ADDITIONAL CASES The People of the State of New York ex rel. Robert N. Gregor, Esq. on behalf of Robert K. Allen, Petitioner, v. David E. Reynolds, Sheriff of Essex County, and New York State Department of Corrections and Community Supervision, Respondents; CV20-0150 Decision, Order & Judgment Petitions under CPLR article 70 for release of the petitioners, Ryan E. Lawrence (Lawrence) and Robert K. Allen (Allen), from detention at the Essex County Jail. The following papers have been considered by this Court in the Lawrence proceeding: petition of Robert N. Gregor, Esq. verified March 26, 2020; answer and return of the respondent David E. Reynolds (Reynolds) verified April 7, 2020 with exhibits A through E; Reynold’s affidavit sworn to April 8, 2020; reply affirmation of Robert N. Gregor, Esq. dated April 10, 2020; reply to answer dated April 10, 2020. In the Allen proceeding, the following papers have been considered: petition of Robert N. Gregor, Esq. verified March 26, 2020; answer and return of the respondent David E. Reynolds (Reynolds) verified April 7, 2020 with exhibits A and B; Reynold’s affidavit sworn to April 8, 2020; answer and return of respondent New York State Department of Corrections and Community Supervision (NYDOCCS) verified April 12, 2020 with exhibit A; reply to answer dated April 10, 2020. The Court heard oral arguments by video conference on April 9, 2020 in the Lawrence matter and on April 13, 2020 in the Allen matter, all in accordance with the recent administrative orders, with Lawrence and Allen participating from the jail, counsel from their respective remote locations, and a court reporter making a record also from a remote location. Following the oral argument on April 13, 2020 this Court released Allen on bail (CPLR §7009[e]) pending final disposition of his proceeding. Lawrence is twenty-six years old and is presently incarcerated in the Essex County Jail as the result of being resentenced in the town of Elizabethtown justice court for violating a probation sentence imposed for a misdemeanor conviction of driving while intoxicated. He also is facing charges in the town of North Elba and village of Lake Placid justice courts for petit larceny and felony bail jumping in the second degree, for which he was remanded to the Essex County Jail pending posting of bail in the amount of $10.00 cash, $100.00 fully secured bond, or $1,000.00 partially secured bond with a ten percent deposit, for each charge. Lawrence has no known or alleged medical conditions. Allen is incarcerated at the Essex County Jail pending a parole violation hearing. He is fifty-one years of age and suffers from obesity, hypertension and high lipid levels such that his risks of cardiac problems and serious, if not fatal, complications should he contract the COVID-19 virus are significantly elevated. Allen was released on parole in January 2020 after serving a period of incarceration for his 2018 conviction for attempted criminal possession of a controlled substance in the fourth degree. On February 29, 2020 Allen was a passenger in a motor vehicle involved in a traffic stop for speeding on Interstate 87 in the town of Schroon, Essex County. The driver’s license of the operator of that vehicle was not valid as it had been previously suspended for lack of insurance. Allen did not have a valid driver’s license so the investigating officers requested that a tow truck be dispatched to tow the vehicle. Law enforcement conducted an inventory of the vehicle at the site of the traffic stop and discovered 7.4 pounds of marijuana in a black plastic bag located in a diaper box. Both the operator and Allen were taken into custody. Allen has a lengthy criminal history which includes six prior felony convictions and four parole violations. A preliminary parole violation hearing was held on March 13, 2020 at which no witnesses testified and the evidence consisted of a violation of release report dated March 4, 2020, a notice of violation dated March 5, 2020 and the January 16, 2020 certificate of release on parole. The hearing officer determined that there was probable cause that Allen violated the conditions of his parole and, at the request of the parole officer, the final hearing scheduled for April 16, 2020 was adjourned and a conference is now scheduled for that date. Following the hearing on Allen’s petition, this Court issued a securing order releasing him on bail pending final disposition pursuant to CPLR §7009(e). The gravamen of both petitions is that there is a heightened risk to Lawrence, Allen and other inmates of becoming infected with the COVID-19 virus in the Essex County Jail. Specifically, it is alleged that the design and operation of the Essex County Jail prevent inmates from engaging in social distancing and maintaining “adequate levels of preventive hygiene”. Both Allen and Lawrence assert that inmates are left to decide on their own whether to engage in social distancing and neither petitioner can control the movement of other inmates and staff. Showers are shared by all inmates. There allegedly is physical contact between staff and inmates. Inmates are allowed to choose to sit next to each other at meals and to not engage in social distancing in the recreation yard. The petitioners contend that [c]ontinuing to incarcerate persons vulnerable to a deadly pandemic, in conditions where taking the only known steps to prevent transmission are virtually impossible, constitutes deliberate indifference to serious medical harm in violation of the United States and New York State constitutions”. Relying