First, plaintiff claims that Mann prevented plaintiff from attending the trial of a claim he was pursuing in the New York Court of Claims against the State of New York in order to retaliate for other litigation and complaints brought by plaintiff, that plaintiff's case therefore was dismissed with prejudice, and that Coughlin is responsible for Mann's actions. Defendants respond that plaintiff legitimately was prevented from attending the trial because he refused to submit to tuberculosis ("TB") testing.
Second, defendants allegedly obstructed plaintiff's legal mail. Defendants argue that plaintiff did not show that the letters in question were legal mail, as required by DOCS regulations.
Third, plaintiff claims that the elimination of a subsidy for inmates' non-legal mail violates the First Amendment. The Court previously has addressed and rejected this claim in Dawes v. Carpenter, 1995 WL 367088, *9 (N.D.N.Y. June 19, 1995), and it is rejected here for the same reasons.
The Alleged Retaliation
The TB Test and
Plaintiff's Court Date
Mann prevented plaintiff from attending the trial of plaintiff's claim against the State of New York; the main issue here is his reason for doing so. Plaintiff claims that Mann wanted to retaliate for plaintiff's numerous administrative complaints against Mann, his frequent litigation against DOCS, and a confrontation plaintiff had with SCF correction officers approximately three weeks before his trial date. Defendants contend that plaintiff was confined because his nine month refusal to take a TB test made him a health risk. Plaintiff acknowledges that he refused to take the TB test in question, but claims that he did so for religious reasons, that Mann knew he was amenable to other forms of testing, and that Mann's use of DOCS TB testing policy to justify depriving plaintiff of his day in court was pretextual because plaintiff did not present a health risk. Indeed, plaintiff claims that in the nine months preceding the court date, Mann applied the TB policy in a manner inconsistent with the supposed health threat. Moreover, plaintiff alleges that Coughlin is liable as well because plaintiff told him about Mann's behavior in a series of letters but the problem nevertheless was not addressed.
On November 29, 1991, in response to an unspecified health emergency, Glenn S. Goord, Deputy Commissioner of DOCS, ordered all facility administrators in the DOCS system to administer the Mantoux Tuberculin (PPD) Skin Test (the "Test") to inmates in their facility. To further limit the potential spread of TB, Goord required that "inmates who refuse to take the [TB] test after counseling should be medically keeplocked until the test is taken. No out-of-cell activity will be permitted for these inmates due to the existing medical emergency. (Def. 10(j) Ex. B)
The Test is performed by injecting a serum derived from the bacterium that causes TIB into the skin on the patient's arm. (Pl. Aff. I P 9; Def. 10(j) Ex. B) Plaintiff, an orthodox Muslim, claims that he is prohibited from voluntarily ingesting this bacterium because, as he interprets the Qur'an, it would defile his body in the same manner as would the voluntary ingestion of poison or alcohol. (Pl. Ex. A-16) In addition, plaintiff has other non-religious objections to the Test not relevant here. He therefore refused to submit to the Test.
A second order sent by Goord on December 12, 1991 suggests that plaintiff's religious objections were not unique in the DOCS system, as indeed does Judge Koeltl's recent decision in Jolly v. Coughlin, 1995 WL 493064 (S.D.N.Y. Aug. 14, 1995). The Goord order says in relevant part:
"The only out-of-cell activity which should be permitted is one shower per week. No out-of-cell exercise periods, visits, legal visits, attendance at congregate religious services, etc. are permitted during this medical emergency for inmates who refuse to be tested. Inmates who refuse to take the test for religious reasons may be permitted to get a chest x-ray in lieu of the current testing procedures. This alternative method of testing must be requested via electronic mail to Dr. Greifinger. In the e-mail, you must indicate the specific circumstances, i.e. which religious reason, to justify the chest x-ray." (Def. 10(j) Ex. B)