United States District Court, Southern District of New York
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.
OPINION AND ORDER
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
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); see also Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence
presented by the nonmoving party is merely colorable, or is not
significantly probative, summary judgment may be granted.")
(internal quotation marks, citations, and alterations omitted).
B. Collateral Estoppel Bars Plaintiffs TB Hold Claim
Plaintiffs claim regarding NYSDOCS TB hold policy is precluded
by the final judgment addressing the same issue in Word v.
Wright. The collateral estoppel doctrine serves the "dual
purpose of protecting litigants from the burden of relitigating
an identical issue with the same party or [her] privy and of
promoting judicial economy by preventing needless litigation."
Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99
S.Ct. 645, 58 L.Ed.2d 552 (1979). This doctrine is fully
applicable to civil rights claims asserted under
42 U.S.C. § 1983. See Allen v. McCurry, 449 U.S. 90, 104, 101 S.Ct. 411,
66 L.Ed.2d 308 (1980).
The law of collateral estoppel (issue preclusion) forecloses a
second litigation of an issue if: (1) the issue sought to be
precluded is identical to the issue involved in a prior action;
(2) the issue was actually litigated; (3) there was a final
determination on the merits of that issue in the prior
proceeding which was necessary to that judgment; and (4) the
party against whom issue preclusion is sought had a full and
fair opportunity to litigate the issue. See Metromedia Co. v.
Fugazy, 983 F.2d 350, 365 (2d Cir. 1992); Davis v. Halpern,
813 F.2d 37, 39 (2d Cir. 1987).
The instant case involves an issue thoroughly litigated in the
Western District, namely the legitimacy of TB hold in response
to an inmate's failure to submit to the PPD test or chest
x-rays. In both cases, plaintiff claimed that the policy of
keeping her in TB hold violated her constitutional rights. After
giving plaintiff a full and fair opportunity to litigate the
issue, the Western District court decided the issue against
Although the Western District case was brought while plaintiff
was incarcerated at Albion, the issue pertaining to TB hold
remains the same. Plaintiff raises no distinguishing facts or
circumstances to differentiate her complaint at Albion from her
complaint at Bedford Hills. It is irrelevant that the defendants
in this action are different than those in the Western District
action. Plaintiff was a party to both actions and it is thus
appropriate to invoke issue preclusion against her. See
Parklane Hosiery, 439 U.S. at 332, 99 S.Ct. 645;
Blonder-Tongue Labs., Inc. v. University of Ill. Found.,
402 U.S. 313, 328, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). As the
issue of TB hold was fully litigated and decided in the Western
District case, collateral estoppel bars relitigation of this
issue. To hold otherwise would be unfair to the defendants and
would defeat the purposes of finality and repose underlying the
doctrine of issue preclusion. Accordingly, plaintiffs TB hold
claim is dismissed on collateral estoppel grounds.
C. Denial of Plaintiffs Requested Special Diet Does Not
Implicate the Eighth Amendment
While a strong argument could be made in favor of dismissing
plaintiffs dietary request claim on the same
collateral estoppel grounds used to dismiss her TB hold claim,
it is necessary to re-visit this claim in light of a potential
change in medical circumstances. A prisoner may recover under
section 1983 for an Eighth Amendment violation if she is able to
show that the defendants, acting under color of state law,
exhibited deliberate indifference to the prisoner's serious
medical needs. See Estelle v. Gamble, 429 U.S. 97, 106, 97
S.Ct. 285, 50 L.Ed.2d 251 (1976). To prove deliberate
indifference, an objective and subjective test must both be
satisfied. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996). The objective test is satisfied by showing "a condition
of urgency," capable of producing "death, degeneration, or
extreme pain" such that the alleged deprivation of medical
assistance is sufficiently serious. See id. (internal
quotation marks and citation omitted). The subjective test is
satisfied by showing that defendants acted with a state of mind
akin to criminal recklessness — that the defendants knew of and
disregarded a grave risk to the prisoner's health or safety.
