Harper v. Cuomo

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ALLEN HARPER, et al.,

Plaintiffs,

-against- 9:21-CV-0019 (LEK/ML)

ANDREW CUOMO, et al.,

Defendants.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs Allen Harper, José Leon, and Ranfis Perez (collectively, the “Individual

Plaintiffs”), on behalf of themselves and others similarly situated, along with the Release Aging

People in Prison Campaign (“RAPP”), brought this putative class action under Title II of the

Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973

(“Rehabilitation Act”), and the Eighth Amendment to the United States Constitution against:

New York Governor Andrew Cuomo; the New York State Department of Corrections and

Community Supervision (“DOCCS”); DOCCS Acting Commissioner Anthony J. Annucci;

DOCCS Chief Medical Officer John Morley; and Adirondack Correctional Facility

(“Adirondack C.F.”) Superintendent Jeffrey Tedford. Dkt. No. 1 (“Complaint”).

Now before the Court is a report-recommendation, Dkt. No. 51 (“Report-

Recommendation”), issued by the Honorable Miroslav Lovric, United States Magistrate Judge,

recommending denial of Plaintiffs’ motion for a preliminary injunction, Dkt. No. 8 (“Motion”).

Plaintiffs objected to the Report-Recommendation. Dkt. No. 53 (“Objections”). Defendants

filed a response. Dkt. No. 54 (“Response”).

For the reasons discussed below, the Court adopts the Report-Recommendation in its

entirety.

II. BACKGROUND

A. Factual History

“Generally, liberally construed, Plaintiffs’ Complaint alleges that Defendants have

transferred nearly one hundred elderly and medically vulnerable inmates to [Adirondack C.F.]

without the basic health and safety protocols necessary to prevent the spread of COVID-19.” R.

& R. at 2.

B. Procedural History

1. Complaint and Motion

On January 8, 2021, Plaintiffs filed the Complaint on behalf of themselves and a

putative class. See Docket; see also Complaint. In it, they raise three causes of action. See id. at

52–57. The first claim, brought pursuant to 42 U.S.C. § 1983, alleges medical indifference in

violation of the Eighth Amendment to the United States Constitution. Id. at 52–53. The second

claim alleges a violation of Title II of the ADA. Id. at 53–56. Finally, the third claim alleges a

violation of Section 504 of the Rehabilitation Act. Id. at 56–57.

On January 11, 2021, Plaintiffs moved for a preliminary injunction. See Docket. They

seek an order requiring Defendants to: (1) “[r]egularly screen and test all staff and incarcerated

people at Adirondack, including asymptomatic people, in a manner that allows timely isolation

of positive cases;” (2) “[i]solate and distance those testing positive and those suspected of

having been exposed to the virus from the rest of the Adirondack population, consistent with

the [Centers for Disease Control and Prevention] guidelines, by housing incarcerated people

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separately from those who have not tested positive, and requiring staff to stay home from

work;” and (3) “[c]Jease all transfers of people from other prisons to Adirondack until

Defendants can demonstrate” that certain safety protocols have been put into place. Mot. at 39.

After this Court determined the Motion presented factual issues, this Court referred the

matter to Magistrate Judge Lovric for a hearing. See Dkt. No. 24; see also Martinez-Brooks v.

Easter, 459 F. Supp. 3d 411, 449-50 (D. Conn. 2020) (“It is well established that ‘[t]he

existence of factual disputes necessitates an evidentiary hearing .. . before a motion for

preliminary injunction may be decided.’”) (quoting Kern v, Clark, 331 F.3d 9, 12 (2d Cir.

2003)). The hearing lasted six days in February 2021. See Docket.

2. Report-Recommendation

Magistrate Judge Lovric issued the Report-Recommendation recommending denial of

Plaintiffs’ Motion on March 1, 2021. See id. Plaintiffs objected on March 15, 2021. See id.

Defendants filed their Response on March 24, 2021. See id.

