RUSSELL v. RICHARDS, (S.D.Ind. 2003)

JOHN TINDER, District Judge

William Alan Russell and Mark E. Garriott bring this action under 42 U.S.C. § 1983, alleging that Sheriff J.D. Richards' policy and procedure of delousing inmates of the Johnson County Jail violated their constitutional rights. It comes before the court on the Defendant's motion and amended motion for summary judgment and the Plaintiffs motion for class certification.

I. Background

In 2001 Mark E. Garriott and William A. Russell were arrested and transported to the Johnson County Jail (the jail) where they were incarcerated.

Every inmate who enters the general population of the jail is given a small cup of the liceall brand of debusing shampoo. The inmates are instructed to put the shampoo in his or her hair and rinse it out while showering before entering the general population. No one from the Sheriffs Department ensures that the inmate uses the shampoo. Under the jail's policy, an inmate has the right to refuse to use the liceall shampoo, but the inmates are not told that they have this right.

The Sheriff's Department has followed its debusing policy because outbreaks of lice are a serious concern at the jail. There have been several lice outbreaks at the jail in past years. If an inmate within a cell block is discovered to have lice, the entire block-each inmate within the block and all bedding, floors and walls-must undergo disinfection because of the difficulty in determining whether the lice has been transferred from that inmate to any other inmate. If it is suspected that an inmate from the block where lice was discovered has traveled to another block within the jail, then that other block is disinfected to avoid future lice outbreaks. Disinfecting an inmate, his or her bedding, and washing his or her bunk area takes approximately twenty-five minutes. Some portion of the jail, from one cell block to multiple cell blocks, has been disinfected due to lice infestation approximately once every six months. On at least one occasion in the past, the entire jail had to be disinfected.

The Plaintiffs allege that the Defendant's policy and procedure requiring all inmates inducted into the jail to undergo a debusing procedure violated their fundamental right to liberty under the Fourteenth Amendment. The Defendant asserts that the Plaintiffs allege a violation of the substantive due process component of the due process clause of the Fourteenth Amendment. The Plaintiffs do not challenge the Defendant's construction of their claim, and the construction is reasonable.

The Defendant seeks summary judgment contending that the Plaintiffs' claims fail because the jail's delousing policy and procedure is reasonably related to legitimate penological interests. He also argues that he is entitled to qualified immunity on the claims against him in his individual capacity. Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

The right the Plaintiffs assert may be narrowly described as the right of a jail inmate to be free from the compelled use of a delousing shampoo. The Plaintiffs, however, describe the right they assert as the right to be free from compelled medical treatment.

The Supreme Court has stated that "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions." Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990) (assuming that a competent person would have a constitutionally protected right to refuse lifesaving hydration and nutrition). The Court also has recognized that a prisoner has "a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause[.]" Washington v. Harper, 494 U.S. 210, 221-223, 227 (1990) (holding that "the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest"). The question of whether a person's constitutional rights have been violated, however, "must be determined by balancing his liberty interests against the relevant state interests." Cruzan, 497 U.S. at 279. Indeed, the Harper Court said that "[t]he extent of a prisoner's right under the Clause to avoid the unwanted administration of antipsychotic drugs must be defined in the context of the inmate's confinement." Harper, 494 U.S. at 222.

Turner v. Safley, 482 U.S. 78 (1987), held that when a prison regulation infringes on an inmate's constitutional rights, the regulation is valid "if it is reasonably related to legitimate penological interests." Id. at 89; see also Thornburgh v. Abbott, 490 U.S. 401, 404 (1989). "This is not a demanding standard." Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir. 1988). The standard is required if "prison administrators . . . and not the courts, [are] to make the difficult judgments concerning institutional operations." Turner, 482 U.S. at 90; see also Harper, 494 U.S. at 223-24 ("prison authorities are best equipped to make difficult decisions regarding prison administration"). This standard applies even when it is claimed that a fundamental constitutional right has been infringed. Harper, 494 U.S. at 223. Therefore, the court need not decide whether the Plaintiffs allege an infringement of a fundamental constitutional right.

In Turner, the Court identified four factors to be considered in determining the reasonableness of a prison regulation: First, "there must be a Valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Turner, 482 U.S. at 89. The second factor is "whether there are alternative means of exercising the right that remain open to prison inmates." Id. at 90. Third, the court should consider "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." Id. The fourth factor is whether there is "an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests." Id. at 91. The Turner standard should be applied to the claims of pretrial detainees as well as those of convicted prisoners. Cf. Bell v. Wolfish, 441 U.S. 520, 545 (1979) ("pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights . . . enjoyed by convicted prisoners").

