Jihad v. Wright

• Decision Date: 28 May 1996
• Docket Number: No. 3:95-CV-0148AS.,3:95-CV-0148AS.
• Citation: 929 F. Supp. 325
• Parties: Kalonji Ra'id JIHAD a/k/a James Dunville, Plaintiff, v. Charles WRIGHT, Defendant.
• Court: U.S. District Court — Northern District of Indiana

929 F. Supp. 325

Kalonji Ra'id JIHAD a/k/a James Dunville, Plaintiff, v. Charles WRIGHT, Defendant.

No. 3:95-CV-0148AS.

United States District Court, N.D. Indiana, South Bend Division.

May 28, 1996.

COPYRIGHT MATERIAL OMITTED

Kalonji Ra'id Jihad, Westville, IN, plaintiff pro se.

Martha J. Arvin, Office of Indiana Attorney General, Indianapolis, IN, for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

Kalonji Jihad ("Jihad") filed this pro se action pursuant to 42 U.S.C. § 1983, and invoking this court's federal question subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(3). The complaint alleges that former Maximum Control Complex ("MCC") Superintendent Charles Wright violated Jihad's federally protected rights by placing him on restrictive medical separation status after he refused to take a tuberculosis ("TB") screening test. The motion for summary judgment filed by Defendant Wright pursuant to Fed.R.Civ.P. 56 demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The plaintiff filed an elaborate written response to Defendant Wright's summary judgment motion.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Russo v. Health, Welfare & Pension Fund, Local 705, 984 F.2d 762 (7th Cir.1993). The party seeking summary judgment must demonstrate that there is no genuine issue of fact, and that the movant is entitled to judgment as a matter of law. Id.; Duane v. Lane, 959 F.2d 673, 675 (7th Cir.1992). If that showing is made and the motion's opponent would bear the burden at trial on the matter that forms the basis of the motion, the opponent must come forth with evidence to show what facts are in actual dispute. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 884, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990); Sims v. Mulcahy, 902 F.2d 524, 540 (7th Cir.), cert. denied, 498 U.S. 897, 111 S.Ct. 249, 112 L.Ed.2d 207 (1990). If the non-movant fails to do so, summary judgment is proper. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). A genuine factual issue exists only when there is sufficient evidence for a jury to return a verdict for the motion's opponent. Harbor House Condominium Ass'n v. Massachusetts Bay Ins. Co., 915 F.2d 316, 320 (7th Cir.1990).

The court must construe the facts as favorably to the non-moving party as the record will permit, Brennan v. Daley, 929 F.2d 346, 348 (7th Cir.1991), and draw any permissible inferences from the materials before it in favor of the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Prince v. Zazove, 959 F.2d 1395, 1398 (7th Cir.1992), as long as the inferences are reasonable. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

Jihad alleges that in late January, 1995, an MCC nurse asked him to take a Mantoux tuberculosis test by injection, which Jihad characterizes as a "poison injection." Jihad told the nurse that the injection was against his religious beliefs but that he was willing to take a chest x-ray. On February 2, 1995, Supt. Wright ordered Jihad to be moved to a different part of the MCC which had been set up as a medical separation or tuberculosis quarantine area. Jihad remained in the medical separation unit until July 21, 1995. He alleges that several other inmates, including some who had previously tested positive for TB, were also placed in the medical separation unit. Jihad alleges that not all MCC inmates or employees were asked to take the test and that some inmates who did not take the test were not placed in medical separation. Jihad alleges that while he was medically separated, for a period of almost six months, he was not allowed either inside or outside recreation, could not visit the institutional law library, could not have telephone calls or visits, could not have daily showers, could not receive a hot food tray, and had to wear a blue surgical mask.

Jihad asserts that requiring him to take a TB injection test or be placed in medical separation violated his right to exercise his religious beliefs as secured by the First Amendment and the Religious Freedom Restoration Act ("RFRA"). He further alleges that the conditions in the medical separation unit violated the Eighth Amendment's prohibition against cruel and unusual punishment. Finally, he asserts that his Fourteenth Amendment rights were violated because Defendant Wright forced him to live in restricted conditions worse than those in disciplinary lockup without due process.

