Maldonado v. Terhune, CIV. A. 98-3327 (JEI).

• Decision Date: 04 December 1998
• Docket Number: No. CIV. A. 98-3327 (JEI).,CIV. A. 98-3327 (JEI).
• Citation: 28 F.Supp.2d 284
• Parties: Moises MALDONADO, Plaintiff, v. Jack TERHUNE, Scott Faunce, Correctional Medical Services, Inc., Defendants.
• Court: U.S. District Court — District of New Jersey

Page 284

28 F.Supp.2d 284

Moises MALDONADO, Plaintiff, v. Jack TERHUNE, Scott Faunce, Correctional Medical Services, Inc., Defendants.

No. CIV. A. 98-3327 (JEI).

United States District Court, D. New Jersey.

December 4, 1998.

Moises Maldonado, Leesburg, NJ, Plaintiff pro se.

Peter Verniero, Attorney General of New Jersey by Marianne Legato, Deputy Attorney General, R.J. Hughes Justice Complex, Trenton, NJ, for Defendants.

Lally, Holtzman, Gillihan, Duffin & Quasti, P.C. by Stephen D. Holtzman, Vanessa P. Patrizi, Linqood, NJ, for Defendants.

OPINION

IRENAS, District Judge.

Plaintiff, Moises Maldonado ("Maldonado"), filed a complaint on June 5, 1998, challenging the medical treatment he has received while incarcerated in Bayside State Prison ("Bayside"). Maldonado seeks recovery of damages pursuant to 42 U.S.C. § 1983, alleging that the lack of frequent testing for tuberculosis and the defendants' deliberate indifference to the potential adverse side effects from his treatment violate his constitutional right to be free from cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. Defendants' filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Because plaintiff has failed to allege facts to support a deliberate indifference claim under § 1983, defendants' motion to dismiss will be granted and plaintiff's complaint will be dismissed in its entirety. Plaintiff's request to bring this claim as a class action is denied.

I

Plaintiff, Moises Maldonado, tested positive for the presence of tuberculosis infection during his current incarceration in Bayside. Plaintiff alleges that he had prior negative tests on July 30, 1995 and again in July of 1996 while in the Cape May County Jail. After being transferred to Bayside he again tested negative on March 7, 1997. On March 18, 1998, plaintiff was again tested, but this time the result was positive. Maldonado alleges that, within a week of his positive test results, Correctional Medical Services ("CMS") performed additional examinations and tests to determine the appropriate treatment, including an examination of plaintiff's liver, chest x-rays and several blood tests. Prior to issuing any medication, CMS administered an additional tuberculosis test which confirmed the positive result.

The defendant was given several types of medication and it was explained to him that he would be taking this medication for a period of six months. The defendant maintains that on July 2, 1997, he was told, by an unnamed source, that the medication he was taking "has been found to have serious side effects and that it was damaging" his liver. (Complaint at p. 8.) Petitioner asserts that he was notified, again by an unnamed source, that his medication would be changed, but that as of the filing of the complaint he was still being given the same medicine.

The gravamen of plaintiff's complaint is that testing should be done every six months, rather than yearly, and that his medication should be changed because one of its possible side effects is liver damage.

II

To understand the complaint a basic understanding of tuberculosis and the response of the New Jersey Department of Corrections to its threat is required. Most of this basic background is set forth in some detail in Karolis v. New Jersey Department of Corrections, 935 F.Supp. 523 (D.N.J.1996).¹ The Department of Corrections on December 1, 1992, adopted a comprehensive plan to deal with the hazards of tuberculosis contained in a lengthy memorandum entitled "Department of Corrections Tuberculosis Control and Surveillance Policy" (referred to hereafter as "DOC Control Policy").

The heart of the DOC Control Policy is the administration of the Mantoux test to all prisoners upon their arrival at a state facility and the testing of all prisoners and DOC employees on a yearly basis. This test is described in Karolis, 935 F.Supp. at pp. 528-529. A positive test result, however, does not necessarily mean that the patient has an active case of tuberculosis. There are five tuberculosis classifications ranging from TB0 (no exposure, no infection) through TB5 (possible tuberculosis, status unknown [`rule out' TB]). TB2 describes people who have tested positive but are asymptomatic (latent infection, no disease). Individuals showing actual symptoms are characterized as having active tuberculosis, TB3. See Chaisson, at hopkins-id.edu/diseases/tb/tb ___class. html&>. It is not clear from the complaint whether plaintiff is TB2 or TB3.

