People ex rel. Mackenzie v Tedford

[*1] People ex rel. Mackenzie v Tedford 2021 NY Slip Op 21005 Decided on January 18, 2021 Supreme Court, Essex County Meyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on January 18, 2021
Supreme Court, Essex County

The People of the State of New York ex rel. Edward Mackenzie, Petitioner,

against

Jeffrey Tedford, Superintendent of Adirondack Correctional Facility and ANTHONY J. ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, , Respondents.



CV20-0499



Skadden, Arps, Slate Meagher & Flom, LLP (Zi Lin, Esq., of counsel), New York, New York for the Petitioner.

Letitia James, Esq., Attorney General of the State of New York (Glen Francis Michaels, Esq., Assistant Attorney General, of counsel), Plattsburgh, New York, for the Respondents.
Richard B. Meyer, J.

Petition under CPLR article 70 for release of the petitioner, Edward MacKenzie (MacKenzie), from imprisonment and detention at the Adirondack Correctional Facility (ACF).

The following papers have been considered by this Court in support of the application: petition of Zi Lin, Esq. verified by petitioner on November 23, 2020 with exhibits 1 through 8; affirmation of Robert Greifinger, M.D. dated November 6, 2020 with exhibit A; affidavit of Jennifer Grossman, RN, BSN, LNC, sworn to November 10, 2020 with exhibits A and B; affidavit of Edward MacKenzie sworn to November 6, 2020 with exhibits 1 and 2; affidavit of Darlene MacKenzie-Vourtis sworn to November 18, 2020; affirmation of Michelle M. Sloss, Esq. dated January 13, 2021 with exhibits 1 and 2 in response to the Respondents' answer. In opposition to the application, this Court has considered the following papers: answer and return dated January 11, 2021 with exhibits A through J, including affidavits of Dahlia G. Wiggan (exhibit E), Rhonda Marrone (exhibit G), and Scott A. Kelly (exhibit I), all sworn to January 11, 2021, and an in camera exhibit consisting of MacKenzie's 1994 presentence report. The Court also heard oral arguments by video conference on January 14, 2021, all in accordance with the recent administrative orders, with MacKenzie participating from the Adirondack Correctional Facility, counsel from their respective remote locations, and a court reporter making a record also from a remote location.

MacKenzie alleges in his petition, supported in part by affirmations or affidavits of a physician, a nurse, and his attorneys, that he is at high risk of both contracting the COVID-19 [*2]virus and, due to his "advanced age and multiple co-morbidities, . . . suffering serious complications or death as a result."[FN1] He claims to suffer from high blood pressure (hypertension), high cholesterol (hypertriglyceridemia), COPD (chronic obstructive pulmonary disease), and that he is prediabetic.[FN2] MacKenzie further alleges that cleaning and hygiene supplies are scant, monitoring and enforcement of social distancing and proper use of personal protective equipment (PPE) is lax, and that testing and tracing of COVID-19 cannot be implemented.[FN3] As a result, he claims that his continued incarceration constitutes cruel and unusual punishment in violation of his rights under the Eighth Amendment to the United States Constitution, the only remedy for which is his immediate release.

MacKenzie, a sixty-five year old male, is serving four concurrent indeterminate terms of imprisonment of twenty-five years to life as a result of being convicted and sentenced in 1994 as a persistent felony offender for the crimes of kidnapping in the second degree, a class B violent felony, two counts of robbery in the third degree, a class C violent felony, and one count of unauthorized use of a motor vehicle in the first degree, a class felony. [FN4] His sentences were to run consecutively to the remaining three to six years on a 1983 conviction and sentence for kidnapping in the second degree.[FN5] He has served twenty-eight years and five months of his sentences. MacKenzie was denied parole in his first appearance before the parole board in March 2020, and he is not eligible again for parole until 2022.

ACF, which is in Ray Brook, Essex County, New York, is a correctional facility specifically for inmates fifty years of age and older. MacKenzie was transferred to ACF on June 4, 2020 from the Fishkill Correctional Facility. There are currently approximately ninety-four inmates at ACF.

