United States District Court, D. New Jersey
August 22, 2005.
ANTHONY BOONE, Plaintiff,
DEVON BROWN, et al., Defendants.
The opinion of the court was delivered by: ANNE THOMPSON, Senior District Judge
Plaintiff, Anthony Boone, confined at the East Jersey State
Prison in Rahway, New Jersey, at the time this action was
submitted for filing, seeks to bring this action in forma
pauperis pursuant to 28 U.S.C. § 1915. Based on plaintiff's
affidavit of indigence, the Court grants the application to
proceed in forma pauperis and directs the Clerk of the
Court to file the Complaint without pre-payment of the filing
Having reviewed the Complaint, to identify cognizable claims
pursuant to 28 U.S.C. § 1915(e)(2), the Court concludes that the
Complaint should proceed in part. Petitioner also filed a motion
for a preliminary and/or permanent injunction seeking an Order enjoining defendants from harassing and retaliatory actions
against him. The motion was made returnable on the papers on
August 1, 2005. For the reasons set forth below, preliminary
injunctive relief shall be granted in part.
Plaintiff, Anthony Boone ("Boone") is currently serving his
prison term at East Jersey State Prison ("EJSP"). He brings this
civil rights action against the following defendants: Devon
Brown, Commissioner of the New Jersey Department of Corrections
("DOC"); James Barbo, DOC Director of Operations; Richard
Cevasco, DOC Assistant Director of Operations; C.A. Lucca, DOC
Quality Assurance; Sheila Lee, DOC Quality Assurance Coordinator;
Gary Sheppard, DOC Chief Hearing Officer; R. Makarski, DOC
Hearing Officer; Roy L. Hendricks, Administrator of New Jersey
State Prison ("NJSP"); Shirley Tyler NJSP Assistant
Administrator; Donald Mee, Jr., NJSP Assistant Superintendent;
Mary Amato, NJSP Nurse; Barber Marshall, NJSP Nurse; and Frank
Bruno, NJSP Inmate Request/Remedy Form Coordinator. (Complaint,
Caption, ¶¶ 3b, 3c). The following factual allegations are taken
from the Complaint and are accepted as true for purposes of this
In 1992, Boone submitted to a mandatory Mantoux Skin Test for
detection of tuberculosis ("TB"). He alleges that he suffered a severe allergic reaction to the test.*fn1
Defendant Nurse Sheila Lee, who had administered the test,
examined Boone two days later and assured plaintiff that he had
"nothing to worry about and the symptoms would subside in a few
days, but are not life-threatening." The following year, in 1993,
Boone suffered the same reaction after the test was administered;
however, the symptoms lasted longer and were more severe. Boone
alleges that he continued to suffer an allergic reaction each
time the test was administered. Each time he complained to Lee,
and she told him the symptoms would pass.*fn2 Eventually,
Boone requested a doctor's evaluation. Lee never made any
notation of his complaints of allergic reaction, and she failed
to note Boone's request for a physician's evaluation. (Compl.,
"Statement of Claim", ¶ 4, pg. 5).
In 1994 and 1995, Boone requested alternative means of testing
for TB. These requests were either ignored or denied. In 1994,
Lee issued a disciplinary charge against Boone for refusing to
submit to the Mantoux Skin test. This charge was later downgraded
and dismissed. From 1996 to 2002, Boone continued to request alternative means of testing, but each
request was refused. However, no disciplinary charges were issued
against him. During this same time period and into 2003, Boone
also filed inmate remedy forms on this issue. (Id. at pgs.
In 2003, after Boone again sought alternative testing, he was
issued a disciplinary charge. A hearing was conducted before
defendant Makarski in plaintiff's absence. Boone was found guilty
and sanctioned by verbal reprimand. When Boone attempted to
appeal the charge by correspondence, he was informed that verbal
reprimands are not appealable, despite the fact that any
disciplinary infraction may serve to deny inmate incentive
privileges, such as food package, special recreation, and
institutional employment. Disciplinary infractions also may
affect parole considerations. (Id. at pg. 7).
At some point in time, defendant Nurse Barber Marshall told
Boone that it was impossible for him to have allergic reactions
to the skin test because the test ingredients are synthetic. She
also told plaintiff that his request for an alternate test was
denied for this reason. Boone later learned through a source in
the medical department that the manufacturer of the test had
issued warnings of possible side effects to the tuberculin or its
components that are used in the TB test. (Id. at 8). On February 9, 2004, Officer Burton approached Boone for the
annual TB test. Burton informed Boone that he need not come out
of his cell if Boone declined the test. Boone again requested an
alternative test. That same day, Nurse Marshall allegedly claimed
that she had offered the test to Boone but Boone declined. Boone
asserts that he did not come into contact with Marshall that day.
On March 30, 2004, Burton and a health professional came to
counsel Boone about the Mantoux skin test. Boone again related
his history of allergic reaction to the test in the past. Boone
alleges that he wrote numerous letters to the administrative
officials in the DOC and at NJSP, requesting alternative testing
and complaining of his reactions to the skin test to no avail. He
states that Correctional Medical Services ("CMS") repeatedly told
him that it was impossible to have an allergic reaction to the
skin test. (Id. at 9).
