Opinion
00-CV-0644.
December 2, 2001
Elmer Robert Keach, III, Elmer Robert Keach, III, Albany NY., Appointed Counsel for Plaintiff.
Deborah A. Ferro, Esq., Assistant Attorney General, Attorney General of New York, Albany, NY., Attorney for the Defendants.
Decision and Order
Plaintiff, who is incarcerated, brought this action pursuant to 42 U.S.C. § 1983 claiming that the current New York State Department of Corrections policy of mandatory administration of a purified protein derivative (PPD) skin test to inmates in order to detect latent Tuberculosis (TB) violates his First Amendment right to free expression of his religion. Plaintiff originally brought this action pro se, but following the Southern District's decision in Reynolds v. Goord, 103 F. Supp.2d 316 (S.D.N.Y. 2000), this Court appointed counsel for Mr. Selah.
Mr. Selah had filed a motion seeking a preliminary injunction preventing the Department of Corrections (DOCs) from administering the PPD test during the pendency of this action. That motion was supplemented by his appointed counsel. The Attorney General responded to both the initial motion and the supplemental papers. Following oral argument on November 13, 2001, this Court ruled in an oral decision that there were evidentiary issues necessitating a hearing.
A full hearing was initially scheduled for December 11, 2001. After conferencing with the parties, the Court determined that it would be prudent to proceed with a bifurcated hearing limited to the issues of whether Mr. Selah sincerely holds his beliefs and whether those beliefs are religious in nature. See Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir. 1996).
A hearing on those issues took place on December 11, 2001. Mr. Selah testified as did Nurse Christine Coyne, a correctional facility nursing supervisor; Director of the Inmate Grievance Program Thomas G. Eagen; and Dr. Lester N. Wright, Deputy Commissioner and Chief Medical Officer of DOCs. The Court now issues the following decision.
I. FACTUAL FINDINGS
A. Plaintiff's Religious Beliefs
The Court found that Plaintiff testified credibly regarding his religious beliefs and the basis for those beliefs. Thus, the Court will summarize the relevant portions of those beliefs here. Plaintiff is an Ethiopian Orthodox Christian. He was raised in this faith and continues to adhere to this faith today.
Plaintiff has filed numerous grievances with DOCs alleging denials of his religious expression. These include grievances requesting that he be allowed to have a kosher diet, requesting that his religion be properly recognized on his inmate housing form, requesting that he be allowed a prayer shawl, and requesting that he be allowed a prayer cap. Plaintiff additionally spent some time on a hunger strike, refusing to eat when DOCs would not supply him with a kosher diet. He has filed two previous lawsuits against DOCs regarding the official recognition of his religion and his right to a kosher diet. These resulted in agreements by DOCs to recognize Plaintiff's religion and allow him to have a kosher diet.
Plaintiff testified that his religion is similar to Judaism, except that his religion recognizes Jesus Christ as the Messiah. Thus, he consults with the prison Rabbi when he has questions about how he should follow his religion. Plaintiff believes in a literal interpretation of the Bible. It is from this literal interpretation that his objections to the PPD test stem. In particular, Plaintiff has provided the Court with two passages of the Bible that he believes are violated by the PPD test. These verses are as follows.
Ye shall not make any cuttings in your flesh for the dead, nor print any marks upon you: I am the LORD.
Leviticus 19:28 (King James).
They shall not make baldness upon their head, neither shall they shave off the corner of their beard, nor make any cuttings in their flesh.
Leviticus 21:5 (King James). Based upon these passages, Plaintiff believes that he should not pierce his flesh, should not be tatooed, and should not mar his skin in any way. When questioned about other provisions of the Bible, such as the prohibition in Leviticus against cutting one's hair and beard, Plaintiff was articulate in clarifying his beliefs and in providing support for his actions taken in accordance with his interpretation of his religious obligations.
The Court has used the King James Version of the Bible as that is what was used by Plaintiff at the hearing.
For example, Plaintiff was asked specifically about the prohibition against cutting the hair and beard. It was obvious from Plaintiff's appearance that Plaintiff does, in fact, cut his hair and trim his beard. Plaintiff stated that he had discussed this with the Rabbi and religious leaders in the Ethiopian Orthodox Church and believed that this meant he was not to shave his hair or beard completely off.
B. DOCs Response
The Court initially agreed to a bifurcated hearing because of several inconsistencies in Plaintiff's prior complaints with regard to the TB testing that were pointed out by DOCs. The Court will address those here.
Prior PPD Tests
The first item addressed by DOCs is that Plaintiff took the PPD test from 1993 until 1999 without refusal. Plaintiff explained this by stating that it was his belief that refusal of the PPD test constituted disobedience of a direct order, and that such reports would harm his chances for parole. Plaintiff also indicated that he had objected to the tests during this time, but had not refused them because of his desire not to be on TB hold or to harm his chances of parole.
