# Harper v. Cuomo

> District Court, N.D. New York · April 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10313732

## Case

- **Court:** District Court, N.D. New York
- **Decided:** April 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
2
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,
5
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.
6
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.
7
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
9
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313732. Public record. Not legal advice.