through motion practice.
Because Plaintiff had not made allegations in her complaint concerning
her First Amendment rights, the District Court declined defendant's
request to preclude plaintiff from bringing future religious claims on
grounds of collateral estoppel. See Word III, slip op. at 12 and n. 8.
The District Court did not address the issue of whether such claims would
be barred by res judicata.
The foregoing demonstrates that Plaintiff's claims under the Fourth and
Eighth Amendments concerning the TB Hold and medical and dental treatment
and diet were adjudicated on the merits in prior litigation.
Whether the Prior Litigation Involved the Plaintiff or Those in Privity
Plaintiff brought the actions in Word II and here. This factor clearly
has been established.
Whether the Claims Were or Could Have Been Raised in the Prior Action.
The issue with respect to this factor is whether the First Amendment
claims Plaintiff seeks to press in this case could have been raised in
the prior actions. In determining whether a subsequent action involves
the same "claim" or nucleus of operative facts as the first action,
courts in the Second Circuit have looked to the standards set forth in
the Restatement (Second) of Judgments. See Waldman v. Village of Kiryas
Joel, 207 F.3d 105, 108 (2d Cir. 2000); Interoceanica v. Sound Pilots,
Inc., 107 F.3d 86, 90 (2d Cir. 1997). These standards include whether the
underlying facts of the two claims are "related in time, space, origin,
or motivation, whether they form a convenient trial unit, and whether
their treatment as a unit conforms to the parties' expectations. . . ."
RESTATEMENT (SECOND) OF JUDGMENTS § 24(2) (1980).
If the facts underlying the first and second claims are the same, it is
irrelevant that the second claim is based on a different legal theory.
See L-TEC Electronics Corp. v. Cougar Electronic Organization, Inc.,
198 F.3d 85, 88 (2d Cir. 1999) ("claims based upon different legal
theories are barred provided they arise from the same transaction or
occurrence"). For purposes of res judicata, it is not relevant that
Plaintiff did not claim First Amendment violations in Word II, so long as
the factual predicate for the First Amendment claim asserted in this case
is the same as the factual predicate for the claims in the prior case.
For purposes of determining whether an action is barred by res judicata,
"[i]t is . . . enough that the facts essential to the second were
[already] present in the first." Waldman, 207 F.3d at 111 (internal
citation and quotation marks omitted).
Plaintiff's claims in Word II and her First Amendment claims in the
instant action arise from the same underlying facts relating to the TB
Hold, her diet, her medical and dental treatment. The factual allegations
in this case concerning the TB Hold, diet, medical and dental care are
identical to Plaintiff's allegations in Word II and, indeed, those in
Word I. Because the claims in Word II and those in this action arise from
the same occurrences and facts, the Court finds that Plaintiff's claims
are barred by the doctrine of res judicata. It is well-settled that new
legal theories, and even the additional of new constitutional theories,
are insufficient to overcome the defense of res judicata provided the
requirements of the defense are met. See Monahan v. New York City
Department of Corrections, at 290, ("[w]here all requirements are met
res judicata can act as a bar to virtually any sort of claim, including
constitutional challenges to the facial validity of municipal
regulations."); Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 646
(2d Cir. 1998) (barring organization's free speech and equal protection
challenges to the facial validity of ordinance and accompanying
interpretive police department
regulations on the grounds that such
claims had been, or could have been, litigated in previous action);
Watson v. The City of New York, et al., No. 92 Civ. 8779, 1998 WL 13841
at *5 (S.D.N.Y. Jan. 14, 1998) (barring fourth amendment claim which
plaintiff did not pursue in prior litigation. recognizing that res
judicata bars plaintiff from seeking a second bite at the apple); Parker
v. Corbisiero, 825 F. Supp. 49, 55 (S.D.N.Y. 1993) (because plaintiff
could have brought claim that statute was unconstitutional as applied to
him in prior proceeding, plaintiff was barred by res judicata from making
such claim in a second action).