Ii. LEGAL STANDARD

A. Review of a Report-Recommendation

Within fourteen days after a party has been served with a copy of a magistrate judge’s

report-recommendation, the party “may serve and file specific, written objections to the

proposed findings and recommendations.” Fed. R. Civ. P. 72(b); see also L.R. 72.1(c). A court

“shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). However, if

no objections are made, or if an objection is general, conclusory, perfunctory, or a mere

reiteration of an argument made to the magistrate judge, a district court need review that aspect

of a report-recommendation only for clear error. See Barnes v. Prack, No. 11-CV-857,

2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); see also Demuth v. Cutting, No. 18-CV-

789, 2020 WL 950229, at *2 (N.D.N.Y. Feb. 27, 2020) (Kahn, J.). “A [district] judge... may

accept, reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” § 636(b).

B. Issuance of a Preliminary Injunction

To obtain a preliminary injunction, “a plaintiff must demonstrate (1) irreparable injury

and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions on

the merits and a balance of hardships tipping decidedly in the plaintiffs favor in order for a

preliminary injunction to issue.” Fair Hous. in Huntington Comm. v. Town of Huntington, 316

F.3d 357, 365 (2d Cir. 2003) (internal quotation marks omitted).

IV. DISCUSSION

A. Standard of Review

In the Objections, as in the Motion, Plaintiffs argue that: (1) they are likely to succeed

on the merits of their claims under the Eighth Amendment, the ADA, and the Rehabilitation

Act; (2) they have shown a likelihood of irreparable harm; and (3) the balance of equities and

public interest favor injunctive relief.

Because the Objections restate arguments presented to the magistrate judge, the Court

reviews the Report-Recommendation only for clear error. See Barnes, 2013 WL 1121353, at

Applying a stricter standard of review “would reduce the magistrate’s work to something

akin to a meaningless dress rehearsal.” Vega v. Artuz, No. 97-CV-3775, 2002 U.S. Dist.

LEXIS 18270, at *3 (S.D.N.Y. Sept. 30, 2002).

B. Preliminary Injunction

The Court finds no clear error in the magistrate judge’s determination that Plaintiffs are

not entitled to injunctive relief.

1. Likelihood of Success on the Merits

a. Eighth Amendment

The Report-Recommendation summarized the standard for an Eighth Amendment claim

based on prison conditions:

Prison conditions can constitute “cruel and unusual punishment” if

prison officials act (or fail to act) with “deliberate indifference to a

substantial risk of serious harm to a prisoner.” Farmer v. Brennan,

511 U.S. 825, 836 (1994). A constitutional violation under these

principles has both objective and subjective components. First, a

prisoner must be incarcerated under conditions that, objectively,

pose “a substantial risk of serious harm.” Hayes v. N.Y.C. Dep’t of

Corr., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer, 511 U.S. at

834). Second, because “only the unnecessary and wanton infliction

of pain implicates the Eighth Amendment,” a prison official must

possess “a ‘sufficiently culpable state of mind,’” which “[i]n prison-

conditions cases . . . is one of ‘deliberate indifference’ to inmate

health or safety.” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter,

501 U.S. 294, 297 (1991)).

R. & R. at 14.

The Court finds no clear error in the magistrate judge’s determination that Plaintiffs

have not shown a likelihood of success on the merits on the subjective component of their

Eighth Amendment claim. Because the Court makes this finding, it does not reach the question

of whether the Report-Recommendation’s objective prong analysis is clearly erroneous.

“Under the subjective prong, a prison official may be held liable for inhumane

conditions of confinement ‘only if he knows that inmates face a substantial risk of serious harm

and disregards that risk by failing to take reasonable measures to abate it.’” Martinez-Brooks,

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459 F. Supp. 3d at 440 (quoting Farmer, 511 U.S. at 847). This deliberate indifference standard

“requires more than negligence, but less than conduct undertaken for the very purpose of

causing harm.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). “The key inquiry is

whether [Defendants] ‘responded reasonably to th[is] risk.’” Wilson, 2020 U.S. App. LEXIS

18087, at *22 (quoting Farmer, 511 U.S. at 844) (second alteration in original).

