Reynolds v. Goord, 98 Civ. 6722(DLC).

• Decision Date: 13 July 2000
• Docket Number: No. 98 Civ. 6722(DLC).,98 Civ. 6722(DLC).
• Citation: 103 F.Supp.2d 316
• Parties: Dennis REYNOLDS, Plaintiff, v. G. GOORD, Commissioner, D.O.C.S.; Christopher C. Artuz, Supt., Green Haven Correctional Facility; Norman Selwin, Md, Faculty Health Service Director; Larry Zwilliger, Regional Health Service Administrator; Catherine Metzler, Rn II; and Don Stevens, Nurse Administrator, Defendants.
• Court: U.S. District Court — Southern District of New York

103 F.Supp.2d 316

Dennis REYNOLDS, Plaintiff, v. G. GOORD, Commissioner, D.O.C.S.; Christopher C. Artuz, Supt., Green Haven Correctional Facility; Norman Selwin, Md, Faculty Health Service Director; Larry Zwilliger, Regional Health Service Administrator; Catherine Metzler, Rn II; and Don Stevens, Nurse Administrator, Defendants.

No. 98 Civ. 6722(DLC).

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

July 13, 2000.

Daniel J. Beller, Lynn B. Bayard, Hillel C. Neuer, Jennifer Daskal, Eli Wald, Paul Weiss Rifkind Wharton & Garrison, New York, NY, for plaintiff.

Tiffany Foo, Jeffrey Horowitz, Rebecca Ann Durden, Assistant Attorneys General, New York, NY, for defendants.

OPINION AND ORDER

COTE, District Judge.

This case addresses the rationality of a policy of the New York State Department of Correctional Services ("DOCS") which places inmates who refuse to submit to a Mantoux skin test — which is designed to detect whether the inmate is infected with the bacterium that causes tuberculosis ("TB") — into a restrictive confinement known as Tuberculin Hold ("TB Hold") for one year. Dennis Reynolds ("Reynolds"), the plaintiff in this case, is a Rastafarian inmate at Green Haven Correctional Facility ("Green Haven"). He refused to submit to the skin test on May 12, 2000, asserting his First Amendment right to exercise his religion, and has moved for a preliminary injunction barring his placement in TB Hold pending trial. Following a hearing held this week, the motion is granted.

PROCEDURAL HISTORY

Plaintiff filed the present action with a complaint dated June 3, 1998, to challenge the legitimacy of DOCS' use of TB Hold. Because Reynolds has decided on several occasions to submit to the skin test rather than remain in TB Hold, he has not yet spent any prolonged period in TB Hold. Following the completion of discovery, on February 28, 2000, this Court issued an Opinion and Order, granting in part defendants' motion for summary judgment and appointing plaintiff counsel for his remaining First Amendment claim. See Reynolds v. Goord, 98 Civ. 6722, 2000 WL 235278 (S.D.N.Y. Mar.1, 2000) (DLC). The law firm of Paul, Weiss, Rifkind, Wharton & Garrison entered an appearance on plaintiff's behalf on March 16, 2000. At an April 14 conference, on consent of the parties, the plaintiff's pending motion for injunctive relief was deemed moot since Reynolds was not in TB Hold or, to counsel's knowledge, scheduled to have the skin test. A schedule was set to allow for the full development of the issues at stake in this litigation: discovery was to be completed by the end of October 2000, and a summary judgment motion fully submitted by January 12, 2001.

Nevertheless, Green Haven scheduled Reynolds for the skin test, known as a PPD test, on May 12, 2000, and when he refused the test, placed him in TB Hold. On May 12, 2000, the Court ordered that Reynolds be removed from TB Hold until a hearing could be conducted on Monday, May 15, 2000. At the May 15 hearing, Dr. Lester Wright ("Dr.Wright"), the Deputy Commissioner/Chief Medical Officer of DOCS and the author of the TB Hold policy, testified and was cross-examined. On the evening of May 15, 2000, DOCS agreed to allow the plaintiff to remain in the prison's general population until July 14, so that the parties could prepare for and the Court could conduct a preliminary injunction hearing on July 10, 2000.

By Memorandum Opinion and Order dated June 22, 2000, the Court appointed Ronald Shansky, M.D. ("Dr.Shansky"), a leading expert in correctional medicine, to serve as its expert at the preliminary injunction hearing pursuant to Rule 706, Fed.R.Evid. See Reynolds v. Goord, 98 Civ. 6722, 2000 WL 825690 (S.D.N.Y. June 26, 2000). Shortly after such appointment, Dr. Shansky advised the Court of data he required to render an informed opinion. By Order dated June 26, the Court required DOCS to provide certain data regarding (1) each inmate who since 1994 has been diagnosed while a DOCS inmate as suffering from active TB, and (2) each inmate placed in TB Hold since May 1996. Communicable and Infectious Disease Coordinator Linda Klopf, who gathered the data, testified regarding the data on July 6, 2000.