The Plaintiffs argue that the Turner factors do not control. They are incorrect. In Washington v. Harper, the Supreme Court stated that: "We made quite clear that the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights." 494 U.S. at 223. The Court then considered three of the four Turner factors, those considered relevant, in deciding whether the challenged prison regulation was constitutionally permissible. Id. at 224-25. Riggins v. Nevada, 504 U.S. 127 (1992) (involving the forced administration of antipsychotic drugs to pretrial detainee over his objection), cited by the Plaintiffs, relied on Harper, id. at 133-35, and Sell v. United States, ___ U.S. ___, 123 So. Ct. 2174 (2003) (involuntary medication of mentally ill pretrial detainee with antipsychotic drugs over his refusal to take medication in order to render him competent to stand trial), also cited by the Plaintiffs, applied Riggins and Harper, Sell, 123 S.Ct. at 2183-87.

Moreover, Harper, Riggins and Sell are distinguishable from the instant case in that they involved the forced administration of antipsychotic drugs to an inmate. The Supreme Court has described the "forcible injection of medication into a nonconsenting person's body" as "a substantial interference with that person's liberty" having as its purpose the altering of the chemical balance in the person's brain, leading to changes in the person's cognitive processes. Harper, 494 U.S. at 229. The Court remarked that antipsychotic drugs can have serious and sometimes fatal side effects. Id. Indeed, the Harper Court expressly limited its holding to antipsychotic drugs. Id. at 214 n. 1. The "forced" (recall there is no evidence that the Plaintiffs were compelled by physical or other force or threats to use the shampoo and no guard ensures that inmates use the shampoo) use of a debusing shampoo is a less substantial interference with a person's liberty-no chemicals are injected or otherwise introduced into the body and the purpose is not to alter the chemical balance in the brain. Although there is evidence that liceall should be used with caution by persons allergic to ragweed, the Plaintiffs offer no evidence to suggest that the side effects to someone who uses liceall would be serious or fatal, or that they themselves suffer from ragweed allergies.

The Plaintiffs claim that they not only have the right to refuse to use the liceall shampoo, but also have the right to information which would enable them to make an informed decision about using liceall. There is some authority to support their claim. White v. Napolean, 897 F.2d 103 (3rd Cir. 1990), held that convicted prisoners retain a limited right to refuse medical treatment and a related right to such information as reasonably necessary to make an informed decision whether to refuse treatment. Id. at 113. The White plaintiff alleged that the prison doctor retaliated against him for refusing treatment for an ear infection. According to the plaintiff, when the doctor first proposed treatment with ear drops, the plaintiff refused to be treated because the doctor would not tell him the ingredients of the drops or let him see the label when asked to do so. The plaintiff was allergic to penicillin and believed the ear drops contained that drug. Id. at 111. The court concluded that the plaintiff had a reasonable need and, therefore, a right to know whether the proposed treatment contained penicillin because he was allergic to penicillin and treatment with penicillin may have serious and even life-threatening consequences to those persons allergic to the drug. Id. at 113. The court also said, however, that a prisoner may be compelled "to accept treatment when prison officials, in the exercise of professional judgment, deem it necessary to carry out valid medical or penological objectives." Id.; see also id. at 115 (Seitz, J., dissenting) (noting that the case did not present the issue of whether a prisoner may be compelled to accept medical treatment against his or her will when the prisoner's condition may pose a threat to the prison community).

Thus, establishing that an inmate has a constitutionally protected right is not enough to prove a substantive due process claim. Even fundamental constitutional rights of an inmate may be infringed by a prison policy if the policy "is reasonably related to legitimate penological interests." Turner, 482 U.S. at 89; see also White, 897 F.2d at 113.

The court will assume that the Plaintiffs may have a limited liberty interest in refusing to use the liceall shampoo. The parties do not directly address whether use of liceall shampoo constitutes medical treatment. But evidence offered by the Defendant supports a reasonable conclusion that use of the liceall shampoo could be considered a type of medical treatment. ( See Ann Gordon Aff. ¶¶ 3-6 (identifying certain brands of lice shampoo as over-the-counter medications)).