Moreover, the court in Word I determined, in the context of a summary
judgment motion, that NYDOCS's TB testing policy was a reasonable prison
regulation in light of the legitimate, neutral interest of NYDOCS in
preventing the spread of TB. Thus, the court in Word I concluded that
defendant was "entitled to summary judgment dismissed plaintiff's claims
that NYDOCS's failure to release her from TB . . . violated her First
Amendment rights." Word I at 11.
Because Plaintiff's First Amendment claims concerning the TB Hold, diet
and medical and dental treatment could have been raised in Plaintiff's
prior litigation, these claims are barred by res judicata.
Plaintiff Has Not Stated A Claim Regarding the TB Hold
With Respect to First Amendment Violations
Even if Plaintiff's claims concerning alleged First Amendment
violations regarding the TB hold are not barred by res judicata,
Plaintiff's allegations that Defendants violated her First Amendment
rights in connection with NYDOCS's conduct concerning the TB Hold, PPD
testing and x-rays are insufficient to state a viable claim.
"In a prison context, an inmate does not retain those First Amendment
rights that are `inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system.'" Jones v.
North Carolina Prisoners' Union, Inc., 433 U.S. 119, 129 (1977) (quoting
Pell v. Procunier, 417 U.S. 817, 822 (1974)).
The standard for determining whether a prison regulation has an adverse
impact on an inmate's constitutional rights was articulated by the
Supreme Court in Turner v. Safley, 482 U.S. 78 (1987). A prison
regulation is "valid if it is reasonably related to legitimate
penological interests." Id. at 89. In Turner, the Supreme Court set forth
a four-part test:
First, there must be a `valid rational connection'
between the prison regulation and the legitimate
governmental interest put forward to justify
it. . . . Moreover, the governmental objective must
be a legitimate and neutral one. . . . A second
factor . . . is whether there are alternative means
of exercising the right that remain open to prison
inmates. . . . A third consideration is the impact
accommodation of the asserted constitutional right
will have on guards and other inmates, and on the
allocation of prison resources generally. . . .
Finally, the absence of ready alternatives is
evidence of the reasonableness of a prison
Id. at 89-90.
Concerning the first factor, there is no dispute that NYDOCS has a
legitimate, neutral interest in containing tuberculosis. See Reynolds v.
Goord, 103 F. Supp.2d 316, 336 (S.D.N.Y. 2000) ("[p]reventing the spread
of an infectious, deadly disease is undoubtedly a critical objective for
DOCS, and the subsidiary goals — including prescribing preventive
therapy for latent TB infection and effective monitoring of
epidemiological numbers — are equally important"); Jolly v.
Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (correctional officials have an
affirmative obligation to protect inmates from infectious disease). There
is nothing in the Plaintiff's complaint alleging otherwise.
Concerning the second factor — alternative means of exercising a
right — in asserting that she should not be subject to the testing
requirements in connection with the TB Hold, Plaintiff has not identified
any way of accommodating her that does not pose the epidemiological risks
identified by the Defendants. Plaintiff's conclusory assertion that
physical examination and counseling would be sufficient alternatives fails
to address NYDOCS's interest in prescribing therapy for latent TB
infection. See Reynolds, 103 F. Supp.2d at 477 (recognizing importance of
preventative therapy for latent TB infections).
The third and fourth factors — the impact of accommodation of the
asserted rights on the prison staff and prison resources and whether
there are reasonable alternatives — weigh in favor of a finding
that the TB Hold is rationally related to a legitimate penological
interest. Plaintiff's complaint does not allege reasonable alternatives
that would not adversely impact the health risks to prison staff and
inmates or burden prison resources. Because Plaintiff has refused PPD
tests and chest x-rays, NYDOCS has been unable to determine the event to
which Plaintiff poses a risk of contagion to the inmate population and
NYDOCS staff. Plaintiff's complaint does not identify an alternative
basis for determining latent TB infection, and thus fails to address the
legitimate interest of NYDOCS in preventing the spread of tuberculosis.