On April 2, 2004, Boone was charged with violating a prohibited
act #.260, i.e., refusing to submit to mandatory medical
testing. An initial courtline proceeding was held before Hearing
Officer Makarski on April 6, 2004. Boone entered a plea of not
guilty and sought cross-examination of the officers who wrote the
disciplinary report and all witnesses to the incident. Boone
contends that Makarski postponed the hearing, but told plaintiff
that after his confrontation, Makarski will find him guilty and send Boone to administrative segregation. On three
later occasions, April 8, 13, and 15, 2004, Makarski postponed
the hearing, instructing Boone to either retype or resubmit his
confrontation questions. A fifth hearing was eventually convened
on April 29, 2004. (Id. at 10).
At the April 29, 2004 hearing, Boone allegedly confronted
Officer Burton and Nurse Marshall and was able to dispute Nurse
Marshall's purported contact with Boone on February 9, 2004.
However, the remainder of the hearing was postponed. On May 12,
2004, a seventh hearing was held and two unit officers were
questioned. They confirmed that Nurse Marshall did not meet with
Boone on February 9, 2004. Another hearing on May 18, 2004 was
held and defendant Lucca was questioned regarding the basis for
the disciplinary report. It was allegedly revealed that Lucca
never offered the TB test to Boone or spoke to him. Lucca had
relied on the complaint by the unknown health department
employee, who was never identified. (Id. at 10-11).
A final hearing was held on May 20, 2004. Boone was not able to
confront the health department worker who had allegedly counseled
him, nor did he receive a copy of the statement by the Quality
Assurance Coordinator. Makarski found Boone guilty of the
disciplinary charge and sanctioned him to 15 days detention, 180
days administrative segregation, 180 days loss of commutation
time, and 30 days loss of privileges. (Id. at 11). Since May 2004, Boone has been confronted by numerous officers
telling him to stop writing remedy forms or they would make his
life a "living hell". However, Boone continued to write to DOC
officials, the U.S. Department of Health, and the manufacturing
companies for the TB skin test. The DOC officials refused to
investigate Boone's complaints. Nevertheless, after writing to
one manufacturer, Boone received a certified letter from
Frederick L. Ruben, M.D., Director of Scientific and Medical
Affairs. The letter informed Boone that there were other
non-serious reactions to Tubersol and it would be advisable for
Boone not to receive Tubersol in the future. (Id. at 12-13).
Boone alleges that the defendants were deliberately indifferent
to his medical complaints and request for an alternative TB test.
He also claims that defendants retaliated against him for
registering complaints. Boone seeks injunctive relief directing
defendants to stop harassing him, releasing him from double lock,
and allowing Boone to decline TB testing that is harmful to him.
He also asks for compensatory and punitive damages in excess of
On June 7, 2005 and June 27, 2005, Boone filed a motion for
preliminary and permanent injunctive relief.*fn3 In support
of his motion, plaintiff wrote to the Court complaining that he
was placed in medical isolation and verbally threatened on several
occasions in April 2005. In May 2005, Boone alleges that he was
wrongfully charged with assaulting an officer. Sheppard
sanctioned Boone to 90 days administrative segregation. Boone was
place in "double lock" with another inmate and has been denied
his property since May 20, 2005. He seeks immediate release from
administrative segregation and cessation of all harassment.
Boone also submitted an amended complaint on June 27, 2005. He
names additional defendants, Elmire Kapchits, physician at EJSP;
Michael Powers, NJSP Assistant Administrator; Alfaro Ortiz, Jr.,
EJSP Administrator; Christina M. Prestien, EJSP Nurse; Jane Doe,
EJSP Nurse; and John Doe, EJSP correctional officer. New
allegations catalog repeated instances of harassment in
retaliation for Boone's complaints about TB testing, and
deliberate refusal to provide alternative means of testing for TB
for plaintiff's and inmate protection from the prevalent and
highly contagious disease.
For instance, on January 13, 2005, Boone's request for a
transfer to EJSP was denied, but on January 18, 2005, he was
abruptly transferred to EJSP. (Am. Compl., ¶¶ 52, 54). On January
15, 2005, Boone's cell was searched and a copy of his complaint
was confiscated. (Id. at ¶ 53). On February 16, 2005, Boone was
called for a TB test. He related to Nurse Prestien the history of his allergic reaction to the test and a letter
regarding his legal battle. She did not offer to give him the
test, but did ask if he suffered from TB related symptoms, to
which plaintiff responded in the negative. (Id. at ¶¶ 55-58).
On March 3, 2005, Dr. Kapchits gave Boone a blood test and
informed Boone that he had abnormal liver function. He has not
received the results of the blood test; however, Dr. Kapchits
told plaintiff that he would not be contacted if the results were
negative. (Id. at ¶ 59-60).
On March 8, 2005, a per curiam decision was issued by
Judges Wecker and S.L. Reisner of the Superior Court of New
Jersey, Appellate Division, with respect to Boone's appeal of the
disciplinary charge and resulting sanction for committing a
prohibited act in refusing to submit to mandatory TB testing.