Nor do the parties directly address whether the rights recognized in cases such as Cruzan, Harper, Riggins and Sell encompass the right of an inmate to refuse to use a debusing shampoo such as liceall, assuming the use of such shampoo is considered medical treatment. Cruzan recognized that competent persons have the right to refuse unwanted medical treatment, but did not expressly hold that incarcerated persons have such a right. It bears repeating that when deciding whether a person's constitutional rights have been violated, the court must balance the person's liberty interests against the relevant state interests. Cruzan, 497 U.S. at 279. And, the Court has emphasized that a prisoner's due process rights "must be defined in the context of the inmate's confinement." Harper, 494 U.S. at 222. Although the Supreme Court has held that inmates and prisoners have the right to refuse antipsychotic drugs, the forced medication of which the Court described as "a substantial interference with [a] person's liberty," id. at 229; this case does not involve the forced administration of such mind altering medications. It seems beyond cavil that the forced use of a debusing shampoo is a lesser intrusion on a person's liberty than the forced medication with antipsychotic drugs. Cf. Cruzan, 497 U.S. at 270 (noting that "the State's interest weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims") (quoting Matter of Quintan, 355 A.2d 647, 662-664 (N.J.), cert. denied, 429 U.S. 922 (1976)). Not even White v. Napolean holds that an inmate or prisoner has the right to be free from the compelled use of a debusing shampoo. And, as previously noted, that case did not address the question of whether an inmate may be compelled to accept medical treatment where the inmate's condition may pose a health, sanitary or other risk to other inmates and/or jail staff. An inmate infected with head lice may pose such a risk.

Indeed, the court's own research finds no judicial decision recognizing a constitutional right of an inmate or prisoner to refuse to use a debusing shampoo. The court is highly skeptical that such a constitutional right exists. However, although the Defendant mentions that it has found no case directly addressing the claim asserted by the Plaintiffs, he has not argued that no such right exists and apparently assumes that the Plaintiffs do have such a right. ( See, e.g., Def.'s Am. Mem Law Support Mot. Summ. J. at 5 (arguing that the Plaintiffs' claim fails because the challenged conduct is reasonably related to legitimate penological interests)). The court, therefore, assumes that the Plaintiffs as jail inmates have a limited constitutional right to be free from the forced use of a debusing shampoo.

The Plaintiffs' alleged limited liberty interest can be infringed on if the Defendant shows that the jail policy of having inmates use the liceall shampoo advances legitimate penological interests. The Defendant has made this showing.

The Plaintiffs question whether the Defendant's concern about lice infestation is a legitimate governmental interest. They claim that there is no specific evidence of any lice problems in the jail. However, the Defendant's Amended Motion for Summary Judgment is supported by affidavits which provide specific evidence that there have been past problems with lice at the jail. Terrence McLaughlin, Sheriff of the Johnson County Jail, and Randy Spivey, Assistant Jail Commander, state that lice outbreaks are a serious concern at the jail, they have personal knowledge of several lice outbreaks at the jail, and that some portion of the jail has been disinfected due to lice infestation approximately every six months. (McLaughlin Suppl. Aff. ¶¶ 6, 8-10; Spivey Aff. ¶ 6, 8-10.) The Sheriff also states that on at least one occasion the entire jail had to be disinfected. (McLaughlin Suppl. Aff. ¶ 11.) The evidence also establishes that disinfecting the jail, whether one cell block or portions of the jail, is a time and, presumably, resource consuming process. (Spivey Aff. ¶ 12 (stating that disinfecting an inmate, bedding and bunk area takes approximately twenty-five minutes).) The Plaintiffs offer no evidence to refute this evidence. Thus, even though the Defendant offers no documentation of lice outbreaks at the jail, he has offered specific evidence of lice problems in the jail.

The Plaintiffs next question the Defendant's focus on lice over other communicable diseases. The record, however, does not address what efforts, if any, are made by the Defendant to prevent the spread of other communicable diseases. The court may assume that some steps are taken in order to maintain health conditions at the jail. For example, on admission an inmate may undergo a medical screening by a medical professional or other jail staff member. But even if the Defendant takes no steps to prevent infection with other communicable diseases (which likely would lead to another lawsuit), that failure makes no difference here. The court is not called upon to determine in this case whether the Defendant runs the jail in the most optimal, healthy and safe manner. Instead, the court's concern is whether the jail policy of instructing inmates to use liceall shampoo before entering the general population impermissibly infringes on the Plaintiffs' rights.

The Plaintiffs contend that there is no valid, rational connection between the jail policy and the governmental interest advanced to justify it. They argue that this is so because the policy addresses head lice infestations only to the exclusion of the other areas of the body which may be infected and the jail does not follow the directions on the liceall label. Turner does not require perfection in the connection between the policy and governmental interest or 100% effectiveness. Turner requires only a valid and rational connection between the jail policy and the governmental interest offered as justification. See Turner, 482 U.S. at 89. The evidence satisfies this standard. There is a valid, rational connection between the jail liceall shampoo policy and the Defendant's interest of preventing lice outbreaks and maintaining sanitation at the jail. The inmates' use of the liceall shampoo before entering the general population as instructed under the jail's policy may not prevent every transfer of lice or lice outbreaks, but may prevent some transfers and outbreaks of lice.

