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Civil Action No. 02-2332

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

 

DR. CHARLES OSSINING, Appellant,

v.

HARRISON BRUBAKER, ET AL., APPELLEES

ON APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA

 

BRIEF OF RESPONDENT

 

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether an inmate, exhibiting no medical condition warranting special treatment, and having received adequate care for all documented symptoms, has an Eighth Amendment claim when, following self-diagnosis of a rare condition, the prison declined his request for a special diet and further unnecessary testing.

    

2. Whether the trial court correctly found an inmate's First Amendment rights were not violated when the Warden reviewed and denied individual publications according to prison regulations in response to the unreasonable burden placed upon the prison's resources.

STATEMENT OF THE CASE

Nature of the Case

This is an appeal of summary judgment in a prisoner's rights case. Respondents
request that summary judgment be affirmed as there are no genuine issues of fact in dispute, and that appellant's 42 U.S.C. § 1983 complaint be dismissed as treatment did not violate prisoner's constitutional rights. Appellant brings his claims under the First and Eight Amendments #1 U.S. Const. Amend. I; #2 U.S. Const. amend. VIII.

Procedural History

Ossining alleges violations of his First and Eighth Amendment rights by the prison. The United States District Court for the Southern District of Alabama granted the defendant's motion for summary judgment. The District Court concluded that plaintiff's receiving of publications caused unreasonable burdens on the resources of the prison and that the prison was not deliberately indifferent to any serious medical needs of the plaintiff. #3 Ossining v. Brubaker, No. CIV.A.02-2332, 2003 U.S. Dist. LEXIS 5130, at *1 (S.D. Ala. Jan. 6, 2003).

 

STATEMENT OF FACTS

The prisoner, Dr. Charles Ossining, was convicted of Medicare fraud, mail fraud, and making false claims to the government. At the time of Ossining's incarceration in January 2002, a routine medical examination revealed he was in good health, without any notations of medical problems. (Brubaker Aff. 7.) After his arrival, Ossining received a considerable number of medical journals and newsletters pertaining to allergies. (Brubaker Aff. 8.) Ossining specifically ordered informational brochures concerning various types of allergies and treatments for the purpose of disseminating this information to other prisoners. (Ossining Aff. 4.) By the end of March, the infirmary reported a significant increase in prisoner visits: 15% higher than the same quarter a year before, and requests for allergy testing increased 100%. More than half of these requests were declined as these prisoners showed no symptoms warranting testing. Many inmates requesting allergy testing indicated Ossining had suggested they be tested for various allergies. (Brubaker Aff. 9.) Proper allergy diagnosis has been shown to require extensive testing. #4 J. Expert, Allergy on the Net, 5 New Eng. J. Med. 9, 10 (2002), at http://www.nejm.org/expert/v5/allergy.html.

The medical staff could not accommodate all incoming requests for allergy testing, leading to agitation of prisoners and strain on medical resources. (Brubaker Aff. 9, 10.) Additionally, the prison cafeteria received an influx of complaints, as well as special requests and disorderly conduct, requiring additional guards for security. (Brubaker Aff. 11.) Based on these events, Brubaker, the long-time warden of the prison, rejected certain publications addressed to Ossining as detrimental to the security and resources of the prison, an action authorized by federal regulation 28 C.F.R. §540.71(b). #5 I.M. Tough, Warden Power, 15 N.Y.Law Sch. L. Rev. 12, 15-17 (1983).

