New York State Court of Claims

New York State Court of Claims

TOWLES v. THE STATE OF NEW YORK, #2000-013-007, Claim No. 98423, Motion No. M-60751


Defendant's Motion to Dismiss claim alleging tuberculin (PPD) skin testing by Department of Correctional Services violated inmate's religious rights is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: EARL F. GIALANELLA, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 9, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On March 15, 2000, the following papers were read on Defendant's motion for summary judgment:

1. Notice of Motion

2. Affirmation of Earl F. Gialanella, Esq. and Annexed Exhibits

3. Affidavit of Lester N. Wright and Annexed Exhibit

4. Affidavit of Judith A'Hearn and Annexed Exhibit

5 Affidavit in Opposition

6. Claim

7. Answer

In an effort to thwart the spread of tuberculosis among the inmate population, the Department of Correctional Services (DOCS) promulgated Health Services Policy, Item #1.18 dated May 20, 1996. Among other things, the policy calls for inmates to be screened for the presence of tuberculin reactivity upon entry into DOCS custody and at least annually thereafter. It also calls for "skin test of any inmate who arrives on transfer without a PPD test result or valid deferral within the previous 12 months."

Claimant, like a number of other inmates, believes that one of the tests Defendant uses to screen inmates for tuberculosis infringes upon his religious rights as a Muslim.[1] The test is called the Mantoux Tuberculin (PPD) Skin Test. It involves injecting a purified protein derivative into the subject's forearm and monitoring the forearm for signs of induration (swelling).

On December 23, 1997, Claimant, who was then confined to the Southport Correctional Facility (Southport), refused to take the PPD test. Claimant alleges that he told a Southport nurse that the test violated his fundamental religious beliefs.

In this claim, he seeks to recover damages for the recreation, visitation and religious worship privileges he says he lost and the keeplock confinement he endured after he refused to take the PPD test. Claimant also alleges that Defendant eventually coerced him into taking the PPD test by verbally harassing him, by withholding medical attention he needed for a facial inflammation condition, and by telling him that he would not get medical attention and would continue to be keeplocked without privileges indefinitely unless he took the PPD test. He seeks damages for the injury to his religious rights that was brought about by the alleged coercion.

Defendant acknowledges that it placed Claimant on "TB hold" from January 13, 1998 to May 13, 1998 because Claimant refused to take the PPD test. Defendant also explains that inmates on TB hold are isolated from the general population, confined to their cells for 23 hours a day, and lose certain privileges. Defendant asserts, however, that the claim must be dismissed because: (1) the deprivations Claimant experienced were authorized by its Health Services Policy; (2) the policy was rationally related to an important State interest -- the need to control and eradicate tuberculosis; and (3) Claimant has not come forward with sufficient evidence showing that PPD testing is prohibited by his religion.

On the record before me, I must deny the motion. It is well settled that Defendant can be held liable in damages when it deviates from its own written policies in confining an inmate or limiting his privileges (Arteaga v State of New York, 72 NY2d 212, 220-221; Gittens v State of New York, 132 Misc 2d 399, 406-407) Although Defendant claims that it adhered to its own Health Services Policy, I conclude that the policy is ambiguous and that there are factual issues as to whether Defendant's assertion is correct.

First, Defendant's affidavits aver that Claimant was confined to tuberculin hold because he refused to submit to a PPD test (Gialanella Affirmation, ¶4; A'Hearn Affidavit, ¶3). It is not clear from the policy, however, that tuberculin hold may be imposed simply because an inmate refuses to take the test. Section IV.A.4 of the policy, the only section that expressly deals with inmates who refuse PPD testing, provides only that inmates who refuse PPD testing "should be carefully counseled about the importance of this test." Moreover, the provision of the Health Services Policy that specifically addresses the grounds for placing an inmate in tuberculin hold does not mention refusal to take the PPD test as grounds justifying tuberculin hold:
If the inmate has a history of TB exposure or a positive PPD and shows no signs of TB disease, he should be strongly encouraged to take prophylaxis with INH. If the inmate agrees to prophylaxis, he may be released to the general population. Inmates who do not agree to prophylaxis and are HIV positive or have risk factors for HIV, will be placed in the Respiratory Protective Unit (RPU). Inmates that have no risk factors for HIV will be placed on tuberculin hold.
(Health Services Policy IV.A.4.b.) Though the policy is not clear, the provision quoted above suggests that an inmate who refuses to take the PPD test will be confined to TB hold only if he or she has a history of TB exposure, has refused to take prophylaxis, and has no risk factors for HIV.

In the instant case, there is no proof that Claimant had a history of TB exposure or was even offered a chance to take prophylaxis. Nor is there any proof regarding his HIV status. Thus, there are material issues of fact as to whether the tuberculin hold Claimant endured was authorized by the Health Services Policy.

Even if the hold was authorized, however, issues of fact remain as to whether Defendant adhered to its policy. In his affidavit, the Assistant Attorney General makes clear that inmates who are on TB hold are given one hour daily exercise outside their cell (Gialanella Affirmation, ¶5; see also, Health Services Policy ¶IV.A.4.c). Claimant alleges, however, that he was deprived of recreation while he was in tuberculin hold -- a seeming violation of Defendant's policy.

Finally, Defendant's affidavits and the Health Services Policy make clear that the longest period of time Claimant could be confined for refusing to take the PPD would be one year -- provided Claimant showed no signs of active TB on three x-rays taken over that period. However, Claimant alleges that he was told that his confinement would last indefinitely unless he submitted to the test. Although Claimant was actually kept in tuberculin hold for only four months, the representations allegedly made to him about the potential duration of his confinement must have weighed heavily in his ultimate decision to submit to the test.

Since it is not clear that Defendant followed its own policy, the motion is denied. I express no opinion about whether Defendant's Health Services Policy as written and as applied to Claimant in this case impermissibly infringes upon Claimant's right to freely exercise his religion or whether Claimant may pursue a claim in this Court for damages for any such constitutional infringement (see, NY Const, art I, §3; Brown v State of New York, 89 NY2d 172, 186-187; see also, Reynolds v Goord, 2000 USD LEXIS 2140, supra [denying summary judgment to State of New York in an action challenging the constitutionality of Health Services Policy, Item #1.18]; Matter of Bailey v Goord, 174 Misc 2d 632 [upholding Health Services Policy, Item #1.18]).

June 9, 2000
Rochester, New York

Judge of the Court of Claims

  1. [1]For a sample of cases where inmates have alleged that the test at issue in this case violated the tenants of their religion, see, Jolly v Coughlin, 76 F3d 468; Reynolds v Goord, 2000 USD LEXIS 2140; Africa v Horn, 998 F Supp 557 [ED Pa, 1998]; Giles v. Coughlin, 1997 USD 11129; Williams v Greifinger, 97 F3d 468 [2nd Cir 1996]; Matter of Bailey v Goord, 174 Misc 2d 632.