The Plaintiffs contend there are no alternative means of exercising their right to refuse the unwanted medical treatment. The Harper Court did not consider this second Turner factor relevant. Because Harper involved a claim arising from forced medication, the Court's exclusion of the second Turner factor from the relevant factors may suggest that this factor is inapplicable in other cases of alleged forced medical treatment, such as this. Neither Riggins nor Sell separately discussed the Turner factors, so they provide no guidance on this issue, and the court finds no guidance in the decisions of the Seventh Circuit or any other judicial decision. The Ninth Circuit has remarked, however, that "the second Turner factor . . . is much more meaningful in the first amendment context than the fourth or eighth, where the right is to be free from a particular wrong." Michenfelder v. Sumner, 860 F.2d 328, 331 n. 1 (9th Cir. 1988); cf. Dunn v. White, 880 F.2d 1188, 1193 n. 3 (10th Cir. 1989) (stating that the Turner test has limited applicability to Fourth Amendment challenges). Turner was a First Amendment case, not a substantive due process case like the instant case. So it seems that the second Turner factor may have little or no relevance to this case.

But even assuming the second Turner factor applies, the factor does not weigh against finding the jail policy reasonable. The evidence establishes that an inmate has the right to refuse the liceall shampoo and no jail employee ensures that an inmate actually uses the shampoo. Thus, under the jail policy an inmate may assert his or her right to refuse unwanted medical treatment. On the other hand, the evidence also establishes that an inmate is not advised of his or her right to refuse to use the shampoo. Therefore, it seems unlikely that an inmate would tend to exercise this right by refusing the guard's instruction to use the liceall shampoo. It seems fair to say that the public generally expects jail inmates to follow the instructions of the jail guards. Yet, the Plaintiffs have not argued that they would have refused to use the liceall shampoo had they been told that they had the right to refuse. And, they point to no evidence in the record of any coercive words or actions by the guards (other than the simple instruction to use the shampoo) which compelled them to use the shampoo. Thus, one cannot conclusively find that the Plaintiffs were forced against their will to use the liceall shampoo. Given the deference due the Defendant, see Turner, 482 U.S. at 90, and the evidence that inmates have the right to refuse to use the liceall shampoo, even if not advised of this right, the court concludes that the second Turner factor does not weigh against the Defendant.

The Plaintiffs argue that accommodating their asserted right to be free from unwanted medical treatment will have a minimal impact on guards, other inmates and on the allocation of prison resources generally. They object that the policy requires all inmates to use the liceall shampoo, even before they are found to have lice. The Plaintiffs argue that requiring an inmate who does not have lice to use the shampoo does nothing to maintain sanitary conditions at the jail. The record is undeveloped regarding the precise impact the accommodation of the Plaintiffs' alleged right to be free from the forced use of the liceall shampoo would have on guards, other inmates and the prison generally. However, if an inmate with head lice exercises his or her right to refuse the shampoo, the inmate could then expose the rest of the jail population to lice, thus posing a health and sanitary hazard to others at the jail.

In Turner, the Court said that "[w]hen accommodation of an asserted right will have a significant `ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials." Turner, 482 U.S. at 90. The Defendant offers evidence that if one inmate in a cell block has lice, then each inmate within that block, including his or her bedding and bunk area, the floors and walls must all be disinfected. And, if it is suspected that any inmate from that block traveled to any other block(s), the other block(s) must also be disinfected. The process of disinfecting an inmate and his or her bunk area takes about twenty-five minutes. Thus, it seems that allowing an inmate who has head lice to refuse the use of the liceall shampoo may have a significant impact on other inmates. First, this might expose the other inmates to and infect them with lice. Second, this would require all inmates in the same block as the infected inmate, even if not infected, to undergo the disinfecting procedure. Allowing accommodation of the asserted right also may have a significant effect on the jail staff who must oversee the disinfection of the affected cell block or blocks and who may be exposed to lice infection as well.

The court notes that the Supreme Court upheld as against a constitutional challenge a state statute requiring all adults to receive a smallpox vaccination. Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905). Prison policies requiring prisoners who test positive for tuberculosis to be medicated have been upheld against a due process challenge as well. See, e.g., McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). The court has no knowledge about how the risk of the transfer of lice infestation compares to the spread of smallpox and TB, both highly contagious diseases. And, there can be no doubt that the dangerous consequences of exposure to smallpox or TB is graver than the dangerous consequences of exposure to or infection with lice. Nonetheless, an inmate who is infected by lice poses a health risk to the rest of the inmate population and jail staff and threatens sanitary conditions at the jail. Thus, it seems that the third Turner factor weighs in favor of finding the jail policy reasonable.