In March, a blood test revealed Ossining was borderline anemic; he was prescribed iron supplements to combat this condition. (Ossining Aff. 12.) In April, Ossining self-diagnosed himself as suffering from celiac disease, an extremely rare infection, and claimed he needed an endoscopy to confirm his diagnosis. (Flowers Aff. 6.) Celiac disease can be fatal if not treated properly. #6 Adam Gourna, Celiac Disease: A Killer, New York Times, December 12, 1994, at F3, available at 1994 2321843. Reviewing his blood test results, Dr. Gerta Flowers, a specialist in internal medicine and resident physician at the prison, determined that Ossining did not exhibit such severe symptoms warranting further investigation and rejected his request for an endoscopy. (Flowers Aff. 7.) In July, Ossining requested a gluten-free diet, claiming only this diet could treat celiac disease. (Ossining Aff. 21.) Dr. Flowers informed the prison that sufficient alternatives in the prison cafeteria were available to Ossining should he prefer to eat a gluten-free diet. (Flowers Aff. 8.) The prison has promised that should Ossining present severe symptoms in the future, it would treat him appropriately. (Brubaker Aff. 15.)

 

STANDARD OF REVIEW

The issue before this Court is whether the trial court properly applied the law to the facts in granting summary judgment. The court's review of the district court's ruling on a motion for summary judgment is de novo. #7 Pope v. Hightower , 101 F.3d 1382, 1383 (11^th Cir. 1996).

 

SUMMARY OF ARGUMENT

Ossining's First and Eighth Amendment claims fail based on the established facts in the record. With regard to the Eighth Amendment, Ossining shows no evidence of a serious medical need, his treatment by the prison did not violate contemporary standards of decency, and the medical staff was not deliberately indifferent to his condition. #8 U.S. CONST. amend. VIII. As for the First Amendment, because assertion of his rights posed a threat to the security of the prison and created an unreasonable burden on prison resources, Warden Brubaker's rejection of particular publications was justified. #9 Amend. I.

 

ARGUMENT

The prisoner, Dr. Charles Ossining, is currently serving a five-year sentence for defrauding the federal government. Ossining alleges the prison violated his First Amendment rights by denying him access to professional journals and his Eighth Amendment rights by denying him a gluten-free diet and further testing for a rare disease for which he made a self-diagnosis. While detainees are accorded protections of the Constitution, prisoner's rights are inherently restricted, and some constitutional violations may be acceptable if they serve "legitimate penological interests," such as order, security, and safety. #10 See Thornburgh v. Abbott , 490 U.S. 407-408 (1989). Moreover, as operation of a prison falls under the province of the legislative and executive branches of government, deference should be paid by the courts to appropriate prison authorities regulating this delicate balance between prison security and legitimate rights of prisoners. #11 Turner v. Safley , 482 U.S. 78, 84-85 (1987)

I. PLAINTIFF'S EIGHTH AMENDMENT CLAIM OF CRUEL AND UNUSUAL PUNISHMENT IS WITHOUT MERIT BECAUSE THE PRISONER EXHIBITED NO MEDICAL CONDITION WARRANTING SPECIALTREATMENT

Ossining fails to present sufficient evidence of a serious medical problem related to being denied a gluten-free diet or evidence that the prison was "deliberately indifferent" to his symptoms, as required for claims under the Eighth Amendment. See #12 Helling , 509 U.S. 25, 29 (1993). In #13 Helling, the Supreme Court established a two prong test for proving Eighth Amendment violations. Under the subjective prong (A), the prisoner must show deliberate indifference by the prison toward a serious risk posed to the prisoner. Under the objective prong (B), the prisoner must show that the unreasonable risk of harm he faces is contrary to contemporary standards of decency. #14 Id. at 35-36. Because Ossining received adequate treatment for his ailments and exhibited no medical condition warranting special treatment, he fails both prongs of the Eighth Amendment test.

A. The prison was not deliberately indifferent to prisoner's medical condition when the prison physician reviewed prisoner's blood test results to find no severe symptoms of celiac disease warranting further treatment and the prison menu offered adequate gluten-free alternatives

Under the subjective prong, the prisoner must show 1) the prison had knowledge of a serious risk of harm to him and 2) deliberate indifference by the prison toward this risk. #15 Id. at 35.