According to MacKenzie, he routinely encounters staff and other inmates who are not wearing masks, even though the wearing of masks is always required other than when eating, bathing, brushing teeth, etc. The bathroom available to him and the other eighteen inmates in his housing unit is equipped with only four sinks, toilets and shower stalls, and there is no limit on the number of inmates using the bathroom at one time such that social distancing is not maintained. The dining hall is equipped with long tables having seating on both long sides, and inmates are allowed to sit on either side of the tables and within six feet of each other. MacKenzie claims that at one time seating was restricted to only one side of the tables so that inmates would not have other inmates across from them breathing in each other's direction, but this measure was canceled by an official from the Albany office of the Department of Corrections and Community Supervision (DOCCS). He also claims that there is no enforcement of mask-wearing or social distancing in communal spaces.

MacKenzie's medical records cover the year 2020 and do not include the July 2012 and [*3]January 2016 chest x-ray reports relied upon by Grossman in her affidavit. A medical examination conducted on February 3, 2020 while he was incarcerated at the Fishkill Correctional Facility contains no findings of lung or breathing problems nor any personal or family history of such conditions.[FN6] Two days prior to his transfer to ACF, an outdraft medical screening was also performed which recorded his medical history as "HTN, hypertriglyceridemia, refractive ewors reg glasses, mental disorder".[FN7] At the time of his admission to ACF on June 4, 2020, another medical screening was conducted and there are no notations of any current health problems or complaints.[FN8] An incoming draft medical screening performed on June 5, 2020 contains a notation that he reported a medical history of "Asthma/COPD".[FN9] Another medical history was taken on June 24, 2020 which lacks any report of a history of lung problems.[FN10] The examination that day did reveal "bronchospasms" and his lungs were noted to be "abnormal".[FN11] On July 20, 2020 MacKenzie requested that he be seen by a provider and have an x-ray for "COPD, emphysema".[FN12] MacKenzie was examined on September 28, 2020 after reporting that he was having a hard time breathing, and was found to have "expiratory wheezes" in his left lung but his right lung was clear.[FN13] A CT scan of his chest was performed on November 10, 2020 and the resulting report revealed the presence of "[m]ild diffuse emphysema" in his lungs, his thoracic aortic diameter was within normal size limits, his main pulmonary artery diameter was within normal limits, his heart was within normal limits with no pericardial effusion and a mild amount of coronary artery calcification, and his chest wall and spine were unremarkable with no "acute osseous abnormality".[FN14]

"It is settled that an inmate, who 'must rely on prison authorities to treat [the inmate's] medical needs" (Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L.Ed.2d 251), 'has a fundamental right to 'reasonable' * * * and 'adequate' * * * medical care' (Powlowski v. Wullich, 102 AD2d 575, 587, 479 N.Y.S.2d 89 [citations omitted]. Further, it is the State's duty to render medical care 'without undue delay' and, therefore, whenever 'delays in diagnosis and/or treatment [are] a proximate or aggravating cause of [a] claimed injury', the State may be liable (see, Marchione v. State of New York, 194 AD2d 851, 855, 598 N.Y.S.2d 592)." (Kagan v State, [*4]221 AD2d 7, 11, 646 NYS2d 336, 339 [2d Dept 1996]). The duty to furnish "reasonable and adequate" medical care arises out of the Eighth Amendment of the United States Constitution (see Estelle v Gamble, 429 US 97, 106, 97 S Ct 285, 292, 50 L Ed 2d 251 [1976]; Brown v Plata, 563 U.S. 493, 510-11, 131 S.Ct 1910, 1928, 179 L. Ed. 2d 969 [2011]). "In Estelle, we concluded that although accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the Eighth Amendment, 'deliberate indifference to serious medical needs of prisoners' violates the Amendment because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency. Id., at 104, 97 S.Ct., at 291." (Helling v McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d 22 [1993]). Thus, "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." (Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811 [1994]).

