The opinion of the court was delivered by: STEIN
SIDNEY H. STEIN, U.S. District Judge.
The Eighth Amendment prohibits punishments that "involve the unnecessary and wanton infliction of pain" or are "grossly disproportionate to the severity of the crime." Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59 (1981). Only conditions of confinement which constitute or cause the "serious deprivation of basic human needs," which are the "minimal civilized measure of life's necessities," constitute cruel and unusual punishment. Id. Although double-celling can amount to an Eighth Amendment violation if combined with other adverse conditions, this Court finds that double-celling at Woodbourne, under the conditions set forth at trial, does not constitute cruel and unusual punishment as proscribed by the Eighth Amendment.
Plaintiffs' due process claim fails as well. Plaintiffs have failed to show that they suffered an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life," see Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418 (1995), or that New York State has granted its inmates, by regulation or statute, a protected liberty interest in being free from being placed in a double cell. Indeed, far from being atypical, most state prison systems as well as the federal prisons had adopted a policy of some double-celling of inmates by 1995.
Plaintiffs Nashawin Bolton, Jerome Waldo and Dwight Clark are inmates who were at one point in time double-celled at Woodbourne. Mr. Bolton was double-celled from April 1995 until June 1995 (Tr. at 789-91, 804-05 (Bolton)),
Mr. Clark from April 1995 until July 1995 (Tr. at 835-37 (Clark)), and Mr. Waldo from approximately April 1995 until June 1995. Tr. at 135-36, 140-42 (Waldo). Defendant Glenn Goord is the current Commissioner of the New York State Department of Correctional Services ("DOCS"). Defendant Philip Coombe was the acting Commissioner of DOCS from approximately August 1994 to April 1996. Defendant John Keane is the current Superintendent of Woodbourne. Plaintiffs bring claims against Goord and Keane in their representative capacity and against Coombe in his individual capacity and seek money damages solely from Coombe.
The Decision To Commence Double-Celling In New York State Prisons
1. At the time of trial, there were approximately 70,000 inmates in the DOCS system. Tr. at 1496 (Alexander). In 1989, in order to house what was an increasing number of prisoners, DOCS began to double-bunk inmates in dormitories in certain of its facilities, including Woodbourne. Tr. at 636-37 (Coombe). "Double-bunking" is the practice of having two inmates sleep one above the other in bunk beds. This initially was accomplished by converting gymnasiums into dormitories. Id. Each of these converted gymnasiums housed approximately two hundred inmates in double bunks. Id. Double-bunking inmates was intended to be a temporary solution to the problem of increasing prison populations. Tr. 639 (Coombe).
3. DOCS was also under numerous court orders requiring it to receive inmates into state custody in a timely manner. Tr. 761-62 (Coombe). Moreover, DOCS needed to make significant budget cuts. Tr. 755 (Coombe). Double-celling was regarded as a cost-neutral way of absorbing the additional population and accounting for the change in the composition of the prison population. Tr. 755 (Coombe).
Planning and Implementation of Double-Celling
4. Prior to implementing double-celling, Coombe formed a team of superintendents and deputy commissioners and directed them to visit facilities in other states that utilized double-celling to research their double-celling procedures and problems. Tr. 765 (Coombe).
5. The committee researched double-celling in California, Texas, Pennsylvania, Michigan and Florida. P-2,3,4 & 5.
6. Thereafter, discussions were held between members of the committee and personnel from a variety of New York state correctional facilities, including representatives from DOCS Division of Health Services regarding health and safety considerations. The resulting guidelines precluded the following categories of inmates from being double celled: the mentally disturbed, the physically disabled, victim prone, those who exhibit aggressive behavior and those with communicable diseases. Tr. 658 (Coombe); P-241.
Planning for Double-Celling at Woodbourne
7. The initial planning for double-celling at Woodbourne involved team meetings, conversations with the inmate population, and feedback from facility staff. The heads of each of the areas that would be most affected by double-celling -- security, programs, medical, and administration -- was involved in the planning process, which was completed under the direction of then Superintendent Robert Hanslmaier. Tr. 933-34 (Krom).
