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UNITED STATES DISTRICT COURT
SELAM SELAH,
-against-
GLENN S. GOORD, ET AL.,
Defendants.
00-CV-644
255 F. Supp. 2d 42
April 4, 2003, Decided
.DECISION & ORDER
McAvoy, D.J.:
Plaintiff
Selam Selah (Plaintiff or Selah) brings this action challenging the New York
State Department of Corrections (DOCS) policy of requiring mandatory
tuberculosis skin tests of all inmates each year. Plaintiff contends that the
DOCS policy violates his First Amendment Rights to free exercise of his chosen
religion. Presently before this Court is Plaintiff's motion for a preliminary
injunction preventing DOCS from administering the skin test to him during the
pendency of this action.
This Court
previously held in a Decision and Order dated January 2, 2002, that Plaintiff
sincerely held his religious beliefs, and that DOCS policy burdened the
exercise of his religious beliefs. Selah v. Goord, 2001 U.S. Dist. Lexis 21669,
2002 WL 73231 (N.D.N.Y. Jan. 2, 2002). Following that determination, the Court
held a two day hearing on March 20 and 21, 2002 in order to determine whether
the policy of tuberculin hold is "reasonably related to legitimate
penological interests." Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d
64, 107 S. Ct. 2254 (1987). n1 At that hearing, the Court heard from Dr. [*45]
Lester Wright, Deputy Commissioner and Chief Medical Officer of the Department
of Corrections; Dr. John Sbarbaro, Professor of Medicine at the University of
Colorado (Deft. Ex. "6"); and Dr. Brobson Lutz, an infectious disease
specialist from New Orleans who previously served as the Medical Review Officer
for the City of New Orleans. n2 Plaintiff also testified regarding the
conditions of his confinement while in tuberculin hold. Subsequently, the
parties submitted the transcripts and videotaped testimony of Dr. Newton
Kendig, the Medical Director for the Federal Bureau of Prisons (Deft. Ex.
"9"), and Dr. Lee Reichman of the National Tuberculosis Center in
Newark, New Jersey (Deft. Ex. "4"). n3 The Court has reviewed all of
this testimony, as well as the briefs submitted on behalf of the parties both
before and after the hearing. The following constitutes the findings of fact
and conclusions of law of the Court, as well as the Court's decision.
I. Findings of Facts
A. Tuberculosis and its control n4
Tuberculosis
is a highly infectious contagious disease. It is spread through the air.
(Sbarbaro 19). It is caused by the tuberculosis bacillus or bacteria. For
purposes of the issue before the Court, there are three types of tuberculosis
infection. Latent tuberculosis exists when an individual has been exposed to
tuberculosis and has contracted the disease. For various reasons, however, many
individuals do not experience adverse effects from latent tuberculosis. The
human body is able to contain the disease and the individual is not contagious.
Nor will the individual exhibit symptoms of the disease. Active tuberculosis
occurs when the body is not able to contain the tuberculosis bacillus, and the
individual becomes ill. Tuberculosis can infect nearly every part of the human
body. When an individual has active tuberculosis, the individual will exhibit
signs and symptoms of the disease such as coughing, night sweats, chills and
weight loss. (Lutz 138). Active contagious tuberculosis is a form of active
tuberculosis where the infection exists in an individual's lungs. When an
individual is infected with active tuberculosis of the lungs, the individual is
capable of spreading the disease to others through the shared air space. n5
.
In theory,
latent tuberculosis could convert to active contagious tuberculosis at any
time. As a practical matter, five to ten percent of people with latent
tuberculosis will develop active tuberculosis during the course of their
lifetimes. (Sbarbaro 56; Reichman 18). In HIV patients this number is higher.
(Reichman 18). In a person with a normal immune system, between two to five
percent of the people will convert to contagious tuberculosis during the first
year. (Reichman 19; Lutz 137). There is also an increased risk during the
second year, though it is not as great. [*46] (Lutz 137). The remaining
individuals will convert their tuberculosis status from latent to active during
some other period of their life. (Lutz 137).