1. The prison had no subjective knowledge of any serious risk of harm to the prisoner in denying him a gluten-free diet or in rejecting his request for an endoscopy to further test for celiac disease

Ossining fails to show prison officials knew of and disregarded "an excessive risk to his health or safety." #16 See Farmer v. Brennan, 511 U.S. 825, 837 (1994). As serious complications from celiac disease are rare and Dr. Flowers determined that the prisoner did not present such severe symptoms to warrant further investigation, Ossining fails to show the prison's subjective knowledge of a serious risk of harm when denying him a gluten-free diet and further testing. In #17 Campbell et al. v. Sikes, the plaintiff inmate alleged cruel and unusual punishment when the defendant prison psychiatrist misdiagnosed her with poly-substance abuse disorder when in fact she had a bipolar disorder, a diagnosis unreported in jail records or prior hospitalization records. The court affirmed the grant of summary judgment for the prison because there was no evidence that the psychiatrist knew the prisoner had bipolar disorder, that he knew he misdiagnosed her, or that he knew of a substantial risk of serious harm to the inmate as a result of his treatment. #18 Campbell v. Sikes, 169 F.3d 1353, 1366-1368 (1999). Similarly, Ossining fails to present evidence from which a reasonable jury could infer that Dr. Flowers or other prison officials knew he had celiac disease, or knew they were misdiagnosing him, or knew their treatment was grossly inadequate but proceeded with the treatment anyway. Like the defendant in #19 Campbell, Ossining's medical records did not indicate a prior history of celiac disease and a professional review of his blood did not give Dr. Flowers reason for concern. Therefore, Ossining fails the first part of the subjective prong of the Helling test because the prison exhibits no subjective knowledge of his mistreatment.

2. The prison was not deliberately indifferent toward the medical concerns of the prisoner

Ossining fails to demonstrate his medical treatment by the prison constituted the "unnecessary and wanton infliction of pain," as required to show deliberate indifference. #20 Mustave Hurt, Unimaginable Pain, 742 Geo. L.J. 801, 831-32 (2003) (discussing requirements to show deliberate indifference). In Estelle, the prisoner injured his back while engaged in prison work, claiming deliberate indifference by the prison for failure to perform an X-ray to treat him. The court held that questions concerning forms of treatment are matters of medical judgment, and that failure by prison medical staff to use additional diagnostic techniques beyond ordinary treatment does not constitute deliberate indifference or cruel and usual punishment. #21 Estelle v. Gamble, 429 S. Ct. 97, 107 (1976). Similarly, Dr. Flowers' refusal to order an endoscopy to confirm Ossining's self diagnosis of celiac disease following her professional review of his blood test results does not constitute deliberate indifference to his medical needs. Ossining offers no evidence that prison medical staff failed to meet appropriate professional standards in determining that his symptoms did not warrant further testing. Moreover, Ossining's difference in opinion from prison officials concerning diagnosis and recommended treatment does not constitute cruel and unusual punishment. #22 See id. at 100; but see Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)(holding that difference of opinion does constitute cruel and unusual punishment). While an endoscopy may have led to an appropriate diagnosis and treatment for his condition, Ossining fails to show deliberate indifference as medical decisions concerning forms of treatment beyond ordinary care do not constitute cruel and unusual punishment. #23 See Estelle, 429 U.S. 97 at 107.

Denial of Ossining's request for a special gluten-free diet does not constitute deliberate indifference because the prisoner lacks convincing symptoms requiring special treatment. See 25 Op. Off. Legal Counsel 370, 381-82 (1995). #24 In McElligot v. Goley, 182 F.3d 1248, 1256-1258 (11th Cir. 1999), an inmate with a history of stomach problems was treated by prison doctors with Tylenol, Pepto-Bismol, and an anti-gas medication when experiencing severe intestinal pains, even after it was evident these treatments were not responding to his deteriorating condition. The court held that while prison doctors could not be held liable for failing to diagnose the inmate's colon cancer, the failure to further diagnose and treat severe pain experienced by a prisoner was evidence of deliberate indifference. #25 See id.; Noah Lee, Deliberate Indifference: What's It All About? 31 (3d ed. 2001). Unlike McElligot, Ossining exhibits no severe symptoms of celiac disease. The prison staff examined Ossining, conducted a blood test, prescribed him iron supplements to overcome his weight loss and psychological depression, and professionally reviewed his blood work to conclude there was nothing seriously wrong with him. Therefore, as the prison exercised professional standards of care in evaluating his health, and as the inmate exhibits no severe symptoms warranting special treatment, Ossining fails to show deliberate indifference to his medical needs. #26 See United States Sent. G.L. Man. §5D2.1(f) (2001).