Boone received the decision on March 15, 2005. He does not attach
a copy of the decision, but states that the court remanded the
matter for re-hearing. Boone further states that the court found
that he was denied the right to confront the witnesses against
him and was improperly limited to submitting written,
pre-approved questions to be answered by the witnesses. The court
also noted that Boone raises issues of constitutional dimension
that cannot be decided in the absence of a proper factual record.
The court further acknowledged federal court precedent supporting
the DOC's right to administer TB tests over an inmate's religious objections. See Karolis v. New Jersey
Dep't of Corrections, 935 F. Supp. 523, 528 (D.N.J. 1996).
However, the case did not address an inmate's right to
alternative TB testing in the event of allergic reaction to the
Mantoux skin test. The court concluded that Boone was entitled to
a new hearing to adjudicate the issues forming the basis for his
objections to the Mantoux skin test, including the history of his
adverse reactions, the availability of other tests, and any
religious objections to the skin test. The court gave the DOC 45
days to convene a hearing and render a final written
determination, which determination was to be forwarded to the
court. The state court retained jurisdiction over the matter.
(Id. at ¶¶ 61-62).
The first hearing date of April 1, 2005 was postponed and the
matter rescheduled for April 4, 2005. Boone submitted specific
requests for discovery relating to confrontation and
cross-examination of certain witnesses, to review all evidence
against him, and to have a medical professional from EJSP answer
questions about the DOC policy concerning TB and TB testing, and
alternatives to the Mantoux skin test. The hearing officer
questioned the authenticity of plaintiff's July 27, 2004 letter
from the Aventis Company regarding allergic reactions to TB
testing. The hearing was postponed for additional information and
preparation. (Id. at ¶¶ 64-67). On April 7, 2005, Officer John Doe approached Boone and
threatened him with retaliatory action if Boone did not drop his
lawsuit. On April 11, 2005, the hearing was again postponed for
further information. On April 13, 2005, Boone asked to see a
doctor and was denied. He also asked to have his property and a
shower, both of which were denied. On April 14, 2005, Boone was
needlessly handcuffed for transport for a chest x-ray. The
handcuffs were not removed for the x-ray so Boone had to have a
second x-ray. He has not received any results from the x-ray.
That same day, Boone received his medical record request, but the
records failed to note that he never actually refused the test,
although it did document his allergic reactions and the on-going
court proceedings. Boone also learned that Nurse Jack made a
false medical report claiming to have counseled Boone about HIV
post-test counseling. (Id. at ¶¶ 68-84, 87).
Boone requested his property and a shower on April 15, 17, 18,
and 19, 2005. All requests were denied. On April 16 and 19, 2005,
he filed a remedy form with regard to his placement on medical
isolation on April 12, 2005. On April 22, 2005, Boone received a
response that he was released from medical isolation. He confirms
that he was released on April 19, 2005. Boone submitted another
remedy form on April 27, 2005 with respect to the lack of medical
counseling he was required to receive under DOC Tuberculosis
Policy. (Id. at ¶¶ 88-102). A fourth hearing was scheduled for April 28, 2005 and was
postponed for additional information. Boone was again placed in
medical isolation. A May 4, 2005 hearing was postponed and Boone
was informed that the hearing officer did not need to see
plaintiff, only a paralegal. On May 5, 2005, Boone was informed
by the paralegal that the hearing officer dismissed the charge on
numerous grounds. Boone contends that the charge was dismissed so
as to avoid having to comply with the directives of the Appellate
Division and to leave the door open for future charges. (Id. at
Finally, plaintiff complains that he was denied outdoor
recreation for a total of 90 days during his 180 days in
administrative segregation. (Id. at ¶¶ 108-112). His amended
complaint continues to seek injunctive relief from harassment and
retaliation, double-lock, and the Mantoux skin test. He also
seeks further compensatory and punitive damages in excess of $1
million, and the return of his 180 days commutation credits and
II. STANDARDS FOR A SUA SPONTE DISMISSAL
The Court is required to identify cognizable claims and to
sua sponte dismiss any claim that is frivolous, malicious,
fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief, where the plaintiff is a prisoner or is proceeding in forma
pauperis. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court
must "accept as true all of the allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the plaintiff." Morse v.
Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The
Court need not, however, credit a pro se plaintiff's "bald
assertions" or "legal conclusions." Id.
A complaint is frivolous if it "lacks an arguable basis either
in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325
(1989) (interpreting the predecessor of § 1915(e)(2), the former
§ 1915(d)). The standard for evaluating whether a complaint is
"frivolous" is an objective one. Deutsch v. United States,
67 F.3d 1080, 1086-87 (3d Cir. 1995).
A pro se complaint may be dismissed for failure to state a
claim only if it appears "`beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.'" Haines, 404 U.S. at 521 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson,
652 F.2d 371, 373 (3d Cir. 1981). Where a complaint can be remedied by an amendment, a district
court may not dismiss the complaint with prejudice, but must
permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34
(1992); Alston v. Parker, 363 F.3d 229 (3d Cir. 2004)
(complaint that satisfied notice pleading requirement that it
contain short, plain statement of the claim, but lacked
sufficient detail to function as a guide to discovery, was not
required to be dismissed for failure to state a claim; district
court should permit a curative amendment before dismissing a
complaint, unless an amendment would be futile or inequitable);
Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir.