The Court also notes that Plaintiff had his legal name changed, as required by his religion, on May 4, 1998. Additionally, it is around this time in 1998 that Plaintiff began to file numerous grievances regarding his religious rights. It is not unimaginable that Plaintiff, for whatever reason, began to take his religion more seriously around this time.
DOCs next points out that the records of Plaintiff's grievances and objections to the PPD test do not consistently relate to his religious beliefs. The Court will discuss these records here.
Medical Records
DOCs points to the numerous medical records in which there is no mention of Plaintiff's religious objection. The Court notes that no reason for Plaintiff's refusal is stated in any of these records. They simply state that he refused PPD testing. The one exception to this is a note by Nurse Androsko on December 16, 1999, which states: "per Inmate `sick and tired of being stuck, wants alternate testing as [sic] breathing test or x-rays.'"
On January 26, 2000, there is a medical notation that Plaintiff "refuses for religious reasons" to take the PPD test. That note is signed by Nurse Joyce Carson. The Court notes that Nurse Carson was not the nurse who regularly wrote Plaintiff's records. There are other records in which Plaintiff requests alternative treatments to the PPD test, but again, no reason for his objection is given.
The Court finds the medical records to be inconclusive as to Plaintiff's intent. The records often consist of no more than the phrase "refused PPD test." Without more consistent records regarding what about the PPD test he objected to, they do not clarify whether Plaintiff objected for religious reasons.
Inmate Grievances
The Plaintiff initiated a grievance on December 20, 1999. (Plaintiff's Ex. "1"). That grievance refers to numerous reasons for Plaintiff's desire not to take the PPD test. These include religious deprivation, that the substance did not look like the substance given to other patients, and that he had a fear of needles and HIV. Notably, the Inmate Grievance Committee recommended that Plaintiff be given alternative means of TB testing "which are the standards set by the federal courts." Although the Inmate Grievance Committee found that Plaintiff had stated a recognizable objection, the medical staff at Auburn and the Superintendent on his direct appeal rejected that recommendation. Plaintiff then appealed to the Central Office Review Committee (CORC). Clearly, that appeal by Plaintiff lays out his religious objections to the TB testing. He references the biblical statements on which he relies and the prior settlement with DOCs in which DOCs agreed to recognize Plaintiff's religion.
The remainder of the inmate grievances address issues other than the PPD Test.
February 19, 2000 PPD test
On February 19, 2000, Plaintiff agreed to take the PPD test after several months of refusing. It is undisputed that Plaintiff took the test in order to attend his father's funeral. DOCs makes much of the fact that Plaintiff did not enter the funeral home; however, it is clear from Plaintiff's testimony that he did not enter the funeral home because he was fully shackled. He states that when he attended his mother's funeral, no such shackles were in place. Plaintiff's father was a well-known member of the community, and Plaintiff believed that television cameras would likely be covering his father's funeral. Thus, the Court finds it entirely reasonable for Plaintiff to have made the decision, as he asserts he did, not to embarrass his family by attending his father's funeral in shackles. It is also clear that Plaintiff took this PPD test solely for the purpose of attending the funeral.
Other Tests Involving Needles
More problematic are other instances of Plaintiff allowing needle tests to be done on him. In particular, DOCs put forward evidence that Plaintiff received a tetanus shots in 1991 and consented to an electromyography and nerve conduction test in 1997 and again in 1999. While the tetanus shot is prior to the apparent religious awakening of Plaintiff, the second electromyography is not. Plaintiff did not testify regarding his reasons for consenting to this test. The second test was a follow-up exam to test the changes that had occurred in the intervening time. Plaintiff's lack of objection to this test does cast some doubt on the strictness of his religious beliefs.
These tests involve electrodes being placed on the body and having electric currents sent through to test the reaction of the nerves. The second part of the test involves having needles actually stuck into the skin of the patient and electric current delivered through those needles.
II LEGAL CONCLUSIONS
In determining whether Plaintiff has established that his First Amendment right to exercise his religion has been infringed, the Court's analysis is limited to two issues — whether Selah sincerely holds his beliefs, and whether these beliefs are, "according to the claimant's own scheme of things," religious. Leitzsey v. Coombe, 998 F. Supp. 282, 288 (W.D.N.Y. 1998) (citing United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965)). "[The] judiciary has but a limited function . . . in determining whether beliefs are to be accorded free exercise protection. Our scrutiny extends only to whether a claimant sincerely holds a belief and whether the belief is religious in nature."Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir. 1996); Breeland v. Goord, 1997 WL 139533, at *4 (S.D.N.Y. March 27, 1997). The propriety of a religious belief is not to be considered. Hernandez v. C.I.R., 490 U.S. 680, 699 (1989). Thus, the Court will examine these two factors in reverse order.