The Plaintiffs maintain that there are ready alternatives to the jail policy. While "the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable . . . prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Turner, 482 U.S. at 90-91. The Plaintiffs identify one alternative: They would have the jail examine each inmate for lice before allowing him or her into the general population. That may be an acceptable alternative in some cases, but not necessarily others, for example, where the jail staff examined an inmate but overlooked the lice or nits on the inmate. Treating everyone for head lice seems to eliminate the risk of erroneously allowing an inmate infected with head lice into the general population. The Plaintiffs' alternative may seem to accommodate an inmate's alleged right to refuse unwanted medical treatment, provided the inmate was not found to have lice. The Plaintiffs do not address what happens under their alternative if an inmate is discovered to have head lice-is he or she then required to use the liceall shampoo? If so, this would seem to do little to accommodate the inmate's alleged right to refuse the use of the liceall shampoo. If the inmate is not required to use the shampoo, then how does the jail address the problem of avoiding outbreaks of lice in the general population? And, the Plaintiffs' alternative may run afoul of its own constitutional challenges regarding searches of the person.

The court, however, has no information on which to base a determination regarding whether such an alternative is at a de minimis cost to valid penological interests. See Turner, 482 U.S. at 91. The Defendant suggests that requiring the use of the liceall shampoo by each inmate is the most cost effective method of preventing lice infestation at the jail, but cites no evidence to establish the costs of this method. Nor does the Defendant compare the costs of this method to any other method available. Thus, the court must conclude, based on the record, that this fourth Turner factor seems rather neutral.

The court has considered the four Turner factors. The first factor strongly favors finding the jail policy of instructing inmates to use liceall shampoo to be constitutionally valid. None of the other factors weighs against finding the policy to be valid. On balance, the evidence establishes that the Defendant's policy of instructing inmates to use a delousing shampoo satisfies the Turner standard. Given the strong, valid and rationale connection between the jail policy and the Defendant's interest in preventing lice outbreaks and maintaining sanitary jail conditions, the court concludes that the jail policy is reasonably related to legitimate penological interests. Therefore, any infringement on the Plaintiffs' asserted rights is constitutionally permissible. Accordingly, the Defendant's motion for summary judgment will be GRANTED.

Even if the jail policy violated the Plaintiffs' constitutional rights, the Defendant in his individual capacity would be entitled to qualified immunity. If a defendant asserts qualified immunity, the plaintiff bears the burden of establishing the violation of a clearly established right. Forman v. Richmond Police Dep't, 104 F.3d 950, 957 (7th Cir. 1997). To establish a clearly established right, the plaintiff must point to "[c]losely analogous cases . . . decided before the defendants acted or failed to act[.]" Forman, 104 F.3d at 958. The Plaintiffs have not identified any closely analogous cases. They cite to Bee v. Greaves, 910 F.3d 686 (10th Cir. 1990), which concluded that a psychiatrist did not have qualified immunity from claims arising from his involuntary medication of a pretrial detainee with thorazine, id. at 687, an antipsychotic medication, Physicians' Desk Reference 1651 (57th ed. 2003). As stated in Washington v. Harper, the forcible injection of antipsychotic drugs into a person's body against their will is "a substantial interference with that person's liberty[.]" Harper, 494 U.S. at 229. No antipsychotic drugs or any other drugs were injected into the Plaintiffs' bodies. The use of anti-lice shampoo is a much lesser interference with a person's liberty than the injection of antipsychotic medication.

The court's own legal research has not turned up any closely analogous case either. Instead, the court found one decision which held that the allegation that the plaintiff was forced to use anti-lice shampoo while an inmate at a county jail and the defendants failed to inform him of the affects of the shampoo failed to state a § 1983 claim. Clatterbuck v. Ritchie, No. 89-3348-S, 1989 WL 115069, *1 (D. Kan. Sept. 14, 1989). And, as stated, the court seriously doubts whether a jail inmate has a liberty interest in refusing to use a debusing shampoo such as liceall. Thus, the court concludes that the Defendant is entitled to qualified immunity.

The Defendant's Motion for Summary Judgment and Amended Motion for Summary Judgment will be GRANTED for the reasons stated.

Because the Defendant is entitled to judgment as a matter of law and the Plaintiffs cannot prevail on their claims, this case is over and the Plaintiffs' Motion for Certification as Class Action, therefore, should be DENIED.

ALL OF WHICH IS ENTERED.