Opinion
Civil Action No. 05-1090.
June 13, 2005
ORDER
AND NOW, this _____ day of _________, 2005, upon consideration of Commonwealth defendants' Motion to Dismiss and plaintiff's response thereto (if any), it is ORDERED that said Motion to Dismiss is GRANTED. Plaintiff's claims against Commonwealth defendants Marion Levengood and Barbara March are hereby DISMISSED.
COMMONWEALTH DEFENDANTS' MOTION TO DISMISS
Pursuant to Fed.R.Civ.P. 12(b)(6), defendants Marion Levengood and Barbara March (hereinafter "Commonwealth defendants") hereby move to dismiss plaintiff Sylvester Perry's complaint. Commonwealth defendants' motion should be granted for the following reasons:1. Plaintiff fails to state a claim upon which relief may be granted.
2. Plaintiff has not stated a viable First Amendment claim.
3. Plaintiff's Fourteenth Amendment claims fail because Commonwealth defendants correctly applied a constitutional policy that governed plaintiff's refusal to be tested for tuberculosis.
4. There is no actionable claim in federal court for an alleged violation of the Declaration of Human Rights.
This motion is supported by the attached memorandum of law.
WHEREFORE, Commonwealth defendants respectfully request that the Court enter an order substantially in the form attached hereto, granting this motion to dismiss, and granting any such further relief as is proper and just.
MEMORANDUM OF LAW IN SUPPORT OF COMMONWEALTH DEFENDANTS' MOTION TO DISMISS
Plaintiff Sylvester Perry brings suit because he, like every inmate and every prison guard or prison official exposed to inmates at SCI-Graterford, was tested for tuberculosis. Plaintiff is a prisoner in the custody of the Pennsylvania Department of Corrections ("DOC") at SCI-Graterford. He commenced this case,pro se, under 42 U.S.C. § 1983, alleging that administering the tuberculosis test violated the Constitution and the Universal Declaration of Human Rights. Plaintiff has named two nurses, Marion Levengood and Barbara March (together, "Commonwealth defendants"), as defendants. The Complaint requests compensatory and punitive damages in the amount of $300,000.00.Commonwealth defendants now move to dismiss plaintiff's complaint. Assuming only for the purposes of this motion that his allegations are true, plaintiff still fails to state claims upon which relief may be granted against these defendants. Such claims, therefore, should be dismissed.
RELEVANT FACTUAL ALLEGATIONS
Plaintiff alleges that Commonwealth defendants administered a tuberculosis ("TB") test without his consent. Compl. ¶ V. Plaintiff alleges that he informed Levengood that "taking such unknown substance was against his religious practice" and that he refused to take it. Id. at ¶ V.2. He alleges that Levengood informed him that if he was not tested, DOC Policy 13.2.1, Section 8 authorized her to confine him in the Restricted Housing Unit ("RHU") for up to a year. Id. Plaintiff also baldly states, without making any specific allegations, that March somehow exerted pressure upon him to be tested for TB.Id. at ¶ V.3.He casts the TB test as an experiment which conflicted with his religious beliefs. Id. Plaintiff alleges that he allowed himself to be tested "under protest and duress." Id. at ¶ V.6. He states that, since being tested, he has suffered headaches and has been "shocked by thinking he may die later" because he was tested. Id. at ¶ VI. Plaintiff contends that he has not been allowed to see a psychiatrist and that an M.R.I. or chest x-ray should have been taken instead of having to take the TB test.Id.
Plaintiff has also attached copies of his grievance, no. 109082, concerning the TB test. Pl. Exs. In the initial grievance, plaintiff acknowledges that he allowed the TB test to be administered, but was compelled to do so because of the threat of punishment. Pl. Ex. Grievance 109082. It appears that he deems the test to have interfered with his rights to due process, because his "arm/body is my property". Id. He made no mention of a religious belief or First Amendment right that was violated by the TB test.
Plaintiff's exhibits also include responses he received from Julie Knauer and Superintendent DiGuglielmo. Pl. Exs. Knauer stated that plaintiff was not forced to take the immunization, but instead opted to take the test rather than report to the RHU. Pl. Ex. 2/7/05 Review Response to Grievance No. 109082. Accordingly, she dismissed his grievance and denied his request for $25,000.00. Id. Superintendent DiGuglielmo upheld Knauer's decision, noting that TB "[t]esting is required for all inmates and staff" in the interests of institutional health and safety. Pl. Ex. 2/25/05 Appeal Review of Grievance No. 109082.