Whether the Beliefs are Religious
The Second Circuit has approved of the following definition of religion: "the feelings, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine." See Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984) and United States v. Moon, 718 F.2d 1210, 1227 (2d Cir. 1983) (both quoting WILLIAM JAMES, THE VARIETIES OF RELIGIOUS EXPERIENCE 31 (1910)). Whether a belief is religious as opposed to simply a personal fear is a credibility determination for the factfinder to make. See Galinsky v. Board of Education, 213 F.3d 262, 262 (2d Cir. 2000) (trial court's finding that desire to avoid immunization stemmed from personal fears rather than religious beliefs would not be disturbed as it was a credibility determination). The accuracy or acceptability of the beliefs are not to be considered in this analysis.Patrick, 745 F.2d at 157. Nor must the plaintiff show that his beliefs are generally practiced in the religion he claims. See Campos v. Coughlin, 854 F. Supp. 194, 210 (S.D.N.Y. 1994). "The freedom to exercise religious beliefs cannot be made contingent on the objective truth of such beliefs." Patrick, 745 F.2d at 157 (quoting United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 886, 88 L.Ed. 1148 (1944)).
The Court concludes that Plaintiff's beliefs are religious in nature. Plaintiff testified to the nature of his beliefs and the authority on which he bases those beliefs. Plaintiff also testified to consultation with religious leaders regarding the appropriate way to implement his beliefs. Plaintiff supported his belief that the skin should not be lacerated with historical reasons for the rule, stemming from religious origins, and provided ample interpretation for the various provisions of the Bible he claims support his view. Thus, Plaintiff has established the first prong of the test.
Whether the Beliefs are Sincere
In analyzing the sincerity of Plaintiff's religious beliefs, this Court starts with the proposition that "[a] claimant need not be a member of a particular organized religious denomination to show sincerity of beliefs."Jackson v. Mann, 169 F.3d 316, 319 (2d Cir. 1999). When analyzing the sincerity of petitioner's religious beliefs, the Court should "seek to determine an adherent's good faith in the expression of his religious belief." Patrick, 745 F.2d at 157 (citing International Society for Krishna Consciousness v. Barber, 650 F.2d 430, 441 (2d Cir. 1981)). The Court must attempt to differentiate between "those beliefs that are held as a matter of conscience and those that are animated by motives of deception and fraud." Patrick, 749 F.2d at 157. The Second Circuit has called this analysis "exceedingly amorphous." Id. It "requir[es] the factfinder to delve into the claimant's most veiled motivations and vigilantly separate the issue of sincerity from the factfinder's perception of the religious nature of the claimant's beliefs." Id.
The Court notes that judicial entities are particularly ill suited for determining matters of essentially personal conscience. Recognizing this inherent limitation, the Court must base its decision on the credibility of the Plaintiff and the circumstances surrounding his objection to the PPD test. In examining these items, the Court concludes that the Plaintiff sincerely holds his religious beliefs.
First, the Plaintiff testified credibly regarding his religious objections to the PPD test. Further, Plaintiff's actions, at least since 1998, have shown him to consistently object to the PPD test. Although Plaintiff did submit to the test in order to attend his father's funeral, the Court notes that a Plaintiff may show sincerity even when he submits to a test after coercion. See Jolly, 75 F.3d at 477 (Inmate did not need to show lengthy resistance to test to prove sincerity);Reynolds, 103 F. Supp.2d at 334-335 (inmate who took PPD test after objecting still sincere in his beliefs). Further, the Court does not find Plaintiff's prior submission to PPD tests to be a bar to his current objections, particularly in light of the other circumstances in Plaintiff's religious life.
The Court is mindful that Plaintiff did submit to the electromyography involving needles in April of 1999. Despite this anomaly, the Court finds that Plaintiff is sincere in his desire to follow his faith as he sees it-including the prohibition on piercing the skin or lacerating the flesh. The Court cannot truly know Plaintiff's heart and conscience, but determines that to the extent it can judge Plaintiff's sincerity, that Plaintiff has made a "good faith" expression of his religious beliefs.
III. CONCLUSION
Inasmuch as the Court finds that Mr. Selam Selah sincerely holds his beliefs and that these beliefs are religious, and that the Plaintiff's religious beliefs are burdened by DOCs' policy (see previous oral decision-if Plaintiff's beliefs are sincere and religious, then they are burdened by DOCs policy), the parties are ordered to proceed with a hearing on the issue of whether the burden placed on the Plaintiff by DOCs policy is justified.