2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane v.
Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal pursuant
to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police
Dept., 91 F.3d 451, 453 (3d Cir. 1996).
III. SECTION 1983 LIABILITY
Plaintiff brings this action pursuant to 42 U.S.C. § 1983
alleging violations of his constitutional rights. Section 1983
provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory . . . subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. . . . Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d
Construing the Complaint most liberally for the pro se
plaintiff, the Court finds that Boone alleges the following
claims: (1) denial of medical care; (2) retaliation; (3) denial
of recreation; (4) denial of due process with respect to medical
isolation; (5) denial of disciplinary due process; and (6)
restoration of commutation and work credits.
A. Denial of Medical Care
Boone appears to claim that he is being denied alternative
means of testing for TB, which is a prevalent and highly
contagious disease in prison. Based on the allegations in the
Complaint, it seems that Boone has not received a TB test since
1993 because he has stated an allergic reaction to the mandatory
Mantoux skin tests administered by the DOC in New Jersey prisons.
The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-04
(1976); Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999). In
order to set forth a cognizable claim for a violation of his
right to adequate medical care, an inmate must allege: (1) a
serious medical need; and (2) behavior on the part of prison
officials that constitutes deliberate indifference to that need.
Estelle, 429 U.S. at 106; Natale v. Camden County Correctional
Facility, 318 F.3d 575, 582 (3d Cir. 2003).
To satisfy the first prong of the Estelle inquiry, the inmate
must demonstrate that his medical needs are serious. "Because
society does not expect that prisoners will have unqualified
access to health care, deliberate indifference to medical needs
amounts to an Eighth Amendment violation only if those needs are
`serious.'" Hudson v. McMillian, 503 U.S. 1, 9 (1992). The
Third Circuit has defined a serious medical need as: (1) "one
that has been diagnosed by a physician as requiring treatment;"
(2) "one that is so obvious that a lay person would recognize the
necessity for a doctor's attention;" or (3) one for which "the
denial of treatment would result in the unnecessary and wanton
infliction of pain" or "a life-long handicap or permanent loss."
Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003)
(internal quotations and citations omitted); see also
Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006
The second element of the Estelle test requires an inmate to
show that prison officials acted with deliberate indifference to
his serious medical need. See Natale, 318 F.3d at 582
(finding deliberate indifference requires proof that the official
knew of and disregarded an excessive risk to inmate health or
safety). "Deliberate indifference" is more than mere malpractice
or negligence; it is a state of mind equivalent to reckless
disregard of a known risk of harm. Farmer v. Brennan,
511 U.S. 825, 837-38 (1994). Furthermore, a prisoner's subjective
dissatisfaction with his medical care does not in itself indicate
deliberate indifference. Andrews v. Camden County, 95 F.
Supp.2d 217, 228 (D.N.J. 2000); Peterson v. Davis,
551 F. Supp. 137, 145 (D. Md. 1982), aff'd, 729 F.2d 1453 (4th Cir. 1984).
Similarly, "mere disagreements over medical judgment do not state
Eighth Amendment claims." White v. Napoleon, 897 F.2d 103, 110
(3d Cir. 1990). "Courts will disavow any attempt to second-guess
the propriety or adequacy of a particular course of treatment . . .
[which] remains a question of sound professional judgment."
Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762
(3d Cir. 1979) (internal quotation and citation omitted). Even if
a doctor's judgment concerning the proper course of a prisoner's
treatment ultimately is shown to be mistaken, at most what would be proved is medical malpractice and not an Eighth Amendment
violation. Estelle, 429 U.S. at 105-06; White,
897 F.3d at 110.
The Third Circuit has found deliberate indifference where a
prison official: (1) knows of a prisoner's need for medical
treatment but intentionally refuses to provide it; (2) delays
necessary medical treatment for non-medical reasons; or (3)
prevents a prisoner from receiving needed or recommended
treatment. See Rouse, 182 F.3d at 197. The court has also
held that needless suffering resulting from the denial of simple
medical care, which does not serve any penological purpose,
violates the Eighth Amendment. Atkinson, 316 F.3d at 266. See
also Monmouth County Correctional Institutional Inmates,
834 F.2d at 346 ("deliberate indifference is demonstrated `[w]hen . . .
prison authorities prevent an inmate from receiving recommended
treatment for serious medical needs or deny access to a physician
capable of evaluating the need for such treatment"); Durmer v.
O'Carroll, 991 F.2d 64 (3d Cir. 1993); White v. Napoleon,
897 F.2d 103 (3d Cir. 1990).
To the extent that Boone may be alleging denial of an
alternative means of testing for TB, the facts as alleged, if
true, may support a claim that defendants have deliberately
ignored his repeated requests and have wilfully denied him
reasonable alternatives to necessary healthcare. However, to
prevail on a denial of medical claim, Boone must show that TB testing is a serious medical need. This is a factual issue that
is not appropriately decided on a sua sponte summary
screening. Suffice it to say, however, Boone has alleged that the
Mantoux skin test, to which he is allergic, is a mandatory test,
which tends to prove that testing for TB in prison is a serious
preventive medical need. See Karolis v. New Jersey Dep't of
Corrections, 935 F. Supp. 523 (D.N.J. 1996). Therefore, the
Court will allow this claim to proceed.
