objection to the test on religious grounds, the defendants are hard-pressed to argue that forcing this one inmate to submit to this test furthers their interest in collecting significant information for epidemiological purposes.
The defendants nevertheless argue that it "could cause concern and possible unrest" among inmates and staff if DOCS fails to take "strong, effective measures" to control TB, including not permitting those whose TB status is unknown to remain in the general population. (Strack Aff. of 3/16/95 at P 4.) However, the defendants have not demonstrated that such a reaction is at all likely. The plaintiff has not been kept in respiratory confinement at any point since he refused to take the PPD test over three and a half years ago and the inmates who test positive but who do not have symptoms of tuberculosis are permitted to live among the general population. The defendants have offered no evidence that either situation has caused any incidents. It would be incredible if inmates who tested positive on the PPD test could be returned to the general population, but an inmate whose TB status was unknown could not because the latter would cause disruption. It is useful to recall again that the plaintiff has not shown any symptoms of active tuberculosis.
The defendants also argue that releasing the plaintiff from medical keeplock could cause an onslaught of religious objections to the PPD test. However, the evidence presented does not demonstrate that a concern about a "slippery slope" is at all justified. In fact, the defendants were able to identify only one other litigation in which a plaintiff challenged the PPD test on religious grounds. (Exh. A to Hathaway Aff. of 4/7/95.) In addition, the statistics that the defendants submitted to the Court indicate that, as of January 19, 1995, sixteen inmates had refused to take the PPD test on any basis. (Exh. D to Hathaway Aff. of 4/7/95.) Finally, the defendants were able to locate only a few letters from inmates requesting that they be exempted from the test on religious grounds. (Exh. C to Hathaway Aff. of 4/7/95.) To suggest that the totality of this evidence demonstrates that the defendants' interests in health will be compromised by their releasing this plaintiff from medical keeplock after over three and a half years, given the plaintiff's asserted religious objection, is not tenable.
Moreover, the defendants also have failed to demonstrate that continuing to keep the plaintiff in medical keeplock is the least restrictive means of furthering their asserted compelling interest. The plaintiff has suggested an alternative way that he might be treated that would not compromise the defendants' health interests and that would accommodate his asserted religious objection to the PPD test. Specifically, he has suggested that he be treated in the same way as inmates who both test positive on the PPD test and refuse therapy are treated; these inmates are permitted to remain in the general population because they do not have active tuberculosis. The defendants could give the plaintiff periodic chest x-rays and check him for clinical symptoms of tuberculosis. And, the plaintiff could provide a sputum sample which would demonstrate conclusively whether he has active tuberculosis. (See Greifinger Depo. at 31.) While the defendants argue that it would not be feasible or reasonable to force them to "divert" prison resources to monitor the plaintiff in the way they monitor inmates who have tested positive, (Defs.' Mem. Opp'n Mot. at 19), and that a chest x-ray would not serve their interest in acquiring information, (id. at 17), such an accommodation of a sincere free exercise claim maintained for over three and a half years represents a less restrictive alternative by which the defendants can advance their interests in health; therefore, the defendants are required to use this alternative under RFRA.
The facts of this case demonstrate that, at this point, continuing to keep the plaintiff in medical keeplock is not furthering a compelling governmental interest, a nexus which is required under RFRA to justify the defendants' actions. The plaintiff, in choosing to undergo the conditions of medical keeplock for a period of over three and a half years, has shown remarkable conviction for what he has stated are his religious beliefs. The record does not permit any reasonable inference that the plaintiff's continued confinement in medical keeplock will have any effect on his adamant refusal to submit to the PPD test; and, it is clear that the plaintiff's confinement is not producing any information for the defendants. Moreover, it is apparent that so long as the plaintiff refuses to submit to the test, no compelling governmental interest is being furthered.
The specific facts and circumstances of this case demonstrate the plaintiff's strong likelihood of success on his RFRA claim, justifying a preliminary injunction.
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments" on those convicted of crimes. U.S. Const. amend. VIII; see also Robinson v. California, 370 U.S. 660, 666, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1982) (the Eighth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment) Rhodes v. Chapman, 452 U.S. 337, 345, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981) ("It is unquestioned that 'confinement in a prison . . . is a form of punishment subject to scrutiny under the Eighth Amendment standards.'") (quoting Hutto v. Finney, 437 U.S. 678, 685, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978)). To establish that conditions of confinement constitute cruel and usual punishment, a plaintiff must prove both (1) a sufficiently serious deprivation and (2) that the defendants acted with "deliberate indifference." Wilson v. Seiter, 501 U.S. 294, 298, 303-04, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991).
Thus, the plaintiff's proof consists of both objective and subjective elements -- the plaintiff must demonstrate that the alleged deprivation is sufficiently serious under an objective standard and that the charged officials acted with a sufficiently culpable state of mind. See Hudson v. McMillian, 503 U.S. 1, 8, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992); Koehl v. Dalsheim, No. 94 Civ. 3351, 1995 WL 331905, *3 (S.D.N.Y. June 5, 1995) (Martin, J.).
