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Preliminary Injunction Granted to Religious Objector of Tuberculosis Skin Test

by David M. Ruetter

A New York federal district court has granted a preliminary injunction to a prisoner who objected on religious grounds, to taking a Purified Protein Derivative Test(PPD) to detect tuberculosis (TB). In a previous unpublished opinion, the court held the religious rights of Selam Selah, a prisoner at Auburn Correctional Facility, were substantially burdened by the New York State Department of Correctional Services (NYDOCS) policy of requiring mandatory PPD tests. When Selah asserted his religious objections and refused a PPD test, he was placed in tuberculin hold.

The court held a two day hearing on Selah's motion for a preliminary injunction and found three forms of TB exist: (1) Latent TB is where one has been exposed to and contracted TB but suffers no adverse effects; (2) Active TB is where one becomes ill throughout the body; and. (3)Active Contagious TB is where the lungs are infected and the disease is capable of spreading by sharing air space with others. The court also found there are three methods to detect TB: (1)PPD test, which is the injection of a substance containing a derivative of TB that causes a skin reaction; (2) Chest x-rays, which detects active contagious TB and latent TB in some cases; (3)Sputum Test, which analyzes one's phlegm and is "the gold standard for determining whether an individual has active, contagious tuberculosis."

The NYDOC requires prisoners to take a chest x-ray and PPD test upon entry into the prison system, and a PPD test yearly thereafter. Selah challenged this policy in its entirety. Once a prisoner tests positive for TB, the prisoner is treated with Isoniazid (INH). If the prisoner refuses INH or a PPD test, the prisoner is placed in tuberculin hold for one year. Tuberculin hold consists of confining a prisoner to his regular housing unit or cell. NYDOCS's expert, Dr. Sharbaro, testified "that the difference between a person on tuberculin hold who was monitored and a person in general population who was monitored [because of a positive TB test] was the number of potential contacts in the case of the actual spread of tuberculosis disease." Once released from tuberculin hold, the prisoner is then monitored like anyone else who has a previous TB positive result, and is exempt from the PPD test.

NYDOC asserted three reasons to justify its policy. First, it asserted it coerces prisoners to take the PPD test. The court said the conditions of tuberculin hold are such that a reasonable prisoner would submit to the test absent a matter of conscience. Moreover, tuberculin hold could be imposed for a lesser period to await results of a sputum test. Next, NYDOC asserted it is easier for doctors and nurses to monitor for signs and symptoms of TB if a prisoner is in tuberculin hold. However, one of NYDOCS's experts said there would be no greater effort or cost to monitor the prisoner if he was in general population rather than tuberculin hold. Finally, NYDOCS asserted, it limits potential contacts. The court rejected this, for the prisoner in tuberculin hold is held in his regular cell, so there is no significant changes in contacts. Moreover, Selah, who has previously PPD tested negative, could be monitored in the same manner as those who tested positive or were released from tuberculin hold after a year.

The court held that NYDOCS's policy of PPD testing prisoners upon initial entry to the prison system is related to valid penological interests, but requiring prisoners who previously tested negative and subsequently object on religious grounds to take a PPD is not related to those interests. The court further held that exempting Selah from the yearly PPD test will not pose a threat to other prisoners or create a "floodgate" of religious objectors. Accordingly, the court granted Selah a preliminary injunction. See: Selah v. Goord, 253 F.Supp.2d 42 (N.D.N.Y. 2003).

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Related legal case

Selah v. Goord

In order to succeed at trial, the Plaintiff must prove that he "sincerely held" the religious beliefs professed by him, and that he was denied reasonable accommodation for the exercise of his beliefs. Jackson v. Mann, 196 F.3d 316, 319 (2d Cir.1999); Reynolds, 103 F.Supp.2d at 334. This Court has already determined that Plaintiff sincerely holds his religious beliefs. See Selah v. Goord, 2002 WL 73231 (N.D.N.Y. Jan.2, 2002). Thus, the issue before the Court is whether DOCS policy is rationally related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The Court considers four factors in this regard. First, there must be a valid rational connection between the regulation and the government interest. The government interest must also be legitimate and neutral. Second, prisoners must be given alternative means of exercising their religion where possible. Third, the Court must consider the impact an accommodation of the right will have on the prison system. Finally, the Court must *53 consider whether there is a reasonable alternative available to the prison. Turner, 482 U.S. at 89-90, 107 S.Ct. 2254.

Clearly DOCS has a legitimate interest in stopping the spread of TB in its prisons. Thus, in this case, the Court must consider whether the policy of placing inmates who refuse a PPD test on religious grounds into tuberculin hold for one year is rationally related to the interest of DOCs, the impact on the prison system if an injunction is issued, and whether alternatives are available to DOCS.
C. Burden of Proof

Before this Court can address the merits of this action, the Court must determine whether DOCS has the burden of proving the regulation reasonable or whether Plaintiff has the burden of proving the regulation unreasonable. In this regard, it appears that the law is not settled. Compare Davis v. City of New York, 142 F.Supp.2d 461, 465 fn. 14 (S.D.N.Y.2001) ("Once plaintiff has made a prima facie showing that his free exercise right has been impinged, the City bears the burden at trial of proving the rationality of the alleged restrictions, the legitimacy of its penological goals, and the absence of available alternatives.") with Breland v. Goord, 1997 WL 139533, at *3 (S.D.N.Y. Mar.27, 1997) ("The burden is on the plaintiff to demonstrate the unreasonableness of the regulation at issue.") (citing Giano v. Senkowski, 54 F.3d 1050, 1054 (2d Cir.1995)).