Mere negligence in giving or failing to supply medical treatment alone will not suffice, since all rights existing under state law are not also federal rights carrying a federal remedy. Bradford Audio Corp. v. Pious, 392 F.2d 67, 72 (2 Cir. 1968)." (Church v Hegstrom, 416 F.2d 449, 450-51 [2d Cir., 1969]; see Estelle v Gamble, supra, 429 U.S. at 106, 97 S. Ct. at 292, 50 L Ed 2d 251). On the other hand, "[p]rison officials are more than merely negligent if they deliberately defy the express instructions of a prisoner's doctors. Martinez v. Mancusi, 443 F.2d 921, 924 (2d Cir.1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1202, 28 L. Ed. 2d 335 (1971)." (Gill v Mooney, 824 F.2d 192, 196 [2d Cir 1987]). However,

"prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official's duty under the Eighth Amendment is to ensure 'reasonable safety,' Helling, supra, at 33, 113 S.Ct., at 2481; see also Washington v. Harper, 494 U.S., at 225, 110 S.Ct., at 1038—1039; Hudson v. Palmer, 468 U.S., at 526—527, 104 S.Ct., at 3200—3201, a standard that incorporates due regard for prison officials' 'unenviable task of keeping dangerous men in safe custody under humane conditions,' Spain v. Procunier, 600 F.2d 189, 193 (CA9 1979) (Kennedy, J.); see also Bell v. Wolfish, 441 U.S. 520, 547—548, 562, 99 S. Ct. 1861, 1878—1879, 1886, 60 L. Ed. 2d 447 (1979). Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause." (Farmer v Brennan, supra, 511 U.S. at 844-45, 114 S. Ct. at 1982-83, 128 L Ed 2d 811).

Relief in the nature of habeas corpus is available to incarcerated persons where "certain physical conditions and attributes specific to them as well as unalterable conditions of incarceration . . . [for which] no measures . . . could be taken to protect them from the grave risk of death or serious illness posed by the COVID—19 virus[, establish that] * * * the only remedy to cure the illegality of the inmates' detention would be their immediate release." (People ex rel. Tse v Barometre, 188 AD3d 714, 131 N.Y.S.3d 896, 897 [2d Dept., 2020]). Courts have recognized the unprecedented threat to incarcerated individuals posed by the COVID-19 virus (id.; see, People ex rel. Carroll v. Keyser, 184 AD3d 189, 125 N.Y.S.3d 484 [3d Dept., 2020]; People ex rel. Stoughton v Brann, 185 AD3d 521, 128 NYS3d 491 [1st Dept., 2020]; However, [*5]even where an inmate has contracted the COVID—19 virus while imprisoned, habeas relief has been denied since that does not render the continued detention illegal and require release from imprisonment (People v Brann, 183 AD3d 758, 121 N.Y.S.3d 658 [2d Dept., 2020]). For there to be a violation of the defendant's Eighth Amendment rights, it is incumbent upon MacKenzie to show that the Respondents are acting unreasonably with regard to his serious medical needs (Estelle v. Gamble, supra; Helling v. McKinney, supra). This he has failed to do.

MacKenzie's medical records and the affidavits submitted, establish that he does suffer from high blood pressure (hypertension), for which he is treated with medication [FN15] . He also has high cholesterol (hypertriglyceridemia) for which he does not receive medication and no evidence has been furnished establishing that medical intervention is warranted. MacKenzie's claims [FN16] that he is prediabetic, "likely has coronary artery disease based on his conditions and family history", and has discogenic disease affecting his neck and back", are not supported by his medical records. Grossman's opinions in support of those allegations are purely speculative.

While the records do reflect that he has COPD in the form of "mild diffuse emphysema" based upon the November 10, 2020 CT scan [FN17] , and Grossman refers to chest x-ray reports from July 2012 and January 2016 purportedly showing "some degree" of COPD in MacKenzie [FN18] , there is no competent medical evidence establishing the extent to which the contraction of the COVID-19 virus by a person of MacKenzie's age and afflicted with "mild diffuse emphysema" presents a heightened risk of serious complications or death. This Court is not minimizing Mackenzie's COPD condition, but the severity of that condition, while unclear, does not appear to be significant based upon his own behavior. It is reasonable to expect that a person suffering from serious, significant or substantial COPD, and of being fearful of contracting the COVID-19 virus and suffering fatal complications as a result, namely, "respiratory failure and death"[FN19] , would avail themselves of the influenza vaccine. This would be particularly so for MacKenzie after the purported 2012 and 2016 x-ray results. Serious respiratory complications from influenza, primarily pneumonia and thousands of resulting deaths per year, are well-known and well-documented.[FN20] Yet, curiously, his medical records reveal that he refused administration of the influenza vaccine over the past eleven years, 2010 through 2020 [FN21] which in theory would have reduced his risk of respiratory complications and possible death from contracting the influenza virus. Additionally, except for his complaints of breathing difficulties on June 24, 2020 and September 28, 2020, MacKenzie neither requested nor received ongoing, consistent [*6]medical, including medicinal, treatment for respiratory problems. His twenty-six page affidavit [FN22] does not contain any description of such problems, and the affidavit of his sister makes not mention of any family history of COPD, emphysema or other serious respiratory conditions. In sum, MacKenzie has not established that his COPD condition is severe, serious, or significant.

