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July 19, 1996

JOHN KAROLIS, Plaintiff,

The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Plaintiff John Karolis ("Karolis"), a New Jersey prison inmate, seeks an injunction declaring that he need not submit to the Mantoux tuberculosis ("TB") test, a subcutaneous injection which plaintiff claims violates the tenets of his Christian Science faith. Because preventing the spread of TB is a compelling state interest that cannot be met by a less restrictive means, the Court finds that neither the First Amendment nor the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. 2000bb-1, prevents prison officials from administering the Mantoux test to plaintiff.


 On May 5, 1995, plaintiff sued the New Jersey Department of Corrections ("NJDC") and prison officials J. Russell Knight ("Knight"), Lance D. Meehan ("Meehan"), Robert D. Edmiston ("Edmiston"), Roland L. Hester ("Hester"), and John J. Rafferty ("Rafferty"). Citing RFRA and 42 U.S.C. § 1983, he alleged violation of his rights under the First Amendment Free Exercise Clause, the Fourteenth Amendment Due Process Clause, the New Jersey Constitution, and state regulations governing inmate discipline. Plaintiff also sought state law tort damages for negligent or intentional infliction of emotional distress.

 The heart of the demanded relief is an injunction barring state prison officials from administering the Mantoux TB test and from punishing him for his refusal to submit to the test. He also sought compensatory damages, punitive damages, and reasonable attorney fees and costs. By Consent Order dated September 20, 1995, the parties agreed to dismiss the due process claims against NJDC, Edmiston and Meehan and all claims against NJDC for monetary relief.

 On April 1, 1996, NJDC moved to dismiss the complaint arguing that it was entitled to Eleventh Amendment immunity. The Court denied the motion, finding that the RFRA clearly expressed a congressional intention to abrogate the states' usual Eleventh Amendment immunity from suit in federal court. Karolis v. New Jersey Department of Corrections, No. 95-2241 (D.N.J. May 6, 1996). The Court ordered the parties to submit affidavits identifying the type, invasiveness, effectiveness, expense, and ease of administration of TB testing currently used in the New Jersey prison system. The Court has received briefs and affidavits from both sides and now considers whether the case warrants summary judgment pursuant to Fed. R. Civ. P. 56.

 The plaintiff, currently incarcerated at the Northern State Prison ("Northern State"), has been a Christian Science believer for approximately seventeen years. On May 11, 1993, while incarcerated at Southern State Correctional Facility ("Southern State"), plaintiff refused to submit to the Mantoux test, asserting that his religious beliefs opposed intrusive medical procedures. As required, Karolis signed a form titled "Refusal of Medical Treatment," and received a disciplinary charge for "refusal to cooperate in following a prescribed course of treatment." N.J.A.C. 10A:4-4.1.707. NJDC hearing officer Knight found Karol is guilty and imposed a seven day loss of privileges, despite plaintiff's assertion of his religious beliefs and his rights under N.J.A.C. 10A:16-5.1 (a)(2). *fn1" On May 18, 1993, Karolis was summoned again for the Mantoux test, again refused and was again charged with the same prison infraction for his refusal. On June 15, 1993, NJDC hearing officer Meehan found plaintiff guilty and imposed another seven days loss of privileges.

 Karolis appealed both hearing officer decisions to Edmiston, the Southern State Superintendent, citing his religious convictions and N.J.A.C. 10A:16.5.1 (a)(2). Hester, Southern State's Assistant Superintendent, who was serving as Edmiston's designate, upheld the disciplinary charges. Plaintiff then appealed to Rafferty, Deputy Director of the Division of Operations of the Department of Corrections, who also upheld the hearing officer decisions and stated that inmates who refuse to submit themselves to the TB test "must be charged with .707 'refusal to cooperate in following a prescribed course of treatment.'" DOC Control Policy at III.B.2.(c).(2).

 Plaintiff asserts that he was threatened with solitary confinement, administrative segregation, and loss of commutation time if he again refused the Mantoux test. Apparently succumbing to this threat, plaintiff agreed to the test, which found no evidence of TB.

 On March 15, 1995, after plaintiff's transfer to Northern State, he was again asked to submit to the Mantoux test. Plaintiff again refused and was again threatened with solitary confinement and administrative segregation to induce compliance. The record does not indicate whether plaintiff took a TB test in 1995, but he filed this complaint on May 5, 1995.

 Under current NJCD policy the Mantoux test is administered annually. Lavietes Aff. at P 3. If a person tests positive or exhibits symptoms of TB (e.g. chronic cough, weight loss, hemoptysis *fn2" ), prison medical personel will administer a chest x-ray. *fn3" Lavietes Aff. at P 4. An abnormal chest x-ray may be sufficient for a diagnosis of TB, or it may be confirmed by a sputum culture (saliva specimen) or a urine test. Id. All inmates with a positive Mantoux test and an abnormal chest x-ray are admitted to the St. Francis Medical Center and immediately placed in isolation. DOC Control Policy at III.B.1.(e). *fn4"

 An inmate refusing medical treatment will be directly admitted to any facility which can provide respiratory isolation. *fn5" Id. This procedure is mandated under Chapter II of the State Sanitary Code. N.J.A.C. 8:57-1.1 to 1.12. If an inmate tests positive on the Mantoux test without a diagnosis of TB, the prison considers preventative therapy with isoniazid. Lavietes Aff. at P 6. The prison does not administer isoniazid therapy to all inmates because it can cause liver dysfunction in older individuals. Id. Inmates who refuse the Mantoux test are charged with a disciplinary infraction. DOC Control Policy at III.B.2.(c).(2). There is no requirement that inmates with a positive reaction submit to preventative isoniazid therapy, nor is there a provision for charges or punishment for refusing to accept the medication. See DOC Control Policy at III.B.1.(d).

 Plaintiff argues that there are other, less intrusive, procedures to effectively test for TB which do not violate the tenets of his religion. Plaintiff claims that some or all of the defendants are aware that alternatives exist and have failed to make any effort to accommodate his religious beliefs.


 A. The Religious Freedom ...

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