on due process principles, the petitioners seek immediate release from detention as the only reasonable and effective way of protecting them from contracting the virus. To date, no inmates, officers or civilian staff at the jail have tested positive or presumptive positive for COVID-19, and the inmate population is only at half capacity. Medical staff coverage is available at the jail every day from 5:00 a.m. to 9:00 p.m. Officers are now required to wear face masks and have been allowed to wear masks for a considerable period of time. Staff is screened for temperature upon arriving at the facility for work. Since March 2, 2020 there have been no federal inmates in the jail, and no additional federal inmates will be received without the Sheriff’s prior approval. The Sheriff has instituted a number of procedures at the Essex County Jail to mitigate the risk that the COVID-19 virus will make its way into the facility and infect inmates, officers and/or staff. Specifically: almost all inmates, including Lawrence, have their own individual cell in which there is a sink and toilet that is not shared with any other inmate; all inmate are provided with cleaning supplies and they are mandated to clean surfaces at least twice per day.; all visits to the jail were restricted to non-contact visits beginning March 13, 2020 and since March 21, 2020 no visits at all have been allowed; all jail programs were suspended, or provided in a non-contact environment or by remote communication, as of March 16, 2020; only employees assigned to a post in the jail are permitted in the facility; and persons arrested and remanded to jail are screened by medical staff according to CDC guidelines, quarantined for 15 days, and re-screened by medical before being placed in the general population. Social distancing is not mandated at the jail, and inmates are left to decide on their own whether to maintain social distance from others. Thus, some inmates eat together, sitting right next to each other, and are allowed to have contact in the recreation yard. Inmates do have the right to request that meals be provided to them in their own cells. Casual physical contact by and between inmates and officers is not prohibited. Officers do not wear personal protective equipment at all times, such as masks and gloves, and the wearing of masks is voluntary by staff. Inmates are not provided with personal protective equipment. “It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. * * * * In Estelle [Estelle v. Gamble, 429 U.S., at 103-104, 97 S.Ct., at 290-291], 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, 31-32, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d 22 [1993]). “[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]). In addition, 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 *845 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.” (Id. at 844-845, 114 S. Ct. at 1982-193) Clearly, courts have recognized the unprecedented threat created by the COVID-19 virus to incarcerated individuals (see, United States v. Stephens, No. 15-CR-95 (AJN), 2020 WL 1295155 [S.D.N.Y. Mar. 19, 2020]; Avendano Hernandez v. Decker, No. 20-CV-1589 (JPO), 2020 WL 1547459 [S.D.N.Y. Mar. 31, 2020]; United States v. Korn, No. 11-CR-384S, 2020 WL 1808213 [W.D.N.Y. Apr. 9, 2020]). However, the risk posed by the COVID-19 virus, by itself, has not yet been found to be a sufficient basis upon which to release incarcerated persons (see, United States v. Hamilton, No. 19-CR-54-01 (NGG), 2020 WL 1323036, at 2 [E.D.N.Y. Mar. 20, 2020]). Here, the Sheriff is aware of the serious risk of harm posed by the COVID-19 virus to inmates. It can hardly be said that the Sheriff has disregarded that risk for he has taken some steps to minimize those risks. The Sheriff has not taken, however, the most important, scientifically-based, best practices recommended by the United States Center for Disease Control (CDC) to reduce the risk that the jail will be infiltrated by the virus and contracted by the inmates and staff, namely, social distancing. The Sheriff is not requiring that all individuals within the jail — including inmates and staff, and regardless of whether those individuals are exhibiting symptoms of the COVID-19 virus — observe social distancing. Instead, inmates and staff are left to decide on their own whether to practice social distancing. Social distancing lowers the risk of infection by decreasing the chance that small liquid droplets from the cough or sneeze of an infected individual will be inhaled by others or land on their hands, eyes, nose or mouth1 In addition to not enforcing social distancing, other CDC-recommended2 measures not being instituted at the jail include: staggering meal and recreation times so as to limit the number of inmates present for those activities at any one time to insure social distancing; limiting meal seating to a single side of each table while also removing every other chair; providing no-touch receptacles for trash; periodically during the day providing hand sanitizer to inmates and staff rather than furnishing it on request; providing consistent reminders to inmates and staff about best hygiene practices for preventing infection and transmission. Additionally, pursuant to New York State Executive Order 202.17, all individuals who can so medically tolerate must cover their nose with a face mask or other cloth covering when in a public setting commencing at 8:00 p.m. on April 17, 2020. The CDC recommendations are clear that while the use of cloth face coverings is an additional public