8. In late February or early March 1995, Superintendent Hanslmaier informed the executive staff of Woodbourne that they would be receiving additional inmates and should finalize the double-celling plans. Formal meetings were held with the inmate liaison committee (ILC), as well as discussions with inmates informally, to determine the best way to implement double-celling. Team members also spoke to corrections sergeants, lieutenants, and various unions at Woodbourne. Tr. 934-935 (Krom), Tr. 1036-1037 (Jones), Tr. 1047 (Jones). As a result of meetings with the ILC, Woodbourne decided to double cell inmates based on seniority on each gallery. Tr. 937-938 (Krom).
State Commission of Correction
9. The New York State Commission of Correction ("SCOC") is an oversight body, separate and independent from DOCS, which assists the Governor in developing policies, plans and programs for improving the administration of both state and local correctional facilities. The SCOC has the power to promulgate rules and regulations establishing minimum standards for the care and custody of persons confined in correctional facilities. Tr. 1960 (Wutzer Stip).
11. An SCOC emergency regulation which provided that DOCS "may establish double occupancy housing units" with the approval of SCOC was published in the New York State Register on May 17, 1995. Tr. 1962 (Wutzer Stip.). The regulation required certain equipment, furniture and fixtures, and provided for a screening and risk assessment of inmates prior to housing them in a double cell. N.Y. State Register, May 17, 1995, p. 1; see also N.Y. State Register, August 9, 1995, p.6 & October 4, 1995, p.1.
12. At a meeting on April 26, 1995, the SCOC approved double-celling at Woodbourne. D-60.
Woodbourne Correctional Facility
13. Woodbourne was originally built in the 1930's, and at that time included cell blocks A & B. In the late 1960's, cell blocks C & D were added, and in the 1970's a new administration building and gymnasium were added and the hospital building was expanded. Tr. 1735-37 (Miller). Each of the cell blocks has four floors. There are 260 cells in A & B blocks, and 240 in C & D blocks. Woodbourne also has various dormitory-style housing units. Tr. 1737-1738 (Miller); D-2, p. 1.
14. The first floors of A and B block have one shower, and the remaining floors each have three showers. Each floor of C and D blocks has four showers. Showers are also available in the gym. Tr. 1737-1738 (Miller). There is one recreation room -- also referred to as the day room -- on each floor of C & D blocks, one recreation room that serves the first and second floors of A & B block, and another that serves the third and fourth floor. Tr. 1737-1738 (Miller).
15. Certain housing units are designated for inmates assigned to specific jobs or programs. For example, A block primarily houses inmates who work in the dining hall. D-1 houses inmates in the veterans program, a residential therapeutic program for combat veterans, and D-4 houses inmates participating in the network program, another residential therapeutic program. Tr. 1737 (Miller); D-30, p. 7-8.
16. The number of inmates housed at Woodbourne has fluctuated over the last decade. In 1989, there were 891 beds. Woodbourne then created a dormitory, known as "G" dorm, where 149 inmates were double bunked. At that time, the population was approximately 1,040, the highest it has been in the past decade, Tr. 1740-1742 (Miller); Tr. 895 (Krom). Woodbourne also had dormitories set up in the basement of C and B blocks. Tr. 896 (Krom). In 1991, these dorms were closed and the population of G dorm was reduced to 62. Tr. 1741 (Miller); D-2, p. 2.
17. In 1995, prior to the implementation of double-celling, Woodbourne's population was 891. In April of 1995, when double-celling was first implemented, Woodbourne double-celled 56 of its 500 cells and added 34 additional double bunks to its dormitories, for a total of 90 additional inmates, bringing the population to 981. Tr. 1740-1741 (Miller).
18. The cells in A and B block are approximately 58.6 square feet, and those in C and D blocks are approximately 53.3 square feet. Tr. 447 (Duel); P-417. The cells used as double cells are equipped with a bunk bed, a sink with running hot and cold water, a toilet, four lockers, and a folding chair. D-1.
