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PACHECO v. COMISSE

August 29, 1995

MILTON MUSA PACHECO, Plaintiff, against ANITA COMISSE; THOMAS A. COUGHLIN, III; PAUL LEVINE; JOHN & JANE DOES [S.C.F.]; JOHN & JANE DOES [CENTRAL OFFICE]; LOUIS F. MANN, Defendants.


The opinion of the court was delivered by: LEWIS A. KAPLAN

 LEWIS A. KAPLAN, District Judge.*

 Milton Musa Pacheco brings this action pro se pursuant to 42 U.S.C. § 1983 against New York State Department of Correctional Services ("DOCS") officials for alleged violations of his First, Fourth, Fifth, Sixth and Fourteenth Amendment rights while he was an inmate at Shawangunk Correctional Facility ("SCF"). Defendants are Superintendent Mann and former Commissioner Coughlin, respectively the heads of SCF and DOCS during the events in question; Anita Comisse, senior mail clerk at SCF; and Paul Levine, the Deputy Superintendent of Program Services at SCF. They move for summary judgment dismissing the complaint. *fn1" There are three main issues.

 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

 Against Plaintiff

 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)

 Despite this instruction, Mann made no accommodation for religious objectors at SCF. His December 23, 1991 directive to SCF personnel about the TB policy provided, in its entirety, that "inmates who have refused the T.B. testing procedure will remain in medical keeplock status until they agree to be tested. They will be deprived of all outside-of-cell activity except they will be permitted one (only) shower per week. No other [outside of] cell activity without express permission of the Superintendent or his designees. [sic]" (Def. 10(j) Ex. B) (emphasis in original) It appears that plaintiff was the only religious objector at SCF (Pl. Ex. A-6); the refusal to accommodate religious objectors at SCF therefore affected only him.

 When Goord's first order was given, and apparently for the duration of the events in question, plaintiff was confined to SHU for disciplinary reasons. (Pl. Aff. I P 11) To coerce plaintiff into taking the Test, Mann denied exercise and visitation privileges normally available to inmates in SHU and limited shower privileges to once per week. (Pl. Exs. A-4, A-6, A-14, A-33)

 Plaintiff asserted to Mann on January 3, 1992 that the stringent confinement violated plaintiff's rights to freedom of religion and to basic privileges while confined to SHU. Mann allegedly responded that he was "agitated and frustrated" that an inmate had refused the Test while under his authority and that he was "going to make sure that [plaintiff] did not get any form of activities unless it was his (Mann's) wishes [sic]." Plaintiff claims that he then asked Mann what gave Mann these powers; Mann allegedly replied "he was the boss here." When plaintiff then threatened to file another grievance, Mann allegedly responded that he was frustrated by the continuous filing of grievances by plaintiff, but that "it did not matter" because plaintiff was not going to get any relief because "[Mann] said so." (Pl. Aff. I P 22) Mann sent plaintiff a letter on January 10 in which he referred to the January 3 conversation and reiterated his agitation and frustration. (Def. 10(j) Ex. C)

 Plaintiff claims Mann later prevented an attorney from Prisoner Legal Services ("PLS") from interviewing plaintiff about an alleged beating of plaintiff by correction officers on January 19, 1992, on the ground that plaintiff had refused the Test. A letter from PLS to DOCS counsel, sent immediately thereafter, notes that "if DOCS truly believed that Mr. Pacheco was actively contagious he should be in medical isolation, not confined to an SHU cell" and that "even in cases where medical confinement was warranted" the attorney writing the letter "had visited inmates in medical isolation using the type of respiratory filter/mask which is commonly available in prison ...


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