As a practical matter, the Court finds that defendants must come forward with some rational basis for the policy at issue. See Breland, 1997 WL 139533, at *3 ("There must be some showing by the defendants that the regulation does promote the claimed penological objective."). Plaintiff cannot be expected to "guess" what rationale DOCS would provide. Further, if DOCS fails to articulate a rational connection between the policy at issue and legitimate penological interests, the Court need go no further. See Brown v. Johnson, 2003 WL 360118, at *5 (W.D.N.Y. Feb.14, 2003) ("If the connection between the regulation and the asserted goal is 'arbitrary or irrational,' then the regulation fails, irrespective of whether the other factors tilt in its favor.") (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984)). Where, however, DOCS has articulated a reasonable connection between the policy and legitimate penological interests, it then falls to Plaintiff to show the availability of other alternatives that are less burdensome to his religion and yet, equally effective for DOCS purposes. See O'Lone v. Shabazz, 482 U.S. 342, 350, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (error to require correction officials to disprove alternatives. Officials need only show reasonable connection.); Turner, 482 U.S. at 90-91, 107 S.Ct. 2254 (officials not required to disprove all alternatives). Thus, the burden is ultimately on the Plaintiff. See Giano v. Senkowski, 54 F.3d 1050, 1054 (2d Cir.1995).
D. DOCS Legitimate Reasons

DOCS has put forward several rationales for the policy of placing prisoners who object to the TB skin test in tuberculin hold for a year. First, the confinement coerces prisoners into taking the test. (Wright 202, 233). Second, it limits the exposure of other individuals to the objector during the most critical first year. (Wright 313; Sbarbaro 79-80; Reichman 59, 162). Third, it fosters better monitoring. (Sbarbaro 58-61, 117, 182; Reichman 50). Fourth, it allows DOCS to identify and treat ill inmates early. (Sbarbaro 169; Reichman 55). The Court will examine each of these in light of the evidence.
*54 1. Coercion

There are three times an inmate will be required to take a PPD test: upon his initial entry to DOCS, annually thereafter, and if he is part of a contact trace. For each of these, the goal of coercion would be relevant. It is, however, clear to this Court that coercing reluctant prisoners to take the skin test does not take a year. The conditions of tuberculin hold are such that a reasonable prisoner would quickly consent to the PPD test absent a matter of conscience. Selah has consented to a shorter stay on TB hold, one that would allow the results of a sputum test to come back prior to release. Consequently, the Court finds that requiring inmates to serve longer than that amount of time is not reasonably related to the goal of coercing inmates to take the test.
2. Monitoring

Each expert who testified identified monitoring for signs and symptoms as the best way to determine whether an individual had changed his status from latent to active. DOCS third and fourth reasons relate to the monitoring abilities of doctors and nurses. Dr. Sbarbaro has claimed that monitoring individuals is easier if they are confined to their cells. This is, however, directly contradicted by Dr. Wright who testified that there would be no greater cost or effort to monitor the prisoners if they were in general population. (Wright 313). In fact, when on tuberculin hold, an inmate resides in his normal cell on his normal cell block. The individual is identified through a tag to his chart, and not through his location in the prison. Consequently, the Court does not find any legitimate connection between tuberculin hold and increased monitoring.
3. Limiting Contacts

DOCS' most persuasive argument is that limiting an objector to tuberculin hold limits the number of individuals who are exposed to the objector. Limiting the exposure of other prisoners to the objectors is most relevant following a contact trace. The time frame of tuberculin hold is such that it minimizes the harm that could be done by an individual who has contagious tuberculosis but exhibits no outward signs or symptoms. Although a number of experts testified that inmates with latent tuberculosis were not a threat to the health of other inmates, the Court finds that DOCS may have legitimate reason to consider the public health concerns that might result if an inmate is contagious but shows no signs. Consequently, the Court does not find that it is more likely than not at this time that DOCS policy is arbitrary and irrational as it relates to contact traces.FN12

FN12. Selah has suggested as an alternative, that the inmate be allowed to take INH without first determining his status. The experts were sharply divid,ed on this issue. Because the Court does not find it necessary to address this alternative for purposes of Selah's preliminary injunction, it is not addressed here. Selah will, however, likely want to develop this or other similar arguments for trial inasmuch as he could, at some future time, become part of a contact trace. The Court also notes that there is some dispute over whether confinement to a cell is rational at all. This point, was, however, not sufficiently developed by either side.
This goal of limiting exposure is also of relevance when inmates are first introduced to the prison setting. Until DOCS has knowledge of the individual's status, and whether he is likely to infect other people, it appears at this time to be reasonable to isolate the objector as much as possible. That DOCS permits some contact between the individual and other people does not destroy this goal. Certainly it is easier to control an outbreak where the objector comes into contact with *55 25 people than where the objector is in contact with 100 people. Consequently, tuberculin hold for objectors on initial entry to DOCS appears rational to this Court.FN13