B. The prison's denial of prisoner's requests for a special gluten-free diet and additional testing for a rare disease do not violate contemporary standards of decency

Under the objective prong, Ossining fails to show his exposure to an unreasonable risk of harm contrary to "contemporary standards of decency." #27 Helling, 509 United States at 36 . The objective standard requires showing treatment rising to the level of "serious" deprivation. #28 Campbell, 169 F.3d at 1363. In Rhodes, the Court held confining two inmates to a single cell did not constitute the "unnecessary and wanton infliction of pain" that violates the Eighth Amendment because inmates suffered only minor deprivations of privileges, not necessities such as essential food, medical care, or sanitation. Only when these "minimal civilized measure of life's necessities" are denied is there basis for an Eighth Amendment violation. #29 Rhodes v. Chapman, 452 U.S. 337, 346, 349 (1981). Similarly, Wellville's denial of additional testing and special diet to Ossining when trained medical professionals fail to recognize symptoms requiring such treatment does not constitute deprivation of life's minimal necessities. #30 RESTATEMENT (SECOND) OF TORTS § 931 (1994). Ossining was not denied adequate medical care when he was examined by prison medical staff, had his blood tested and reviewed by Dr. Flowers, and was prescribed iron supplements to combat weight loss and fatigue. Moreover, Ossining was never denied essential food as adequate alternatives remained available in the cafeteria should Ossining prefer a gluten-free diet. Therefore, life's minimal necessities were not denied, and Ossining fails the objective standard as his treatment did not violate contemporary standards of decency.

II. PRISONER'S FIRST AMENDMENT CLAIM IS WITHOUT MERIT BECAUSE WARDEN BRUBAKER REVIEWED AND DENIED PRISONER'S PUBLICATIONS IN RESPONSE TO THE UNREASONABLE BURDEN PLACED UPON THE PRISON'S RESOURCES AS AUTHORIZED UNDER 28 CFR §540.71

As authorized under 28 C.F.R. § 540.71 (b), Warden Brubaker legitimately restricted Ossining's right to receive publications deemed "detrimental to the security, good order, or discipline of the institution..." 28 C.F.R. § 540.71. Exercise of constitutional rights within the prison must pay due regard to the order and security of the prison environment. #31 See Turner Railroad v. Safley, 482 U.S. 78, 84-85 (1987). Ossining fails to show Wellville's restrictions on his First Amendment rights were not "reasonably related to legitimate penological interests" as required under the four-part Turner-Thornburgh test. #32 See Id. at 89; See Thornburgh, 490 U.S. at 401. Under Turner-Thornburgh, the court must consider the following factors: A) the impact that accommodation of the asserted constitutional right will have on others in the prison; B) whether the governmental objective underlying the regulations at issue is legitimate and neutral, and whether the regulations are rationally related to that objective; C) whether the regulation represents an exaggerated response to prison concerns; and D) whether there are alternative means of exercising the right that remain open to prison inmates at de minimis cost to penological interests. #33 Owen v. Wille, 117 F.3d at 1235 (11th Cir. 1997). As Ossining's exercise of his First Amendment right created an unreasonable burden on resources of the prison and put prison security in jeopardy, restricting his access to medical publications was constitutional because it was reasonably related to a legitimate penological interest.

