Word v. Croce, 01 CIV. 9614 LTS DFE.

• Decision Date: 08 November 2002
• Docket Number: No. 01 CIV. 9614 LTS DFE.,01 CIV. 9614 LTS DFE.
• Citation: 230 F.Supp.2d 504
• Parties: 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.
• Court: U.S. District Court — Southern District of New York

230 F.Supp.2d 504

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.

No. 01 CIV. 9614 LTS DFE.

United States District Court, S.D. New York.

November 8, 2002.

Ms. Diane Word, Bedford Hills, NY, Plaintiff Pro Se Elliot Spitzer, Attorney General of the State of New York By Barbara K. Hathaway, Esq., Assistant Attorney General, New York, NY, for Defendants.

OPINION AND ORDER

SWAIN, 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. section 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. section 1331.

Before the Court are Plaintiff's request for a preliminary injunction and the motion of Defendants, brought pursuant to Rules 12(b)(1)¹ 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

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 denied, 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 July 12, 2000 and September 19, 2000. The District Court denied the motions. Exs. K and L to the 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) 2001 WL 755394(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. section 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. ¶ 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 of causing serious risk of death and degeneration in extreme pain from "mad cow disease." Id. 5(a).

Citing the First, Eighth and Fourteenth Amendments, Plaintiff further contends that Defendants are deliberately indifferent to the medical and dental treatment she receives from the prison medical staff. Id. ¶ 6. Plaintiff contends that Defendants have not made available to her the least intrusive and invasive medical and dental procedures provided by the Medicare and Medicaid Health Services Program. Id.

DISCUSSION

A complaint should not be dismissed under Rule 12(b)(6) unless it "`appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The factual allegations set forth in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). The issue before the Court "`is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In addition, allegations of a pro se complainant are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520...