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April 27, 2001


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 Requests

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.

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 either.").

B. Previous Litigation

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); ...

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