Smith v. Wright

• Decision Date: 31 August 2011
• Docket Number: Civil Action No. 9:06-CV-00401 (FJS/DEP)
• Parties: RANDOLPH SMITH, Plaintiff, v. DR. LESTER WRIGHT, Deputy Commissioner for Health Services; DR. PAULANO, Chief Medical Officer, Great Meadows Correctional Facility; DR. SILVERBERG, Physician, Great Meadows Correctional Facility; JANE DOE, Acting Nurse Administrator, Great Meadows Correctional Facility; and JOHN DOE, Director of Ministerial Services, Defendants.
• Court: U.S. District Court — Northern District of New York

RANDOLPH SMITH, Plaintiff,

v. DR. LESTER WRIGHT, Deputy Commissionerfor Health Services; DR. PAULANO, ChiefMedical Officer, Great Meadows CorrectionalFacility; DR. SILVERBERG, Physician, GreatMeadows Correctional Facility; JANE DOE,Acting Nurse Administrator, Great MeadowsCorrectional Facility; and JOHN DOE, Directorof Ministerial Services, Defendants.

Civil Action No. 9:06-CV-00401 (FJS/DEP)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Dated: August 31, 2011

APPEARANCES:

FOR PLAINTIFF:

RANDOLPH SMITH, Pro Se

FOR DEFENDANTS:

HON. ERIC T. SCHNEIDERMAN

Attorney General of the State

of New York

OF COUNSEL:

CATHY Y. SHEEHAN, ESQ

Assistant Attorney General

HON. DAVID E. PEEBLES

U.S. MAGISTRATE JUDGE

REPORT, RECOMMENDATION AND ORDER

Pro se plaintiff Randolph Smith, a former New York state prison inmate, brings this action against three named individuals and two unidentified "Doe" defendants pursuant to 42 U.S.C. § 1983 claiming violation of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution as well as the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc. In support of his claims Smith maintains that he was unlawfully placed and kept in medical keeplock based upon his refusal, on religious grounds, to submit to a Purified Protein Derivative ("PPD") test for tuberculosis ("TB").¹ Plaintiff contends that the current version of the controlling prison policy for TB testing, even though it allows for alternative testing of religiousobjectors, unlike earlier versions, is unconstitutional both as drafted and as was applied to his particular situation since it resulted in his confinement in segregated housing for some seven months due to his religious-based refusal to be tested. As relief, plaintiff's amended complaint seeks both compensatory and punitive damages as well as declaratory relief.

Currently pending before the court is defendants' motion to dismiss plaintiff's amended complaint for failure to state a claim upon which relief may be granted. At the heart of defendants' motion is their contention that plaintiff's complaint fails adequately to set forth their involvement in the constitutional violations alleged to support a finding of liability.

Having carefully considered both defendants' motion to dismiss and plaintiff's opposition, I recommend a finding that plaintiff has not alleged sufficient facts to state plausible cause of action under the Eighth Amendment and the due process clause of the Fourteenth Amendment, but that his First Amendment and RLUIPA claims are sufficiently pleaded to pass muster under the controlling standard. I also recommend dismissal of certain of plaintiff's claims against the defendants based upon the lack of their involvement in the conduct giving rise to the particularcause of action, of certain claims based upon qualified immunity, and of plaintiff's remaining claims for prospective relief for lack of standing.

I. BACKGROUND²

Prior to September 2010 when, according to publically available information, he was released on parole, plaintiff was an inmate entrusted to the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") (formerly the New York State Department of Correctional Services, or the "DOCS").³ At the times relevant to his claims, plaintiff was designated by the DOCCS to the Great Meadows Correctional Facility ("Great Meadows"), located in Comstock,New York. Plaintiff is a practicing Rastafarian. Amended Complaint (Dkt. No. 36) ¶ 11.

Among the DOCCS policies in effect at the relevant times is a provision, on occasion referred to as DOCCS Health Services Policy No. 1.18, requiring TB testing for DOCCS inmates.⁴ See generally Amended Complaint (Dkt. No. 36). Under the DOCCS TB testing policy, as revised effective on June 21, 2004, inmates who refuse PPD testing are put on tuberculin hold and offered testing daily for one week, weekly for one month, and thereafter monthly until acceptance. See DOCCS Health Services Policy No. 1.18 at § IV. Inmates placed on tuberculin hold receive monthly medical assessments and weight checks, and chest x-rays every six months. Id. Inmates whose monthly assessments and chest x-rays are all negative for TB may be released one year after admission to tuberculin hold. See id. While on tuberculin hold, an inmate is required to remain in his or her cell at all times with the exception of one hour of solitary recreation daily and three solitary showers per week. See id.; see also Redd v. Wright, 597 F.3d 532, 533 (2d Cir. 2010).

