The opinion of the court was delivered by: Gary L. Sharpe, United States Magistrate Judge
This matter has been referred to the undersigned for a Report-Recommendation by the Honorable Frederick J. Scullin, Jr., Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Plaintiff, pro se, Cornell Delisser ("Delisser") brings this action under 42 U.S.C. § 1983 claiming that the defendants violated his civil rights under the First, Eighth and Fourteenth Amendments. On February 22, 2002, the defendants filed a motion to dismiss (Dkt. Nos. 28-29), and Delisser responded (Dkt. No. 33). For the foregoing reasons, the motion to dismiss should be granted.
II. Procedural Background
On January 17, 2002, Chief United States District Court Judge Michael B. Mukasey, Southern District of New York, found Delisser's complaint deficient and ordered that he amend it. Judge Mukasey rejected Delisser's complaint because he failed to show that a constitutional violation occurred, or that the named defendants were somehow personally involved in the alleged violation. Delisser was permitted sixty days to amend his complaint to set forth allegations demonstrating how each named defendant was deliberately indifferent to his medical needs. Thereafter, Delisser filed two amended complaints in the Southern District. On January 22, 2002, this case was transferred to the Northern District of New York.
In this motion, the defendants argue that Delisser failed to allege a constitutional violation. They argue that they are entitled to qualified immunity and that, in any event, the DOCS Tuberculin Hold ("TB Hold")*fn3 policy is reasonably related to a legitimate penological objective. Finally, they argue that Delisser has failed to allege personal involvement of the named defendants. The court shall address each of these issues seriatim.
On July 26, 1999, Delisser was asked to take a Purified Protein Derivative (PPD) test for tuberculosis screening. He refused to submit to the PPD test for religious reasons.*fn4 Delisser informed unnamed "John Doe" physicians that he had taken a Bacille Calmette-Guerin*fn5 vaccine just prior to entering the United States from Jamaica in 1978. Delisser informed the doctors that he would be willing to submit to an x-ray examination or an oral swab test as an "alternative" test screening. The doctors disregarded his request and he was placed in medical keeplock*fn6 until August 30, 1999. Delisser spent 41 days in medical keeplock and he was released on August 30, 1999, after he agreed to submit to the PPD test.
Subsequently, Delisser tested positive for TB (see Pl.['s] Resp. to Motion to Dismiss P. 6). On October 21, 1999, Delisser's refusal to accept medication for the treatment of tuberculosis caused him to be placed in medical keeplock again. Delisser claims that during this time, he was denied "regular" commissary privileges. Delisser claims that he spent a total of 52 days in medical keeplock.
Federal Rules of Civil Procedure 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." In other words, the court should dismiss the complaint pursuant to Rule 12(b)(6), if it appears beyond doubt that the plaintiff can prove no set of facts in support of the complaint which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); S.E.C. v. U.S. Environmental, Inc., 155 F.3d 107, 110 (2d Cir. 1998). "The task of the court in ruling on a Rule 12(b)(6) motion `is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)). Therefore, in analyzing a motion to dismiss, the facts alleged by a plaintiff are assumed to be true and must be liberally construed in the light most favorable to him. See e.g., Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991).
The court must "confine its consideration `to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. West Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). "Moreover, `when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,' the court may nevertheless take the document into consideration in deciding the defendants' motion to dismiss, without converting the proceeding to one for summary judgment." Int'l Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (1995) (citation omitted). With this standard in mind, the court turns to the sufficiency of Delisser's claims.*fn7
Qualified immunity protects government officials who perform discretionary functions in the course of their employment. It shields them from liability for money damages where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). It also protects officials from "the burdens of costly, but insubstantial, lawsuits." Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999) (quotation marks and internal citations omitted).
The question of whether qualified immunity will protect a public official depends upon "`the objective legal reasonableness' of the action assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations omitted). Furthermore, the contours of the right violated must be sufficiently clear that a reasonable official might understand that his actions violate that right. Id. at 640, 107 S.Ct. at 3039; Keane, 196 F.3d at 332. In other words, "in evaluating whether a right was clearly established at the time a § 1983 defendant acted [the court must determine]: `(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and, (3) whether under pre-existing law a reasonable defendant official would have understood that his or her acts were unlawful.'" African Trade & Information Center, Inc., v. Abromaitis, 294 F.3d 355, 360 (2d Cir. 2002). See also, Charles W. v. Maul, 214 F.3d 350, 360 (2d Cir. 2000).
Additionally, the Second Circuit has held that a court may dismiss a claim based upon qualified immunity without first deciding the substantive claims therein. See Horne v. Coughlin, 191 F.3d 244 (2d Cir. 1999). Also within this decision, the Second Circuit suggested that the qualified immunity issue should be addressed before the substance of a claim. The court will now consider the defendants' claim that they are entitled to qualified immunity.
In Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996), the court found that Jolly had demonstrated a likelihood of success on the merits of his Eighth Amendment claim where he had been confined to medical keeplock for three-and-a-half years and had only been allowed out of his cell for one ten-minute shower per week. In response to this ruling, DOCS amended its policy to limit an inmates's period of confinement on TB Hold to one year, and to allow more exercise and shower time to such inmates. In Word v. Wright, 1999 U.S. Dist. LEXIS 22047, at *14 (W.D.N.Y. Sept. 15, 1999), the court noted that the Second Circuit had not yet ruled on whether the new TB Hold policy was constitutional. In ...