Plaintiff cites Reynolds v. Goord in support of her request for
injunctive relief. Her reliance on Reynolds, however, is misplaced. In
Reynolds the plaintiff refused PPD tests but agreed to chest x-rays. The
chest x-rays established that the plaintiff in Reynolds had little
likelihood of being contagious. Id. at 335. On those facts, the court
determined "that there is no rational connection between placing an
inmate who refuses PPD testing [on] TB Hold and the health of the NYDOCS
inmate population and staff." Id. at 337. Here, Plaintiff has refused all
tests administered in connection with NYDOCS's tuberculosis monitoring
program. Thus, as noted above, NYDOCS is unable to determine the extent to
which Plaintiff poses a risk of contagion. "Reynolds does not support a
blanket religious exemption to PPD testing in the absence of alternative
diagnostic tools such as chest x-rays." Word III, slip op. at 11.
In light of the foregoing, the Court finds that Plaintiff can prove no
facts demonstrating that her placement on TB Hold is not rationally
related to a legitimate penological interest.
Plaintiff's Fourteenth Amendment Claims
Plaintiff's Fourteenth Amendment claims concerning NYDOCS's TB Hold
policy and her diet are precluded under the doctrine of collateral
estoppel by the final judgment addressing the same issues in Word I.
Collateral estoppel 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).
Plaintiff's Fourteenth Amendment claims concerning the TB Hold and her
diet are same claims she asserted in Word I. In that case, the court
cited Whitley v.
Albers, 475 U.S. 312, 327 (1986) where the Supreme Court
determined that the Eighth Amendment, "which is specifically concerned
with the unnecessary and wanton infliction of pain in penal
institutions, serves as the primary source of substantive protection to
convicted prisoner's" medical treatment. The Supreme Court recognized
that "the Due Process Clause [of the Fourteenth Amendment] affords . . .
no greater protection than does the [Eighth Amendment]." Id. In light of
the Supreme Court's determination, the court in Word I considered
Plaintiff's claims concerning her placement on TB Hold and her medical
and dental claims under the Fourteenth Amendment and determined that
Plaintiff did not demonstrate that defendant violated her rights under
the Fourteenth Amendment. Word I, slip op. at 11-12. Because Plaintiff's
Fourteenth Amendment claims were decided against the Plaintiff in Word
I, she is precluded from asserting them again here.
Denial of Medical and Dental Services
Plaintiff's claims concerning alleged denial of medical care and dental
services were fully litigated and decided in Word II, where the District
Court analyzed them under the Eighth Amendment. To the extent Plaintiff
asserts Fourteenth Amendment claims concerning her medical and dental
treatment, the Supreme Court's analysis in Whitley, which held that
Eighth Amendment was the appropriate source of protection for claims
relating to medical treatment, applies equally here and such claims are
precluded in this case. To the extent Plaintiff's claims concerning her
medical and dental treatment arise under the First Amendment, these
claims could have been raised in Word II, and accordingly, are dismissed
on the grounds of res judicata.
The Eleventh Amendment Bars Suit Against Defendants
Croce and Goord in Their Official Capacities
In Word II, the District Court also held that Plaintiff did not have a
claim against Defendants in their official capacities. See Word II, 169
F. Supp.2d at 226-227. Here Plaintiff also seeks money damages against
Defendants Croce and Goord, whom she is suing in their personal and
official capacities. As determined by the District Court in Word II, to
the extent Plaintiff seeks money damages against Defendants in their
official capacities, the Eleventh Amendment bars her claims. Id. (and
discussion therein). These claims thus also are barred by res judicata.
For the reasons set forth by the District Court in Word II, and in light
of the District Court's determination in that case, the complaint is
dismissed as against Defendants Croce and Goord insofar as it seeks money
damages against them in their official capacities.
Plaintiff Does Not Allege Defendants Croce and Goord had
Personal Involvement in the Alleged Constitutional Deprivations
In Word II, the District Court further held that Plaintiff did not
state claims against Defendants in their personal capacities with respect
to the subject matter of Plaintiff's complaint. See id. 169 F. Supp.2d at
227-228. Accordingly, Plaintiff's claims against the Defendants in their
personal capacities are barred by res judicata with respect to those
claims. As the District Court held in Word II, "[w]here damages are
sought in a Section 1983 action, the defendant must be responsible for
the alleged constitutional deprivation: `the general doctrine of
respondeat superior does not suffice and a showing of some personal
responsibility of the defendant is required.'" Word II at 227 (citing
Al-Jundi v. Estate of Rockefeller,
885 F.2d 1060, 1065 (2d Cir. 1989) and
McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)).
