The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge.
Plaintiff Diane Word brings this action against Defendants Alan Croce,
Chairman-Commissioner of the New York State Commission of Correction, and
Glenn S. Goord, Commissioner of the New York State Department of
Correctional Services. both personally and in their official capacities,
pursuant to 42 U.S.C. § 1983 ("Section 1983"). Plaintiff challenges
her placement on "TB Hold" for her refusal to take a tuberculosis test or
submit to chest x-rays, alleging that Defendants violated her federal
civil rights. Plaintiff also challenges the handling of her diet, mail
and medical and dental care.
The Court has jurisdiction of this action pursuant to
28 U.S.C. § 1331.
Before the Court are Plaintiff's request for a preliminary injunction
and the motion of Defendants, brought pursuant to Rules 12(b)(1)*fn1 and
(6) of the Federal Rules of Civil Procedure, to dismiss the complaint.
For the reasons set forth below. Defendants' motion to dismiss is granted
and Plaintiff's request for a preliminary injunction is denied as moot.
The facts as set forth below are taken from factual findings made in
prior litigation and the Plaintiff's complaint.
In March of 1996, Plaintiff was incarcerated at the Bedford Hills
Correctional Facility. See Report and Recommendation of Carol E.
Heckman, Word v. Wright, slip op. 98 Cv 220A (H) (W.D.N.Y. Sept. 15,
1999) ("Word I") (Ex. I to the Affidavit of Barbara K. Hathaway, sworn to
January 17, 2002 ("Hathaway Aff.")). in July of 1996, Plaintiff was
transferred to the Albion Correctional Facility. Id. It appears that,
prior to the transfer, Plaintiff was exposed to tuberculosis at the
Bedford Hills facility. See Word v. Croce, 169 F. Supp.2d 219, 222 (S.D.
N.Y. 2001) ("Word II"). When Plaintiff was admitted to Bedford Hills
Correctional Facility and Albion Correctional Facility, she refused to
undergo medical tests, including a test used to detect latent
tuberculosis infection called the purified protein derivative test
All inmates in the New York State Correctional system are required to
take the PPD test. Id. Inmates who refuse to take a PPD test and who
refuse other preventative measures are placed on "TB Hold." Word I, slip
op. at 3. inmates on TB Hold receive a monthly medical exam and a chest
x-ray every six months. Inmates who are found to have no tuberculosis
symptoms and have had 3 negative chest x-rays may be released from TB
Hold after one year. Id. Because Plaintiff has refused both PPD testing
and chest x-rays, she has been kept in the Special Housing Unit at
Bedford Hills on TB Hold. She is kept in a locked cell for 23 hours a
day, has one hour a day for exercise and may have only legal visits. Id.
Plaintiff has been on TB Hold for five and one-half years.
On April 29, 1997 Plaintiff filed an action in the New York State
Supreme Court against Commissioner Glenn S. Goord, seeking release from
TB Hold at the Albion Correctional facility, where she was then
incarcerated. See Word I at 5.
On August 8, 1997, the action was
dismissed without opinion. Id. On November 6, 1997, Plaintiff filed a
petition for a writ of habeas corpus in state court. Id. The petition was
denied without opinion. Id. Subsequently, Plaintiff filed an action for
preliminary injunctive relief in the Southern District of New York. Id. at
1. On March 27, 1998, the case was transferred to the Western District of
New York. Id. In that action, Plaintiff contended that, by continuing to
keep her on TB Hold and by refusing her requests for a vegan-vegetarian
diet, Defendant Lester Wright had violated her First Amendment right to
petition the government for redress of grievances, and her Fourth, Eighth
and Fourteenth Amendment rights under the United States Constitution.
See Amended Complaint. (Hathaway Aff. Ex. C). Plaintiff's motion for a
preliminary injunction was denies as was her motion for reconsideration of
the order denying her motion for a preliminary injunction. See Exs. F, G
and H to the Hathaway Aff. Defendant's motion for summary judgment was
granted. See id., Exs. I and J to the Hathaway Aff. Plaintiff filed
motions for reconsideration on Jan. 2, 2000 and September 19, 2000. The
District Court denied the motions. Exs. K and L to Hathaway Aff.
After Plaintiff was transferred to the Bedford Hills Correctional
Facility, she filed an action in the Southern District of New York
seeking a preliminary injunction challenging her placement on TB Hold and
the policies of NYDOCS permitting her mail to be inspected. In addition,
Plaintiff claimed that she was being denied her requested diet and
certain medical and dental services. Defendants opposed the motion for a
preliminary injunction and moved for summary judgment. The District Court
granted summary judgment for Defendants and denied Plaintiff's request
for a preliminary injunction. See Word II. Plaintiff moved for
reconsideration, which motion was denied. Word v. Croce, slip op. No. 00
Civ. 6496 (SAS) (S.D.N.Y. July 5, 2001) ("Word III") (Hathaway Aff. Ex.
In Word II, the District Court determined that Plaintiff's claim
concerning the TB Hold was barred by collateral estoppel, because the
issue had been fully litigated in Plaintiff's prior action in the Western
District of New York. Word II, 169 F. Supp.2d at 225. The District Court
also dismissed Plaintiff's claims concerning her medical treatment, diet
and the opening of her mail. In so doing, the District Court found that
Plaintiff had not claimed that her diet was required by her religion and
that there was no medical reason for a special diet. Id. at 226 and
227-228. The District Court also dismissed plaintiff's claims concerning
her medical and dental treatment, finding no deliberate indifference to
her medical needs. Id. at 229.
Plaintiff's Current Allegations
Plaintiff brings this action, her fifth one arising from the same
factual circumstances, pursuant to 42 U.S.C. § 1983, alleging that
her constitutional rights have been violated in the course of her
Alleging violations of the Fourth, Eighth and Fourteenth Amendments to
the Constitution of the United States, Plaintiff contends that correction
officers unlawfully open her mail, record the amount of cash, checks or
money orders received and record any items received by Plaintiff.
Complaint ¶ 3.
Plaintiff asserts that the TB Hold policy is not an accepted medical
practice in any of the other correctional facilities in the United States
and that it is not an effective means of managing tuberculosis. Id.
(citing Reynolds v. Goord, 103 F. Supp.2d 316 (S.D.N.Y. 2000)). Further,
Plaintiff asserts that the five and one-half years she has been on TB
Hold exceeds the one-year limitation Plaintiff contends is the maximum
amount of time an inmate may be placed on TB Hold. Id. ¶ 4(d).
Plaintiff further contends that Defendants have failed to recognize her
objections, based upon her religious beliefs, to the non-vegetarian diet
provided to her. Id. ¶ 5. Plaintiff contends that Defendants have
shown deliberate indifference to her medical needs because they have
provided a low-fiber diet including processed and animal-based food
which, Plaintiff asserts, is capable ...