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BOONE v. BROWN

August 22, 2005.

ANTHONY BOONE, Plaintiff,
v.
DEVON BROWN, et al., Defendants.



The opinion of the court was delivered by: ANNE THOMPSON, Senior District Judge

OPINION

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 fee.

  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.

  I. BACKGROUND

  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 review.

  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. 6-7).

  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. (Id.).

  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 $600,000.00.

  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 ¶¶ 103-106).

  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 ...


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