United States District Court, D. Nebraska
M. Gerrard United States District Judge
matter is before the Court on the defendant's objection
(filing 36) to the Magistrate Judge's order
(filing 33) granting the government's motion to
compel (filing 13), as well as the defendant's
objection to the Magistrate Judge's order (filing
34) denying the defendant's motion to recuse. A
district court may reconsider a magistrate judge's ruling
on nondispositive pretrial matters only where it has been
shown that the ruling is clearly erroneous or contrary to
law. See 28 U.S.C. § 636(b)(1)(A); Ferguson
v. United States, 484 F.3d 1068, 1076 (8th Cir. 2007).
Upon review of the record, the Court finds no error, and will
overrule the objection.
the government moved to compel the defendant to submit to
tuberculosis testing. The defendant objected to the testing,
claiming that the test impermissibly violates his right to
free exercise of religion under the Religious Freedom
Restoration Act (RFRA), 42 U.S.C. §
2000bb-1(b). See filing 36. The
Magistrate Judge determined, and the Court agrees, that the
testing does not violate RFRA.
speaking, RFRA prohibits the government from substantially
burdening a person's exercise of religion, but that
protection is not absolute. Indeed, infringements of a
person's sincerely held religious beliefs will pass
constitutional muster if: (1) the action furthers a
compelling government interest; and (2) is the least
restrictive means of furthering that governmental interest.
42 U.S.C. § 2000bb-1(b). The first prong of the
analysis is satisfied here. The state has a strong interest
in preserving the health and welfare of inmates, detainees,
and prison staff. See DeGidio v. Pung, 920 F.2d 525,
528 (8th Cir. 1990); Lareau v. Manson, 651 F.2d 96,
109 (2d Cir. 1981). In fact, prison officials have an
affirmative obligation to protect inmates from exposure to
infectious diseases. Jolly v. Coughlin, 76 F.3d 468,
477 (2d Cir. 1996).
second prong is also met. Indeed, in the Magistrate
Judge's order granting the government's motion to
compel, the defendant was given the opportunity to decide
whether the TB testing would be done by subcutaneous
injection or by chest x-ray. Filing 33 at 2. And
although there is some disagreement among various courts as
to precisely what tuberculosis tests comply with the least
restrictive analysis, compare Jolly, 76 F.3d at 439
(finding the administration of the PPD test was not the least
restrictive means) with Karolis v. New Jersey Dep't
of Corr., 935 F.Supp. 523, 528 (D.N.J. 1996)
(determining that the Mantoux test is a least restrictive
test), courts addressing the issue have consistently held
that submission to chest x-rays and sputum samples satisfies
the least-restrictive-means injury. See Jolly, 76
F.3d at 439 (holding the PPD test did not satisfy the least
restrictive means analysis because the inmate could submit to
periodic chest x-rays and sputum samples); Jihad v.
Wright, 929 F.Supp. 325, 331 (N.D. Ind. 1996)
(suggesting as a least restrictive measure that the officials
could have required the defendant to submit to periodic chest
x-rays or sputum samples). So, the defendant's submission
to a chest x-ray for the purpose of testing for tuberculosis
is the least restrictive means furthering the
government's compelling interest in detecting, and
preventing, the spread of infectious diseases.
defendant also takes issue with the Marshals Service policy
for TB testing, contending that the policy is only meant to
apply to prisoners who are actively symptomatic. He is wrong
about that-while the policy prescribes measures to be taken
when a prisoner is suspected of having tuberculosis, it
plainly provides for routine testing at intake. See
filing 36 at 8. In any event, the defendant cites to no
authority suggesting that the Marshals Service may not pursue
testing in the absence of such a policy, or that the Marshals
Service policy has the force of law enforceable by judicial
decree. Cf. Fanoele v. United States, 975
F.Supp. 1394, 1400 (D. Kan. 1997).
the defendant moved to recuse the Magistrate Judge, claiming
the Magistrate Judge was biased. The Magistrate Judge denied
the defendant's motion. After reviewing the record, the
Court finds that the Magistrate Judge's orders regarding
the government's motion to compel as well as the
defendant's motion to recuse were not clearly erroneous
or contrary to law. Fed. R. Civ. P. 72(a); see 28 U.S.C.
§ 636(b)(1)(A). Accordingly, the defendant's
objection (filing 36) is overruled in its entirety.
defendant's objection (filing 36) is overruled.
copy of this order shall be provided to the United States
 The defendant suggests that the
spelling of his name in all capital letters invokes an
"unknown entity, " not him. He is wrong: in federal
court, capitalization is a matter of style, not substance.
See Jaeger v. Dubuque Cty., 880 F.Supp.
640, 643-44 (N.D. Iowa 1995).
 RFRA has been held unconstitutional as
applied to state and municipal governments. See City of
Boerne v. Flores,521 U.S. 507, 516 (1997). The Court
assumes, without deciding, that RFRA's protections extend
to the application of a federal policy to a federal prisoner,
despite his custody in the Saline County Jail. See filing 13
at 2-3. In any event, the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. §
2000cc et seq., would afford the defendant essentially the