corrections is constitutionally required to segregate all inmates found to be infected with AIDS, and require that the department medically screen state prison inmates for AIDS.
The state attorney general's office filed a motion last week in response, arguing that there was no basis for Zaczek's complaint and seeking dismissal of his suit.
The Department of Corrections "has adopted and developed a policy regarding HIV-positive and AIDS inmates which is consistent with the standards and guidelines established by the National Center for Disease Control," the motion states. "The AIDS virus is not transmitted in common living situations or through casual contact."
In an affidavit filed in court records, David A. Williams, warden at Powhatan Correctional Center, said no AIDS patients were assigned to Zaczek's dorm during his stay at the medical unit. Instead, Williams said, they were assigned to the infirmary.
Williams said there had been occasions when urine bags leaked on vinyl-covered furniture. There was an incident during which an inmate defecated in a hallway, but efforts to determine who was responsible were unsuccessful, he said.
At the end of March, the Virginia Department of Corrections had identified 141 inmates as HIV-positive or as having AIDS out of 16,000 men and women incarcerated in state correctional facilities, Kapil said.
If more exist, "we don't know because we do not have mandatory testing," he said. "To find that out would require special funding, and we just don't have funding for that kind of research."
AIDS testing is done when it is clinically warranted or at an inmate's request, Kapil said.
But Zaczek claims he asked to be tested and that his request was denied. He protested by filing grievances with department officials.
In a letter filed in court records, the department's grievance coordinator wrote to Zaczek that "it is not the policy of [the Corrections Department] to test inmates for AIDS, based on their request for the test."
Says Zaczek, "I can't go down to the corner doctor and have a test."
by CNB