19. Woodbourne publishes a schematic or floor plan indicating approved ways in which inmates may arrange the furniture in their cells. When Woodbourne officials formulated the floor plan for double cells, they intended inmates to use the folding chair to get into the top bunk. Inmates, however, have stood on the lower rail of the lower bunk, the lockers or the toilet in order to get into the top bunk. Tr. 1760-1762 (Miller); D-30, p. 30, D-34a-d.
20. Currently, and since 1989, the hot water provided to the showers operates with anti-scald valves. Tr. 1745, 1771 (Miller). By the time of trial, valves that will allow the water temperature to be regulated in all areas, including the sinks in the cells, had been ordered. Tr. 1745 (Miller).
21. Woodbourne has a medical unit that provides health care 24 hours a day, seven days a week. It is staffed by one full time and one part-time physician, as well as 7.5 nurses and other support staff. Tr. 1124-1125 (Williams); Tr. 1531 (Macram). Two additional nurses have been added since the beginning of double-celling. Tr. 1536 (Macram).
22. The majority of inmates coming to Woodbourne are sent there on the basis of good behavior at other penal institutions. Inmates are screened prior to being accepted into Woodbourne. Tr. 932 (Krom).
23. Woodbourne offers a variety of educational, vocational, religious and recreational programs. D-3, p.1; Tr. 1955-1956 (Kowalik Stip.); D-30, p. 3. Inmates can also be assigned jobs in the following areas: laundry, hospital, kitchen, maintenance, carpentry, painting, plumbing and electric. Id. Inmates known as Inmate Program Assistants function as tutors to other inmates. D-30, p. 2.
24. Woodbourne has a gymnasium and a recreation yard with built-in board games and weight lifting equipment; it also has an enclosed softball field. Tr. 1950 (Tucker Stip.). A visiting program permits inmates to receive visitors from 9 a.m. to 3 p.m. on alternate weekend days. A Family Reunion Program allows inmates to have 48 hour overnight visits with their families at nearby Sullivan Correctional Facility. Tr. 1952 (Tucker Stip.).
25. Inmate organizations also meet regularly, and include organizations such as the NAACP, the Brothers of Ireland, and the Jaycees. Tr. 1951 (Tucker Stip.). Woodbourne employs Protestant, Catholic, Muslim and Jewish clergy, and religious services are provided for all major faiths. On religious holidays, special activities are held. Tr. 1952 (Tucker Stip.), Tr. 379-380 (Nicholas).
26. Weekdays at Woodbourne are divided into three time periods, referred to as modules: 8:30 - 11:30 a.m., 12:30 - 3:30 p.m., and 6:30 - 9:30 p.m. Any inmate who is under 65 years of age and is medically able to work must work or be in a program for two periods every day. Tr. 1955 (Kowalik Stip.). During periods when an inmate does not have an assigned program, he may elect to go to the recreation yard, the library, or the gym. Tr. 1751 (Miller); Tr. 1955 (Kowalik Stip.); D-30, p. 5.
27. Inmates at Woodbourne are generally required to remain in their cells for approximately 10-12 hours per day. Inmates are locked in their cells from 11:00 p.m. to 7:00 a.m. Each company goes to breakfast sometime between 7:00 and 8:15 a.m. As noted, programs are held from 8:30 a.m. to 11:30 a.m. At 11:30, inmates return to their housing unit. During the period 11:30 a.m. to 12:30 p.m., a count is held and the inmates go to lunch. From 12:30 to 3:30 p.m., programs are held, and from 3:30 to 4:00 p.m. inmates may go to the yard or to the commissary to make purchases. From 4:00 p.m. to 6:00 p.m., inmates are permitted to shower and each housing unit goes to dinner. Another count is then held until approximately 6:30 p.m. Programs are also held from 6:30 to 9:30 p.m. At 9:30 p.m., inmates return to their housing unit, and may stay in the day room until 11:00 p.m. Tr. 1748-1751, 1786 (Miller).