B. Retaliation Claim
Next, Boone alleges that defendants have retaliated against him
for bringing complaints against the DOC and its officials with
respect to the TB testing.
"Retaliation for the exercise of constitutionally protected
rights is itself a violation of rights secured by the
Constitution. . . ." White v. Napoleon, 897 F.2d 103, 111-12
(3d Cir. 1990). To prevail on a retaliation claim, plaintiff must
demonstrate that (1) he engaged in constitutionally-protected
activity; (2) he suffered, at the hands of a state actor, adverse
action "sufficient to deter a person of ordinary firmness from
exercising his [constitutional] rights;" and (3) the protected
activity was a substantial or motivating factor in the state
actor's decision to take adverse action. Rauser v. Horn,
241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling,
229 F.3d 220, 225 (3d Cir. 2000)). See also Anderson v. Davila, 125 F.3d 148, 160 (3d Cir. 1997) (citing Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)); Thaddeus-X v.
Blatter, 175 F.3d 378, 386-99 (6th Cir. 1999), cited with
approval in Allah, 229 F.3d at 225.
Here, Boone cites numerous instances where defendants appear to
have acted against him in a retaliatory manner for pressing his
claim about alternative TB testing. These includes actual threats
against him by certain correctional officers and a hearing
officer. The allegations also show that disciplinary actions were
taken against Boone for seeking an alternative test from the
Mantoux test. He has been placed in medical isolation and
"double-lock celling" with the loss of certain privileges and
basic needs, albeit for short duration, such as showers,
recreation, and access to the law library for different periods
of time. He has also been denied his personal property. More
importantly, Boone appears to allege that defendants refuse to
provide him with an alternative test, such as a blood test, to
screen him for TB, in retaliation for complaining about the
Mantoux skin test. While Boone was not actually deterred from
seeking redress through the administrative process in prison (in
which he was unsuccessful) and in state court (in which he was
allegedly successful), and now in federal court by filing this
Complaint, he plainly alleges that defendants used threats, false disciplinary charges,*fn4 and isolation as a means to
prevent him or intimidate him from pursuing his claims. Threats,
the use of disciplinary action to suppress plaintiff's right to
complain, isolation, and all of the incidental losses or denials
of privileges as alleged by plaintiff suggest impermissible
retaliatory action in violation of Boone's First Amendment
rights. Therefore, based on these allegations, if true, Boone
will be allowed to proceed on his retaliation claim.
C. Denial of Recreation
The denial of exercise or recreation can result in a
constitutional violation. "[M]eaningful recreation `is extremely
important to the psychological and physical well-being of the
inmates.'" Peterkin v. Jeffes, 855 F.2d 1021, 1031 (3d Cir.
1988) (quoting Spain v. Procunier, 600 F.2d 189, 199 (9th
Cir. 1979)); see also Keenan v. Hall, 83 F.3d 1083, 1089
(9th Cir. 1996) ("[d]eprivation of outdoor exercise violates the
Eighth Amendment rights of inmates confined to continuous and
long-term segregation."); Patterson v. Mintzes, 717 F.2d 284,
289 (6th Cir. 1983); Campbell v. Cauthron, 623 F.2d 503, 506-07
(8th Cir. 1980); Kirby v. Blackledge, 530 F.2d 583, 587 (4th
Cir. 1976); Loe v. Wilkinson, 604 F. Supp. 130, 135 (M.D.Pa.
1984). However, the lack of exercise can only rise to a
constitutional level "where movement is denied and muscles are allowed to atrophy,
[and] the health of the individual is threatened." Spain,
600 F.2d at 199. Thus, a constitutional violation will occur when the
deprivation of exercise extends for a prolonged period of time
and tangible physical harm resulting from the lack of exercise is
demonstrated. In order to demonstrate a deprivation of a
constitutional right to recreation or exercise, plaintiff must
still satisfy the Eighth Amendment standard and show deliberate
indifference on the part of prison officials. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994).
Here, Boone has simply alleged that he was unable to attend
outdoor recreation for a total period, not consecutive, of 90
days while he was in administrative segregation. These
limitations are regulated with respect to sanctions imposed. It
does not appear, from plaintiff's recitation of facts that his
loss of recreation exceeded that permitted under prison
regulations. He also does not allege any harm or injury as a
result of this limited loss of outdoor recreational time.
Finally, the allegations do not support deliberate indifference
by defendants; rather, the amended complaint shows that the loss
of 90 days outdoor recreation was well below the permissible
sanctions in administrative segregation. Thus, there was no
prolonged deprivation of a constitutional magnitude, and Boone's denial of recreation claim will be dismissed pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
D. Denial of Due Process Claims
1. Medical Isolation
Boone's procedural due process rights are triggered by a
deprivation of a legally cognizable liberty interest.*fn5
For a prisoner, like Boone, such a deprivation occurs when the
prison "imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life." Sandin v.
