Supreme Court, Essex County, January 18, 2021

Skadden, Arps, Slate, Meagher & Flom LLP, New York City (Zi Lin of counsel), for petitioner.

Letitia James, Attorney General, Plattsburgh (Glen Francis Michaels of counsel), for respondents.

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

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), and COPD (chronic obstructive pulmonary disease), and that he is prediabetic.^[FN2] MacKenzie further alleges that cleaning and hygiene supplies are scant, that monitoring and enforcement of{**70 Misc 3d at 1113} social distancing and proper use of personal protective equipment 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 65-year-old male, is serving four concurrent indeterminate terms of imprisonment of 25 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 D felony.^[FN4] His sentences were to run consecutively to the remaining 3 to 6 years on a 1983 conviction and sentence for kidnapping in the second degree.^[FN5] He has served 28 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 50 years of age and older. MacKenzie was transferred to ACF on June 4, 2020, from the Fishkill Correctional Facility. There are currently approximately 94 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 18 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{**70 Misc 3d at 1114} 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{**70 Misc 3d at 1115} 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 US 97, 103), 'has a fundamental right to "reasonable" . . . and "adequate" . . . medical care' (Powlowski v Wullich, 102 AD2d 575, 587). 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 (Marchione v State of New York, 194 AD2d 851, 855)." (Kagan v State of New York, [*4]221 AD2d 7, 11 [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 [1976]; Brown v Plata, 563 US 493, 510-511 [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." (Helling v McKinney, 509 US 25, 32 [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 US 825, 837 [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 F2d 449, 450-451 [2d Cir 1969]; see Estelle v Gamble, 429 US at 106.) On the other hand, "[p]rison officials are more than merely negligent if they deliberately{**70 Misc 3d at 1116} 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 F2d 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; see also Washington v. Harper, 494 U.S., at 225; Hudson v. Palmer, 468 U.S., at 526-527, 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 (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, 511 US at 844-845.)

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, 715 [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 [3d Dept 2020]; People ex rel. Stoughton v Brann, 185 AD3d 521 [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 ex rel. Ferro v Brann, 183 AD3d 758 [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; Helling v McKinney). This he has failed to do.{**70 Misc 3d at 1117}

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.

[1] 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 11 years, 2010 through 2020,^[FN21] which in theory would have reduced his risk of respiratory complications and possible{**70 Misc 3d at 1118} 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 26 page affidavit^[FN22] does not contain any description of such problems, and the affidavit of his sister makes no 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 89 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 14 days.^[FN24] Testing, evidenced in part by the fact that MacKenzie has been tested three times for COVID-19^[FN25] with negative results, is performed, as is contact tracing^[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{**70 Misc 3d at 1119} 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 (1979)." (Brown v Plata at 511.) 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 or 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, affd 65 NY2d 145)." (People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391, 398 [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." (Matter of Fritz v {**70 Misc 3d at 1120}Huntington Hosp., 39 NY2d 339, 347 [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" (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991] [citations omitted]). 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, 102 AD2d 575 [4th Dept 1984]) 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). "[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' (Klostermann, 61 NY2d at 540, quoting People ex rel. Schau v McWilliams, 185 NY 92, 100 [1906])." (Alliance to End Chickens as Kaporos v New York City Police Dept., 32 NY3d 1091, 1093 [2018] [internal quotation marks omitted].)[*8]

[2] 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 [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.