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Matter of Thezard v Shannon 2010 NY Slip Op 31781(U) July 12, 2010 Supreme Court, St. Lawrence County Docket Number: 133313 Judge: S. Peter Feldstein Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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STATE OF NEW YORK SUPREME COURT COUNTY OF ST. LAWRENCE -----------------------------------------------------X In the Matter of the Application of DRAHCIR B. THEZARD,#09-R-1305, Petitioner, for Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -againstDECISION AND JUDGMENT RJI #44-1-2010-0202.14 INDEX #133313 ORI # NY044015J

MR. SHANNON, Medical Adm., Cape Vincent Correctional Facility, LESTER N. WRIGHT, Chief Medical Officer, DOCS, Albany, and HEAD NURSE, Gouverneur Correctional Facility - SHU 200, Respondents. -----------------------------------------------------X This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the Petition of Drahcir B. Thezard, verified on March 23, 2010 and filed in St. Lawrence County Clerk's office on March 26, 2010. Petitioner's additional Exhibit's F, G and H were filed in the St. Lawrence County Clerk's office on April 1, 2010. Petitioner, who is an inmate at the Gouverneur Correctional Facility, is challenging the adequacy of the medical care he has received in DOCS custody. The Court issued an Order to Show Cause on April 5, 2010 and an Amended Order to Show Cause on April 20, 2010. By Letter Order dated April 22, 2010 petitioner's request for a preliminary injunction was denied. The Court has since received and reviewed respondents' Answer/Return, verified on May 6, 2010, supported by the affidavit of respondent Lester N. Wright, MD, sworn to on May 6, 2010 (the "Wright Affidavit") (Exhibit D, annexed to respondents' Answer/Return). The Court has also received and reviewed petitioner's Reply thereto

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(denominated "Motion of Objection to the Respondents Answering Papers"), filed in the St. Lawrence County Clerk's office on May 24, 2010. This litigation centers around the application of DOCS Division of Health Services Policy Number 1.18 (hereinafter, "Policy 1.18") (Exhibit C, annexed to respondents' Answer/Return), relating to the containment and treatment of Tuberculosis (hereinafter TB) in the New York State prison system, to the petitioner. TB is caused by the mycobacterium tuberculosis bacteria, which can be present in any organ of the body. In its latent stage (before the TB bacteria has spread to the respiratory tract) the disease " . . . is not contagious to others simply because the bacteria has not damaged the lungs to the extent from which the bacteria can become airborne." (Wright Affidavit, paragraph 14). In the absence of preventative prophylactic therapy, however, " . . . approximately five percent of the persons infected with latent TB develop the active disease within the first year after infection." (Wright Affidavit, paragrahp 15). "Active TB disease of the lung . . . is highly contagious. It is most commonly spread through the air through airborne particles called droplet nuclei, which are generated when a person with active contagious TB sneezes, coughs or speaks." (Wright Affidavit, paragraph 14). The DOCS Division of Health Services utilizes the Purified Protein Derivative (PPD) skin test (the medically accepted method) to screen inmates for the presence of the TB bacteria. "A positive PPD test indicates only that the person is infected with the TB bacteria and nothing more; it does not indicate whether the person has active contagious TB. To determine whether the infected individual has active contagious tuberculosis disease, the medically indicated procedures are a chest x-ray, sputum analysis and a physical examination for specific symptoms of active TB disease. A chest x-ray or sputum analysis does not and cannot test for latent TB simply because the TB bacteria can be present
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anywhere in the body other than the respiratory tract. Bacteria itself does not show up on an x-ray; only the damage it does to the lungs after it has converted into active contagious TB can be ascertained by an x-ray of the lung. Only the PPD test can establish whether the individual has been infected with the TB bacteria, i.e., that he/she has latent TB." (Wright Affidavit, paragraph 25). Generally speaking, an inmate who refuses the mandatory PPD screening test is placed on "Tuberculin Hold" status for a period of up to one year. Such status is defined in Policy 1.18(I)(H) as "[a] public health protective status where the inmate remains in their cell at all times except for one hour of recreation per day and three showers per week. Only legal visits are allowed." Again speaking generally, inmates, like petitioner, with positive PPD screening test results but negative chest x-rays are offered the opportunity to receive preventative therapy through the administration of Isoniazid (INH) twice weekly for nine months (Policy 1.18 (VI)(B)(1)(a) and (VI)(B)(4)(a)). If such therapy is accepted, the inmate remains in general population. Otherwise, he or she is placed on Tuberculin Hold status. In paragraphs three and four of the petition the following is alleged: "This petition challenges the medical negligence: the unnecessary issueance [sic] of INH [Isoniazid] drugs, and abuse of authority, placing the health and life of this plaintiff in jeopardy. . . The within proceeding is brought pursuant to C.P.L.R. Article 78 to challenge the final determination of Commissioner's response, dated 1-19-10 . . ." The petitioner alleges that between 2006 and 2009 he was subjected to multiple, unwarranted, PPD skin tests at various local and state DOCS facilities. Petitioner also alleges that numerous "negative" x-rays prove that he is not afflicted with active TB. Petitioner goes on to allege that he was nevertheless "forced" at the Cape Vincent Correctional Facility "to take INH from 7-13-09 to 1-8-10," and, as a result, suffers from " . . . severe headaches, diarrhea, irregular heartbeats, fatigue, stomach pain, numbness of hands, feet, difficulty breathing, nausea

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and constant spitting." Petitioner seeks judgment pursuant to Article 78 of the CPLR "DIRECTING Respondent(s) to (1) Pay me$350.00 per each individual day

Quarantined on TB hold. (2) Pay Retribution of $200 Million for the wrongs and violations of my private rights. (3) Cease and decease [sic] this unnecessary and illegal testing process immediately." The petitioner apparently instituted an inmate grievance proceeding (CV-8781-09) by filing a complaint at the Cape Vincent Correctional Facility on November 16, 2009. Although a copy of the inmate grievance complaint has not been included as part of the record in this proceeding, the Court notes that petitioner's grievance was given the title "Cease TB Medication." By decision dated December 14, 2009 the facility superintendent effectively denied petitioner's grievance as follows: "The information obtained from the Nurse Administrator reveals that you were PPD tested at Ulster [Correctional Facility] on 4/15/09 and showed a positive result . . . On 6/30/09 you saw the Infection Control Nurse due to the positive PPD test and the fact that there is no record of you completing the [INH] drug treatment plan. The medical record states that the issues surrounding this matter were discussed with you and you verbalized understanding. You agreed to the [INH] treatment plan and were seen by Doctor on 7/1/09 and the [INH] treatment was ordered for a period of 7/13/09 to 4/3/10. The Nurse Administer acknowledges that your record indicates you were vaccinated in the Caribbean with a TB shot as a child. The vaccine causes an antibody response in children which is the positive skin test. This response shows life long, but the protection against TB only lasts to the teen years. Therefore, even though you tested positive, the medical department cannot be certain if it is the vaccine response or TB exposure. The recommended treatment by the CDC [presumably, Center for Disease Control] is to take INH . . . for a period of 9 months. In reference to the IGRC [Inmate Grievance Resolution Committee] recommendation, you did have a chest x-ray on 4/14/09 which was negative and a sputum is only recommended if an individual is symptomatic and you are not symptomatic.

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You were afforded the recommended treatment in accordance with medical protocol. Any questions or concerns that you may have concerning this should be addressed to the medical department." 7 NYCRR

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