Conner, 515 U.S. 472, 484 (1995). Lesser restraints on an
inmate's freedom are deemed to fall "within the expected
parameters of the sentence imposed by a court of law." Id.
Thus, "[a]s long as the conditions or degree of confinement to
which the prisoner is subjected is within the sentence imposed
upon him and is not otherwise violative of the Constitution, the
Due Process Clause does not in itself subject an inmate's
treatment by prison authorities to judicial oversight." Montanye
v. Haymes, 427 U.S. 236, 242 (1976), quoted in Sandin,
515 U.S. at 480. See also Asquith v. Dep't of Corrections,
186 F.3d 407, 410-11 (3d Cir. 1999) (no liberty interest under the
Due Process Clause in remaining in halfway house). Here, Boone's
administrative segregation and medical isolation, even if due to alleged false disciplinary actions, did not trigger the
protections of the Due Process Clause. See id.
The Third Circuit has observed, however, that if an inmate is
committed to undesirable conditions for an atypical period of
time in violation of state law, that factor should be considered
in determining whether the prisoner has been subjected to
"atypical and significant hardship" triggering due process
protection. Griffin v. Vaughn, 112 F.3d 703, 708-09 (3d Cir.
1997). Here, the Complaint fails to allege atypical or
significant hardship with respect to plaintiff's medical
isolation and administrative segregation. The time he spent in
medical isolation was short, only days to several weeks at a
time. Thus, the alleged lack of access to shower facilities, his
personal property, or other privileges for these short durations
do not state a deprivation claim of constitutional magnitude.
Accordingly, this aspect of Boone's due process claim will be
dismissed for failure to state a cognizable claim under
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
2. Denial of Procedural Due Process
However, it also appears that Boone may be claiming that he was
not afforded his basic due process rights with respect to the
disciplinary charges lodged against him. Boone alleges that he
was not allowed the right to confront the witnesses against him
during the disciplinary proceedings in 2004, in which he was charged and found guilty of refusing to submit to mandatory
medical testing. To support this denial of procedural due process
claim, Boone must demonstrate that the procedures afforded him
fell short of the requirements enunciated in Wolff v.
McDonnell, 418 U.S. 539 (1974).*fn6 Jackson v. Johnson,
15 F. Supp.2d 341, 351 (S.D.N.Y. 1998). See Sandin,
515 U.S. at 487.
In Wolff v. McDonnell, the Supreme Court set forth the
requirements of due process in prison disciplinary hearings. An
inmate is entitled to (1) written notice of the charges and no
less than 24 hours to marshal the facts and prepare a defense for
an appearance at the disciplinary hearing; (2) a written
statement by the fact finder as to the evidence relied on and the
reasons for the disciplinary action; and (3) an opportunity "to
call witnesses and present documentary evidence in his defense
when to do so will not be unduly hazardous to institutional
safety or correctional goals." Wolff, 418 U.S. at 563-71.
However, inmates do not have an absolute federal
constitutionally-protected right to confront and cross-examine
witnesses at their prison disciplinary hearings. Id. at 567-68.
See also Baxter v. Palmigiano, 425 U.S. 308, 321-22 (1976);
Young v. Kann, 926 F.2d 1396, 1404 (3d Cir. 1991); Sanchez v. Roth,
891 F. Supp. 452, 458-59 (N.D.Ill. 1995); Harrison v. Pyle,
612 F. Supp. 850, 854-55 (D. Nev. 1985). Thus, in this instance,
where the sole complaint alleging denial of due process is based
on the denial of Boone's ability to confront the witnesses
against him at the disciplinary hearings, Boone has failed to
state a cognizable § 1983 claim under Wolff.
Generally, a prisoner plaintiff may bring an § 1983 action for
money damages stemming from an alleged denial of procedural due
process, if the procedural protection is cognizable in a § 1983
claim. See Wolff, supra; Henry v. Sanchez,
923 F. Supp. 1266, 1270 (C.D. Calif. 1996). In Wolff, the Supreme Court held
that, although claims for injunctive relief were barred by
Preiser v. Rodriguez, 411 U.S. 475 (1973), plaintiffs were
allowed to bring a damage claim because the claim was based on
"damages for the deprivation of civil rights resulting from the
use of the allegedly unconstitutional procedure." Sanchez,
923 F. Supp. at 1270. In Heck v. Humphrey, 512 U.S. 477 (1994), the
Supreme Court reaffirmed this principle, stating that Wolff
"recognized a Section 1983 claim for using the wrong procedures,
not for reaching the wrong result. . . . Thus, the claim at issue
in Wolff did not call into question the lawfulness of
plaintiff's continuing confinement." Heck, 512 U.S. at 482-83.
However, where this Court has determined that the Complaint fails
to allege a cognizable claim that Boone was denied disciplinary due
process, he is not entitled to damages.
