New York State Court of Claims

New York State Court of Claims

TOWLES v. THE STATE OF NEW YORK, #2002-019-021, Claim No. 98423


Claimant failed to establish that State violated tuberculosis testing policy. Claim dismissed.

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:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
September 26, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, a
pro se inmate, brings this Claim alleging that he was improperly placed in keeplock from January 13, 1998 to May 13, 1998, due to his refusal to submit to a tuberculosis (hereinafter "TB") test while in the custody of Department of Correctional Services at Southport Correctional Facility (hereinafter "Facility"). The trial of this Claim was held at the Elmira Correctional Facility on June 25, 2002.

Claimant testified that on or about December 23, 1997, while at the Facility he informed one of the Facility nurses that he would not take a TB PPD (Purified Protein derivative) injection test because that particular test violated his fundamental religious beliefs. Claimant indicated that he would take or submit to alternative TB tests (x-ray, blood, sputum, etc.). On or about January 13, 1998, the Claimant testified that he was placed on visit restriction and continuously harassed by Facility personnel with other threats. On April 30, 1998 Claimant received an x-ray TB test which Claimant alleges was negative. Claimant stated, however, that he was continuously kept on visit restriction as well as placed on keeplock and recreation deprivation. Also, Claimant was deprived of attendance at Islamic religious services which occurred on May 9, 1998. Claimant continuously requested to attend these religious services which requests were denied due to the failure of the Claimant to take the TB PPD test. Claimant testified that on May 13, 1998 he was advised by one of the Facility nurses that the only way he would be able to get off keeplock and go to his Islamic religious services was if he took the TB injection test. Otherwise, Claimant stated, he was advised that keeplock, and recreation and visit deprivation would remain indefinitely. Claimant testified that he subsequently relented and on May 13, 1998 the TB PPD injection test was given to Claimant with negative results. In sum, Claimant alleges that for seventeen weeks he was wrongfully deprived of visits, placed in keeplock for seven days, and suffered recreational deprivation, as well as missing various religious services and Islamic classes. He states that he was coerced into taking the injection test in violation of his religious beliefs all resulting in various forms of damage. Claimant rested.

The State called Registered Nurse Agnes Peters, who has been a nurse for ten years at the Facility. Nurse Peters described the statewide TB policy and presented State Rules and Regulations regarding that policy that were enacted at the time this Claim accrued. In sum or substance this policy states that inmates who object or refuse to take the TB PPD test on religious grounds or otherwise should be placed in medical keeplock until either they submit to the PPD test or show no active signs of tuberculosis on chest x-rays for a period of one year. Nurse Peters further testified that daily contact should be made with these inmates to determine if they are willing to take the test. During the one year period, these keeplocked inmates should be tested by other acceptable methods and monitored to see if full fledged TB should develop or occur within the inmate. The nurse further testified that after initial refusal the Facility policy was that she was required to go back every day for at least seven days to ask the inmate to reconsider. Then once a week for the next four weeks, followed by a visit one time per month for the next six months. The witness testified that she never argues with an inmate's religious beliefs, however, she has no hesitation in seeing that the Facility policy with regard to TB testing is followed.

It is well-settled that the DOCS' tuberculosis testing policy has been deemed constitutional. More specifically, the Third Department has stated:

[w]e conclude that the policy requiring inmates to submit to the PPD test or face confinement in medical keeplock for a period of one year is reasonably related to the legitimate penological interest in preventing the spread of tuberculosis within the prison system by restricting exposure to inmates who refuse to submit to tuberculosis testing during the one-year period that active symptoms of the disease are most likely to develop [citations omitted].

(Rossi v Portuondo, 277 AD2d 526, lv denied 96 NY2d 706). Consequently, this Court finds that the hold was authorized by DOCS' policy. Moreover, while there is clearly an inconsistency between the Claimant's version of events and the State's version as testified to by Nurse Peters, the Court resolves those inconsistencies in favor of the State. The Court finds that Nurse Peters performed her duties in accordance with stated DOCS' policy with an eye toward furthering a legitimate statewide goal of maintaining the health of inmate populations at its correctional facilities. Furthermore, the Court finds it incredible that Nurse Peters at any time said, as Claimant alleges, that the Claimant would be keeplocked for his entire stay at the correctional facility. Rather, the Court believes that Nurse Peters simply followed statewide policy in accordance with DOCS' directives and acted exactly as she testified at trial.

For the reasons as stated above, Claim No. 98423 is hereby DISMISSED.

Any and all motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


September 26, 2002
Binghamton, New York

Judge of the Court of Claims