Memorandum

To: Civil Rights Litigation Bureau Chief

From: Aaron Hughes
Date: October 23, 2020
Re: Gale Boetticher Civil Rights Complaint

Questions Presented
1. Whether Gale Boetticher has a valid claim that being housed in the same cell with Eli

Zabitz constitutes a violation of the Eighth Amendment on the basis of Zabitz’s HIV-

positive status.

2. Whether Gale Boetticher has a valid claim that being housed in a cell with Eli Zabitz

constitutes a violation of the Eighth Amendment due to Zabitz’s violent behavior towards

Boetticher.

Short Answers
1. It is implausible that Gale Boetticher can state a valid claim for an Eighth Amendment

violation based on Eli Zabitz’s HIV status. However, certain fact patterns that are not

made clear in the complaint could exist which would make Boetticher’s claims based on

Zabitz’s HIV status more viable.

2. Gale Boetticher has credible claims that due to Eli Zabitz’s violent behavior directed

towards Boetticher, continuing to house Zabitz with Boetticher constitutes an Eighth

Amendment violation.

Facts
Plaintiff Gale Boetticher (“Boetticher”) in an inmate at Fairton Federal Correction

Institution (“Fairton”). Boetticher is incarcerated for accepting a bribe from a corporation in debt
to the Internal Revenue Service (“IRS”) while Boetticher was an attorney for the IRS. On or

about July 1, 2020, Boetticher was assigned a cellmate, Eli Zabitz (“Zabitz,”) who is incarcerated

for assaulting an IRS agent. Zabitz has expressed disdain for corporate America and the United

States government. Zabitz is aware that Boetticher was once an attorney for the IRS. Zabitz is

HIV positive. Zabitz has borrowed Boetticher’s toiletries, Boetticher’s razor among them.

According to Boetticher, Zabitz once attempted to pour boiling water on Boetticher while both

were working in the prison kitchen. On another occasion, Zabitz threw Boetticher’s razor at

Boetticher after Boetticher attempted requested Zabitz stop using his toiletries. Boetticher has

filed a complaint under 42 U.S.C. §1983 seeking relief from perceived violations of his Eighth

Amendment rights, including enjoining Fairton from housing him in the same cell as Zabitz.

Discussion

Question 1: Boetticher’s Eighth Amendment Claim Based on Zabitz’s HIV Status

The claim that housing Boetticher with Zabitz constitutes a violation of the Eighth

Amendment due to Zabitz’s HIV status is viable if and only if Boetticher lacks the ability to

disinfect his razor.

Government actors facing complaints under 42 U.S.C. §1983 are “shielded from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights . . . .” Harlow v. Fitzgerald, 457 U.S. 800 at 818 (1982). Numerous courts,

including Third Circuit courts, have consistently found that the Constitution does not prohibit

housing HIV-positive inmates with HIV-negative inmates. See, e.g., Lassiter v. Buskirk, No. 03-

5511 (E.D. Pa. 2006) (citing Hoover v. Watson, 886 F. Supp. 410, 417 (D. Del. 1995); Feigley v.

Fulcomer, 720 F. Supp. 475, 482 (E.D. Pa. 1989); Oladipupo v. Austin, 104 F. Supp. 2d 626, 635
(W.D. La 2000)). However, the court in Lassiter, No. 03-5511 at 8, noted “[plaintiff]’s . . . rights

might be implicated if there were evidence that one or both of the Defendants were aware that

Mr. Fordham was HIV-infected or had AIDS and posed a significant risk of violence directed

against others.” In addition, several courts have found it to be an Eighth Amendment violation to

force inmates to share razors without the means to disinfect them, based on the risk of HIV

infection. Dubrin v. Cnty. of San Bernardino, Case No. EDCV 15-589 (C.D. Cal. 2016); See also

Johnson v. Epps, 479 Fed. Appx. 583, 591-92 (5th Cir. 2012).