Moreover, Boone was not harmed by his inability to confront and
cross-examine adverse witnesses at his hearings. As noted above,
when an inmate is not afforded procedural protections to which he
may be entitled, the district court must determine whether the
denial of due process caused the resulting deprivations for which
damages are sought. See Carey v. Piphus, 435 U.S. 247, 261
(1977). Here, Boone alleges that the New Jersey Appellate
Division sustained his appeal on this issue and remanded the
matter for further administrative disciplinary proceedings with
provisions for Boone's confrontation of witnesses. Upon remand,
the prison conducted disciplinary proceedings in April and May
2005, oftentimes postponing the hearings to allow for additional
information with respect to Boone's right to confront certain
witnesses. The proceedings were concluded in early May 2005 upon
the hearing officer's dismissal of the charges before all the
evidence was presented. Thus, Boone was successful in challenging
the disciplinary charge and having it dismissed, and was not
injured by the initial denial to confront adverse witnesses to
warrant an award of damages.*fn7 Indeed, any such claim
regarding a right to confront witnesses at the hearings is rendered moot by the dismissal of
the disciplinary charges.
Therefore, Boone's claims based on denial of disciplinary due
process protections is not cognizable under § 1983 and it will be
dismissed in its entirety as against all defendants for failure
to state a claim.
D. Restoration of Commutation Credits
It is clear in this case, however, that Boone seeks not only
damages for defendants' alleged due process violation, but also
restoration of commutation and work credits that would afford his
earlier release from prison. In this regard, Boone's claim
relates to the result, not simply the procedure, and the action
is not cognizable under § 1983. Accordingly, he must bring his
restoration of credits claim in a habeas petition under
28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475 (1973).
In Preiser, the Supreme Court analyzed the intersection of
42 U.S.C. § 1983 and the federal habeas corpus statute,
28 U.S.C. § 2254, and held that state prisoners who had been deprived of
good-conduct-time credits by the New York State Department of
Correctional Services as a result of disciplinary proceedings
could not bring a § 1983 action seeking injunctive relief to compel restoration of the credits, which would have resulted in
their immediate release. 411 U.S. at 476. Specifically, the Court
held that "when a state prisoner is challenging the very fact or
duration of his physical imprisonment, and the relief he seeks is
a determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal remedy
is a writ of habeas corpus." Id. at 500.
Therefore, Boone's claim for restoration of commutation credits
affecting his earlier release will be dismissed without prejudice
to him bringing an appropriate claim under 28 U.S.C. § 2254.
E. False Disciplinary Charges
Finally, Boone appears to suggest that the basis for the
disciplinary charges was to punish him for pursuing claims for an
alternative means of TB testing. In other words, Boone asserts
that the charges against him are false. The act of filing false
disciplinary charges does not itself violate a prisoner's
constitutional rights. See Freeman v. Rideout, 808 F.2d 949,
952-53 (2d Cir. 1986) (holding that "the mere filing of [a false]
charge itself" does not constitute a cognizable claim under §
1983 so long as the inmate "was granted a hearing, and had the
opportunity to rebut the unfounded or false charges"), cert.
denied, 485 U.S. 982 (1988); Hanrahan v. Lane, 747 F.2d 1137,
1140 (7th Cir. 1984) (finding that so long as prison officials provide a prisoner with the procedural requirements outlined in
Wolff, 418 U.S. at 558, then the prisoner has not suffered a
constitutional violation). See also Creter v. Arvonio, No.
92-4493, 1993 WL 306425, at *7 (D.N.J. Aug. 5, 1993); Duncan v.
Neas, No. 86-109, 1988 WL 91571, at *1 (D.N.J. Aug. 30, 1988)
(determining that "the alleged knowing falsity of the charge
[does not state] a claim of deprivation of a constitutionally
protected liberty interest . . . where procedural due process
protections were provided).
Here, Boone does not allege that he was denied a disciplinary
hearing. Rather, he complains that he was not allowed to confront
the witnesses against him to prove his innocence. As discussed
above, a prisoner does not have a procedural due process right to
confront witnesses against him at a prison disciplinary hearing.
Wolff, 418 U.S. at 567-68.
Thus, absent an allegation that he was denied a meaningful
opportunity to contest the charges at a disciplinary hearing, any
claim by Boone based on allegedly false disciplinary charges is
not cognizable under § 1983.*fn8 Accordingly, this claim
will be dismissed for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). V. PRELIMINARY INJUNCTION
In connection with his initial Complaint and amended Complaint,
Boone also filed a motion for preliminary and permanent
injunctive relief. To secure the extraordinary relief of a
preliminary injunction, Boone must demonstrate that "(1) he is
likely to succeed on the merits; (2) denial will result in
irreparable harm; (3) granting the injunction will not result in
irreparable harm to the defendant[s]; and (4) granting the
injunction is in the public interest." Maldonado v. Houston,
157 F.3d 179, 184 (3d Cir. 1998), cert. denied, 526 U.S. 1130
(1999) (as to a preliminary injunction); see also Ballas v.
Tedesco, 41 F. Supp.2d 531, 537 (D.N.J. 1999) (as to temporary
restraining order). A plaintiff must establish that all four
factors favor preliminary relief. Opticians Ass'n of America v.