Prisons have an affirmative duty to provide their inmates with
nutritionally adequate food. See French v. Owens,
777 F.2d 1250, 1255 (7th Cir. 1985). But assuming a diet's nutritional
adequacy, prison officials have the discretion to control its
contents. See Divers v. Department of Corr., 921 F.2d 191, 194
(8th Cir. 1990). "[A]bsent religious or medical[ly] peculiar
circumstances, a prisoner does not have a right to a specialized
diet while incarcerated, vegetarian or otherwise." Maulding v.
Peters, No. 92 C. 2518, 1995 WL 461914, at *5 (N.D.Ill. Aug. 2,
Here, plaintiff does not claim that the requested diet is
needed for religious reasons. See Bass v. Coughlin,
976 F.2d 98, 99 (2d Cir. 1992) (per curiam) ("prison officials must
provide a prisoner a diet that is consistent with [her]
religious scruples"). Nor is the requested diet medically
indicated, see supra Part I.A. Plaintiffs self-diagnosis of
irritable bowel syndrome is insufficient to support a medical
condition requiring a special diet. Even if true, plaintiff is
already receiving a high fiber diet.*fn4 Because there is no
medical or religious reason for the precise diet requested,
see Goldstein Aff. ¶ 16, defendants' refusal to provide such a
diet does not constitute deliberate indifference to plaintiffs
medical needs. See Ramsey v. Coughlin, 1 F. Supp.2d 198, 205
(W.D.N.Y. 1998) ("[T]he undisputed facts do not establish any
medical reason for the vegetarian diet, and thus Defendants'
refusal to provide a diet which did not conform to DOCS policies
does not constitute deliberate indifference to Plaintiffs
medical needs."). Preference for certain foods and dislike of
others cannot be equated with a constitutional guarantee to a
custom-tailored menu. See Maulding, 1995 WL 461914, at *5
(prisoner's "deliberate (nonreligious) choice not to eat all the
food presented to [her] does not implicate infringement of a
constitutional right."). Accordingly, plaintiffs denial of
special diet claim is dismissed.
D. The Eleventh Amendment Bars Plaintiffs Claims Against
Defendants in Their Official Capacities
In her Amended Complaint, plaintiff seeks money damages
against defendants whom she is suing in their official
capacities. See, e.g., Cmplt ¶¶ 3, 4(a)-(d), 5. As such, her
claims are barred by the Eleventh Amendment. It is well-settled
that, absent waiver or consent, the Eleventh Amendment of the
United States Constitution bars suits for money damages against
a state or state officials in their official capacity. See
Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89
104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Alabama v. Pugh,
438 U.S. 781
, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978).
Official-capacity suits "generally represent only another way
of pleading an action against an entity of which an officer is
an agent. . . ." Monell v. New York City Dep't of Social
Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978). See also Kentucky v. Graham, 473 U.S. 159, 165, 105
S.Ct. 3099, 87 L.Ed.2d 114 (1985); Brandon v. Holt,
469 U.S. 464, 472 n. 21, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). As such, a
suit for damages against a state official acting in his official
capacity is no different than a suit against the state itself,
and is therefore barred by the Eleventh Amendment. See Graham,
473 U.S. at 169, 105 S.Ct. 3099; Pennhurst, 465 U.S. at
101-02, 104 S.Ct. 900. The reason is simple — any recovery would
come from the state treasury. See Allah v. Commissioner of
Dep't of Corr. Servs., 448 F. Supp. 1123, 1125 (N.D.N.Y. 1978).
Accordingly, Eleventh Amendment immunity serves as an
alternative basis by which to dismiss plaintiffs claims.
E. Plaintiffs Allegations Do Not Show Defendants' Personal
Involvement in the Alleged Constitutional Deprivations
Plaintiff named Alan Croce, Chairman of the New York State
Commission of Correction,*fn5
and Glenn S. Goord,
Commissioner of the New York State Department of Correctional
Services, as defendants. However, plaintiff has no claim against
these defendants as they were not personally involved in the
actions complained of. "Where damages are sought in a Section
1983 action, the defendant must be responsible for the alleged
constitutional deprivation: `[T]he general doctrine of
respondeat superior does not suffice and a showing of some
personal responsibility of the defendant is required.'"
Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060
, 1065 (2d
Cir. 1989) (quoting Johnson v. Glick, 481 F.2d 1028
, 1034 (2d
Cir. 1973)). See also McKinnon v. Patterson, 568 F.2d 930
(2d Cir. 1977) ("[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.").
A supervisory official may be personally involved in a section
1983 violation in several ways: (1) the official may have
directly participated in the violation; (2) the official, after
learning of the violation, may have failed to remedy the wrong;
(3) the official may have created a policy or custom under which
unconstitutional practices occurred; (4) the official may have
been grossly negligent in managing subordinates who caused the
unlawful condition or event; or (5) the official may have
exhibited deliberate indifference by failing to act on
information indicating that unconstitutional acts were
occurring. See Colon v. Coughlin, 58 F.3d 865, 873
(2d Cir. 1995); see also Williams v. Smith, 781 F.2d 319,
323-24 (2d Cir. 1986).
Here, plaintiff has failed to allege any facts which would
support the imposition of liability on any of the foregoing
theories. Plaintiff has not alleged any direct involvement on
the part of defendants. Although plaintiff alleges that
defendants have knowledge of various alleged constitutional
violations, she does not offer any specific facts or examples
upon which she bases this conclusory allegation. See Smith v.
Keane, No. 96 Civ. 1269, 1998 WL 146225, at *6 (S.D.N.Y. Mar.
25, 1998) (dismissing claims against supervisor where conclusory
allegations in complaint lacked any particularized facts showing
supervisor's personal involvement in alleged constitutional
violations). More importantly, plaintiff does not allege that
either defendant helped create NYSDOCS' current TB policy. Even
if she could so allege, there is no showing that
unconstitutional practices resulted from that policy. It is
not enough to merely name high-ranking officials and ascribe to
them the alleged unconstitutional activity. See Odom v.
Sielaff, No. CV-920571, 1995 WL 625786, at *6 (E.D.N.Y. Oct.
12, 1995) (summary judgment granted where named defendants were
high ranking officials who had no personal involvement in the
alleged Eighth Amendment violations). Lack of personal
involvement by defendants is therefore an alternative ground for
F. Plaintiffs Remaining Claims Are Without Merit
1. Inspection of Prison Mail Outside of Plaintiff's
Plaintiff complains that NYSDOCS officials open and inspect
her mail outside of her presence. See Cmplt ¶ 3. However,
plaintiff fails to distinguish between legal mail and ordinary
mail. "[T]here is no question that prison officials may open
incoming mail to ensure that no contraband is contained in the
correspondence ." Webster v. Mann, 917 F. Supp. 185, 187
(W.D.N.Y. 1996) (citing Wolff v. McDonnell, 418 U.S. 539
574-77, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). See also Cruz v.
Jackson, No. 94 Civ. 2600, 1997 WL 45348, at *9 (S.D.N.Y. Feb.
5, 1997) ("legitimate security and penological interests have
been held to outweigh a prisoner's interest in mail").
Accordingly, "[t]he opening of mail, whether or not in
plaintiffs presence, is permitted as long as the materials are
not clearly legal mail." Foy v. Owens, No. 85-4657, 1986 WL
3766, at *1 (E.D.Pa. Mar. 19, 1986) (citing Bach v. Illinois,
504 F.2d 1100
, 1102 (7th Cir. 1974) (prison has legitimate
security interest in opening incoming mail for the purpose of
checking for weapons and drugs)).
While prison officials may open ordinary mail outside of an
inmates' presence, the rule is different for legal mail: "It is
accepted that a prisoner must be present when, for whatever
reason, legal mail (clearly marked as such) is opened by prison
officials." Standley v. Lyder, No. 99 Civ. 4711, 2001 WL
225035, at *2 (S.D.N.Y. Mar. 7, 2001); see also Bach, 504 F.2d
at 1102 ("plaintiff is entitled to be present during the opening
of legal mail addressed to him in prison").
