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August 14, 1995


John G. Koeltl, United States District Judge

The opinion of the court was delivered by: JOHN G. KOELTL

JOHN G. KOELTL, District Judge:

 This case presents a conflict between the enforcement of a mandatory tuberculosis (or "TB") screening program instituted by the New York State Department of Correctional Services ("DOCS") and the demonstrated religious convictions of a prison inmate who has refused to submit to the screening test. The plaintiff, who is twenty-eight years old and who has been confined in medical keeplock since he refused to take the test on December 10, 1991, has sued the defendants claiming, among other things, that their treatment of him violates both his right to the free exercise of religion under the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq., and his right to be free from cruel and unusual punishment under the Eighth Amendment of the United States Constitution. The plaintiff has moved for a preliminary injunction, seeking to be released from medical keeplock during the pendency of this action.


 In response to the relatively recent resurgence of tuberculosis, DOCS developed a comprehensive TB Control Program (or "Program") in 1991 based on recommendations from the Department of Health and the Centers for Disease Control of the United States Public Health Service. (Defs.' Mem. Opp'n Mot. at 3; Greifinger Aff. of 12/1/93 at P 5.) The Program requires mandatory screening for TB at least annually by means of a Purified Protein Derivative ("PPD") test. (Defs.' Mem. Opp'n Mot. at 4; Greifinger Aff. of 12/1/93 at P 8.)

 Tuberculosis is a disease caused by the bacteria Mycobacterium Tuberculosis. (Greifinger Depo. at 17.) The bacteria can infect a person and exist in the person's body for a period of time without the person's immediately developing the disease; this is called latent tuberculosis, which is not contagious under normal circumstances. (Id. at 17-18.) Without preventive treatment, eight percent of persons with latent TB eventually will develop the active disease and may become contagious. (Greifinger Aff. of 12/1/93 at P 3; Defs.' Mem. Opp'n Mot. at 3.)

 Active tuberculosis, which is contagious, is a condition where the bacteria begin to multiply and break down the tissues of the body. (Greifinger Depo. at 19.) The symptoms of active tuberculosis include persistent coughing, night sweats, fever and weight loss. (Id. at 19, 41.) The disease is spread by close and prolonged contact with a person who has the active disease and the presence of susceptible hosts for the bacteria, including people who are malnourished or who are suffering from immune deficiencies, creates an increased risk for the spread of TB; prisons, which are congregate settings, present an obvious and increased risk of TB transmission. (Greifinger Aff. of 12/1/93 at PP 2-4.)

 The PPD test consists of an injection of a small amount of purified protein into the skin. (Id. at P 11.) A "positive" test, indicated by a skin reaction, or induration, in the area of the injection signifies that a person has been exposed to tuberculosis and has at least latent TB, which is not contagious. (Id. at PP 11, 13.) However, the PPD test has a significant rate of error. The test produces up to two percent false positives and up to ten percent false negatives. (Greifinger Depo. at 26.)

 The TB Control Program requires that an inmate who refuses to submit to a PPD test be placed in medical keeplock. (Exh. 1 to Greifinger Aff. of 12/1/93 at 3.) Inmates who are in medical keeplock remain in their cells at all times, except for the time they are permitted for one shower per week. (Id.) These inmates are permitted visits by their attorneys, but they are not permitted visits by anyone else. (Id.) They are not allowed out of their cells for any exercise unlike inmates who are in special housing units for reasons including disciplinary problems; inmates in special housing units are permitted one hour per day of exercise. (Pl.'s Second Amended Compl. at P 38.)

 Medical keeplock is not the same as respiratory isolation. (Greifinger Depo. at 95.) Inmates in medical keep lock are not kept isolated from the breathing space of the general population; accordingly, when they are permitted to go to the shower, they do not wear masks and their visits with attorneys are in the general visiting room. (Id. at 95; Procas Aff. of 3/8/95 at P 3.) This is because these inmates are not considered to pose any risk of contagious tuberculosis. (Greifinger Depo. at 95.)

 Mandatory TB screening was implemented by DOCS in November and December of 1991. (Defs.' Mem. Opp'n Mot. at 6.) In December, 1991, the plaintiff, who then was incarcerated at the Sing Sing Correctional Facility, refused to submit to the PPD test, claiming that doing so would violate his religious beliefs. (Jolly Aff. of 3/7/95 at P 6; Pl.'s Mem. Supp. Mot. at 6.) The plaintiff has practiced the Rastafarian religion since March, 1991. (Jolly Aff. of 3/7/95 at P 2.) He has explained that the reason he believes that submitting to the PPD test would violate his religious beliefs is because, under the tenets of his religion, "accepting artificial substances into the body constitutes a sin and shows profound disrespect to our Creator." (Id. at P 3.)

