United States Court of Appeals,

Fifth Circuit.

No. 96-30415

Summary Calendar.

Roosevelt McCORMICK, Plaintiff-Appellant,

v.

Richard L. STALDER, et al, Defendants,

Clarence Snyder; Laura Williams, Defendants-Appellees.

Feb. 19, 1997.

Appeal from the United States District Court for the Western District of Louisiana.

Before JONES, DeMOSS and PARKER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant McCormick alleged that many of his consti t utional rights were violated when

o fficials of the Louisiana prison system and Phelps Correctional Center in DeQuincy determined he

must undergo prophylactic treatment with isonicotinic acid hydrazide (INH) because of a previous

positive tuberculosis test. He alleged violations of his Fourth Amendment right to privacy, Fifth

Amendment right against self -incrimination, Eighth Amendment right against cruel and unusual

punishment, and Fourteenth Amendment substantive and procedural due process ri ghts. The

magistrate judge to whom this case was assigned properly pared down the potential defendants and

claims and eventually recommended dismissing the case as frivolous pursuant to 28 U.S.C. § 1915(d).

The district court affirmed, and so do we.

The issues have been narrowed on appeal to whether the prison nurse an d superintending

doctor violated McCormick's Eighth and Fourteenth Amendment rights by insist ing that he undergo

INH treatment without his consent. It is undisputed that he previously tested positive for tuberculosis

and that, pursuant to a prison policy update in 1993, such medication was required of all inmates who

had tested positive. If inmates are non-compliant, the policy provides that they can be isolated until

the Unit Medical Director determines the degree to which isolation is necessary in order to protectstaff and other inmates. PCC Policy and Procedure Memorandum # 108-A, effective August 1, 1993.

McCormick alleges that he submitted to medication in order to avoid iso lat ion, that the medical

officials did not inform him of the potentially severe risks of accepting INH treatment, and that his

consent to treatment was never obtained. McCormick did, however, sign a "Tuberculosis

Counseling" form which the nurse had read to him. Further, he was monitored during the course of

treatment for active tuberculosis and for side effects, and he complained of no side effects.

A complaint filed IFP may be dismissed as frivolous if it lacks an arguable basis in law or fact.

28 U.S.C. § 1915(d), now redesigna t ed as § 1915(e)(2)(B)(i) by § 804 of the Prison Litigation

Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996). A complaint lacks an arguable basis in law

if it is "based on an indisputably meritless legal theory," such as if the complaint alleges the violation

of a legal interest which clearly does not exist. N eitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct.

1827, 1832-33, 104 L.Ed.2d 338 (1989). This court reviews a § 1915(d) dismissal for abuse of

discretion. Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.1993).

McCormick's Eighth Amendment claim can only succeed if he has pled that the prison

medical officials were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429

U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Deliberate indifference encompasses only

unnecessary and wanton inflict ion of pain repugnant to the conscience of mankind. Id. at 105-106,

97 S.Ct. at 291-92. S ee also, Farmer v. Brennan, 511 U. S. 825, ----, 114 S.Ct. 1970, 1980, 128

L.Ed.2d 811 (1994) ("subjective recklessness as used in the criminal law" is the appropriate test for

deliberate indifference). Not only did McCormick state at the S pears v. McCotter, 766 F.2d 179 (5th

Cir.1985) hearing that he did not believe that Dr. Snyder or nurse Williams acted with malice or with

intent to harm him when they required him to undergo INH therapy, but the undisputed facts, cited

above, belie any such contention or inference. The officials monitored his health during the course

of treatment to deal with side effects. This claim was properly dismissed as frivolous.

Similarly, the substantive due process claim that McCormick asserts based on Washington

v. Harpe r, 494 U.S. 210, 227, 110 S.Ct. 1028, 1039-40, 108 L.Ed.2d 178 (1990), is unfounded.

Harper established that a prison inmate may be subjected to forced administration of psychotropic1 See Karolis v. New Jersey Dept. Of Corrections, 935 F.Supp. 523, 527-28 (D.N.J.1996)

(tuberculosis is a more serious threat than it was in the past; a "confined prison setting is

precisely the type of environment where TB is likely to spread easily and rapidly"; state has

"strong interest" in "diagnosing and treating inmates").

2 See Mack v. Campbell, 948 F.2d 1289, 1991 WL 243569 (6th Cir.1991) (administrative

segregation for refusing tuberculosis screening test does not violate due process); Rhinehart v.

Gomez, 1995 WL 364339, *3-*4 (N.D.Cal.1995) ( Washington v. Harper justifies prison policy of

involuntary testing and treatment for tuberculosis). See also Karolis v. New Jersey Dept. of

Corrections, 935 F.Supp. 523, 527-28 (D.N.J.1996) (involuntary administration of tuberculosis

test to prisoner upheld against challenge under Religious Freedom Restoration Act because there

is a compelling state interest in stopping the spread of tuberculosis).

