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WORD v. CROCE

November 8, 2002

DIANE WORD, PLAINTIFF,
V.
ALAN CROCE, CHAIRMAN-COMMISSIONER, NEW YORK STATE COMMISSION OF CORRECTION, GLENN S. GOORD, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge.

OPINION AND ORDER

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.

FACTUAL BACKGROUND

The facts as set forth below are taken from factual findings made in prior litigation and the Plaintiff's complaint.

Prior History

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 ("PPD"). Id.

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.

Prior Litigation

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. R).

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 detention.

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.

Citing the First, Eighth and Fourteenth Amendments, Plaintiff contends that Defendants have been indifferent to her objections, based on her religious beliefs, to being placed on TB Hold, to performing PPD tests and chest x-rays; and that Defendants have failed to provide medical attention for her allergies and have been indifferent to her objections to an animal based diet. Id. ¶ 4. Plaintiff contends that she has no clinical symptoms of tuberculosis. Id. ¶ 4(a). Plaintiff asserts that Defendants could use alternative measures, such a physical examination and counseling by the facility health unit, to allay the tuberculosis concerns. Id.

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. ΒΆ 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 ...


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