Without objection by the parties, the direct testimony of all witnesses was presented according to this Court's customary practice, that is, by affidavit. The plaintiff submitted affidavits from Reynolds; Clarence Snead, an inmate at Green Haven; and Thomas K.C. King, M.D., an expert in the area of pulmonary illnesses, including tuberculosis. The defendants submitted affidavits from the following witnesses: Jeffrey Richards, the Plant Superintendent of Green Haven; Theodore Nielsen, a Correctional Officer at Green Haven; Catherine Metzler, R.N., a Registered Nurse who is responsible for ensuring compliance with DOCS' TB policies at Green Haven; its expert Lee B. Reichman, M.D., the Executive Director of the New Jersey Medical School National Tuberculosis Center; and Dr. Wright. Finally, on July 6, 2000, Dr. Shansky responded on the record to written questions posed by the Court on June 30, 2000.

At the hearing, which began on July 10, each of the witnesses who submitted an affidavit was cross-examined.¹ In addition, Dr. Shansky was examined by the parties and the Court. The hearing having now been held, the following constitute the Court's Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

The Threat of TB

TB is a deadly disease caused by organisms of the mycobacterium tuberculosis complex, also known as tubercle bacilli. TB has plagued humanity since before recorded history and today is the leading infectious cause of death around the world. Globally, there are currently eight million cases of TB annually and two to three million deaths a year from the disease.

In the 1800s in the United States, TB (or "consumption" as it was called before the identification of the bacterium in 1882) accounted for as many as one-quarter of the deaths in urban areas. In the twentieth century, the development of medical treatment for the disease and the application of public health initiatives led to a steady decline in the incidence of the disease until the mid-1980s. At that point the incidence of TB began to increase. By 1992, there were 10.5 cases of TB identified per 100,000 persons, or 26,673 cases, in the United States, compared to 9.3 cases per 100,000 in 1985. In New York City, the incidence of active TB increased even more dramatically: by 1992, there were 52 cases per 100,000, a significant rise from the 22.4 per 100,000 in 1981. Public health professionals believe that a major factor in the resurgence of TB was the high frequency of transmission of TB within institutions such as hospitals, shelters and correctional facilities. Other contributing factors are believed to have been an increasing rate of homelessness and of human immunodeficiency virus ("HIV"). With public health initiatives, the decline in the incidence of TB resumed again in 1993, reaching an all time low in the United States of 6.4 per 100,000 in 1999, or 18,361 cases.

The incidence of TB is not spread evenly across this country. There are several patterns relevant to this litigation that are discernible from public health data. Five states, including New York, have over half of the new cases. TB is frequently present among immigrants. In 1998, forty-one percent of all TB patients were foreignborn.² TB is relatively common among the homeless and those who reside in correctional institutions and other congregate facilities such as long-term care facilities. These high risk environments account for nearly fifteen percent of new cases. Substance abuse is yet another characteristic shared by many who suffer from TB.

TB can be present in any organ of the body, but most commonly exists in the lungs or respiratory tract. TB exists in two stages: latent and active. An individual has latent TB when the individual has been infected with the TB bacterium but does not have symptoms of the disease. Latent TB is not contagious, but without preventive therapy persons infected with latent TB may develop the active disease.

Active pulmonary TB, which is referred to as TB in this opinion, is in some circumstances highly contagious. In general, its symptoms are a prolonged cough, chest pain, coughing up blood, fatigue, anorexia, weight loss, and persistent low-grade fever. It is most commonly spread when a person with TB in the respiratory tract coughs, sneezes, laughs, yells, or sings, thereby generating airborne particles called "droplet nuclei." The largest of these particles quickly settle out of the air, but the smaller particles remain suspended, often for several hours. When inhaled, the smaller particles can reach the alveoli of the lungs and lead to infection. The TB bacilli may then multiply. If they are transported to regional lymph nodes, they can enter the bloodstream and establish sites of infection throughout the body. Their most common site, however, is the upper portions of the lungs. Indeed, eighty-five percent of those with tuberculosis have pulmonary TB.³

The infectiousness of TB is directly related to the number of droplet nuclei containing tubercle bacilli that are expelled into the air. In general, persons suspected of having pulmonary TB are considered infectious if (1) they are coughing, or the laboratory analysis of their sputum smear results⁴ are positive, and (2) they are not receiving drug therapy, have just started drug therapy, or are having a poor response to the drug therapy. In contrast, such persons are no longer considered to be infectious if they have (1) received adequate drug therapy for approximately three weeks, (2) a favorable clinical response to the therapy, and (3) three consecutive negative sputum smear results from sputum collected on different days.

Transmission of the disease usually requires close and prolonged exposure. Nonetheless, individuals who are malnourished, are generally in...