Cir. 1991). The puncture wound Doe suffered in conducting a frisk search of Connor therefore clearly contained the potential for transmission of HIV. Thus, under Illinois law, Foster did not need Connor's written consent to force him to undergo a blood test to determine the presence of HIV antibodies. Connor cannot hold Foster liable for coercing him to waive a right Connor did not even possess.
Foster had no reason to doubt the constitutionality of the Illinois statute that authorized the testing of Connor. Connor himself does not contend that the statute authorizing medical officials to conduct the blood test without his consent was unconstitutional under the circumstances here. Moreover, although caselaw in this developing area is scant, this court's own research could find no closely analogous cases that would arguably support a constitutional challenge to the statute. The one case the court did find would support the constitutionality of the statute as it applied to Connor.
In Virgin Islands v. Roberts, 756 F. Supp. 898 (D.V.I. 1991), the government sought an order to compel an alleged rapist to undergo a blood test to determine his HIV status. Results of the test would be disseminated only to the defendant, the victim, and their doctors. In a well-reasoned opinion, the court held that the compulsory extraction of the alleged rapist's blood was reasonable under the fourth amendment and did not violate his constitutional rights because the putative rapist's interest in bodily security was greatly outweighed by the government's interests in protecting victims of sexual assault and in procuring information essential both to fashion a proper medical regimen for the victim and to curb further transmission of AIDS. The state also has a significant interest in protecting its law enforcement officers from serious injury suffered in the line of duty. From the complaint, it appears that medical officials disclosed results of the test only to Doe and Connor. Although Connor alleges that he did not purposefully harm Doe, Connor's violation of the law directly caused the injury. Possession of a hypodermic needle for use of controlled substances is a criminal act in Illinois. 720 ILCS 635/1 (1992). Consequently, caselaw, as it has developed since the time of the incident, would lead a law enforcement officer to believe that a person responsible for exposing another officer to a significant threat of contracting HIV could legally be compelled to undergo a blood test for HIV infection. Connor's signed consent to take the HIV test therefore was not needed under either Illinois law or constitutional law as it was understood in August 1990. Foster accordingly is entitled to qualified immunity on Connor's claim that he used threats to force Connor to sign the consent form. Accordingly, the court grants Foster's motion to dismiss Connor's claim that Foster compelled him to take the HIV test.
On November 19, 1992, Connor submitted a USM-285 form giving the United States Marshal instructions for service on Dr. Aaron Hamb. The court construes this document as a request by Connor to amend the complaint to substitute Dr. Hamb as defendant in lieu of the Doctor John Doe listed in the caption of the complaint. The request to amend is granted. Nonetheless, finding no arguable legal merit to the claims alleged against the doctor, the court, on its own motion, dismisses Hamb from the action pursuant to 28 U.S.C. § 1915(d). See House v. Belford, 956 F.2d 711, 719 (7th Cir. 1992)
Connor cannot hold Hamb liable for forcing him to submit to an unwanted medical procedure. Although Hamb administered the HIV test to Connor, Connor does not allege that Hamb had any actual knowledge that Connor's signed consent to take the test was coerced. He maintains only that Hamb should have known because Connor was brought directly to the emergency room for testing contrary to the general procedure established for administering HIV tests to detainees. Connor further complains that the unusual procedure Hamb followed constituted "discriminatory treatment". As a matter of equal protection, discriminatory treatment requires differential treatment of similarly situated individuals. Wroblewski v. City of Washburn, 965 F.2d 452, 459 (7th Cir. 1992). Connor was not similarly situated to a detainee who, for the sake of his own knowledge and well-being, decided he wanted to have his blood tested for the presence of HIV antibodies. Connor was brought to the emergency room because he had placed Doe at risk of contracting AIDS as a result of Connor's carrying a dirty needle around with him in his pocket. The unusual procedure was dictated by the unusual circumstances. Hamb thus did not treat Connor discriminatorily. Nor, given the events that prompted the testing, was the absence of a prior request through routine channels enough to put Hamb on notice of the possibility that Connor's consent to have his blood tested for HIV was not voluntarily given.
Even if Hamb had knowledge that Connor had not freely signed the consent form, he, like Foster, would still be entitled to qualified immunity. As already discussed, state law gave him authority to draw Connor's blood for HIV testing even if Connor did not consent. As no reasonable health official would have had cause to believe the statute was unconstitutional as applied to Connor in the circumstances of this case, Connor cannot hold Hamb liable for taking Connor's blood.
The court also sua sponte dismisses Leak from the action pursuant to 28 U.S.C. § 1915(d). Connor makes no claim that his rights were violated by any official policy, custom, or practice of the Cook County Department of Corrections. Therefore, the court does not read the complaint to allege any claims against former director Leak or the other defendants in their official capacities. To hold Leak liable in his individual capacity, Connor must allege something more than his supervisory position. See Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir. 1985), cert. denied, 479 U.S. 816, 93 L. Ed. 2d 28, 107 S. Ct. 71 (1986). He must show that Leak, acting under color of law, caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). A showing of causation requires allegations of personal involvement, a showing that the supervisor "knowingly, willfully, or at least recklessly caused the alleged deprivation by his action or failure to act." Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986). Connor's vague allegations that Leak should of known of the officers' alleged misconduct in administering the HIV test because he was in charge of overall operations and, as supervisor, should have received a report on the facts surrounding his capture fall far short of demonstrating Leak's personal participation in or direct responsibility for the alleged deprivations. It is not enough to show that a supervisor may have been remiss in his supervisory duties. Id. at 273. Nor does a supervisor become a personal participant in a deprivation simply because he receives some after-the-fact knowledge of a single incident of misconduct by his underlings. Crowder v. Lash, 687 F.2d 996, 1005-06 (7th Cir. 1982); see Moore v. Indiana, 999 F.2d 1125 (7th Cir. 1993). Lacking the necessary allegations of personal involvement, the complaint as to Leak is frivolous in the legal sense. He accordingly is dismissed from the action.
In conclusion, the court grants Foster's motion to dismiss. Plaintiff is given leave to amend the complaint to substitute Dr. Aaron Hamb as a defendant in place of Doctor John Doe. The court, its own motion, summarily dismisses defendants Hamb and Leak from the action. Case to continue on plaintiff's excessive use of force claim against Foster and Officer John Doe.
DATED: September 29, 1993
John F. Grady
United States District Judge