Langton v. Commissioner of Correction

Decision Date26 July 1993
Docket NumberNo. 92-P-884,92-P-884
Citation34 Mass.App.Ct. 564,614 N.E.2d 1002
PartiesWilliam LANGTON & another 1 v. COMMISSIONER OF CORRECTION & others. 2
CourtAppeals Court of Massachusetts

Al Therrien, pro se.

Sondra M. Korman, Boston, (John E. Bowman, Jr., Asst. Atty. Gen., with her), for defendants.

William Langton, pro se submitted a brief.

BROWN, Judge.

This case is before us on an appeal by the plaintiffs, inmates in the custody of the Department of Correction (DOC), 3 from an order by a judge of the Superior Court granting summary judgment to each of the defendants pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). The plaintiffs were seeking injunctive and declaratory relief 4 with respect to the constitutionality of procedures arising out of a mandatory tuberculosis testing program implemented by the DOC. The plaintiffs contend that the trial judge erred in allowing the defendants' motion for summary judgment because there were genuine factual issues raised as to (1) whether the defendants had the authority to require the plaintiffs to submit to the tests; (2) the purpose of the tests administered to them; and (3) the conditions under which the tests were performed. The plaintiffs also allege that the trial judge improperly relied upon unpublished opinions and granted summary judgment for all of the defendants where only some of them moved for summary judgment. We conclude that the trial judge's disposition of this case was correct in all respects.

The facts are as follows. In August of 1990, three inmates at Bay State Correctional Facility (Bay State) were diagnosed with active cases of tuberculosis. A fourth inmate was highly suspect for tuberculosis. After conducting routine skin testing and concluding that tuberculosis (TB) had been spread at Bay State, the State's public health officials determined that a potential public health emergency existed within the entire State prison system which required the immediate TB testing of all inmates and employees of the DOC. 5

In the fall of 1990, in accordance with a Department of Public Health (DPH) directive, the Commissioner of Correction ordered that all inmates and DOC employees undergo a tuberculosis skin test (PPD skin test). The Departments of Correction and Public Health also conducted a series of educational programs throughout the prison system prior to commencing the TB testing.

Subsequently, all inmates and employees received TB tests in accordance with protocol established by the DPH. A control skin test (candida test), recommended by the Centers for Disease Control for high risk populations such as prisons, was also administered to the inmates at the same time as the PPD skin test. The candida test was used to determine whether an inmate's immune system was capable of responding to the PPD skin test, thereby minimizing "false negative" TB test results.

To ensure compliance with the TB testing program, the DOC established disciplinary procedures to deal with inmate refusals to participate. An inmate who refused to submit to the test would initially be counselled to take the test. If the inmate's protest continued, a disciplinary report could issue for failing to obey a direct order and the inmate would then be subject to the disciplinary process. The disciplinary process involved possible loss of good time credit, segregation, isolation, loss of visitation privileges, transfer to a higher level of custody, and confinement to a punitive unit within the correctional facility.

In September, 1990, the plaintiffs were notified of the mandatory TB testing program and the possible consequences of noncompliance. Shortly thereafter, Langton submitted to the TB and candida tests. Therrien, however, refused to take the test. As a result, Therrien received a disciplinary report for "disobeying [an] order of, lying to, or insolence towards a staff member" and "violating any departmental rule or regulation[ ], or any other rule, regulation, or condition of [an] institution or community based program." After being counselled to take the test, Therrien complied.

The plaintiffs commenced this action pro se against the defendants in November, 1990, alleging deprivations of rights, privileges, and immunities secured by the United States and Massachusetts Constitutions. Specifically, the plaintiffs alleged that (1) one of the tests administered to them was actually a low level AIDS test which is prohibited by statute without the written consent of the person being tested; (2) the compelled TB tests were administered under unsanitary conditions which constituted cruel and unusual punishment; and (3) the compelled TB tests violated the plaintiffs' civil rights.

The plaintiffs later filed a motion for a temporary restraining order and preliminary injunction, seeking to prevent the DOC from performing additional TB tests on them. 6 That request for relief was denied.