ARGUMENT STANDARD FOR DISMISSAL UNDER FED.R.CIV.P. 12(b)(6)
Dismissal of a complaint for failure to state a claim is appropriate where it is certain that no relief could be granted under any set of facts that could be proved consistent with the allegations contained in the complaint. Fed.R.Civ.P. 12(b)(6);Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). In deciding a motion to dismiss for failure to state a claim, the court must accept all material allegations in the complaint as true and construe them in the light most favorable to the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). However, the Court need not credit broad conclusions unsupported by factual allegations. Morse v. Lower Merion School District, 132 F.3d 902, 908, 909 (3d Cir. 1997); Fleming v. Lind-Waldock Co., 922 F.2d 20, 23, 24 (1st Cir. 1990). Additionally, the court may consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994). Further, documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered without converting a motion to dismiss into a motion for summary judgment. Pryor v. National Collegiate Athletic Ass'n., 288 F.3d 548, 560 (3d Cir. 2002). If the facts alleged in the complaint would not entitle the plaintiff to any relief as a matter of law, the complaint should be dismissed.
I. PLAINTIFF HAS NOT STATED A FIRST AMENDMENT CLAIM.
Plaintiff alleges that being tested for TB "was against his religious practice . . ." Compl. ¶ V.2. Prisoners retain their First Amendment rights to practice religion, however, those rights are "more limited in scope than the constitutional rights held by individuals in society at large." Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted). A prison policy which might otherwise impinge upon a prisoner's First Amendment rights will survive a challenge if it is "reasonably related to legitimate peneological interests." Turner v. Safley, 482 U.S. 78, 89 (1987); O'Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987). The alleged interference with one's religion must be more than an inconvenience, the burden must be substantial and it must interfere with a tenet or belief that is central to religious doctrine.Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997).
In the context of TB testing, a decision of this court decisively rejected a challenge to the Pennsylvania Department of Corrections ("DOC") test-or-segregate policy. Africa v. Horn, 998 F. Supp. 557 (E.D. Pa. 1998). In Africa, the court dealt with a prisoner's First Amendment challenge to the Pennsylvania DOC's policy that required skin testing for TB, or alternately, a year of monitoring in RHU followed by a chest x-ray before the prisoner could be returned to general population. Id. at 558. Foremost, the court noted that plaintiff's religious objections were not based upon religious beliefs. Id. at 559. However, the court held that even if plaintiff's objection to the skin testing was religious, the DOC had a legitimate peneological interest in applying the TB-testing policy to the plaintiff. Id. The court stated that preventing the spread of a highly contagious disease in an environment with a high risk for breakout "clearly is a legitimate peneological interest." Id. citing DeGidio v. Pung, 920 F.2d 525, 527 (8th Cir. 1990), McCormick v. Stadler, 105 F.3d 1059, 1061-62 (5th Cir. 1997), Hasenmeier-McCarthy v. Rose, 986 F. Supp. 464, 467 (S.D. Ohio 1998), Ballard v. Woodward, 641 F. Supp. 432, 437 (W.D.N.C. 1986). See also Westbrook v. Wilson, 896 F. Supp. 504, 505 (D. Md. 1995) (prison policy of placing inmates who refuse TB skin testing into segregated custody is "perfectly constitutional" under Turner v. Safley), aff'd 64 F.3d 661 (4th Cir. 1995). The court went on to state that a chest x-ray was not an adequate substitution for a skin test because x-rays will not detect TB in its latent stages. Africa, 998 F. Supp. at 560. Hence, without the one-year observation period, there would be a higher risk of the contagion spreading. Id. at 560. Accordingly, the plaintiff's First Amendment challenge to the TB testing policy was defeated.
In Africa, as in the instant matter and other cases cited below, the TB test administered is a Purified Protein Derivative, or PPD, test.
When the foregoing is applied to the allegations of this case, it is clear that plaintiff has not stated a viable claim. Foremost, he has not plead that he is the member of a religion that objects to skin-tests for TB. But even if he had, as the court in Africa made clear, the DOC's TB-testing policy is supported by a legitimate peneological interest — stopping the spread of a highly contagious disease in an environment ripe for a TB outbreak. Indeed, the risk is so great that other courts have upheld the forcible administration of PPD tests to inmates.Ballard, 641 F. Supp. at 437, Hasenmeier-McCarty, 986 F. Supp. at 468. In light of the above, plaintiff has not stated viable First Amendment claims and such claims should be dismissed.
II. THE COMPLAINT FAILS TO STATE A VIABLE FOURTEENTH AMENDMENT CLAIM AGAINST COMMONWEALTH DEFENDANTS.
Though not pleaded, it appears from his exhibits that plaintiff believes his rights to due process were violated when he was tested. See Pl. Ex. Grievance No. 109082. However, no cognizable Fourteenth Amendment claim can be cobbled together from the plaintiff's allegations because the DOC's policy satisfies due process requirements. McCormick v. Stadler, 105 F.3d 1059 (5th Cir. 1997).
