United States District Court, D. New Mexico
Fashing U.S. Magistrate Judge
matter comes before the Court on the United States'
Motion to Compel Testing for Tuberculosis (Doc. 12), filed on
December 18, 2019. Defendant Nathan Andrew Castillo opposes
the government's motion. See Docs. 19, 20, 21.
The Court held a hearing on the motion on January 9, 2020.
Doc. 23. For the following reasons and for the reasons stated
at the hearing, the Court GRANTS the United States'
motion as follows.
December 3, 2019, Defendant Nathan Andrew Castillo came
before the Court after having been arrested on an arrest
warrant and indictment issued out of the United States
District Court for the District of South Dakota. See
Docs. 1-3. After an identity hearing and a detention hearing
at which Mr. Castillo was represented,  U.S. Magistrate
Judge Kirtan Khalsa found that Mr. Castillo was the person
named in the indictment from South Dakota, and she ordered
that Mr. Castillo be detained and sent to the District of
South Dakota for further proceedings. See Docs. 6,
8-10. Pursuant to standards set by the Centers for Disease
Control and Prevention (CDC), the American Correctional
Association (ACA), the National Commission on Correctional
Health Care (NCCHC) and “good medical practices
established by the professional medical community, ”
the U.S. Marshals Service (USMS) requires that all prisoners
be screened for TB before they can be transported by the
Justice Prisoner and Alien Transportation System (JPATS) and
within 14 calendar days of arrival at a USMS intake facility.
See Doc. 18 at 2-4; Doc. 18-1 at 1-5. On or about
December 13, 2019, Mr. Castillo refused to undergo testing
for TB because “he doesn't want to be sent to
another state.” Doc. 16-1. As a result, the United
States filed its motion requesting that the Court order Mr.
Castillo to submit to the required TB testing and treatment,
if necessary. See Doc. 12.
Turner v. Safley, 482 U.S. 78, 89 (1987), the
Supreme Court held that “when a prison regulation
impinges on inmates' constitutional rights, the
regulation is valid if it is reasonably related to legitimate
penological interests.” Although Turner dealt
with restrictions on inmate marriages and correspondence
between inmates, its standard “applies to all
circumstances in which the needs of prison administration
implicate constitutional rights, ” Washington v.
Harper, 494 U.S. 210, 224 (1990) (emphasis added), even
if the right infringed upon is a fundamental one,
id. at 223 (citing O'Lone v. Estate of
Shabazz, 482 U.S. 342, 349 (1987)). The
Turner reasonableness standard thus applies to
claims involving involuntary medical treatment, see
Harper, 494 U.S. at 223-24, and, by extension,
involuntary medical testing.
three Turner factors that bear on the reasonableness
of a prison regulation relating to involuntary medical
treatment are: (1) whether there is “a ‘valid,
rational connection' between the prison regulation and
the legitimate governmental interest put forward to justify
it, ” 482 U.S. at 89 (quoting Block v.
Rutherford, 468 U.S. 576, 586 (1984)); (2) “the
impact accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation
of prison resources generally, ” id. at 90;
and (3) whether there is a ready alternative to the policy
“that fully accommodates the prisoner's rights at
de minimis cost to valid penological interests, ”
id. at 90-91. See Harper, 494 U.S. at
224-25. Importantly, the third factor does not require that
prison officials “set up and then shoot down every
conceivable alternative method of accommodating the
claimant's constitutional complaint.” Id.
at 225 (quoting Turner, 482 U.S. at 90-91). Applying
these three factors to the USMS regulations that require TB
testing, I conclude that those regulations comport with
to information available on the CDC's website,
approximately 4 to 6% of TB cases reported in the United
States each year occur among people incarcerated at the time
of diagnosis. The incarcerated population contains a high
proportion of people at greater risk for TB than the overall
population. From 1993 to 2017, there were a total of 13, 770
TB cases reported among persons in correctional facilities at
the time of their diagnosis. TB bacteria are spread through
the air from one person to another. TB bacteria are put into
the air when a person with TB disease of the lungs or throat
coughs, speaks, or sings. People nearby may breathe in these
bacteria and become infected. If not treated properly, TB can
incarcerated persons are at higher risk for being infected
with TB bacteria, the CDC recommends that they be tested for
TB. TB testing usually begins with a Tuberculin Skin Test
(TST), which involves injecting a small amount of fluid
(called tuberculin) into the skin on the lower part of the
arm. A positive skin test means that the person's body
was infected with TB bacteria, and additional tests are
necessary to determine if the person has latent TB infection
or TB disease. The USMS requires that any prisoner with a
positive TST test receive a chest x-ray to make sure that the
prisoner does not have active TB disease before the prisoner
can be transported. See Doc. 18 at 3. If a chest
x-ray is positive for TB disease, the prisoner must be
treated before he or she can be transported. See Id.
Tenth Circuit has noted with respect to the involuntary
treatment of TB, a “prison's interest in responding
to the threat of . . . any contagious disease occurring in
prison is obviously strong.” Cummings v.
Ellsworth Correctional Facility, 511 Fed.Appx. 808, 812
(10th Cir. 2013) (unpublished) (quoting Dunn v.
White, 880 F.2d 1188, 1195 (10th Cir. 1989)). The
USMS's interest in reducing the risk of TB infection is
equally strong, and therefore TB screening of all prisoners
before they are transported-all of whom are at high risk of
TB infection-is reasonably related to a legitimate
penological interest. The USMS is responsible for protecting
all individuals within its custody as well as its own
employees and other persons who regularly come into contact
with individuals in USMS custody. The screening process is
done by healthcare professionals in accordance with the
latest CDC standards, and is relatively non-invasive. Doc.
18-1 at 6-7. There is no question that there is a logical
connection between the USMS policy requiring TB testing and
the USMS's interest in reducing the risk of TB disease
among persons in USMS custody.
Mr. Castillo and other prisoners to refuse TB testing and
treatment would place the health of other prisoners and USMS
personnel at risk and would subject the USMS to liability for
failing to protect others from a potentially fatal disease.
Alternatives to TB testing, such as requiring Mr. Castillo to
wear a face mask, is not a practical alternative as he cannot
eat and drink with a face mask on, and he can easily remove
the face mask unless his hands are always restrained.
Isolating Mr. Castillo from other prisoners would put a
significant burden on the USMS; TB is an airborne disease,
and isolating individuals who simply chose not to be tested,
as opposed to those who test positive for active TB, is
simply not practical. At the very least, he cannot be placed
in isolation while he is being transported from New Mexico to
South Dakota. The USMS requirement that Mr. Castillo be
tested for TB before he is transported to South Dakota does
not violate the Constitution.
foregoing reasons, and for the reasons stated on the record
at the hearing, the Court orders that defendant Nathan Andrew
Castillo submit to TB testing, including a TST test and/or
chest x-ray at the expense of the USMS, as well as submit to
any other appropriate medical tests for TB infection and/or
treatment for TB that are determined to be required by
healthcare professionals in accordance with USMS policies. To
the extent that Mr. Castillo physically refuses to submit to
the TB testing and/or treatment, the USMS shall take