An individual with contagious
tuberculosis will infect about 20 to 25 percent of his contacts with some form
of tuberculosis. (Sbarbaro 30; Reichman 20). In a congregate living situation,
such as a prison, tuberculosis spreads more easily. (Sbarbaro 32). Factors
affecting this include the high rate of HIV infection, the number of people
from countries outside the United States, the close living conditions, and the
high stress level. (Sbarbaro 33).
B. Testing
1. PPD
The current
test for detecting latent tuberculosis infection is the Purified Protein
Derivative Test, or PPD ("PPD" or "skin test"). This
involves the injection of a substance containing a derivative of tuberculosis
between the layers of the skin. (Sbarbaro 36).
2. Dr. Lutz
Dr. Lutz testified that the tuberculin hold policy as written
did not make sense because the individuals who potentially had latent
tuberculosis were not contagious to others. (Lutz 156). He stated that
tuberculin hold was, in his opinion, unnecessary, and that what is of greater
importance is weekly or monthly weigh-ins and increased monitoring of the
individual. (Lutz 152-154). He also recommended x-rays every three to six
months and a sputum culture every six months. (Lutz 154). He tended to disagree
with Dr. Sbarbaro's belief that an individual could be spreading the disease
without showing signs or symptoms of it. Id.
3. Dr. Wright
Dr. Wright's testimony echoed Dr. Sbarbaro. He testified that
the rationale for tuberculin hold was
to coerce some people into taking the test and to limit the number of contacts
of someone who did not take the test, but became infectious. (Wright 202; 233).
He testified that there was no significant cost difference between monitoring
an individual who had refused the test while that individual was on tuberculin
hold and monitoring the individual in the general population. (Wright 313).
4. Dr. Reichman
Dr. Reichman was the only expert who found the DOCS tuberculin
hold policy to be too lenient. He testified that the time on hold should last
two years. He also repeatedly testified that since the system is working, it
should not be changed. (Reichman 46). Dr. Reichman did not articulate any
reason for the use of tuberculin hold other than to coerce prisoners into
taking the PPD test. He repeatedly stated that exceptions harm the system,
though he did not elaborate on this statement. (Reichman 53, 139, 147). Yet,
Dr. Reichman also testified that an inmate with a positive PPD but no signs of
tuberculosis on an x-ray and a negative sputum culture would not be a threat to
other prisoners. (Reichman 66).
He stated that the purpose of requiring skin testing is to flag
a chart so that an individual can be monitored for signs and symptoms of
tuberculosis. (Reichman 50). He agreed with DOCS policy of giving a PPD
positive person a chest x-ray and treatment with INH if possible. (Reichman
55). He did not believe that an x-ray alone was adequate because it will only
help diagnose an individual who has active tuberculosis, not latent tuberculosis.
(Reichman 64). However, the only way to tell when latent infection has become
active contagious tuberculosis is with monitoring of the patient. (Reichman
138). Dr. Reichman echoed the sentiment of Dr. Sbarbaro, that if there were
signs and symptoms of the disease, the individual was already contagious and
the disease was being spread. (Reichman 162). Despite having consulted on
numerous tuberculosis prevention programs, Dr. Reichman could not recall ever
having recommended something similar to tuberculin hold. n11 (Reichman 156).
[*51] 5. Other Reports and Statistics
The Health
and Human Services Guidelines make no mention of tuberculin hold or any similar
program. The Guidelines recommend that persons exempted from the PPD test
should have x-rays. (Wright 237-38). There is approximately a 1.39 percent
likelihood that an inmate who has previously been negative will convert his
skin test to a positive. (Wright 241). Additionally, only 3.5 people in DOCS develop active tuberculosis each year.
(Wright at 244). There were 11 cases of tuberculosis in 2000, the last year for
which DOCS has statistics. (Wright 244). Dr. Wright testified that he believed
there are fewer than ten people who have made religious objections to the PPD test.