FN13. Initial entry to DOCS is different than entry to a new DOCS facility. Transfer between facilities does not implicate the same concerns inasmuch as the inmate will have already been tested or held in tuberculin hold at the entry facility.
There is, however, a third category of inmates. Inmates, such as Selah, who, after taking the PPD test or having their status determined in some other way, subsequently object to the annual testing on religious grounds. For Selah, the policy appears entirely arbitrary and irrational. For instance, the Court can find no difference between an inmate who has completed a year on tuberculin hold, and is thus excused from annual testing, and Selah, who has previously been determined to be negative.

There is no greater need to limit Selah's contacts than that of the person who has left tuberculin hold, or the person who refuses INH and is allowed to return to the general population after one year. Selah's chart can be tagged in the same way as a person who is wholly unable to take the PPD test, allowing him to be monitored for signs and symptoms of the disease in the same way. Additionally, Selah has not objected to x-rays or sputum testing, should DOCS desire to annually monitor Selah in that way. While the Court accepts that these methods are not ideal, and may not even be useful for some inmates, they provide an alternative to Selah equal if not superior to DOCS current method for monitoring inmates who cannot take the PPD test for whatever reason. Selah's alternatives are also equal to the monitoring provided to inmates who have already finished one year on tuberculin hold.

Consequently, it appears to this Court that while Selah may not succeed in his broad challenge to all of DOCS policy, the policy as applied to him in his circumstances is irrational.
B. Impact on the Prison Setting

DOCS has advanced two additional arguments the Court will also address. Both relate to the impact an accommodation of Selah's rights will have on the prison at large.
1. Standard

The Court, in determining whether the alternative proposed by Selah is reasonable must also consider the impact on the prison. See Ford v. McGinnis, 2000 WL 1808729, at 1 (S.D.N.Y. Dec.11, 2000). Thus, the court should consider the impact of accommodation on "other inmates, on prison guards, and on the allocation of prison resources generally." Nicholas v. Miller, 189 F.3d 191, 194 (2d Cir.1999). The Court has already addressed the cost issues associated with Selah's proposal and has found that there is unlikely to be any affect on prison resources from a cost standpoint. Two other issues have been raised before the Court that also must be addressed. The first is the safety and health of inmates and prison officials. The second is the idea that a decision in Selah's favor here will result in a "flood" of religious objectors.
2. Health and Safety of Inmates

Dr. Sbarbaro testified that inmates with latent tuberculosis posed a threat to inmates at large. The majority of the experts, however, testified that tuberculin hold, as it is constructed, did not help alleviate this possible threat. Indeed, Dr. Wright has testified on other occasions that an inmate with latent tuberculosis is *56 not a threat to other prisoners. (Wright 274). Dr. Kendig testified that the BOP does not confine objectors to their cells and that he did not believe it served any medical or prison health purpose. (Kendig 38, 45). Even Reichman testified that an inmate with a clean x-ray and negative sputum test was not a threat to other inmates. (Reichman 66). Additionally, the Court in Jolly v. Coughlin found that persons with latent tuberculosis were of no threat to the prison population, a finding that was affirmed by the Second Circuit. Jolly v. Coughlin, 894 F.Supp. 734, 744 (S.D.N.Y.1995), aff'd76 F.3d 468 (2nd Cir.1996). Consequently, while the Court is not entirely convinced that an inmate who contracts latent tuberculosis at a known time, or one whose tuberculosis status is entirely unknown, poses no threat to other prisoners, that is not the case here. In the case of Selah, the Court finds that Selah is likely to be able to show that allowing an exemption for him from the PPD test will not pose a threat to other inmates.
2. Flood of religious objectors

DOCS has also advanced the argument that allowing Selah to have a religious objection will open the floodgates of religious objectors. As evidence for this, DOCS points to three cases that have been filed in the Northern District of New York since Reynolds v. Goord was decided in 1999. Interestingly, however, DOCS has no statistics on the number of religious objectors to the PPD test. Further, the Court has not seen a "floodgate" of religious objectors either since the Second Circuit's decision in Jolly, or since the Southern District's decision in Reynolds.FN14 If, as DOCS seems to contend, only three cases have been filed in the three years following Reynolds, DOCS concern is entirely unfounded. Additionally, DOCS failure to keep any statistics indicates that there is no flood of inmates seeking to claim religious objections. Consequently, the Court finds that it is more likely than not that Selah will be able to show there is no negative impact on the prison setting by his religious exemption.

FN14. This argument was specifically rejected in Jolly v. Coughlin, 894 F.Supp. at 745.

III. Conclusion

For the foregoing reasons, the Court finds that Selah has established that it is likely he will prevail on the merits of his action. Consequently, he is granted a preliminary injunction.