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WILLIAMS v. GREIFINGER

January 29, 1996

BOBBY WILLIAMS, Plaintiff, -v.- ROBERT B. GREIFINGER, Deputy Commissioner and Chief Medical Officer of the New York State Department of Correctional Services, Defendant.


The opinion of the court was delivered by: MARTIN

 JOHN S. MARTIN, Jr., District Judge:

 Plaintiff, who is proceeding pro se, is an inmate at Ossining Correctional Facility. He challenges the constitutionality of certain components of a Department of Correctional Services ("DOCS") policy governing tuberculosis (TB) testing of inmates as violative of the Eighth Amendment's prohibition against cruel and unusual punishment. More specifically, plaintiff challenges that portion of the policy under which inmates who refuse to submit to certain TB tests are confined to their cells at all times except for one shower per week and legal visits, until such time as they agree to be tested.

 Defendant was the Deputy Commissioner and Chief Medical Officer of DOCS for the relevant period of time. He helped formulate and then approved the challenged policy. The defendant argues that the challenged policy does not violate the Eighth Amendment. Alternatively, defendant argues that, even if the policy violates the Eighth Amendment, he reasonably believed that it was constitutional and is therefore entitled to qualified immunity from personal liability. This case is now before the Court on the parties' cross-motions for summary judgment.

 I. Background

 As part of its response to the growing public health crisis involving the spread of tuberculosis among prison inmates, DOCS instituted a TB Control Program in 1991. DOCS Health Service Policy, Item # 1.18 (the "policy") is part of that program. Under the policy, inmates are required to undergo a Purified Protein Derivative (PPD) test upon entry into DOCS custody in order to screen for the presence of TB infection. The PPD test consists of a protein injection into the skin. Previous exposure to TB causes a thickening of the skin in the area of the injection, and indicates that the inmate has at least latent TB, which is not contagious under normal circumstances.

 The policy mandates a follow-up chest x-ray to a positive PPD test to determine if the inmate actually has active TB, and offers PPD-positive inmates the opportunity to receive six months of preventive therapy. Inmates with indications of active TB are placed in respiratory isolation. PPD-positive inmates without such indications may return to the general population whether or not they undergo preventive therapy. If the PPD test is negative, the policy states that the inmate is to be re-tested at least annually to determine if he has become infected since the previous test.

 Plaintiff first took a PPD test on December 19, 1991, after which he alleges to have complained to the nurse of redness on his arm and shortness of breath. The test was negative, and the medical records do not indicate plaintiff's complaints of an adverse reaction. On March 2, 1993, plaintiff refused to submit to a PPD re-test, and was placed in medical keeplock until October 12, 1994, at which time he agreed to undergo the second PPD test. The result of this test was also negative. Plaintiff filed this suit in January 1995, seeking declaratory relief and compensatory and punitive damages. *fn1"

 II. Discussion

 A. Summary Judgment Standard

 Summary judgment is proper when there is no genuine issue of material fact and, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). In order to defeat a motion for summary judgment, the factual dispute must be both material and genuine. In determining genuine facts, the shadow of a doubt is insufficient; the Court must be satisfied that evidence exists upon which the finder of fact could reasonably find for the party opposing the motion. Anderson v. Liberty Lobby, 477 U.S. 242, 248-52, 106 S. Ct. 2505, 2510-12, 91 L. Ed. 2d 202 (1986).

 In this case, the defendant admits that plaintiff was confined without any opportunity for out-of-cell exercise pursuant to the challenged medical keeplock policy. The only issues for resolution, therefore, are whether plaintiff's confinement constituted an Eighth Amendment ...


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