(Wright 296). At any time,
there has been a maximum of sixty people on tuberculin hold. (Wright 297). He
did not, however, have any statistics regarding how many of those people
refused the PPD test versus the number who are on tuberculin hold because they
have refused INH treatment. Dr. Wright also noted that much of the tuberculosis
control in the New York State prison system came from Rikers Island and other
jails prior to the entry of inmates to the prison system. (Wright 324).
6. Kendig-The federal policy
Dr. Kendig testified regarding the policy of the Federal Bureau
of Prisons (BOP) with regard to tuberculosis testing. Federal inmates are
tested using the PPD test on entry to the BOP. They are then tested annually
thereafter. The purpose of testing is to detect and treat active tuberculosis
and latent infection and to detect new transmissions of tuberculosis. (Kendig
7). PPD tests are done unless they are medically contraindicated, such as an
inmate who has blistering when being tested. (Kendig 10).
Dr. Kendig did not know whether there were any individuals who
had refused the PPD test on religious grounds, but testified that he believed
the BOP policy was to make no exceptions for religious reasons. (Kendig 33-34).
He stated that an inmate who refused would be counseled as to the importance of
the test. If the inmate still refused, he would be issued a misbehavior report
for failure to obey an order. (Kendig 15-16). Dr. Kendig did not know what the
result of the misbehavior report would be, but did state that it would be
evaluated on an individual basis. Kendig 16, 17. On a case-by-case basis, some
inmates who still refuse are given chest x-rays and are set up for regular
symptom screening and close clinical monitoring. (Kendig 12, 16). Inmates may,
however, be subject to involuntary testing if medically indicated. (Kendig 27).
An inmate who refuses to take the test is returned to his cell. (Kendig 68).
Failure to take the PPD test the following year can result in disciplinary
sanctions again. (Kendig 82).
The BOP
does not require a patient to take treatment for latent tuberculosis, though
each inmate with latent tuberculosis is counseled to take INH. (Kendig 43). An
individual who refuses treatment for latent tuberculosis is given chest x-rays
every six months. If the inmate is HIV positive, then the inmate is monitored
even more closely. (Kendig 40). The inmate is tracked in the health computer
system. (Kendig 44). There is no disciplinary sanction for failing to take INH.
The inmate is not separated from the general population unless he shows
symptoms of the disease. (Kendig 41).
Dr. Kendig testified that an individual with latent
tuberculosis, or one who clearly does not have contagious tuberculosis is not a
threat to other prisoners. The BOP does a great deal of air transportation of
prisoners. In order to be transported between prisoners an inmate must have a
negative chest x-ray and no symptoms of [*52] tuberculosis. (Kendig 38). In
order to detect active tuberculosis, a chest x-ray and clinical examination are
used, with a possible sputum test follow up. (Kendig 38).
Dr. Kendig testified that he would find it to be a medically
acceptable alternative to give INH to
an inmate who refused to take the PPD test as a part of a contact trace.
(Kendig 80). He would, however, first want to ensure that the contagious
individuals had, in fact, infected at least some other inmates or personnel
prior to allowing a refuser to take INH. (Kendig 80). In the BOP, refusers of
the test and refusers of INH are both given chest x-rays and increased clinical
monitoring. (Kendig 79).
Dr. Kendig testified that he never considered isolating
individuals with latent tuberculosis who are not receiving INH and who are not
showing signs of active disease. He testified that there was no medical reason
to isolate them except during the time the individual is being screened for
active disease. (Kendig 45-46). Further, he testified that there was no reason
to confine a refusing inmate to his cell unless there was a medical indication
that the individual might reactivate his latent tuberculosis. (Kendig 48-49).
II Conclusions of Law
A. Preliminary Injunction Standard
A party seeking a preliminary injunction has the burden to
show: (1) that he will suffer irreparable harm in the absence of an injunction
and (2) either a likelihood of success on the merits or sufficiently serious
questions going to the merits and a balance of hardships tipping decidedly in
the movant's favor. Zervos v. Verizon New York Inc., 252 F.3d 163, 172 (2d Cir.
2001) (quoting Polymer Technology Corp. v. Mimran, 37 F.3d 74, 77-78 (2d Cir.