28. The counts generally last one-half hour, but can take up to 1.5 hours if there is a problem. An inmate may also be in his cell for 15 to 20 minutes before or after lunch. Thus, aside from the 8 hour overnight period -- during which inmates are generally asleep -- they are required to be in their cells an additional 1.5 to 2 hours. Tr. 839 (Clark); Tr. 1749-50 (Miller).
30. Woodbourne was found to be housing more inmates than its rated capacity, failed to meet the standard requiring one shower per every eight inmates and failed to meet the standard regarding physical examinations for non-security personnel. Woodbourne also failed to meet the square footage requirements regarding unencumbered space in cells.
31. Some inmates are classified specially by an extended classification unit of Movement and Control. These include vulnerable inmates and learning disabled inmates. Protective custody units and special programs for vulnerable inmates exist at several DOCS facilities. Tr. 1490 (Alexander).
32. The system excludes from transfer to Woodbourne inmates with serious assaultive behavior or those serving lengthy sentences. D-82 at 3.
33. Pursuant to DOCS' inmate security classification system, aggressive homosexual inmates are placed in maximum security facilities. Overt homosexuals are carefully evaluated before being placed in a security level lower than maximum. Vulnerable or victim prone inmates are subject to separate evaluation. D-106 at Bates # # 14322-14324.
34. Inmates coming to Woodbourne include medium security level inmates who have at least two years of good behavior who are eligible for transfer closer to home in the greater New York area, a small number of medium security level inmates right out of reception facilities, and inmates from maximum security facilities whose classification is being reduced because of good behavior and a short remaining sentence time. Tr. 1489 (Alexander).
35. Plaintiffs contend that the security screening of inmates prior to double-celling them at Woodbourne is inadequate and thus places inmates in risk of serious harm or violence. The evidence did not support plaintiffs' contention. When an inmate is transferred from one facility to another, the sending facility sends an E-mail to the receiving facility indicating that the inmate is on his way. Tr. 897 (Krom), Tr. 1038-1039 (Jones). Beginning in approximately June 1995, the E-mail contained a recommendation as to whether the inmate should be double-celled. The form of this recommendation was "Double cell: Y/N". Tr. 898-899, 902 (Krom), Tr. 1040 (Jones), P-290, p. 1.
36. When double-celling was commenced at Woodbourne, the review of the inmate's records was done by the sending facility. Tr. 904-05 (Krom). The E-mail was received by the inmate records coordinator at Woodbourne, who then sent it to the movement and control officer. Tr. 905 (Krom).
37. Captain Ronald Krom relied on the E-mail from the sending facility as a means of screening inmates for double-celling. Tr. 955 (Krom).
38. Krom tried to speak to each of the initial fifty-six inmates who were already at Woodbourne and were to be double celled. Additionally, a list of these inmates was sent to the mental hygiene and medical departments and to the disciplinary lieutenant for their review. Tr. 939-40 (Krom).
39. As a result of circulating the list and his personal interviews, Krom excluded three or four individuals from double- celling. One inmate was excluded because he had been attacked in another facility and was visibly shaking during his interview with Krom, another because he had an embarrassing medical condition, and another inmate because he had been raped. Tr. 939-942 (Krom). Krom told each of the initial 56 inmates that if they had any problems with double-celling, they could write to or speak directly with him. Tr. 942-943 (Krom).
40. Krom spoke with the initial 56 inmates collectively and explained the double-celling policy, the different programs available at Woodbourne that would help them move more quickly out of double-celling, and that they could request different types of housing by writing to him. Krom also had the area sergeant with him so that the sergeant would know what to tell new arrivals at later dates. Tr. 943-44 (Krom).
41. After the collective speech, each inmate was interviewed by the area sergeant, and Krom made himself available if any inmate wanted to speak to him privately. If any problems were identified, the inmate was not double-celled. Tr. 944-945 (Krom). After the individual interviews, the inmates were brought up to the medical unit and their medical records were screened. Tr. 945-946 (Krom). The inmates were also psychologically screened. Tr. 946 (Krom). The counseling department also produced a report based on a review of the inmates' records which is used in the screening and contained, among other things, the inmate's ethnic background, his psychological and medical history, and misbehavior problems. This counseling report was sent to the superintendent and circulated to the executive team. Tr. 948 (Krom).