The appropriate inquiry with respect to the plaintiff's Eighth Amendment claim is not, as the defendants argue, whether the TB Control Program, with its mandatory screening, violates the Eighth Amendment. Rather, the issue is whether keeping the plaintiff in medical keeplock for so long as he chooses to adhere to his stated religious beliefs, after the plaintiff has demonstrated that it is most likely that he will continue to resist taking the test forever, amounts to cruel and unusual punishment. Given the facts and circumstances of this case, it is very likely that the plaintiff will succeed on this claim as well.
With respect to the first prong of the Wilson inquiry, it is clear that the plaintiff's indefinite confinement in medical keeplock deprives him of all meaningful opportunity for exercise. See, e.g., Rhem v. Malcolm, 371 F. Supp. 594, 627 (S.D.N.Y.) (Lasker, J.) (fifty minute per week opportunity for exercise held to violate the Eighth Amendment), supplemented, 377 F. Supp. 995 (S.D.N.Y.), aff'd in part and remanded in part on other grounds, 507 F.2d 333 (2d Cir. 1974); Frazier v. Ward, 426 F. Supp. 1354, 1369 (N.D.N.Y. 1977) (prolonged denial of one hour per day of exercise, at least five days a week, violated the Eighth Amendment); cf. Anderson v. Coughlin, 757 F.2d 33, 36 (2d Cir. 1985) (one hour per day of outdoor exercise held constitutionally sufficient). As the Supreme Court has explained, the Eighth Amendment "does not mandate comfortable prisons," Rhodes, 452 U.S. at 349; it does, however, prohibit conditions of confinement that either result in "unquestioned and serious deprivation[s] of basic human needs" or "deprive inmates of the minimal civilized measure of life's necessities." Id. at 347; accord Anderson, 757 F.2d at 34-35. Under the cases concerning the need for sufficient exercise, the plaintiff can establish that the conditions of medical keeplock constitute a sufficiently serious deprivation to satisfy the first prong of the Wilson test.
With respect to the second prong of the Wilson test, the Supreme Court discussed what constitutes "deliberate indifference" in the context of Eighth Amendment challenges to conditions of confinement in Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). The Court held:
We hold . . . that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Id. at 1979.
The defendants argue that the plaintiff cannot establish deliberate indifference because the TB Control Program, including the mandatory screening, "is not intended to wantonly inflict pain and suffering, but is intended to control a deadly disease and protect inmates and staff." (Defs.' Mem. Opp'n Mot. at 20.) The defendants are correct that there is authority to support the proposition that mandatory screening does not violate the Eighth Amendment.
But, the defendants' argument does not respond to the appropriate inquiry. Here, the plaintiff is being kept in conditions abhorrent to any rudimentary sense of humanity despite the ineffectiveness of such confinement in advancing any legitimate interest and despite the plaintiff's asserted religious objection. At this point, after over three and a half years of medical keeplock, it is apparent that the conditions of medical keeplock cause a substantial risk of harm to the plaintiff. As a result of the plaintiff's adherence to his asserted religious convictions, he claims, and the defendants do not dispute, that he has become unable to stand to go to the shower and that he suffers from soreness, rashes, headaches and hair loss. As discussed above, the conditions and the duration of confinement in this case have satisfied the first and objective prong of the Wilson test. And, the awareness of the defendants of the undisputed conditions and harm to the plaintiff supports the conclusion under Farmer that the defendants are deliberately indifferent to the harm caused to this inmate.
Under the circumstances of this case, it is clear that the plaintiff is very likely to establish that keeping him in medical keeplock indefinitely, given the time that has elapsed and the physical ailments that he has suffered in order to abide by his asserted religious beliefs, constitutes deliberate indifference to the serious harm that is being imposed upon him.
By letting the plaintiff out of medical keeplock, a preliminary injunction causes no harm. There is no dispute that the plaintiff is not contagious and that, therefore, he does not present a threat to the health of the inmates and staff of the facility. And, there is no dispute that the defendants do not obtain any information by keeping the plaintiff in medical keeplock. Instead, releasing the plaintiff from medical keeplock serves only to relieve the plaintiff of the continued imposition of extremely restrictive conditions, conditions that are continuing to cause him severe physical problems. At oral argument, counsel for the plaintiff, who has since been relieved, represented to the Court that the plaintiff has been treated more harshly than any other inmate in the New York state prison system, sick or healthy. The defendants have done nothing to contest that representation.
As discussed herein, the plaintiff has demonstrated irreparable harm and a strong likelihood of success on the merits on both his RFRA and his Eighth Amendment claims; therefore, his motion for a preliminary injunction is granted.
Beginning on August 28, 1995, the defendants are enjoined during the pendency of this action from keeping the plaintiff in medical keeplock because of his failure to take the PPD test.
John G. Koeltl
United States District Judge
Dated: New York, New York
August 14, 1995