Plaintiffs Amended Complaint does not specify whether she is
objecting to the opening of legal mail or ordinary mail outside
of her presence. If plaintiff is complaining of how nonlegal
mail is treated, she does not have a claim. If, however, it is
the treatment of legal mail or of all mail, including legal
mail, to which plaintiff objects, she may very well have a
claim, albeit not against these defendants. Plaintiff would be
well advised to bring a separate action against those prison
responsible for opening legal mail at Bedford Hills if she
wishes to pursue injunctive relief. Amendment of the instant
complaint would be futile, however, given the myriad of problems
in imposing liability against the named defendants. Given this
futility, amendment will not be permitted. See Oliver Schools,
Inc. v. Foley, 930 F.2d 248, 253 (whether to grant leave to
amend is a decision within the discretion of the district
2. Denial of Medical and Dental Services
Plaintiff complains that she is being denied medical and
dental services, to wit, specialists in gastroenterology and
orthodontics. See Cmplt ¶ 5(a). Plaintiff claims that the
low-fiber refined-food animal-based diet she is currently
receiving has caused her irritable bowel syndrome and "burning
inside of [her] stomach." See id. ¶ 5. Plaintiff also requests
dental care for her fillings and orthodontic braces for her
teeth which are "currently decayed and crooked." See id.
There is no evidence that the high-fiber diet plaintiff is
currently receiving has in any way contributed to her medical or
dental problems. Nor is there any evidence that defendants have
otherwise been deliberately indifferent to plaintiffs medical
and dental needs. Plaintiff has refused to submit to blood tests
which would indicate irritable bowel syndrome. See Lewy Aff. ¶
17. Plaintiff has also refused to submit to a rectal
examination. See id. Additionally, while plaintiff complains
of various food allergies which may be contributing to her
stomach problems, she has refused to undergo allergy testing.
See Goldstein Aff. ¶ 20. The minimal physical examinations
which plaintiff has permitted medical staff to perform do not
indicate any serious gastrointestinal problems. See id. ¶ 18.
Because plaintiff is uncooperative with basic diagnostic tests
and does not exhibit any symptoms of a severe gastrointestinal
problem, there is no medical reason to refer her to a
gastroenterologist. Accordingly, the refusal to do so does not
constitute deliberate indifference to plaintiffs medical needs.
With regard to plaintiffs dental complaints, the Second
Circuit has held that "ordinarily, a tooth cavity is not a
serious medical condition." Harrison v. Barkley, 219 F.3d 132,
136 (2d Cir. 2000). The same can be said for crooked teeth
which, while aesthetically displeasing, are not a serious dental
problem. See Affidavit of Seymour Kramer, Bedford Hills'
Dental Director ("Kramer Aff.") ¶ 14. While the dentists at
Bedford Hills are willing and capable of filling plaintiffs
dental cavities, they cannot do so without proper diagnostic
testing such as dental xrays. See id. ¶ 7. Without x-rays, the
proper course of treatment, such as extraction, filling or root
canal, cannot be determined.*fn6 See id. 9. In addition,
Dr. Kramer has opined that there is no valid reason to replace
plaintiffs amalgam fillings and that braces are not indicated
for a woman who is nearly fifty years old. See id. ¶¶ 11, 12.
Again, it is plaintiffs uncooperativeness that has led to her
dental problems, not defendants' deliberate indifference to her
In sum, most of plaintiffs complaints can be resolved with a
modicum of cooperation on her part. Plaintiff could be released
from TB hold within one year if
she submitted to three chest x-rays. Similarly, her digestive
and dental problems might be ameliorated if she would submit to
basic diagnostic tests. Plaintiff cannot expect a prison to bend
its rules to accommodate her idiosyncracies, namely the refusal
to submit to x-rays and peculiar dietary preferences. Aside from
her allegation regarding the opening of mail, this is precisely
what plaintiff is asking Bedford Hills to do. Because this Court
will not countenance such a request, plaintiffs complaint is
dismissed without prejudice to her filing an appropriate
complaint regarding the opening of her legal mail. The Clerk of
the Court is directed to close this case.