The Respondents cannot be said, on this record, to be acting unreasonably relative to MacKenzie's medical needs to the extent that they have been deliberately indifferent. Unlike People v Horsey, 2020 NY Slip Op. 32745[U] (Sup Ct, Albany County 2020) cited by MacKenzie, the Respondents have, albeit imperfectly, instituted and implemented reasonable requirements and procedures to protect the inmate population from the COVID-19 virus. In Horsey, there was an outbreak of eighty-nine cases and five deaths at the Fishkill Correctional Facility where MacKenzie was housed. Here, to protect MacKenzie, he was transferred to ACF. At present, there are no known cases of COVID-19 among inmates and staff at ACF. Only two positive cases have occurred, both in July 2020, and no deaths resulted.[FN23] No new inmates have been transferred to ACF since August 2020 and all incoming inmates are screened upon arrival and then segregated for fourteen days.[FN24] Testing, evidenced in part by the fact that MacKenzie has been tested three times for COVID-19 [FN25] with negative results, and contact tracing is performed [FN26] when called for by a positive case. On December 21, 2020, DOCCS instituted enhanced surveillance testing, isolation and tracing procedures in all of its facilities, including ACF.[FN27] Although it is conceded by Respondents that there may be occasions when a staff member or inmate is not wearing a mask when one should be worn, and MacKenzie's assertions about the lack of social distancing in the dining hall, communal areas and bathrooms have not been refuted, those circumstances are insufficient to establish an Eighth Amendment violation requiring his release from imprisonment. Inmates are generally left to decide on their own whether to maintain social distance from others, including others without masks. While some inmates may eat together, MacKenzie has the ability to choose to sit and eat in a location more than six feet from another inmate. He has the same right to maintain social distance, as well as wear a mask, in communal areas. Use of the bathroom is more problematic, but there is nothing in the record indicating that he is unable to choose to shower and use the sink at times when other inmates are not using that facility. Similarly, he can wear his mask and social distance when using the bathroom for bodily functions.

"Courts must be sensitive to the State's interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals. See [*7]Bell v. Wolfish, 441 U.S. 520, 547-548, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979)." (Brown v Plata, supra, at 511, 131 S. Ct. at 1928, 179 L.Ed.2d 969). The facts of this case do not justify substitution of this Court's judgment for that of the Respondents. MacKenzie, because of his age, is now eligible to receive the COVID-19 vaccine, and there is nothing known to this Court which would indicate that eligible prisoners will not be afforded access to that vaccine to the same extent as the general population. Administration of that vaccine would appear to be the most reasonable and efficacious step which could be taken to reduce, if not eliminate, his risk of contracting the virus. It has not been shown that releasing MacKenzie from imprisonment would decrease his risk of contracting the virus or increase his chance of obtaining the vaccine. The Respondents may very well modify the manner in which inmates at ACF take their meals and use the bathroom facilities, perhaps dividing the inmate population into groups, each one having a different time to eat of use the bathroom.

"Because success on the merits in this proceeding would not entitle him to immediate release from custody, the remedy of habeas corpus is unavailable (People ex rel. Maiello v. New York State Bd. of Parole, 101 AD2d 569, 573, 475 N.Y.S.2d 851, affd. 65 NY2d 145, 490 N.Y.S.2d 742, 480 N.E.2d 356)." (People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391, 398, 521 N.Y.S.2d 657, 660, 516 N.E.2d 194, 197 [1987]). This Court has also considered MacKenzie's request for alternative relief converting this CPLR article 70 proceeding into one under article 78. "Under CPLR 103 (subd. (c)), the courts are empowered to convert a civil proceeding into one which is proper in form, making whatever order is necessary for its proper prosecution." (Fritz v Huntington Hosp., 39 NY2d 339, 347, 384 N.Y.S.2d 92, 98, 348 N.E.2d 547, 553 [1976]). The difficulty here is discerning the article 78 relief which MacKenzie seeks and which is within the power of this Court to award.