42. After the initial round of double-celling, incoming inmates went into housing based on availability, subject to the same screening as described for the initial inmates placed in double cells, except that the group speeches and individual interviews were all performed by a sergeant. Tr. 952, 954 (Krom).
43. Krom wrote instructions that were given to all inmates at Woodbourne, which explained how an inmate could request a change in his housing assignment. Tr. 958-59 (Krom); D-10; D-11; D-12. Just before Krom left Woodbourne in December 1995, the facility developed a form that each inmate was given when they arrived at the facility, and which was made available to all inmates at Woodbourne to request different types of housing. Tr. 961 (Krom); D-326.
44. Larry Austin, an inmate movement and control officer at Woodbourne, works with the captain in assigning inmates their cell locations. Tr. 1059, 1070 (Austin). Based on the E-mail that comes from the sending facility, he records the inmate's name, identification number, parole board date, keeplock status, and the double cell recommendation from the sending facility, on a Rolodex card. He then goes onto the DOCS' computer system and checks the inmate's ethnic background, his keeplock status, if he has had any unusual incidents, his mental health level, and his enemies list. Tr. 1070-71 (Austin). He also records the captain's double-celling determination on the Rolodex card. Tr. 1072 (Austin).
45. Carola Porter is the program sergeant at Woodbourne and is responsible for the initial screening of inmates at Woodbourne. Tr. 1501 (Porter). When inmates arrive at Woodbourne they are given a group speech by a sergeant. In this speech, they are asked if they have been at Woodbourne before and if anyone is currently on keeplock status. Tr. 1502 (Porter). The inmates are told that Woodbourne is primarily a dormitory facility and that there are cells available on a first come, first serve basis. The sergeant explains that there are waiting lists for the various types of housing and that they will be given a housing selection form to fill out. Tr. 1501-1503 (Porter).
46. After the group speech, each inmate is interviewed individually. Tr. 1503 (Porter). In the individual interview, the sergeant gives the inmate a copy of the Woodbourne inmate handbook, which explains any rules and regulations specific to Woodbourne. The inmate is also given a copy of the double-celling procedure and is asked to sign an acknowledgment that he has received the handbook and the double-celling procedure. Tr. 1503-1505 (Porter), D-30; D-31; D-32; D-35.
48. During the individual interview, the sergeant gives the inmate a housing style change request form and explains how to fill it out. She tells them that as new inmates, they are entitled to select one of the first six choices on the form: first available double cell or double dorm, first available double cell only, first available double dorm only, first available single cell or single dorm, first available single cell only, first available single dorm only. The sergeant explains that if the inmate chooses first available single cell only or first available single dorm only, it will take "significantly longer" than the other choices. If an inmate tells the sergeant that he does not want to be in a double cell, the sergeant usually recommends that he choose first available double dorm, which can usually be accomplished in a "matter of days." Tr. 1509-11 (Porter), Tr. 1057-58 (Jones), Tr. 1588 (Piatek). The sergeant then explains that once the inmate is in the double dorm, he can then fill out another housing form and request his top choice which might take longer to receive. Tr. 1509-12 (Porter). The sergeant will go over the form as many times as necessary to make certain that the inmate understands how the process works. Tr. 1513 (Porter); P-28.
49. Woodbourne maintains a log book for each housing option, and each time an inmate request comes in, it is written on a list in the log book. Tr. 1074 (Austin).
50. At some point in late 1995 or early 1996, Woodbourne started using a form titled "double cell evaluation." The forms are filled out by the captain from information obtained from the DOCS' computer system regarding each inmate. The form has a section that lists twelve categories that are checked "yes" or "no," and can be explained in a "comments" section. Tr. 1040-42 (Jones). If one of the categories is checked "yes," the captain will look more closely at that factor, but this will not automatically exclude an inmate from double-celling. Tr. 1580 (Piatek). The captain then indicates whether he approves or disapproves the inmate for double-celling, subject to mental health and medical approval or disapproval, which comes from the medical department after the inmate is seen on the day he arrives. Tr. 1042-44 (Jones); Tr. 1580-85 (Piatek); P-291; D-35.