A. Accommodation of prisoner's asserted First Amendment right would be detrimental to the order and security of the prison, placing an unreasonable burden on the resources of the prison medical facility and cafeteria

The Court should be particularly deferential to the informed discretion of Warden Brubaker given interests in security when Ossining's assertion of his constitutional right created a "ripple effect" among fellow inmates and prison staff. #34 See U.S. v. White, 490 U.S. 84, 87 (1990). In Turner, a class of inmates challenged prison regulations restricting correspondence between inmates as violations of their First Amendment rights. The court deferred to judgment of correction officials and upheld the regulation as reasonably related to legitimate security interests given the potential for coordinating criminal activity by inmate-to-inmate correspondence, and given the probability of material circulating within the prison in a "ripple effect." #35 See Turner, 482 U.S. at 84-85.

Like Turner, Warden Brubaker determined that Ossining created a "ripple effect," threatening the order and security of the prison while placing an unreasonable burden on prison resources, by circulating publications among prisoners to encourage them to believe they were sick. According to Brubaker, the temporal relationship between Ossining's receipt of medical publications and increased inmate complaints indicates a correlation between the assertion of his constitutional rights and the riling up of prisoners, over taxing of prison personnel, and additional expenditure of prison resources. #36 Ossining v. Brubaker, No. CIV.A.02-2332, 2003 WL 66432, at *6 (Jan. 6, 2003). Dramatic increases in infirmary visits and requests for allergy testing among inmates, many of whom showed no symptoms warranting testing, support Brubaker's hypothesis. Given the threat to order and cost of additional resources required to accommodate Ossining's assertion of his rights, deference should be given to Brubaker's informed discretion in rejecting these publications.

B. Governmental objective in maintaining prison security is legitimate and neutral, and prison regulations governing the availability of publications to inmates rationally relate to this objective by reducing frivolous medical complaints and special requests

Under the second factor of the Turner-Thornburgh test, the Court must determine whether 1) the governmental objective underlying the regulation at issue is legitimate and neutral, and whether 2) the regulation is rationally related to that objective. #37 State of Alabama v. Carter, 507 U.S. 411, 418 (1992).

1. Protecting prison security is a legitimate and neutral governmental objective

In rejecting Ossining's publications, Warden Brubaker acted pursuant to 28 CFR §540.71, whose "underlying objective of protecting prison security is undoubtedly legitimate and is neutral with regard to the content of the expression regulated." #38 North West Electric Company v. University of Colorado, 211 U.S. 415, 417 (1991). In Thornburgh, inmates filed a class action against the prison challenging regulations excluding incoming sexually explicit publications. The Court upheld the regulations as maintenance of prison order and security is a legitimate governmental purpose, and because the prison's ban on sexually explicit material was neutrally based on security interests. #39 See cf. Thornburgh, 490 U.S. at 414-15. Like Thornburgh, Ossining's publications were rejected because they created obstacles to the legitimate governmental objective of maintaining prison security. Warden Brubaker's rejection of only those publications deemed a threat to prison security remained "neutral" to the legitimate governmental interest in maintaining security and order. Therefore, Brubaker's exercise of authority under 28 CFR §540.71 was consistent with the legitimate and neutral objectives underlying the regulation.

2. Application of prison regulation governing the availability of publications to inmates is rationally related to the governmental objective