In fact, prison officials face potential liability for failure to take adequate steps to

control the spread of tuberculosis. See Plummer v. United States, 580 F.2d 72, 76-77 (3d

Cir.1978) (inmates have cause of action for emotional distress caused by exposure to

tuberculosis); DeGidio v. Pung, 920 F.2d 525, 528 (8th Cir.1990) (prison officials liable

for damages caused by tuberculosis outbreak). drugs to alleviate mental illness if the inmate posed a danger to himself or others and the treatment

was in the inmate's medical interest. Previously, however, the Supreme Court upheld as

co nstitutional a statute requiring all adults to receive a smallpox vaccination. J acobson v

.

Massachusetts, 197 U.S. 11, 31, 25 S.Ct. 358, 363, 49 L.Ed. 643 (1905). In this case, the prison's

interest in p revent ing the spread of tuberculosis, a highly contagious and deadly disease, is

compelling. The interest in preventing the disease includes an interest in providing medical treatment

for inmates infected with the disease. The prison policy cited above is a rational means of discharging

the prison's duty to prevent tuberculosis; the policy of treating all prisoners who have tested positive

for tuberculosis or requiring them to be confined for medical observation for signs of the active

disease is legitimate and neutral; the consequences of not following the policy could be disastrous;

and finally, there is no apparent alternative system of meeting the described objectives. 1 C ompare

Turner v. Safley, 482 U.S. 78, 89-90, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987) (ident ifying

criteria that must be met if a prison regulation impinges on an inmate's const it utional rights and

upholding such regulations as valid if they reasonably relate to legitimate penological interests). As

a result, even if McCormick had some subs t ant ive due process right not to be forcibly medicated

against tuberculosis—for his own benefit as well as that of the pris o n—the prison's policy was

nevertheless constitutional. 23 McCormick alleged that nurse Williams forced him to take the medication, asserting that he

had no alternative but isolation and forced medication. He also asserts that she did not explain the

consequences and risks of the tuberculosis policy to him. If either of these assertions is correct, it

would appear, as the magistrate judge concluded, that her actions were not in accord with prison

policy and were therefore random and unauthorized. For that reason her actions did not violate

procedural due process because as the magistrate judge noted, Louisiana provides adequate post

deprivation remedies. Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir.1991) (en banc) cert. Finally, McCormick contends that h e was ent itled to a due process hearing before being

forced to undergo the INH treatment or the possibility of isolation with or without forced treatment.

He alleges t hat he was not informed of the potential risks of undergoing and of foregoing the

treatment and should have been afforded a second opinion on the need for treatmen t. In Harper,

supra, the Supreme Court reviewed and found adequate certain procedural protecti ons afforded an

inmate before the state could administer anti-psychotic drugs to him against his will. 494 U.S. at 215-

17, 228-36, 110 S.Ct. at 1033-34, 1040-44. The state policy required a medical finding t hat t he

inmate had a mental disorder which was likely to cause harm if left untreated and that the medication

be prescribed by a psychiatrist and approved by a reviewing psychi atri st. I d. at 215, 110 S.Ct. at

1033. A non-compliant inmate was entitled to a hearing with various procedural protections and the

right to an appeal and judicial review.

Procedural due process protecti ons are, of course, defined in accordance with the magnitude

of the public interests at stake. M atthews v. Eldridge, 424 U.S. 319, 347-48, 96 S.Ct. 893, 900, 47

L.Ed.2d 18 (1976). When public safety is an issue, liberty or property interests can be deprived even

without a prior hearing. H ewitt v. Helms, 459 U.S. 460, 474, 103 S.Ct. 864, 872-73, 74 L.Ed.2d 675

(1983). We again assume a rguendo that McCormick had some substantive due process right not to

receive INH medication without his c o nsent. In this case, prison officials legitimately desired and

needed to confront the threat of the spread of tuberculosis in the prison system. Their policy calls

for treating all prisoners who have tested positive for tuberculosis in the past. By the terms of the

prison policy, McCormick's alternative to voluntarily receiving INH therapy was to receive some form

of isolation, followed by a determination of his need to receive the therapy, and possibly, continued

isolation. The policy embodied within it the procedural protections that would enable McCormick

to avoid treatment o nly if doing so posed no risk to the institution. 3 McCormick's procedural duedenied, 503 U.S. 936, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992) (explaining the Parratt v. Taylor,

451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)/ Hudson v. Palmer, 468 U.S. 517, 104

S.Ct. 3194, 82 L.Ed.2d 393 (1984) doctrine). We agree with this analysis. process rights were not violated by the prison policy.

For these reasons, the complaint was properly dismissed as frivolous.

AFFIRMED.