51. Plaintiffs also contend that Woodbourne does not screen for compatibility of cellmates prior to double-celling them. The evidence demonstrated, however, that Woodbourne did engage in compatibility screening, albeit an informal one. For example, before placing an inmate in a double cell, the facility determines which inmate is already in the cell. Tr. 1594-95 (Piatek). More importantly, however, there was substantial evidence that inmates were not harmed by the lack of a formal compatibility screening since any problems that arose were addressed. Tr. 949-50 (Krom), Tr. 1047 (Jones), Tr. 1585-87 (Piatek). For example, in the event of smoking conflicts between cellmates, an attempt would be made to resolve the conflict by speaking with the two inmates and the area sergeant. If the problem could not be resolved, one inmate would be moved. Tr. 956-57 (Krom), Tr. 1047-48 (Jones), Tr. 1586 (Piatek). Conflicts between inmates involving religion, light, noise and hygiene have also been addressed and resolved. Tr. 957 (Krom); Tr. 1048 (Jones).
52. This Court credits Captain Piatek's testimony that the screening that he and the security staff do before an inmate is placed in a double cell is adequate to protect the inmates from harm or the risk of harm. Tr. 1589 (Piatek).
Medical Screening and Services
53. DOCS conducts a health screening program for all inmates. When inmates are first taken into state custody they are seen by medical staff at a reception facility, where a medical history is taken and a physical exam performed. Blood and urine are tested, including blood screening for hepatitis. A PPD test for tuberculosis ("TB") infection is given and a chest x-ray is taken. Diphtheria-tetanus immunizations are given and, depending upon whether there is a record of the inmate being fully immunized as a child, vaccinations and immunizations for polio, measles and rubella are administered. If an inmate has a sentence greater than five years, DOCS offers a hepatitis B vaccine. Tr. 1410-11 (Wright); D-174.
54. Inmates are also screened when they are transferred between facilities. P-30. An inmate's medical chart is reviewed, including a form filled out by the sending facility noting any problems. A nurse speaks with the inmate, asking whether he has any current medical problems. The nurse does a physical assessment, taking weight and vital signs, including blood pressure, temperature, pulse, and respiration. If necessary, a complete physical examination is performed. The nurse checks the lab results and x-rays and ensures that the inmate's PPD test is current. If an inmate has not been tested for HIV, he is asked if he would like an HIV test. Tr. 1085, 1128 (Williams,), Tr. 1518-19 (Sweeney); Tr. 1128-29 (Williams).
55. DOCS also has written policies concerning the delivery of health services, including diagnosis and treatment of diseases such as TB, hepatitis, asthma, and diabetes. Tr. 1408-09 (Wright); Tr. 1124-25 (Williams), Tr. 1546-47 (Macram).
56. In particular, DOCS has a TB control policy set forth in item 1.18 of its Health Services Policy Manual, which requires all inmates to be screened for TB with a PPD skin test, commonly known as the Mantoux test, and a chest x-ray upon entry into the DOCS system. Tr. 1431-35 (Wright). If an inmate tests positive on a PPD test, it means he has been exposed to tuberculosis but it does not mean that he has active TB. Tr. 1133 (Williams).
57. Thereafter, all inmates who have not previously tested positive are required to have an annual follow-up PPD test. Those who work in high risk areas such as the health services unit are screened for TB infection every 6 months. If the test is positive, the inmate is evaluated for signs and symptoms of active TB through a physical examination and a chest x-ray. All inmates with a positive PPD test are offered an HIV test. D-42, p. 6. If an inmate is known to be HIV positive, an anergy test is given. A person who has a positive PPD test or is found to be "anergic" is offered preventive therapy with a drug known as INH, which has been shown to substantially reduce one's chances of developing TB. D-167, p. 45. These procedures have been implemented at Woodbourne. Tr. 1133-34 (Williams), Tr. 1953-54 (Pike Stip.).
