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WORD v. CROCE
April 27, 2001
DIANE WORD, PLAINTIFF,
ALAN J. CROCE, CHAIRMAN-COMMISSIONER, NEW YORK STATE COMMISSION OF CORRECTION, AND GLENN S. GOORD, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, DEFENDANTS.
The opinion of the court was delivered by: Scheindlin, District Judge.
Plaintiff, proceeding pro se, brings this action under
42 U.S.C. § 1983 alleging various violations of her civil rights.
Specifically, plaintiff claims that her confinement to
tuberculin hold ("TB hold") at the Bedford Hills Correctional
Facility ("Bedford Hills") and the denial of a "Therapeutic High
Fiber Bland Non-Animal Non-Wheat Medical Diet" by that
institution violates her constitutional rights under the Fourth
Amendment.*fn1 See Amended Complaint ("Cmplt") ¶ 5.
Plaintiff also claims that the policy of the New York State
Department of Correctional Services ("NYSDOCS") of permitting
incoming mail to be inspected outside the presence of inmates is
unconstitutional. See id. ¶ 3. Lastly, plaintiff claims that
she has been denied medical and dental services. See id. ¶
5(a). Plaintiff seeks money damages and injunctive relief in the
form of a preliminary injunction releasing her from TB hold and
placing her on the requested diet. Defendants have moved for
summary judgment under Federal Rule of Civil Procedure 56. For
the following reasons, defendants' motion is granted and
plaintiff's Amended Complaint is dismissed in its entirety.
Furthermore, because plaintiffs case is dismissed, her request
for preliminary injunctive relief is denied as moot. See Parker
v. Corbisiero, 825 F. Supp. 49, 58 (S.D.N.Y. 1993) ("since we
have dismissed plaintiffs case, plaintiffs motion for a
preliminary injunction is rendered moot").
A. Tuberculosis Testing and Plaintiffs Special Dietary
Plaintiff was incarcerated in March of 1996, and was
originally housed at the Bedford Hills facility. See Word v.
Wright, 98-CV-220A(H) (Report and Recommendation) (W.D.N.Y.
Sept. 15, 1999) (also referred to as the "Western District
case") at 3, attached as Exhibit I to the Affirmation of Michele
N. Beier, attorney for defendants, dated March 9, 2001 ("Beier
Aff."). Plaintiff was transferred from Bedford Hills to the
Albion Correctional Facility ("Albion") in July 1996. See id.
Prior to that transfer, plaintiff was possibly exposed to active
Tuberculosis ("TB") at the Bedford Hills facility and while on a
bus from Rikers Island to Bedford Hills. See Affidavit of
Susan Lewis, a NYSDOCS Regional Infection Control Nurse, dated
September 9, 1998 ("Lewis Aff."), attached as Exhibit D to the
Beier Affirmation, ¶ 7. Upon admission to Bedford Hills and
again upon admission to Albion, plaintiff refused all medical
testing, including the purified protein derivative ("PPD") test
used to detect latent TB infection. See Word v. Wright at 3.
The PPD test is used to detect TB infection and is required
for all inmates whether or not the inmates exhibit symptoms of
TB. See Affidavit of Lori Goldstein, M.D., Facility Health
Services Director at Bedford Hills, dated March 12, 2001
("Goldstein Aff."), ¶ 10. The PPD test is the only means
available to determine whether a person is infected before she
develops active, contagious TB. See id. If TB is detected at
this early stage, efforts can be taken to prevent it from
developing into active TB. See id. Although chest x-rays
cannot detect latent TB infection, an inmate who refuses PPD
testing can be released from TB hold if she has three negative
chest X-rays within one year and shows no symptoms of TB
disease. See id. ¶ 11. Plaintiff, who has refused both PPD
testing and chest x-rays, is housed in the Special Housing Unit
at Bedford Hills on TB hold. See id. ¶ 6. As such, plaintiff
is kept in a locked cell for 23 hours per day and is given one
hour per day for exercise, three showers per week, and legal
visits only. See Cmplt ¶ 4(b).