The magistrate judge determined that Defendants have acted reasonably, and the Court

cannot say that finding constitutes clear error. According to the Report-Recommendation:

Adirondack’s response to COVID-19 has been aggressive and has

included, inter alia, (1) measures to enforce social distancing in the

dining hall such as (a) blue tape on the floor to direct inmates where

they may stand, (b) tape on seats that inmates may occupy, and (c)

a fifty percent maximum capacity in the dining hall, (2) providing

hand sanitizer dispensers throughout the facility, (3) random testing

for COVID-19 among inmates (which amounts to testing ten

percent of the inmate population per week), (4) additional cleaning

supplies provided to each housing unit, (5) a computer tablet

program that permits inmates to download movies and music for

recreation in their single occupancy cells, (6) doors on most cells,

(7) no new inmate transfers to Adirondack since August 2020, (8)

the distribution of disposable and cloth masks to each inmate (with

the option for additional masks upon request), (9) permitting

inmates to eat food—from the commissary or sent to them by

friends and family—in their cells, (10) separating phones by at least

six feet, (11) requiring staff to wear masks at all times, (12)

screening staff when they arrive for duty before permitting them to

enter Adirondack—including taking the staff member’s temperature

and asking COVID-19 screening questions, (13) mandating staff to

(a) stay home if they feel sick, and (b) go home if they become sick

at work, (14) permitting inmates to shave with electric shavers in

their cells, (15) requiring all servers to wear masks in the dining

hall, (16) requiring inmates to wear masks at all times when out of

their private cells and not eating in the dining hall, (17) beginning

to vaccinate eligible incarcerated individuals, and (18) providing at

least two isolation rooms in Adirondack’s infirmary for

quarantining including at least one negative pressure isolation room.

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R. & R. at 17–18.1

While Defendants’ COVID-19 response at Adirondack C.F. has been imperfect, even

negligence is not enough to support a finding of deliberate indifference. Hathaway, 37 F.3d at

66. The Court cannot conclude that the magistrate judge committed clear error in finding that

Plaintiffs are unlikely to succeed on the merits of their Eighth Amendment claim.

2. ADA and Rehabilitation Act

The Court also finds no clear error in the magistrate judge’s analysis under the ADA

and Rehabilitation Act.

Title II of the ADA “proscribes discrimination against the disabled in access to public

services.” Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009) (citation omitted). Under the ADA,

“no qualified individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity.” Id. (citing 42 U.S.C. § 12132). As

the Report-Recommendation noted, “[a] state prison is a ‘public entity’ for purposes of the

ADA.” See R. & R. at 30 n.11 (collecting cases).

Section 504 of the Rehabilitation Act requires that “[n]o otherwise qualified individual

with a disability . . . shall, solely by reason of her or his disability, be excluded from the

1 Citing LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1993), Plaintiffs argue that the fact

that there have been no transfers since August 2020 is “not determinative” of their request for

prospective injunctive relief. See Objs. at 15 n.7. But LaMarca dealt with remedial actions that

occur after a lawsuit has been initiated. See LaMarca, 995 F.2d at 1541 (“When a defendant

corrects the alleged infirmity after suit has been filed, a court may nevertheless grant injunctive

relief unless the defendant shows that absent an injunction, the institution would not return to its

former, unconstitutionally deficient state.”). Its application is unclear where, as here, the

potentially remedial measure—the cessation of transfers—occurs well before filing.

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participation in, be denied the benefits of, or be subjected to discrimination under any program

or activity receiving Federal financial assistance[.]” 29 U.S.C. § 794(a). The Second Circuit has

noted that “the standards under both statutes are generally the same[.]” Wright v. New York

State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016).

“In order to establish a prima facie violation under these acts, [a plaintiff] must show

that 1) he is a qualified individual with a disability; 2) DOCCS is an entity subject to the acts;

and 3) he was denied the opportunity to participate in or benefit from DOCCS’s services,

programs, or activities or DOCCS otherwise discriminated against him by reason of his

disability.” Id. (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)). The

Report-Recommendation found that Defendants contest only the third element of the test for

establishing a prima facie violation of these laws. See R. & R. at 31.

Plaintiffs’ theories for their ADA and Rehabilitation Act claims are that Defendants

intentionally discriminated against them and failed to provide them with reasonable

modifications that would allow them to access programs and services at Adirondack C.F.

safely. See Dkt. No. 8-1 at 23.