1994)). When the movant is challenging government action that is for the
benefit of the public, the movant must meet the "likelihood of success"
standard. Lation Officers Ass'n. v. City of New York, 196 F.3d 458, 462 (2d
Cir. 1999)(citations omitted); see also Reynolds v. Goord, 103 F. Supp.2d 316,
334 (S.D.N.Y. 2000).
The Court has already determined that Selah will suffer
irreparable injury. See Selah v. Goord, 2001 U.S. Dist. Lexis 21669, 2002 WL
73231 (N.D.N.Y. Jan. 2, 2002) (citing Paulsen v. County of Nassau, 925 F.2d 65,
68 (2d Cir. 1991)(citations omitted)
("The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury."). Consequently, this
decision is limited to Selah's likelihood of success on the merits.
B. Prison Regulations and the First Amendment
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, 2001 U.S. Dist. Lexis 21669, 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, 96 L. Ed. 2d 64, 107 S. Ct. 2254
(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.
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 Breeland v. Goord, 1997 U.S. Dist. Lexis 3527, 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 Breeland, 1997 U.S. Dist. Lexis 3527, [WL] 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
U.S. Dist. Lexis 2344, 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 (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, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987)
(error to require correction officials to disprove alternatives. Officials need
only show reasonable connection.); Turner, 482 U.S. at 90-91 (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. n12
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. n13
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 U.S. Dist. Lexis 17910, 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'd 76
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. n14
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.
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.
IT IS SO ORDERED
April 4, 2003
Hon. Thomas J. McAvoy
U.S. District Judge
n1 On
consent of DOCS, Selah has been in the general population pending the outcome
of this motion.
n2 Dr.
Wright and Dr. Sbarbaro were called by the defendant. Dr. Lutz was called by
plaintiff. The exhibits referenced are the ciricula vitae of the various
witnesses.
n3 Dr. Reichman was called by the defendant.
Dr. Kendig testified as a non-party witness.
The Court has not detailed the
qualifications of any of the experts here; rather, reference is made to the
witnesses' ciricula vitae. The testimony of the parties is referenced by each
person's last name and the page of the transcript corresponding to the
testimony.
n4 The
Court is cognizant that the explanations given here are simplifications.
Reference is made to the record for precise testimony regarding the
tuberculosis disease.
n5 Although at least one expert testified
that tuberculosis in other areas of the body can be contagious, for purposes of the prison setting, it is pulmonary
tuberculosis that is of concern. See Sbarbaro 27
n6
Reading the PPD test is an imprecise science. An induration of 15 mm. on an
average person means a likelihood of tuberculosis infection. In a congregate
setting, however, a base of 10 mm. might be used instead. Similarly, in a
contact trace, where there is a known source of potential tuberculosis
infection, a base of 5 mm. might be used for a determination of tuberculosis.
Sbarbaro, 38. DOCs policy uses the 5 mm. base. See Deft. Ex. "6", p.
6.
n7 In an
individual infected with HIV, there is a thirty to sixty percent failure rate with
x-ray. Sbarbaro 180.
n8 The
Court notes that INH is short for Ionaizad, the most common drug used in the
treatment of latent TB. The Court is aware that INH is not the only drug used
in treatment of latent TB and uses the term INH here only as a short-hand way
of identifying the treatment for latent tuberculosis. See Wright 198.
n9 Dr.
Sbarbaro would apply the same increased monitoring to individuals who tested
positive but refused INH treatment. Sbarbaro 58-61, 65.
n10
There is some disagreement as to the reality of this risk. Compare Sbarbaro 169
(risk of contagious without symptoms); Lutz 154 (unlikely that individual
becomes contagious without symptoms); Wright 274 (infected individuals no risk
to prison population); Kendig 38, 45 (no risk to prison population from latent
infected inmates); Reichman 66 (clean x-ray and sputum means no risk to other
inmates).
n11 Dr.
Reichman could not remember the specifics of any of the recommendations he had
made. Reichman 91.
n12
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.
n13
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.
n14 This
argument was specifically rejected in Jolly v. Coughlin, 894 F. Supp. at 745.