In support of his summary judgment motion, the defendant submits his declaration, the declaration of Nurse Karen Heinrich, and certified copies of Jihad's medical records for the period January 1, through October 26, 1995. According to these submissions, Jihad refused to take the TB test on January 27, 1995. Supt. Wright was advised of his refusal to take the test and ordered him placed in medical isolation. Defendant Wright's practice was to place inmates who refused to take the injection test in medical separation pending the Indiana Board of Health obtaining a court order allowing MCC to forcibly test them. Pursuant to this practice, Jihad was placed in medical separation and treated in all respects as if he had tested positive for TB and was infectious. Jihad was eventually returned to general population without having been subjected to a TB injection test or any other test to determine if he was positive for TB. Defendant Wright's submissions do not indicate that he pursued obtaining a court order through the Indiana Board of Health to have Jihad tested during the almost six months that he was in medical isolation. Defendant Wright does not contradict Jihad's characterization of conditions on the medical separation unit, but asserts that treating inmates on the unit as though they were TB positive necessitated limiting their movement.

The MCC is a closed environment where a contagious airborne communicable disease like TB can spread rapidly. According to Supt. Wright, the policy on medical separation was designed to protect other inmates and staff. According to Nurse Heinrich, the skin test is the least invasive method of determining if a person carries the TB antibody. A chest x-ray cannot be used in place of a skin test to make this determination, though x-rays are useful in determining if a person has an active case of TB. From the defendants' submissions, it does not appear that Jihad was ever given the TB injection, or any other screening test. In his response to request # 9 of the plaintiff's request for production of documents, the defendant admits that "(t)here are no medical records which indicate that the Plaintiff ever had a communicable disease." No reason is given for the decision to return Jihad untested to general population in July, 1995.

In response, Jihad submits a lengthy and well drafted memorandum of law, the affidavits of several MCC inmates, two pamphlets issued by the U.S. Department of Health and Human Services describing tuberculosis and TB testing, portions of his medical records and the Indiana Department of Correction policy on consent and refusal for medical testing and treatment, and several other documents. Jihad argues that it is not necessary to isolate prisoners who refuse to be tested, or even all inmates who test positive for TB, because TB is not infectious unless the person is symptomatic. Persons who test positive for TB may be asymptomatic and non-infectious. Only a small percentage of infected persons develop active TB, and when they become symptomatic they become contagious.

I.

Jihad seeks declaratory and injunctive relief and damages. Herbert Newkirk has replaced Charles Wright as MCC Superintendent, and in Jihad's appeal of the denial of his preliminary injunction, the Seventh Circuit substituted Mr. Newkirk for Mr. Wright as defendant in the official capacity portion of this action. This court, on its own motion, also substitutes Mr. Newkirk for Mr. Wright as defendant in the official capacity portion of this action pursuant to Fed.R.Crim.P. 43(c)(1). The Seventh Circuit determined that Jihad was released from quarantine on July 21, 1995, and on page 2 of its order issued on April 17, 1996, the court noted that "it is also apparent that the warden has never forced Jihad to submit to the tuberculosis test and has never given any indication of intending to force him."

Jihad's release from the medical separation unit and his return to general population moots his claims for injunctive relief, O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974); Forbes v. Trigg, 976 F.2d 308, 312 (7th Cir.1992), cert. denied, 507 U.S. 950, 113 S.Ct. 1362, 122 L.Ed.2d 741 (1993), and his declaratory relief claims. See, e.g., Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (applying the capable-of-repetition doctrine without discriminating between claims for declaratory relief and claims for injunctive relief.) Accordingly, the court GRANTS summary judgment to Defendant Newkirk on Jihad's claims for injunctive and declaratory relief. Jihad's damage claims against Defendant Wright remain before the court.

II.

Jihad claims, in his first and fourth causes of action, that placement in long term punitive medical isolation for the refusal to take a TB test by injection for religious reasons violated his rights under the First Amendment and the RFRA. To succeed under a First Amendment free exercise of religion claim, a plaintiff must demonstrate that prison regulations are not "reasonably related" to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); O'Lone v....