“Intentional discrimination does not require a showing of animosity or ill will; it may be

inferred when a qualifying ‘official,’ or ‘policymaker,’ ‘acted with at least deliberate

indifference to the strong likelihood that a violation of federally protected rights will result.’”

Biondo v. Kaledia Health, 935 F.3d 68, 73 (2d Cir. 2019) (quoting Loeffler v. Staten Island

Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009)). The deliberate indifference standard is not

identical to that applied in the context of the Eighth Amendment. See Alexander v. Nev. Dep’t

of Corr., No. 15-CV-213, 2016 U.S. Dist. LEXIS 185298, at *7-8 (D. Nev. Sept. 7, 2016).

“The standard for deliberate indifference [under the Rehabilitation Act] is set out in Loeffler,”

and requires “‘an official who at a minimum [1] has authority to address the alleged

discrimination and to institute corrective measures on the recipient’s behalf [2] has actual

knowledge of discrimination in the recipient’s programs and [3] fails to adequately respond.’”

Biondo, 935 F.3d at 73 (quoting Loeffler, 582 F.3d at 276). Plaintiffs agree that this is the

correct standard. See Objs. at 25–26.

The Report-Recommendation noted:

Defendants moved Plaintiffs to a facility that is currently at

approximately half of its capacity, where they would be housed in

single cells—most with doors on them—and instituted significant

measures to safeguard Plaintiffs from COVID-19. It is hard to

fathom, under these circumstances, how Defendants could be acting

in a fashion that is deliberately indifferent.

R. & R. at 35.

Put differently, the magistrate judge found that Plaintiffs have not shown Defendants

“fail[ed] to adequately respond.” Loeffler, 582 F.3d at 276. The Court finds no clear error in

this holding either.

Plaintiffs also allege that Defendants failed to make reasonable modifications. See Dkt.

No. 8-1 at 23. The Report-Recommendation pointed out a number of modifications put into

place to prevent the spread of COVID-19 at Adirondack C.F.:

Here, inmates at Adirondack were provided with the following

reasonable modifications to help prevent the unnecessary spread of

COVID-19: (1) two bars of soap every two weeks, (2) hand

sanitizer dispensers throughout the facility, (3) cloth and disposable

masks, (4) random COVID-19 testing of asymptomatic inmates, (5)

policies that ensure adequate social distancing in the dining hall, (6)

permission to use electric trimmers for shaving in personal rooms,

(7) allowing access to shaving razors for approximately thirty-

minute increments each day at 6:00 a.m. and 5:40 p.m., (8) cleaning

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supplies to each housing unit every day, and (9) several alternative

recreational opportunities for inmates so that inmates may remain

socially distanced from one another including use of personal

computer tablets, reading material, access to a gym, basketball,

ping-pong, and going to the yard.

R. & R. at 31-32.

The Court finds no clear error in the magistrate judge’s conclusion that “Plaintiffs have

not established that they have been unable to access programs, services, and activities that other

inmates routinely access.” R. & R. at 33.

B. Irreparable Harm, Balance of Equities, and Public Interest

Because the Court concludes that the magistrate judge did not commit clear error in

holding that Plaintiffs are unlikely to succeed on the merits of their claims, the Court does not

reach the questions of whether they have demonstrated irreparable harm or that the balance of

equities and public interest favor an injunction. See, e.g., Two Locks, Inc. v. Kellogg Sales Co.,

68 F. Supp. 3d 317, 333 (E.D.N.Y. 2014).

V. CONCLUSION

Accordingly, it is hereby:

ORDERED, that the Report-Recommendation (Dkt. No. 51) is APPROVED and

ADOPTED in its entirety; and it is further

ORDERED, that Plaintiffs’ motion for a preliminary injunction (Dkt. No. 8) is

DENIED; and it is further

ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-

Decision and Order on all parties in accordance with the Local Rules.

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IT IS SO ORDERED.

DATED: April 20, 2021

Albany, New York

Lawrénee E. Kahn

U.S. District Judge

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