 As a result of the plaintiff's refusal to take the test and pursuant to the TB Control Program, the plaintiff was placed in medical keeplock on December 10, 1991. (Id. at PP 6-7.) He has remained there ever since, except for one week in the general population at Wande Prison in May, 1994. (Id. at P 7.). As a result of his prolonged confinement, the plaintiff alleges that he cannot stand up to go to the shower and he has developed various physical problems including rashes, severe headaches, shortness of breath and hair loss. (Id. at P 13.)

 The plaintiff has never displayed any symptoms of active tuberculosis. (Id. at P 15.) Prior to the plaintiff's becoming a Rastafarian, he took a PPD test and was told that it was negative. (Id. at P 5.) Moreover, he has had three x-rays since 1991 to determine whether he has active tuberculosis; he has never, after any of these x-rays or at any time, been placed in respiratory isolation. (Id. at P 14.)

 The plaintiff, who currently is in medical keeplock in Attica Correctional Facility, seeks a preliminary injunction releasing him from medical keeplock pending the trial of his case. *fn2"

 In order to obtain a preliminary injunction in most cases, a party must demonstrate irreparable harm and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of the hardships tipping decidedly in favor of the party requesting the preliminary injunction. Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 779-80 (2d Cir. 1994) (citing, inter alia, Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)); Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994) (same). However, when a plaintiff seeks to stay government action taken in the public interest pursuant to a statutory or regulatory scheme, the moving party is required to meet the more rigorous of these tests and demonstrate irreparable harm and a likelihood of success on the merits. Catanzano v. Dowling, Nos. 94-7873, 1190, 1995 WL 413974, *4 (2d Cir. July 13, 1995); Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989).

 Here, it is appropriate to apply this heightened standard because the plaintiff has challenged the way the defendants have enforced a program that was adopted to advance the public interest in protecting inmates and DOCS staff, and the members of the public with whom they come into contact, from a potentially fatal disease. See Payne v. Coughlin, 93 Civ. 3378, Report and Recommendation, slip op. at p. 7 (S.D.N.Y. Oct. 12, 1994) (Grubin, M.J.) (citing Plaza Health, 878 F.2d at 580). While the plaintiff has not conceded that this standard is the appropriate one to be applied, he has argued that even under this standard, the Court should grant his motion. For the reasons discussed below, the Court agrees.

 Moreover, while the plaintiff's motion for a preliminary injunction properly is viewed as seeking a prohibitory injunction because it seeks to prohibit the defendants from keeping the plaintiff in medical keeplock, rather than a mandatory injunction, see Tom Doherty Assocs., Inc. v. Saban Entertainment, No. 94-9310, 1659, 1995 WL 412116, *6-*7 (2d Cir. July 12, 1995); see also Abdul Wali v. Coughlin, 754 F.2d 1015, 1025-26 (2d Cir. 1985), the plaintiff has satisfied the stricter test for mandatory injunctions. In Tom Doherty Assocs., the Court of Appeals explained that a party seeking a preliminary injunction must meet a heightened standard where that party seeks an injunction that either will alter the status quo, i.e., a mandatory injunction, or that will provide the movant with substantially all the relief sought where such relief cannot be undone even if the non-moving party prevails at a trial on the merits. Tom Doherty Assocs., 1995 WL 412116, at *6. In either of these situations, the party seeking the preliminary injunction must meet the higher standard of "substantial, or clear showing of, likelihood of success" on the merits to obtain preliminary relief. Id. at *6-*7. Here, the preliminary injunction only will prevent the defendants from keeping the plaintiff in medical keeplock during the pendency of this action until a final decision is reached on the merits. It is not the equivalent of granting ultimate relief and, if the plaintiff does not prevail on the merits, he could be returned to medical keeplock.

 In any event, as discussed above, the Court already has applied a heightened standard because of the public interest implicated by the plaintiff's motion. Therefore, it has required the plaintiff to demonstrate a likelihood of success on the merits and not simply serious questions concerning the merits and a balance of the hardships tipping decidedly in his favor. Moreover, even if the Court were to apply the even higher standard for mandatory injunctions, the plaintiff also would satisfy that test ...

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