A prisoner who tests positive is then subject to additional tests for the purpose of determining whether the disease is active and to determine what treatment, if any, is appropriate. For those determined to be TB2 a decision must be made whether to begin prophylactic therapy:

Isoniazid preventive therapy is the preferred approach for prophylaxis against tuberculosis in the United States. Individuals who are candidates for preventive therapy are those with positive tuberculin skin tests and risk factors for tuberculosis or individuals exposed to tuberculosis in an infectious case who are at high risk of acquiring infection and disease. Chaisson, at < ... /tb_proph.html&>.

There are five categories of individuals for whom Isoniazid treatment is recommended. Plaintiff clearly falls into two of those classes: Individuals under the age of 35² in areas of TB prevalence (plaintiff alleges, correctly, that prisons fit into this category) and persons who may be in close contact with others known or suspected to have TB. Other categories of persons for whom preventative therapy is recommended are drug users, those who are HIV positive and those with a variety of other medical risk factors (Silicosis, 10% underweight, chronic renal failure, diabetes, etc.). Chaisson, Figure 8 at < ... /tb_fig8.html&>. The significance of age 35 is that a possible Isoniazid side effect, liver damage, is more prevalent in persons over 35 than under that age:

The most common drug side effect during therapy for tuberculosis is hepatotoxicity. Isoniazid, rifampin and pyrazinamide [the three most common TB drugs] are all hepatotoxic, though adverse reactions are more common with isoniazid. Baseline liver function tests should be obtained for all patients beginning treatment, and monthly monitoring is recommended for patients with baseline abnormalities or concomitant liver disease. Clinical monitoring is appropriate for all other patients. When evidence of hepatitis develops, all drugs should be stopped until signs and symptoms resolve or improve. Patients should then be rechallenged sequentially with each drug in the regimen and monitored for recurrence. Chaisson, at < ... /tb_treat.html&>.³

The New Jersey Department of Corrections has responded vigorously to the tuberculosis threat. Its DOC Control Policy is in complete conformance with good medical practice, providing for annual testing, prompt treatment and, where necessary, isolation of infected prisoners to prevent further spread of the disease. See Karolis, 935 F.Supp. at 525-526. Interestingly, the policy applies not only to prisoners, but to DOC employees who work in the prisons. Thus, like inmates, employees are required to be tested annually. DOC Control Policy III C.

Prisoners and employees who refuse annual testing are subject to disciplinary action. DOC Control Policy III B.2(c), III C.1(c). All inmates who test positive are offered appropriate therapy, after further testing. The nature of the treatment depends on whether the patient is asymptomatic or has active tuberculosis. DOC Control Policy III B.1(d)-(f). There does not appear to be any disciplinary action taken against an inmate who refuses treatment (See Karolis, 935 F.Supp. at 526; DOC Control Policy III B.1(d); Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990)), but the State may seek a court order for treatment or place the prisoner in isolation. DOC Control Policy III B.2.(c). There is no suggestion that plaintiff ever refused treatment.

Plaintiff's own complaint suggests that in his case the DOC followed its own polices in terms of testing and treatment and responded promptly to his positive Mantoux test. Indeed, it is clear from the petition that prison doctors were monitoring his liver function, and it is from those doctors that he allegedly learned there may be a problem. Interestingly, the complaint alleges that he was told about the side effects of his treatment on July 2, 1998. However, that same complaint is signed and dated June 5, 1998, although it was not postmarked until July 13, 1998. Thus, the liver damage issue appears to have been an afterthought to the original complaint.

III

Fed.R.Civ.P. 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In considering a Rule 12(b)(6) motion, the court will accept the allegations of the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Dismissal of claims under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Although the court must assume as true all facts alleged, "[i]t is not ... proper to assume that the [plaintiff] can prove any facts that it has not alleged." Associated Gen. Contractors of Calif, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Also, when "[c]onfronted with [a 12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Commonwealth of Pennsylvania v. PepsiCo, Inc., 836 F.2d 173, 179 (3d Cir.1988) (emphasis added).

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