CPLR article 78 relief in the nature of prohibition is available only where a "body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction" (CPLR §7803 [2]), which is not the case here. Similarly, there is no final determination by the Respondents to be reviewed under either subdivision 3 or 4 of CPLR §7803. "[M]andamus to compel [requires] that a petitioner . . . must have a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief [citations omitted]" (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Co-op. Educ. Services, 77 NY2d 753, 757, 570 N.Y.S.2d 474, 477, 573 N.E.2d 562, 565 [1991]). As noted above, the most effective means of resolving the issues raised in the petition is to immediately inoculate MacKenzie with the COVID-19 vaccine. Certainly, MacKenzie has a "fundamental" legal right to reasonable and adequate medical care (Powlowski v. Wullich, supra.) as well as a clear legal right to receive the vaccine due to his age [FN28] . The Respondents have a corresponding nondiscretionary duty to treat his medical needs (Estelle v. Gamble, supra.). "[M]andamus may only issue to compel a public officer to execute a legal duty; it may not 'direct how [the officer] shall perform that duty' [internal quotation marks omitted] (Klostermann, 61 NY2d at 540, 475 N.Y.S.2d 247, 463 N.E.2d 588, quoting People ex rel. Schau v. McWilliams, 185 NY 92, 100, 77 N.E. 785 [1906])." (All. to End Chickens as Kaporos v New York City Police Dept., 32 NY3d 1091, 1093, 90 N.Y.S.3d 617-618, 114 N.E.3d 1070, 1070-71 [2018]).

The proceeding here is converted to one under CPLR article 78, and the filing of the petition is deemed a demand (see, Matter of Barhite v Town of Dewitt, 144 AD3d 1645, 1648, 42 N.Y.S.3d 502, 505 [4th Dept 2016]) for MacKenzie to be vaccinated with the COVID-19 vaccine. Given MacKenzie's history of refusing to accept the influenza vaccine, Mackenzie shall confirm his desire to be vaccinated with the COVID-19 vaccine and, upon so doing, the Respondents are directed to administer the same to him in the manner they determine.

It is so ordered and adjudged.

ENTER

_____________________________

Hon. Richard B. Meyer, A.J.S.C. Footnotes

Footnote 1:Petition, ¶1.

Footnote 2:Petition ¶21.

Footnote 3:Petition ¶1.

Footnote 4:Petition exhibit 5.

Footnote 5:Id., and in camera exhibit to Respondent's answer and return.

Footnote 6:Id. pages 63-64.

Footnote 7:Id. at page 26.

Footnote 8:Id. at page 24.

Footnote 9:Id. at page 23.

Footnote 10:Id. at page 61.

Footnote 11:Id. at page 62.

Footnote 12:Id. at pages 18 and 37 (duplicate record).

Footnote 13:Id. at page 16.

Footnote 14:Id. at pages 50-52.

Footnote 15:Petition exhibit 6.

Footnote 16:Petition ¶21.

Footnote 17:Exhibit D to Respondents' answer, pages 50-52

Footnote 18:Grossman affidavit ¶28. Neither report is in the records filed with this Court.

Footnote 19:Greifinger affidavit, ¶7.

Footnote 20:https://www.cdc.gov/flu/

Footnote 21:There is no record that in 2015 he was offered the vaccine or refused it.

Footnote 22:MacKenzie affidavit, ¶97-¶117.

Footnote 23:Marrone affidavit, ¶8.

Footnote 24:Id. at ¶11, ¶13; see also, MacKenzie affidavit at ¶59.

Footnote 25:June 28, 2020, October 1, 2020, and December 23, 2020.

Footnote 26:Marrone affidavit, ¶13-¶14.

Footnote 27:Sloss affirmation, exhibit 2.

Footnote 28:https://covid19vaccine.health.ny.gov/phased-distribution-vaccine