Here, as in Word II, Plaintiff has alleged no facts showing direct
involvement by Defendants Croce and Goord. At most, Plaintiff makes
conclusory allegations that Defendants Croce and Goord had knowledge of
the constitutional violations alleged in her complaint. 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). Plaintiff does not
allege that either Defendant helped create NYDOCS's policies concerning
mail procedures, medical testing for tuberculosis, diet, dental and other
medical treatment that Plaintiff contends violate her constitutional
rights. 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). Accordingly, the complaint is
dismissed as against Defendants Croce and Goord in their personal
Plaintiff asserts that NYDOCS officials open and inspect her mail
outside of her presence. In Word II, the District Court observed that
Plaintiff had failed to distinguish between legal mail and ordinary
mail. Id., 169 F. Supp.2d at 228. As the District Court recognized in
Word II, "there is no question that prison officials may open incoming
mail to ensure that no contraband is contained in the correspondence."
Id. (citations omitted); 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"). The District Court in Word II further recognized that, with
respect to 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." Id. 169 F. Supp.2d at 228 (citing Standley v.
Lyder, No. 99 Civ. 4711, 2001 WL 225035, at *2 (S.D.N.Y. Mar. 7, 2001)).
The District Court in Word II held that Plaintiff had not stated a claim
with respect to the treatment of her nonlegal mail, and dismissed the
claim to that extent. Id. Regarding potential claims about her legal
mail, the District Court noted that Plaintiff might have a basis for such
a claim, if she alleged that prison officials were opening legal mail
outside of her presence, but not as against defendants Croce and Goord,
because, she had alleged no personal involvement on their part. Id.
In this case, Plaintiff still has not alleged that her claims concern
legal mail. Further she has asserted her mail claim against the same
defendants, Croce and Goord, that the court in Word II, concluded were
not appropriate targets of the claim. Plaintiff has failed a second time
to identify whether her claims concern legal mail and has again failed to
identify as defendants, and allege personal involvement on the part of,
the parties responsible for opening her mail. Because there is no factual
basis in the complaint showing that Plaintiff's claim concerns legal mail
and because there is no allegation in Plaintiff's complaint that
Defendants Croce and Goord had any involvement in the opening of her
mail, this claim is dismissed.
Defendant's Request that the Plaintiff Be Enjoined from Further Lawsuits
Defendants ask that the Court enjoin Plaintiff from filing further
suits concerning NYDOCS's TB Hold, her dietary, medical and dental
claims. This is the fifth lawsuit concerning these claims and
and the State of New York have been burdened repeatedly with responding
to and adjudicating Plaintiff's claims concerning the same nucleus of
operative facts. "The equity power of a court to give injunctive relief
against vexatious litigation is an ancient one which has been codified in
the All Writs Statute." Polur v. Raffe, 912 F.2d 52, 57 (2d Cir. 1990)
(citing In re Hartford Textile Corp., 681 F.2d 895, 897 (2d Cir. 1982)
(per curiam), cert. denied, 459 U.S. 1206 (19__)); 28 U.S.C.A. §
1651(a) (2002). Accordingly, the Court hereby enjoins Plaintiff from
filing, without prior leave of this Court, further actions in federal
court concerning the TB testing, TB Hold, diet, and medical and dental
care claims raised in this case.
In light of all of the foregoing, Defendants' motion is granted and
Plaintiff's complaint is dismissed. Because Plaintiff's case is
dismissed, Plaintiff's request for a preliminary injunction is denied as
moot. Plaintiff shall not file, without prior leave of court, further
actions in federal court concerning the TB testing, TB hold, diet and
medical and dental care claims raised in this case.
The Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that any
appeal taken from this decision would not be taken in good faith.