Jones-Bey v. Wright

• Decision Date: 30 October 1996
• Docket Number: No. 3:95-CV-0789AS.,3:95-CV-0789AS.
• Citation: 944 F.Supp. 723
• Parties: Nathaniel JONES-BEY, Plaintiff, v. Charles WRIGHT, Charles Stang, Charles Motley, M.D., Laurie Ebling, Andre Lawson, James Kimmel, Dawn MacMillan, Michael T. Scott, Paula Gott, Purnell Sparks, W. Dobson, and D. Davis, Defendants.
• Court: U.S. District Court — Northern District of Indiana

944 F.Supp. 723

Nathaniel JONES-BEY, Plaintiff, v. Charles WRIGHT, Charles Stang, Charles Motley, M.D., Laurie Ebling, Andre Lawson, James Kimmel, Dawn MacMillan, Michael T. Scott, Paula Gott, Purnell Sparks, W. Dobson, and D. Davis, Defendants.

No. 3:95-CV-0789AS.

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

October 30, 1996.

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Nathaniel Jones-Bey, Westville, IN, Pro Se.

Suzann W. Lupton, Office of Indiana Attorney General, Indianapolis, IN, for Defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

Nathaniel Jones-Bey ("Jones-Bey") 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(a)(3). Jones-Bey's complaint alleges that former Maximum Control Complex ("MCC") Superintendent Charles Wright and several other MCC officials violated his federally protected rights by placing him on medical separation status after he refused to take a tuberculosis ("TB") screening test. The motion for summary judgment filed by the defendants pursuant to Fed.R.Civ.P. 56 demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), and the plaintiff filed an elaborate response to the defendants' 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).

Jones-Bey alleges that on or about September 10, 1993,¹ an MCC nurse asked him to take a Mantoux tuberculosis test by injection. Jones-Bey characterizes this test as "the injection of Poison T.B. Germ," which he states that he refused based on his Islamic religious beliefs. In response, Supt. Wright ordered Jones-Bey to be moved to a portion of the MCC which had been set up as a medical separation or tuberculosis quarantine area. Jones-Bey remained on medical separation status until October 18, 1996.² Jones-Bey further alleges that while he was medically separated, he was denied out-of-cell recreation and could not visit the law library, have telephone calls or visits, or have daily showers. He also asserts that he pled guilty to a conduct report for failing to obey the order to take the test, and that he was required to serve the sanction twice; once while he was medically segregated, and again after the end of his medical isolation status. Based on these events, Jones-Bey asserts eleven counts alleging violation of rights protected by the First, Fourth, Eighth, and Eleventh Amendments; in the body of his complaint he also alleges the excessive use of force when he was finally tested, and that he was denied access to the courts. This court recently evaluated some similar claims in Jihad v. Wright, 929 F.Supp. 325 (N.D.Ind. 1996), a case which arose from a 1995 incident at the MCC where an inmate was placed in medical isolation after he refused to submit to a TB test for religious reasons.

In support of their summary judgment motion, the defendants submit the declarations of former MCC Superintendent Charles Wright, former Custody Supervisor James Kimmel, Administrative Assistant Mike Scott, and Nurse Karen Heinrich. They also submit copies of Jones-Bey's daily activity records between September 5 and October 23, 1993, and a copy of the videotape of the TB test administered to Jones-Bey on October 15, 1993.³ According to the defendants, in the fall of 1993, the Indiana Department of Correction ("IDOC") decided to test all inmates and employees for tuberculosis because of a TB outbreak at another facility. Jones-Bey refused to take the injection test, Correctional Sergeant Charles Stang ordered him to submit to the test, Jones-Bey refused, and Sgt. Stang wrote him up for a conduct violation. Jones-Bey, and several other inmates who refused to take the test, were placed on the medical separation unit which consisted of a group of cells or a "pod." The unit was ventilated by air which was brought in from outside the prison.

According to the defendants' submissions, inmates on the medical separation unit received showers approximately three times a week and an average of one-half hour of out-of-cell recreation per day. The defendants submit documentation establishing that Jones-Bey received out-of-cell recreation on a fairly regular basis until September 26, 1993. But these records do not reflect that Jones-Bey received recreation between September 27 and October 19, 1993, which coincides with the period during which he was medically isolated. The inmates were denied the use of telephones for personal calls but had access to the phone to contact their attorneys. Inmates were provided with legal materials as requested.

The IDOC, working with the State Board of Health, obtained an order from the LaPorte Superior Court to allow MCC officials to conduct involuntary testing of the hold-out inmates, including Jones-Bey. These tests were conducted by a team of correctional officers who escorted Jones-Bey and the other inmates to the recreation area one at a time. Capt. Kimmel read the court order to Jones-Bey and asked if he would comply with the order willingly. The defendants state that Jones-Bey did not agree to voluntarily submit to the test, so he was held down by officers while a nurse administered the shot. Jones-Bey was released from medical separation on October 18, 1993, when the test established that he was TB negative. The defendants assert that no inmate at MCC had active tuberculosis and that none of the inmates on the medical separation unit tested positive for TB.

The MCC is a closed environment where a contagious airborne communicable disease like TB can spread rapidly. According to the defendants, the medical separation policy was designed to protect other inmates and staff, and 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. Jihad v. Wright, 929 F.Supp. at 328.

Jones-Bey submits his own affidavit and supporting materials which contest several of the defendants' assertions. According to Jones-Bey's affidavit, in September, 1993,⁴ Nurse Ebling asked him to submit to a PPD test and, upon his refusal, ordered him to take the test. He responded "that she could not give me no orders; she was not custody." Correctional Sergeant Stang "then proceeded to give me an order to take Mantoux, PPD, TB test; I stated No, that he could not tell me anything about medical; that he was custody."

Sgt. Stang wrote a conduct report on Mr. Jones-Bey for refusing to obey his order. In his affidavit, Jones-Bey states that he pleaded guilty to the conduct report and was sanctioned with the loss of recreation and use of telephones for fourteen days beginning from the date of the hearing, which the report of hearing establishes as September 29, 1993. The report of disciplinary hearing states that Jones-Bey was sanctioned for "4 days ½ recreation + 14 day No phone." Jones-Bey asserts that he served the restrictions while on the medical unit, and then was required to serve the restrictions again when his medical isolation status ended. According to Jones-Bey, he was confined to his cell twenty-four hours a day for the entire period he was in medical isolation, and the quarantine unit was not properly ventilated. Jones-Bey states that the medical isolation unit was in one section of C Pod, but general population inmates were housed in the three other sections of C Pod and shared the same ventilation system. He further states that he was told that other MCC inmates tested positive during this round of tests.

Jones-Bey states that when he was taken from his cell to be tested, he was dressed only in a T Shirt. He asserts that he "insisted" that he be given the injection at the cell door; but Capt. Kimmel responded that "you had your chance," and the officers took him to the recreation pod where he was read the court order. Jones-Bey states that he "agreed to allow Defendants to inject poison PPD Mantoux TB germs into Pla...