The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
Plaintiff, Moises Maldonado ("Maldonado"), filed a complaint on June 5, 1998, challenging the medical treatment he has received while incarcerated in Bayside State Prison ("Bayside"). Maldonado seeks recovery of damages pursuant to 42 U.S.C. § 1983, alleging that the lack of frequent testing for tuberculosis and the defendants' deliberate indifference to the potential adverse side effects from his treatment violate his constitutional right to be free from cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. Defendants' filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. Because plaintiff has failed to allege facts to support a deliberate indifference claim under § 1983, defendants' motion to dismiss will be granted and plaintiff's complaint will be dismissed in its entirety. Plaintiff's request to bring this claim as a class action is denied.
Plaintiff, Moises Maldonado, tested positive for the presence of tuberculosis infection during his current incarceration in Bayside. Plaintiff alleges that he had prior negative tests on July 30, 1995 and again in July of 1996 while in the Cape May County Jail. After being transferred to Bayside he again tested negative on March 7, 1997. On March 18, 1998, plaintiff was again tested, but this time the result was positive. Maldonado alleges that, within a week of his positive test results, Correctional Medical Services ("CMS") performed additional examinations and tests to determine the appropriate treatment, including an examination of plaintiff's liver, chest x-rays and several blood tests. Prior to issuing any medication, CMS administered an additional tuberculosis test which confirmed the positive result.
The defendant was given several types of medication and it was explained to him that he would be taking this medication for a period of six months. The defendant maintains that on July 2, 1997, he was told, by an unnamed source, that the medication he was taking "has been found to have serious side effects and that it was damaging" his liver. (Complaint at p. 8.) Petitioner asserts that he was notified, again by an unnamed source, that his medication would be changed, but that as of the filing of the complaint he was still being given the same medicine.
The gravamen of plaintiff's complaint is that testing should be done every six months, rather than yearly, and that his medication should be changed because one of its possible side effects is liver damage.
To understand the complaint a basic understanding of tuberculosis and the response of the New Jersey Department of Corrections to its threat is required. Most of this basic background is set forth in some detail in Karolis v. New Jersey Department of Corrections, 935 F.Supp. 523 (D.N.J. 1996). *fn1 The Department of Corrections on December 1, 1992, adopted a comprehensive plan to deal with the hazards of tuberculosis contained in a lengthy memorandum entitled "Department of Corrections Tuberculosis Control and Surveillance Policy" (referred to hereafter as "DOC Control Policy").
The heart of the DOC Control Policy is the administration of the Mantoux test to all prisoners upon their arrival at a state facility and the testing of all prisoners and DOC employees on a yearly basis. This test is described in Karolis, 935 F. Supp. at p. 528-529. A positive test result, however, does not necessarily mean that the patient has an active case of tuberculosis. There are five tuberculosis classifications ranging from TB0 (no exposure, no infection) through TB5 (possible tuberculosis, status unknown [`rule out' TB]). TB2 describes people who have tested positive but are asymptomatic (latent infection, no disease). Individuals showing actual symptoms are characterized as having active tuberculosis, TB3. See Chaisson, at . It is not clear from the complaint whether plaintiff is TB2 or TB3.
A prisoner who tests positive is then subject to additional tests for the purpose of determining whether the disease is active and to determine what treatment, if any, is appropriate. For those determined to be TB2 a decision must be made whether to begin prophylactic therapy:
Isoniazid preventive therapy is the preferred approach for prophylaxis against tuberculosis in the United States. Individuals who are candidates for preventive therapy are those with positive tuberculin skin tests and risk factors for tuberculosis or individuals exposed to tuberculosis in an infectious case who are at high risk of acquiring infection and disease. Chaisson, at .
There are five categories of individuals for whom Isoniazid treatment is recommended. Plaintiff clearly falls into two of those classes: Individuals under the age of 35 *fn2 in areas of TB prevalence (plaintiff alleges, correctly, that prisons fit into this category) and persons who may be in close contact with others known or suspected to have TB. Other categories of persons for whom preventative therapy is recommended are drug users, those who are HIV positive and those with a variety of other medical risk factors (Silicosis, 10% underweight, chronic renal failure, diabetes, etc.). Chaisson, Figure 8 at . The significance of age 35 is that a possible Isoniazid side effect, liver damage, is more prevalent in persons over 35 than under that age:
The most common drug side effect during therapy for tuberculosis is hepatotoxicity. Isoniazid, rifampin and pyrazinamide [the three most common TB drugs] are all hepatotoxic, though adverse reactions are more common with isoniazid. Baseline liver function tests should be obtained for all patients beginning treatment, and monthly monitoring is recommended for patients with baseline abnormalities or concomitant liver disease. Clinical monitoring is appropriate for all other patients. When evidence of hepatitis develops, all drugs should be stopped until signs and symptoms ...