Independent Opticians of America, 920 F.2d 187 (3d Cir. 1990).
The standards for a permanent injunction are essentially the same
as for a preliminary injunction, except that the plaintiff must
show actual success on the merits, not a likelihood of success,
to obtain a permanent injunction. See University of Texas v.
Camenisch, 451 U.S. 390, 392 (1981).
Here, Boone relies on his original and amended Complaint with
respect to his application for injunctive relief. Counsel for the
state defendants have filed a letter brief in opposition to
Boone's motion for a preliminary and a permanent injunction. Having thoroughly reviewed the Complaints, Boone's motion, and
the State's opposition thereto, pursuant to Fed.R.Civ.P. 78,
the Court finds that plaintiff is not entitled to a permanent
injunction at this time because he has not yet actually proven
success on the merits of his claims. Accordingly, the motion for
a permanent injunction is denied without prejudice. The Court
next turns to the request for preliminary injunctive relief.
1. Likelihood of Success on the Merits
As to the request for a preliminary injunction, as shown above
in this Opinion, Boone has alleged facially cognizable claims
with respect to his allegations of retaliation and denial of
health care as to alternative TB testing, which is sufficient to
allow the claims to proceed past the sua sponte screening
stage under 28 U.S.C. §§ 1915(e)(2) and 1915A. This
determination, at this juncture, is adequate to show a likelihood
of success on the merits of these claims.*fn9 However, as to
all of the remaining claims that this Court has dismissed herein,
preliminary injunctive relief is denied because Boone clearly
cannot show any likelihood of success on the merits of said
2. Irreparable Harm
The Court is also unpersuaded at this juncture that Boone is
unable to show irreparable harm, as argued by the State, with
respect to his denial of medical care claim. It seems patently
clear that a continued denial of alternative TB testing and the
alleged actions by the defendants, which serve to expose Boone to
harm due to a refusal to screen him for the highly contagious and
infectious disease, is sufficient to demonstrate irreparable
harm. However, the Court finds no showing of irreparable harm
with respect to plaintiff's retaliation claim. While the Court
has determined that Boone alleges a facially cognizable claim with respect to the claim of retaliation, there are insufficient
facts to show that any of the retaliatory acts directed at
plaintiff (such as medical isolation, double-lock housing, prison
transfers, or denial of recreation or showers for short duration)
have exposed or will expose Boone in the future to irreparable
harm. To the extent that the alleged retaliation is conducted
allegedly to stifle Boone's complaints about the TB testing,
Boone has continued to file grievances and this action, which
further attests to the lack of any demonstrable irreparable harm
at this time.
3. Compelling State Interest
The State admits that it has a compelling interest in
responding to the threats of serious contagious diseases, such as
TB, by diagnosing and treating all state inmates, and preventing
the spread of TB in prison and jail facilities. This state
interest was acknowledged and upheld in Karolis and
Maldonado, supra. These cases, however, dealt with the issue
of whether a prisoner could refuse the Mantoux test on religious
grounds. In this case, Boone is refusing the Mantoux test for
health reasons as he has demonstrated a severe allergic reaction
to the components in the test.
In balancing the equities and harm, it would appear that Boone
has demonstrated a more compelling interest to be likewise
protected from exposure to TB, in line with the State's interest to reduce the threat and exposure of TB in its prisons. The State
need only provide an alternative means of testing, as sought by
Boone, for detecting the disease and protecting against its
spread in prison.*fn10 Therefore, a preliminary injunction
directing defendants to provide alternative testing will serve
both plaintiff's more compelling interest to be free from harm
and the State's compelling interest to reduce the spread of TB in
4. Public Interest
Finally, it is always in the public interest to ensure that any
prisoner litigation affecting fundamental liberty interests
comport with the requirements of due process. Accordingly, as set
forth above, the Court finds that the overall equities appear to
favor the issuance of a preliminary injunction with respect to
providing Boone with an alternative means of TB testing on an
annual basis. However, as to the remaining demands for injunctive
relief as requested by Boone at this time, the Court finds that
the overall equities do not favor the issuance of a preliminary
injunction. VI. CONCLUSION
For the reasons stated above, the Court will dismiss
plaintiff's claims asserting denial of recreation and denial of
disciplinary due process with respect to his medical isolation
and "double-lock celling", inability to confront adverse
witnesses at his disciplinary hearings, and false disciplinary
charges, for failure to state a cognizable claim under § 1983.
The Court will also dismiss without prejudice plaintiff's claim
for restoration of commutation and work credits because such a
claim is not actionable under § 1983, but instead, should be
raised in a federal habeas proceeding. The remaining claims
alleging retaliation by defendants and denial of medical care
with respect to alternative testing for TB, will be allowed to
proceed as against all defendants at this time. Finally, Boone's
motion for permanent injunctive relief will be denied at this
time, and his motion for a preliminary injunction will be granted
only insofar as the State will be directed to provide Boone with
alternative TB testing on an annual basis pending the outcome of
this action. However, preliminary injunctive relief will be
denied without prejudice as to all remaining demands as asserted
by plaintiff. An appropriate Order follows.