Both the Supreme Court and the Third Circuit Court of Appeals have recognized that nonconsensual medical treatment of prisoners does not violate due process when prison officials render the medical care to carry out valid medical or peneological objectives. Washington v. Harper, 494 U.S. 210, 222 (1990).See White v. Napolean, 897 F.2d 103, 112-13 (3d Cir. 1990) ("a prison may compel a prisoner to accept treatment when prison officials, in the exercise of professional judgment, deem it necessary to carry out valid medical or peneological objectives"). Other courts have held that preventing the spread of TB within a prison constitutes such a valid objective.McCormick v. Stalder, 105 F.3d 1059 (5th Cir. 1997); Westbrook v. Wilson, 896 F. Supp. 504 (D. Md. 1995). See Mack v. Campbell, 948 F.2d 1289, 1991 WL 243569 (6th Cir. 1991) (administrative segregation for refusing tuberculosis screening test does not violate due process); Rhinehart v. Gomez, 1995 WL 364339, *3-*4 (N.D.Cal. 1995) (Washington v. Harper justifies prison policy of involuntary testing and treatment for tuberculosis). Accord Africa supra. Accordingly, in the face of due process challenges, these courts have upheld regulations that call for the testing or segregation (of inmates who refuse the test) from general prison populations. Id.
In McCormick, for instance, the Fifth Circuit held that a prison's TB testing and treatment policy satisfied both substantive and procedural due process. 105 F.3d at 1061-1062. There, a prisoner had earlier tested positive for TB but refused to undergo prophylactic treatment for the disease. Id. at 1060-61. The court stated that the prison had a duty to prevent the spread of TB, and that the policy of treating TB or else enforcing segregation was legitimate and did not violate the prisoners' substantive due process rights. Id. at 1061. Additionally, the court held that the alternatives available to the prisoner — to be treated or segregated — did not violate his procedural due process. Id. at 1062. The court reasoned that when public safety was at issue, such as staving off a TB outbreak, liberty or property interests could be deprived without a prior hearing.Id. (citing Matthews v. Eldridge, 424 U.S. 319, 347-348 (1976)).
The federal District Court of Maryland similarly recognized that the "practice of placing PPD refusal inmates on medical segregation . . . is perfectly constitutional." Westbrook, 896 F. Supp. at 504. The court reasoned that the prison had a legitimate prison management goal in "protecting other inmates and staff from the dread ravages of TB." Id. Accordingly, the court concluded that the test-or-segregate alternative passed constitutional muster under Turner v. Safley and was a reasonable practice not to be second guessed. Id. at 505 (citing Bell v. Wolfish, 441 U.S. 520 (1979)).
It is worth noting that if prison administrators failed in their duty to protect against a TB outbreak, they could be held liable. McCormick, 105 F.3d at 1062 (citing Plumber v. U.S., 580 F.2d 72, 76-77 (3d. Cir. 1978) and DeGidio v. Pugh, 920 F.2d 525, 528 (8th Cir. 1990)).
Plaintiff cannot allege that his substantive or procedural due process rights have been violated. The policy cited by plaintiff provides that prisoners who refuse to take the TB test "MUST be kept in Administrative Custody . . . (total time in administrative custody is 12 months)." See DOC policy 13.2.1 Access to Health Care Procedures Manual, Section 8, Communicable Diseases Infection Control, p. 8-15, a true and correct copy of the relevant portion of which is attached here to as defendants "Exhibit 1." Accordingly, Commonwealth defendants did not violate plaintiff's due process rights when they informed him of the policy that governed an inmate's decision to refuse TB testing. Instead, they followed a policy that provided a similar test-or-segregate alternative that courts have uniformly regarded constitutional. McCormick, Westbrook, Mack, andRhinehart, supra. Plaintiff has not and cannot state viable due process claims in relation to the DOC's TB-testing policy; such claims should be dismissed.
III. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS PROVIDES PLAINTIFF WITH NO BASIS FOR RELIEF.
Plaintiff makes repeated reference in his complaint to the Universal Declaration of Human Rights ("Declaration"). A. Res. 217A (III), U.N. Doc. A/810 (1948). See generally Compl. However, the Declaration does not impose obligations as a matter of international law. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2767 (U.S. 2004). Moreover, the Declaration is "neither a statement of law nor does it create a legal obligation which could support a cause of action." Mugmuk v. Beyer, Nos. CIV. Nos. 86-3552(AET), 86-3753(JCL) and 86-4010(AET), 1988 WL 80875, *2 (D.N.J. Aug. 1, 1988) (citing Haitian Refugee Center, Inc. v. Gracey, 600 F. Supp. 1396, 1406 (D.D.C. 1985) aff'd, 809 F.2d 794 (D.C. Cir. 1987); Dickens v. Lewis, 750 F.2d 1251, 1254 (5th Cir. 1984)). See Carpa v. Smith, No. CIV 96-1435, 1998 WL 723153, *6 (D. Ariz. July 20, 1998) (Declaration does not support a cause of action). Therefore, all of plaintiff's claims related to the Declaration must be dismissed.
CONCLUSION
For the above-mentioned reasons, the Court should grant Commonwealth defendants' Motion to Dismiss.