The DOC defendants (see note 2, supra ) filed a motion for summary judgment, supported by affidavits of various DOC and DPH employees. The judge allowed the motion, ruling that the "administration of [the TB and candida] tests to [the plaintiffs] was a proper exercise of the state's power over inmates within its prison population and that such testing violated none of the inmates' civil rights nor were the tests cruel and unusual punishment which is prohibited by the 8th Amendment of the United States Constitution." The judge also concluded that, contrary to the plaintiffs' assertions, neither of the tests given to the plaintiffs was an AIDS test. This appeal is from the ensuing summary judgment.

1. Motion for summary judgment.

Summary judgment is a "device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715, 575 N.E.2d 734 (1991), quoting from 3 Barron & Holtzoff, Federal Practice and Procedure § 1231, at 96 (Wright rev. ed. 1958). 7 This case fits nicely into that mold.

a. Authority to compel testing. The primary issue in this case is whether prison officials are authorized to compel inmates to submit to TB testing under State law. The plaintiffs argue that the defendants had no authority to force them to submit to the TB tests. They claim that the only time that the defendants are authorized to compel a medical procedure is where lifesaving medical treatment has been rejected. See Commissioner of Correction v. Myers, 379 Mass. 255, 399 N.E.2d 452 (1979). The trial judge ruled that the administration of the tuberculosis and control tests was a proper exercise of the defendants' authority over its prison population. We agree.

The DPH was authorized to mandate the tuberculosis testing of the plaintiffs. It has the authority not only to define diseases dangerous to the public health, but also to make rules and regulations necessary to control and prevent such diseases. See G.L. c. 111, § 6. It had declared tuberculosis to be a dangerous disease. See 105 Code Mass.Regs. §§ 300.001 (1988) & 300.100(41) (1986). Moreover, because of the dangerous nature of tuberculosis, the Legislature has given the DPH broad authority to conduct "programs aimed at controlling and eradicating tuberculosis in the commonwealth." G.L. c. 111, § 81, as appearing in St.1961, c. 608, § 2. Under that statute the DPH "may establish, foster, and give such aid and assistance as it deems necessary for the establishment and maintenance of outpatient and diagnostic facilities for tuberculosis within tuberculosis hospitals, in other institutions, or in collaboration with local boards of health." The statute makes clear that the DPH has the authority to determine the nature and scope of programs necessary to diagnose and treat those infected with tuberculosis in the Commonwealth.

The Commissioner of Correction has the responsibility to "maintain security, safety and order at all state correctional facilities...." G.L. c. 124, § 1(b ), as appearing in St.1972, c. 777, § 5. To that end, the Legislature has given the Commissioner broad authority to "make and promulgate necessary rules and regulations incident to the exercise of his powers and the performance of his duties including but not limited to rules and regulations regarding ... safety, discipline, ... classification, education, ... care, and custody for all persons committed to correctional facilities." G.L. c. 124, § 1(q ), as appearing in St.1972, c. 777, § 5. In light of these responsibilities, the Commissioner is obligated to take measures to protect the physical well-being of all persons in the care of the DOC. In addition, the Legislature has specifically mandated that, during each prisoner's physical examination, "special attention shall be given to determining the presence of communicable diseases, particularly ... pulmonary tuberculosis." G.L. c. 127, § 16, as appearing in St.1957, c. 777, § 9.

The implementation of the mandatory testing program was a swift measure intended to avert a potential public health crisis in correctional facilities throughout the Commonwealth. Tuberculosis is a highly infectious disease caused by airborne transmission of tubercle bacilli. Because of overcrowded conditions and close quarters, prisons are high risk environments for the transmission of TB. Given the nature of the disease and the potential threat to prison populations, DPH and DOC officials were properly concerned when they detected three cases of active TB 8 at Bay State. They appropriately and lawfully implemented the mandatory TB testing program in order to halt the spread of the disease as quickly as possible. 9

In addition, the plaintiffs had no constitutional right to refuse the TB tests. Although an inmate's incarceration does not divest him of his right of privacy and his...

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