Boetticher’s claims related to Zabitz exposing him to HIV are weak, even under a

sympathetic reading of case law. The fact that Boetticher is being housed with an HIV-positive

cellmate does not alone constitute an Eighth Amendment violation. See, e.g., Lassiter No. 03-

5511. However, Id. at 8 entertained the notion that that an inmate’s exposure to a violent, HIV-

positive inmate, might be sufficient to constitute an Eighth Amendment violation. The plaintiff

in Id. had risked exposure to HIV over the course of a fight with his cellmate; Boetticher, the

victim of non-reciprocal violence, may be a more sympathetic plaintiff. However, the plaintiff in

Lassiter had actually been exposed to his HIV-positive cellmate’s blood over the course of a

fight; Boetticher has not, and so has not similarly risked infection. The language suggesting that

a plaintiff with a cellmate who is “HIV-infected or had AIDS and posed a significant risk of

violence,” Id. at 8, seeming to support Boetticher’s claims, therefore probably does not offer

Boetticher support.

Holding Zabitz in a cell with Boetticher in spite of Zabitz’s repeated and unwelcome use

of Boetticher’s razor is comparable to the forced sharing of razors contemplated in Dubrin, Case

No. EDCV 15-589, and Epps, 479 Fed. Appx. 583, cited above. In Boetticher’s case, as in

Dubrin and Epps, inmates risk exposure to other inmates’ blood-borne illnesses due to
involuntary razor sharing. However, in Dubrin and Epps, the inmates were explicitly noted to

lack the capacity to disinfect their razors. If Boetticher lacks the capacity to disinfect his razor,

he may have a claim for an Eighth Amendment violation on the basis of this case law.

Boetticher’s complaint implies but is not explicit that he, unlike Zabitz, has access to the

commissary. See Compl. at ¶ 12. Whether items available at the commissary, or any items

provided without cost to inmates, allow him to disinfect his razor is therefore significant and may

control whether or not Boetticher can state an Eighth Amendment claim on the basis of Zabitz’s

HIV-positive status.

Question 2: Boetticher’s Eighth Amendment Claim Based on Zabitz’s Violence

Boetticher’s complaint alleges facts sufficient to establish that his continued placement

with Zabitz, inspite of Zabitz’s violence towards Boetticher, constitutes an Eighth Amendment

violation.

The Supreme Court has held “prison officials must ensure that inmates receive adequate

food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the

safety of the inmates,’” and failing to do so would constitute an Eighth Amendment violation.

Farmer v. Brennan 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U. S. 517, 526-527

(1984)). This requires that prison officials exercise "a duty . . . to protect prisoners from violence

at the hands of other prisoners." Farmer, 511 U.S. at 833 (quoting Cortes-Quinones v. Jimenez-

Nettleship, 842 F. 2d 556, 558 (1st Cir. 1988)). The Third Circuit itself has held "When prison

officials have failed to control or separate prisoners who endanger the physical safety of other

prisoners and the level of violence becomes so high . . . it constitutes cruel and unusual

punishment." Riley v. Jeffs, 777 F.2d 143 Para. 4 (3d Cir. 1985), quoting Jones v. Diamond, 636

F.2d 1364 (5th Cir. 1981).

 The employees of Fairton are obligated to “take reasonable measures to guarantee

[Boetticher’s safety].” including from violence at the hands of other inmates. Farmer, 511 U.S.

832-33. To establish liability, “it is enough that the [prison] official acted or failed to act despite

his knowledge of a substantial risk of serious harm.” Id. at 842. When the officials at Fairton

were put on notice that Zabitz posed a substantial risk of serious harm to Boetticher is

ambiguous. While previously cited cases noted that an inmate’s violent conviction alone was not

sufficient to expect him to attack his cellmate (See, e.g., Lassiter, No. 03-5511), Zabitz’s

conviction suggested a specific propensity towards violence against Boetticher. Zabitz was

incarcerated for assaulting an IRS employee, suggesting that perhaps unlike most violent

convictions, Zabitz’s conviction alone was enough to put officials on notice of the risk he poses

Boetticher. Since his arrival in prison, however, Zabitz has made clear his hatred of the United

States government and corporate America, Zabitz has attempted to throw boiling water on

Boetticher, and Zabitz has thrown a razor at Boetticher. Zabitz has made abundantly clear the

threat that he presents Boetticher. The Third Circuit noted in Riley, 777 F.2d Para 4. that the

“fail[ure] to control or separate prisoners” raises a potential Eighth Amendment violation.

Zabitz’s ideological predisposition towards attacking Boetticher, as well as Zabitz’s actual and

repeated acts of violence towards Boetticher, suggest that failing to separate Zabitz from

Boetticher violates the Eighth Amendment. As such, Boetticher is entitled to relief in the form of

separation from Zabitz.