There is a "valid, rational connection" between the rejection of various publications addressed to Ossining and the legitimate government interests in security and preservation of resources. #40 See Turner, 482 U.S. at 89. In Onishea, inmates with HIV brought a class action challenging the prison's segregation of recreational, religious, and educational programs based on prisoners' HIV status. The prison justified its actions claiming the cost of hiring additional guards to monitor the threat of "high-risk" behavior in integrated programs would create an undue financial burden on resources. The Court upheld the segregated programs as rationally related to governmental objectives because "penological concerns such as security and cost are legitimate, and...these are in fact the concerns behind the program requirements that participating prisoners neither create a threat of disorder or unreasonable costs." #41 Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999). Similarly, Brubaker's rejection of certain items addressed to Ossining was rationally related to legitimate governmental interests because of the Warden's concern that these publications created threat of disorder and unreasonable costs for the prison. By rejecting these publications, Warden Brubaker intended to remove obstacles to maintaining security by reducing the agitation of prisoners, easing the burden placed on the prison medical staff, and removing the need for additional guards to maintain order in the cafeteria. Therefore, as security was the underlying concern behind Brubaker's actions, his rejection of Ossining's publications was rationally related to legitimate governmental objectives. #42 See H.R. 81, 108th Cong. (2003) (establishing security as legitimate governmental objective), available at http://thomas.-%20loc.gov/bss/d108/d108laws.html.

C. The prison regulation is not an exaggerated response to prison concerns because alternatives accommodating prisoner's rights at de minimus cost to penological interests are not immediately obvious or feasible

Rejection of prisoner's publications is not an exaggerated response to the threat these items posed to prison resources and security because there are no "obvious, easy alternatives." #43 See Jeremy Stevens, Taking Control 41-42 (Amanda Bradley ed., 3d ed. Scholastic Press 2001). In Spellman, inmates challenged the prison's blanket ban on publications sent to prisoners in administrative segregation on the grounds that the regulation was an exaggerated response to security and safety concerns. The Court held the prison's actions unconstitutional, recognizing alternatives to the blanket ban, such as placing reasonable limits on the quantity of publications permitted in confinement, which still addressed the concerns of security, fire, and sanitation. #44 See Spellman v. Hopper, 95 F.supp.2d 1267, 1286 (M.D. Ala. 1999).

Unlike Spellman, Brubaker rejected only Ossining's medical publications, items deemed a threat to prison security; Brubaker did not blanket ban all publications sent to Ossining. Moreover, unlike Spellman, less restrictive alternatives can be rejected because of reasonably grounded fears they will lead to greater harm or administrative inconvenience. #45 See Alabama Constitution article V, § 9. The resources required to read through every allergy magazine received to eliminate publications deemed a threat would be too expansive as prisoners have complained of a wide variety of allergies. Also, allowing Ossining to read magazines while in confinement would not come at a de minimus cost to the prison as additional resources would be required to fund such an arrangement. #46 See James King, Costs of Confinement, 28 N. Ill. U. L. Rev. 609, 621-22 (2001). Thus, as less restrictive alternatives are not readily available or feasible, the Warden's actions do not represent an exaggerated response to legitimate penological concerns.

D. The prison restrictions on prisoner's receipt of publications are reasonable as prisoner has alternative means of exercising his First Amendment rights to keep up with developments in his field of work.

Ossining fails the fourth factor of the Turner-Thornburgh test because other means of expression remain available to the prisoner despite imposition of prison regulations restricting his access to certain publications. See Stevens, Taking Control at 45. In Turner, the prison restricted inmate-to-inmate correspondence between prisons to prevent future criminal behavior, a legitimate security concern. The Court held the fourth factor satisfied if any other means of expression remained open to the prisoners, not necessarily other means of communicating with inmates in other prisons. Turner, 482 S.Ct. at 90, 92. Similarly, Brubaker's application of the regulation merely prohibits publications of particular kind, and does not deprive the prisoner of all means of expression. The prison is not prohibiting Ossining from gaining access to allergy information as he can still receive phone calls and visits from colleagues who can keep him up to date. Moreover, the prisoner is still free to receive a variety of other publications. Alternative means of exercising his First Amendment rights are still available to the prisoner, and therefore, Ossining fails to satisfy the fourth factor.

 

CONCLUSION

For the above stated reasons, the judgment of the District Court should be affirmed.

Respectfully submitted,

___________________

Attorney for Respondents

 

CERTIFICATE OF SERVICE

 

I swear on this day, the 28th of February, 2003, that I have served Respondent's brief on Appellant's counsel.

___________________

Attorney for Respondents