58. If an inmate is suspected of having TB, he is isolated, evaluated and tested. Tr. 1431-33 (Wright).
59. Woodbourne does not have an isolation room for TB meeting the negative air flow criteria suggested by the Centers for Disease Control and Prevention (CDC). Instead, the inmate is masked and is kept in a separate room, until he is moved to an isolation room at another facility. See D-37, p. 17. An inmate is not released from isolation after a positive sputum smear until he has completed two weeks of therapy, is clinically improving, and three consecutive sputum smears are negative. If all sputum smears are negative (i.e. the patient never had a positive smear and was merely a suspect case or was diagnosed on the basis of clinical symptoms alone), he is released after three negative smear samples and his symptoms are improving with therapy directed toward another disease such as bronchitis or pneumonia. Tr. 1432 (Wright), D-42, p. 11-12. This policy is consistent with the CDC recommendations. D-37, p. 18.
60. DOCS' policy specifies the type and duration of drug therapy for both TB disease and preventive therapy for TB infection. D-42, p. 15-21. Preventive therapy is generally continued for six months for patients without known HIV infection or HIV risk factors, and for 12 months for those who are HIV infected or suspected to have HIV infection. D-42, p 17. Treatment of TB is continued for at least three months if all cultures are negative, and for at least six months in a case where there have been positive cultures. If an inmate is also infected with HIV, treatment is continued for one year, and if an inmate has multi-drug resistant TB, treatment is continued for two years. Tr. 1434 (Wright), D-42, p. 20. All treatment, including preventive therapy, is administered by what is referred to as "directly observed" therapy. A health care provider observes the patient place the medication in his mouth and swallow, and then inspects the mouth for unswallowed pills. D-42, p. 16.
61. DOCS' policy also provides for contact investigations when an active case of disease is discovered. Close contacts of the infectious individual are screened for TB infection, and a follow-up test 10-12 weeks later is performed if the first test is negative. Further evaluation or an expanded investigation is conducted where appropriate. D-42, p. 13-15.
62. Each facility has a nurse responsible for coordinating TB control. Mary Anne Pike, RN, testified that she maintains a list of all inmates at Woodbourne who need PPD tests and reviews this list monthly. The results of the test are entered in the inmate's chart as well as in the medical unit's computer. Tr. 1953 (Pike Stip.).
63. Robert Fiore, the Infection Control Nurse responsible for Woodbourne, provides training to Woodbourne staff in the area of TB and other diseases, and assists in contact tracings. He prepares a monthly report for the DOCS central office regarding the number of active and suspect cases in the facilities for which he is responsible, the number of chart audits he has performed, and the training he has provided to staff and the training he has attended. Tr. 1565-66 (Fiore).
64. TB conversions are down, and there has been a 66% decrease in the TB case rate diagnosed within DOCS facilities since 1992. The number of cases diagnosed through sputum cultures has decreased 80%, and those diagnosed with sputum smears has decreased 90%. In other words, more cases are being diagnosed via the clinical system, before they have enough bacteria in their sputum to show up on a culture or smear. Tr. 1440-41 (Wright).
65. There have been no cases of active, contagious TB from a positive PPD reading at Woodbourne since prior to the implementation of double-celling. Tr. 1134 (Wright), Tr. 1569-70 (Fiore). There have been approximately twelve suspect cases since 1994. Those individuals were removed from the general population and isolated while the appropriate tests were performed. In each case, TB was ruled out as the cause of their symptoms. Tr. 1569-70 (Fiore).
66. This Court credits the opinion of Dr. Lester Wright, DOCS' Associate Commissioner and Chief Medical Officer, that double-celling has not presented a problem with respect to controlling TB. He explained that there is a heightened risk of spreading TB by confinement of inmates in a small space for 11 hours or more a day, only if one of the two inmates is spreading the bacteria. Tr. 1437 (Wright). The ...