The policy at issue includes a specific provision for those inmates with religious objections to the PPD testing. DOCCS Health Services Policy No. 1.18 at § VII. Where an inmate refuses the PPD test for this reason, he or she will be placed on tuberculin hold immediately, pending a determination by the DOCCS as to the legitimacy of the objection, which determination is to be made within sixty days. See id. The Chief Medical Officer ("CMO") of the DOCCS is responsible for evaluating the situation, including the results of an investigation that is required to be conducted by the DOCCS Director of Ministerial Services, and determine what accommodation, if any, is possible; the inmate must be informed of that determination within sixty days of the commencement of the TB hold. See id. If it is determined that the inmate's sincerely held religious beliefs precludes his or her submission to PPD testing, the policy allows the CMOto order a blood test as an accommodation, which is to be performed as expeditiously as possible. See DOCCS Health Services Policy No. 1.18 at § VII. The inmate may be released from TB hold when the results of the blood test, chest x-ray, and physical examination do not indicate the presence of latent TB.

Because as a practicing Rastafarian plaintiff's religious beliefs prohibit the injection of foreign substances into his body, apparently as a preemptive measure plaintiff objected to PPD testing on religious grounds through "grievance channels" on January 12, 2006, requesting that alternative procedures be utilized to screen him for the disease. Amended Complaint (Dkt. No. 36) ¶ 11. Plaintiff was formally summoned to the clinic at Great Meadow for TB testing on January 25, 2006, and again on February 24, 2006; on both occasions he refused to be tested on religious grounds and requested alternative testing consistent with his beliefs. Id. at ¶¶ 12-13. Following the second refusal, plaintiff was placed in medical keeplock on TB hold. ^{5 6} Id. at ¶ 13.

While in keeplock plaintiff submitted several grievances and less formal complaints regarding his circumstances, on each occasion emphasizing that he was entitled to alternative testing. See generally Amended Complaint (Dkt. No. 36). Just two days after his placement in medical keeplock, plaintiff submitted a formal complaint to DOCCS Commissioner Glenn Goord, asserting that he was unlawfully being held in keeplock.⁷ Id. at ¶ 14. Having received no response to either his January 12, 2006 grievance or his February 26, 2006 complaint to the DOCCS Commissioner, on February 28, 2006 plaintiff filed a second grievance, reiterating his objection to medical keeplock and requesting an alternative procedure for the testing. Id. at ¶ 15.

Plaintiff pursued the issue further by submitting a complaint on March 1, 2006 to Stephen Bernardi, the DOCCS Deputy Commissionerfor policy and compliance, regarding his circumstances. Amended Complaint (Dkt. No. 36) ¶ 16. Plaintiff followed that with a second formal complaint to Commissioner Goord on March 28, 2006, objecting to the manner in which the DOCCS Health Services Policy No. 1.18 was being administered at Great Meadow, arguing that the plain and unambiguous terms regarding alternative testing for religious objectors was being disregarded. Id. at ¶ 19.

Plaintiff commenced this action on March 29, 2006, complaining of the manner in which Health Services Policy No. 1.18 was being applied in his case. Amended Complaint (Dkt. No. 36) ¶ 20. On that same date, Smith received an answer from the superintendent at Great Meadow, denying his January 12, 2006 grievance. Id. at ¶ 21.

Plaintiff subsequently received a decision from the Central Office Review Committee ("CORC") denying his February 28, 2006 grievance. Amended Complaint (Dkt. No. 36) ¶ 22. The following day, Smith complained to Commissioner Goord regarding the denial, arguing that his grievance was based on two federal court opinions, both finding the practice under Health Services Policy No. 1.18 of holding prisoners inconfinement for lengthy periods after exercising religious beliefs in connection with TB testing to be unconstitutional.⁸ Id. at ¶ 23.

Not satisfied with the responses to his grievances and still in medical keeplock, plaintiff continued to file complaints. On August 1, 2006, plaintiff lodged a complaint with Dr. Lester Wright, the DOCCS Deputy Commissioner for Health Services, complaining that the failure of prison officials to provide him with an alternative testing procedure was infringing on his religious beliefs and demanding immediate intervention and corrective action. Amended Complaint (Dkt. No. 36) ¶ 26. That complaint was referred to Steven Van Buren, the Regional Heath Services Administrator for the DOCCS. Id. at ¶ 27. By letter dated August 22, 2006, Van Buren advised the plaintiff that his complaint regarding misapplication of Health Services Policy No. 1.18 was being denied. Upon receipt of that denial, plaintiff filed a formal complaint with an unnamed member of the Great Meadows medical staff, arguing that heshould be released from keeplock since it was clear from x-ray results that he did not pose a risk to the general prison population. Id. at ¶ 28.

On September 11, 2006, plaintiff received a written communication from Steven H. Schwartz, Assistant Attorney General, which included a "declaration of...