The court of appeals for the eleventh circuit held that prisoners asserting a claim to Rehabilitation Act (RA) protection had the burden of showing that they were "otherwise qualified" under the Act, or could be made so by reasonable accommodation, and that the trial court's determination that RA rights could be subordinated to correctional concerns violated the law of the case doctrine. The court further held that reassignment of the case on remand to a different judge was warranted.

For more than a decade the Alabama DOC has maintained a policy of segregating all HIV+ prisoners. Male prisoners are confined to the Limestone Correctional Facility, while seropositive female prisoners are housed at the Julia Tutwiler Prison for Women. Each of these facilities has a separate unit for HIV+ prisoners, and these prisoners are unable to participate in most of the programs available to HIV-prisoners. In addition, the programs available to seropositive prisoners are "not comparable" to the programs available to the general prison population.

In 1987 Carmen Harris filed suit against the ADOC seeking declaratory and injunctive relief. The case was eventually certified as a class action. The prisoner class claimed that the ADOC's HIV policy violated several constitutional provisions and § 504 of the RA. After a trial the case was dismissed. See: Harris v. Thigpen , 727 F.Supp. 1564 (MD AL 1990).

A prior panel of the eleventh circuit affirmed the dismissal of the constitutional claims on the first appeal. However, the case was remanded "for additional findings and clarification by the district court," as to the prisoners' RA claims. Harris v. Thigpen , 941 F.2d 1495 (11th Cir. l991).[ PLN Jan 1992].

On remand there was a substitution of parties because Harris had died during the course of litigation and a change in responsible bureaucrats. The district court conducted a lengthy trial, and issued a 495 page unpublished opinion. Onishea v. Hopper , No. 87-V1109-N, slip op. The trial court concluded that all ADOC programs satisfied § 504, and again denied the prisoner class any relief.

On appeal, the prisoners argued that the Onishea opinion contained numerous errors of both law and fact, which rendered the court's ultimate rejection of their § 504 claims suspect. First, the appellate court discussed the essential statutory elements of a cause of action under the RA, then it addressed the specific challenges to the trial court's decision.

The court determined that a prima facie claim of unlawful discrimination under § 504 must allege: (1) the claimants are "handicapped" within the meaning of the RA; (2) they are "otherwise qualified"; (3) they are excluded from programs or activities solely because of their handicap; and (4) the programs or activities from which they are excluded are operated by an agency that receives federal funds. The only element in dispute in this case was whether the prisoners are "otherwise qualified."

As a threshold matter, the court determined that the prisoners bore the initial burden of persuading the finder of fact that they were "otherwise qualified" to participate in prison programs. In order to carry this burden the prisoners would have to show that their participation posed no significant risk to others in the programs, or that reasonable accom- modations are available to reduce the risks to insignificant levels.

The panel recognized that the lower tribunal had ruled that the prisoners "were not 'otherwise qualified' without any attempt to quantify whether a significant risk of transmission existed to warrant categorical exclusion" from programs. The court determined that the trial court had "created a scenario for transmission sufficient to satisfy an 'any risk' standard by stringing its assumptions together, but failed to show that the scenario satisfied the governing significant transmission risk test." Since the "any risk" standard imposed too high a burden on the prisoners, the court concluded that the case required remand for application of the proper standard.

The panel also rejected the trial court's application of the Turner v. Safley , 482 U.S. 78, 89 (1987), test to the prisoners' claim. The court reasoned that it would be improper to subject an RA claim to Turner analysis, absent express congressional intent. The court concluded that the district court erred by grafting Turner 's constitutional standard onto this court's previously stated statutory test.

Lastly, the court considered the prisoners' motion to recuse the trial judge, which was made and denied at the beginning of the trial on remand. Although the panel concluded that the judge's statements "do not indicate a bias so severe as to call into question the fairness of the trial," the court conceded that the district court's apparent "deference to policy makers ... led it to abandon its judicial role." The court concluded that "the totality of circumstances" and a need "to preserve the appearance of justice" required reassignment to a new trial judge. See: Onishea v. Hopper , 126 F.3d 1323 (11th Cir. 1997).

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