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SELAH v. GOORD

March 31, 2003

SELAM SELAH,
v.
GLENN S. GOORD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, District Judge

DECISION & ORDER

Plaintiff Selam Selah (Plaintiff or Selah) brings this action challenging the New York State Department of Corrections (DOCS) policy of requiring mandatory tuberculosis skin tests of all inmates each year. Plaintiff contends that the DOCS policy violates his First Amendment Rights to free exercise of his chosen religion. Presently before this Court is Plaintiff's motion for a preliminary injunction preventing DOCS from administering the skin test to him during the pendency of this action.

This Court previously held in a Decision and Order dated January 2, 2002, that Plaintiff sincerely held his religious beliefs, and that DOCS policy burdened the exercise of his religious beliefs. Selah v. Goord, 2002 WL 73231 (N.D.N.Y. Jan. 2, 2002). Following that determination, the Court held a two day hearing on March 20 and 21, 2002 in order to determine whether the policy of tuberculin hold is "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987).*fn1

At that hearing, the Court heard from Dr. Lester Wright, Deputy Commissioner and Chief Medical Officer of the Department of Corrections; Dr. John Sbarbaro, Professor of Medicine at the University of Colorado (Deft. Ex. "6"); and Dr. Brobson Lutz, an infectious disease specialist from New Orleans who previously served as the Medical Review Officer for the City of New Orleans.*fn2

Plaintiff also testified regarding the conditions of his confinement while in tuberculin hold. Subsequently, the parties submitted the transcripts and videotaped testimony of Dr. Newton Kendig, the Medical Director for the Federal Bureau of Prisons (Deft. Ex. "9"), and Dr. Lee Reichman of the National Tuberculosis Center in Newark, New Jersey (Deft. Ex. "4").*fn3 The Court has reviewed all of this testimony, as well as the briefs submitted on behalf of the parties both before and after the hearing. The following constitutes the findings of fact and conclusions of law of the Court, as well as the Court's decision.

I. Findings of Facts

A. Tuberculosis and its control*fn4

Tuberculosis is a highly infectious contagious disease. It is spread through the air. (Sbarbaro 19). It is caused by the tuberculosis bacillus or bacteria. For purposes of the issue before the Court, there are three types of tuberculosis infection. Latent tuberculosis exists when an individual has been exposed to tuberculosis and has contracted the disease. For various reasons, however, many individuals do not experience adverse effects from latent tuberculosis. The human body is able to contain the disease and the individual is not contagious. Nor will the individual exhibit symptoms of the disease. Active tuberculosis occurs when the body is not able to contain the tuberculosis bacillus, and the individual becomes ill. Tuberculosis can infect nearly every part of the human body. When an individual has active tuberculosis, the individual will exhibit signs and symptoms of the disease such as coughing, night sweats, chills and weight loss. (Lutz 138). Active contagious tuberculosis is a form of active tuberculosis where the infection exists in an individual's lungs. When an individual is infected with active tuberculosis of the lungs, the individual is capable of spreading the disease to others through the shared air space.*fn5

In theory, latent tuberculosis could convert to active contagious tuberculosis at any time. As a practical matter, five to ten percent of people with latent tuberculosis will develop active tuberculosis during the course of their lifetimes. (Sbarbaro 56; Reichman 18). In HIV patients this number is higher. (Reichman 18). In a person with a normal immune system, between two to five percent of the people will convert to contagious tuberculosis during the first year. (Reichman 19; Lutz 137). There is also an increased risk during the second year, though it is not as great. (Lutz 137). The remaining individuals will convert their tuberculosis status from latent to active during some other period of their life. (Lutz 137).

An individual with contagious tuberculosis will infect about 20 to 25 percent of his contacts with some form of tuberculosis. (Sbarbaro 30; Reichman 20). In a congregate living situation, such as a prison, tuberculosis spreads more easily. (Sbarbaro 32). Factors affecting this include the high rate of HIV infection, the number of people from countries outside the United States, the close living conditions, and the high stress level. (Sbarbaro 33).