Plaintiff also insists that her medical conditions require her
to be placed on a "Therapeutic High Fiber Bland Non-Animal
Non-Wheat Medical Diet" consisting, in part, of whole beans,
whole peas, roasted nuts, whole potatoes, whole grain rice,
cooked and fresh vegetables, fresh fruits, whole grain corn
cereal, and soybean milk. See id. ¶ 5. This special diet is
allegedly necessitated by plaintiffs irritable bowel syndrome
and "burning inside of [her] stomach." See id. According to
Dr. Goldstein, plaintiff is on a high-fiber diet and the diet
she insists on is not medically indicated. See Goldstein Aff.
¶¶ 16-19 ("[A]s there are no objective findings of celiac
disease, and as Ms. Word is fully uncooperative with basic
diagnostic tests, there is no medical reason either to place Ms.
Word on a wheat-free diet or to refer her to a
gastroenterologist.").*fn2 See also Affidavit of Dolores
Lewy, M.D., staff physician at Bedford Hills, dated March 8,
2001 ("Lewy Aff.") ¶¶ 16-17 ("Ms. Word is currently on a
high-fiber diet. I see no medical indication for any other diet.
If Ms. Word truly had irritable bowel syndrome, she would suffer
from constipation and bloating. There is no evidence of
Plaintiff filed a complaint against Lester N. Wright,
Associate Commissioner and Chief Medical Officer for NYSDOCS, in
the Southern District of New York. In that action, plaintiff
claimed an Eighth Amendment violation due to her confinement to
TB hold since March, 1996 (first at Bedford Hills, then at
Albion) resulting from her refusal to submit to a PPD test or
chest x-rays. Plaintiff also claimed that her civil rights were
violated by the denial of her request for a vegan-vegetarian
diet. Plaintiff was directed to file an amended complaint, and
on March 27, 1998, the case was transferred to the Western
District of New York.
In the Western District litigation, Magistrate Judge Carol E.
Heckman wrote a report and recommendation granting summary
judgment to defendant Wright. See Word v. Wright. Magistrate
Judge Heckman's Report and Recommendation was adopted by Judge
Richard J. Arcara who dismissed the case on October 28, 1999.
See Order of Judge Richard J. Arcara, attached as Exhibit J to
the Beier Affirmation. The court found that plaintiff failed to
show that a reasonable jury could find in her favor on her
claims that NYSDOCS's failure to release her from TB nold and
its failure to provide her with a
vegan-vegetarian diet violated her Eighth Amendment rights. See
Word v. Wright at 8. The court reasoned that the conditions of
confinement imposed by NYSDOC's current TB policy would not
constitute cruel and inhumane treatment under the Eighth
Amendment.*fn3 In addition, the court found that defendant
satisfied the Eighth Amendment requirement that prisoners be
served nutritionally adequate food. See Word v. Wright at 8.
Accordingly, the court held that plaintiff failed to establish
that the diet provided by NYSDOCS resulted in a serious
deprivation of basic human needs or that defendant disregarded
an excessive risk to plaintiffs health or safety. See id.
Summary judgment was granted in defendant's favor and all of
plaintiffs claims were dismissed. See id. at 12.
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides for
summary judgment "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of
fact is `material' for these purposes if it `might affect the
outcome of the suit under the governing law[,]' [while] [a]n
issue of fact is `genuine' if `the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'" Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92,
97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
In assessing the record to determine whether genuine issues of
material fact are in dispute, a court must resolve all
ambiguities and draw all reasonable factual inferences in favor
of the non-moving party. See Parkinson v. Cozzolino,
238 F.3d 145, 150 (2d Cir. 2001). "Although the moving party bears the
initial burden of establishing that there are no genuine issues
of material fact, once such a showing is made, the non-movant
must `set forth specific facts showing that there is a genuine
issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33,
41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256, 106
S.Ct. 2505). However, the non-moving
party may not "rest upon . . . mere allegations or denials."
St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000).
"Statements that are devoid of any specifics, but replete with
conclusions, are insufficient to defeat a properly supported
motion for summary judgment." Bickerstaff v. Vassar Coll.,
196 F.3d 435, 452 (2d Cir. 1999), cert. denied, 530 U.S. 1242, 120
S.Ct. 2688, 147 L.Ed.2d 960 (2000); ...