B. Testing

1. PPD

The current test for detecting latent tuberculosis infection is the Purified Protein Derivative Test, or PPD ("PPD" or "skin test"). This involves the injection of a substance containing a derivative of tuberculosis between the layers of the skin. (Sbarbaro 36). If an individual has a reaction to the injection that includes a thickening of the skin with a measurable induration, the individual has likely been infected with latent tuberculosis.*fn6

The PPD test, as it is used in the prison setting, has several purposes. First, it is a screen test to monitor a large population of people for latent tuberculosis infection. (Lutz 139). Second, it allows people with latent tuberculosis to receive treatment for tuberculosis infection before they become contagious. Finally, it allows a population to be monitored for changes in the tuberculosis status of the prisoners. The Court notes that the PPD test takes forty-eight hours to administer. Consequently, it is not effective for short term populations, for populations with a great deal of movement, or for populations that have a high incidence of other diseases. (Lutz 144; Sbarbaro 100).

There is some concern over the accuracy of the test. False positives are possible with the PPD test. About fifteen percent of tests will be false positives due to related diseases. (Sbarbaro 38; Reichman 107).

In a person without active tuberculosis or HIV, about 2-5 percent of the tests will be false negatives. Some of these occur when the test is given too soon after infection. False negatives typically occur, however, when the body is unable to respond to the PPD test because the immune system has been compromised in some way, such as cancer or HIV/AIDS, (Sbarbaro 39; Reichman 110), or the individual already has active tuberculosis. (Lutz 139; Sbarbaro 181).

Perhaps the greatest problem with the test is that it is subject to human error when the test is read. (Sbarbaro 97). Depending on who is reading the test and how the reader measures, there can be a number of false positives or negatives. (Lutz 140; Reichman 111). Consequently, all of the experts believed that health professionals who are going to be reading the test need constant training on how to read the test, or they tend to do poorly at reading it. (Reichman 158). In DOCS, facility nurses or infection control nurses read the test. (Wright 200). Nurses are trained when hired. They are provided regular refresher courses in reading the PPD test, and everyone was given a system wide refresher in 2000. (Wright 200).

Another problem with the PPD test is that once an individual has tested positive with the test, he or she will always test positive. (Sbarbaro 40). Consequently, the test cannot be used again to determine the status of that individual. Indeed, even if an individual is successfully treated for latent or active tuberculosis, the PPD test will remain positive.

2. X-rays

X-rays are generally used to detect active tuberculosis disease. (Lutz 138). About 2-10 percent of people with latent tuberculosis will show scarring on their lung tissue that can be picked up by an x-ray. In contrast, active contagious tuberculosis in individuals with a normal immune system can be picked up 90-95 percent of the time by an x-ray.*fn7 Defendant's expert has noted that an x-ray cannot predict the future likelihood that an inmate will develop active TB, nor is it particularly good for the detection of latent tuberculosis. (Reichman 35).

3. Sputum Tests

If an individual appears to have active tuberculosis, a sputum smear is taken. (Sbarbaro 68-69). A sputum smear followed by a sputum culture are the gold standard for determining whether an individual has active, contagious tuberculosis. (Lutz 138). In this process, an individual's phlegm is analyzed under a microscope for signs of TB. Reichman 31. The process of a sputum culture takes approximately 6-8 weeks. (Reichman 31). The experts disagreed as to the likely cost of a sputum culture and no evidence of the cost was provided to the Court. However, the cost at a state lab is somewhere between $10 and $35 and at a private lab it is somewhere between $35 and $60. (Compare Lutz 154; Sbarbaro 180).

C. Treatment

Latent tuberculosis can be treated with Isoniazid, (INH)*fn8 administered for a 9-12 month period. Its side effects include tiredness and hepatitis or liver problems, particularly in those over the age of thirty-five. (Sbabaro 49). INH treatment reduces the risk of an individual converting latent tuberculosis to active disease significantly, perhaps as much as 90 percent. (Reichman 26 (90 percent); Kendig 64 (70-90 percent)). However, even with treatment, individuals can have their tuberculosis reactivate, particularly if they are or become HIV positive. In such cases, the individual would become contagious even with prior treatment. (Sbarbaro 104).

D. DOCS Policy

1. Testing

When an inmate enters DOCS, he is tested with the PPD test and a chest x-ray. The chest x-ray ensures that active disease that is detectable is not being introduced into the prison. The individual is then tested each year with the PPD test. (Wright 196). The only individuals not given the PPD test are those who have a documented positive PPD test. (Wright 195-96). A documented positive test must be in writing by a health professional and must include the date of the positive test and the number of millimeters of induration. (Wright 195). There is some risk associated with these individuals who come into DOCS with a positive PPD but do not have the test repeated, particularly if HIV is also involved. (Wright 301-302). To combat this risk, these individuals have a note written in their charts regarding their PPD status, ...


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