health measure which helps to stop the rate of COVID-19 infection, it does not replace social distancing, and the CDC still recommends that individuals to maintain proper social distancing precautions, as “a cloth face covering is not intended to protect the wearer, but it may prevent the spread of virus from the wearer to others”3. Also, missing from the virus precautions currently taken at the jail is the verbal screening of staff for off-duty conduct before entering the facility to insure that they have not engaged in behaviors which may have exposed them to contracting the virus. Introduction of the COVID-19 virus into jail and nursing home facilities by staff is a major problem in those facilities. Jails are now a known hot-bed of infection. One of the nation’s largest jails, Cook County Jail in Chicago, has a soaring rate of infection as more than 500 people have tested positive so far and at least two thirds of those are inmates, leading to extraordinary inmate unrest4. COVID-19 was recently introduced into a state prison facility by a staff member who traveled off-duty to New York City5. A nursing home facility within 90 miles of the Essex County Jail experienced a surge of cases over thirty days after the ban on visitors, presumably as a result of staff entering the facilities as a carrier of the infection6. Despite a state-wide ban on visitors to all nursing homes effective March 12, 2020, as of April 10, 2020 more than half of New York’s 613 licensed nursing homes had reported coronavirus infections, with 4,630 total positive cases and 1,439 deaths7. The Sheriff is legally empowered to hold staff accountable for off-duty conduct8. Requiring staff, upon reporting to work, to detail their off-duty activities, travel and third-party contacts, and ordering all departmental staff to comply with all CDC guidelines, executive orders by the Governor and local state of emergency orders when they are off-duty, would further protect not just inmates but departmental personnel as well. Lawrence, who is twenty-six years old, has not alleged, nor does he have, any particular medical or physical condition which renders him more susceptible than other members of the general jail population to becoming infected by the COVID-19 virus or to suffering serious, even fatal, respiratory symptoms (see, e.g., Basank v. Decker, No. 20 CIV. 2518 (AT), 2020 WL 1481503 [S.D.N.Y. Mar. 26, 2020]). Thus, Lawrence’s claim for release based upon an alleged violation of his rights under the Eighth Amendment fails under the circumstances now present. His petition is therefore denied. This Court has considered the fact that Lawrence is now incarcerated as the result of a resentence due to technical violations of a misdemeanor probation sentence, as well as pre-conviction securing orders on charges for which he is now presumed innocent, which are not qualifying offenses for bail purposes, and for which he would likely be entitled to release on his own recognizance.. Lawrence’s remedy for his resentence may lie with an appeal. This Court can also review bail set by a local criminal court. However, releasing Lawrence on this record would be tantamount to precedent for emptying the Essex County Jail of all incarcerated individuals solely and simply due to the possibility that the COVID-19 virus may be introduced into the jail. Allen is alleged to have violated parole and is incarcerated on a parole warrant. He has not been found to have violated parole so his status is different than that of Lawrence, and somewhat akin to ICE detainees in Federal prisons. Allen is an African-American male with documented medical conditions which significantly heighten his risk of a fatal outcome should he contract the COVID-19 virus. Recent analysis of COVID-19 related deaths reveals that African-Americans are dying from the disease at a disproportionally high rate9. In Michigan, African Americans comprise fourteen percent of the population but represent forty percent of the coronavirus deaths in the state. Forty-one percent of the Illinois residents who have died from the virus are African Americans. According to an April 3, 2020 CDC report10, seventy-three percent of Americans hospitalized with COVID-19 had at least 1 underlying health condition, and Allen has at least one of the conditions identified in the report. “[P]olicies that are ‘generally justifiable’ may still ‘amount[] to deliberate indifference to’ the specific and unique medical needs of particular individuals. See Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (holding that even if a policy is ‘generally justifiable,’ its application to a particular individual could still ‘amount[] to deliberate indifference to plaintiff’s medical needs’).” (Milton Barbecho, et al., Petitioners, v. Thomas Decker, et al., Respondents. Additional Party Names: Diaz, Garcia Alejo, Lis, Molina, Olaya Lugo, Vallejo, No. 20-CV-2821 (AJN), 2020 WL 1876328, at *5 (S.D.N.Y. Apr. 15, 2020). Recently, certain inmates at Rikers Island were released from custody in a CPLR article 70 proceeding due to the threat posed by the COVID-19 virus to them due to their own specific medical conditions (see, People Ex Rel. Stoughton, et al.v. Brann, et al., 2020 N.Y. Slip Op. 20081, 2020 Wl 1679209 (N.Y. Sup. Ct. Apr. 6, 2020). Certainly, the conditions in the Essex County Jail do not approach those of Rikers Island. Nonetheless, due to the risk to Allen in that jail because of his own medical conditions and the lack of the full complement of preventive measures employed at the jail, his due process rights are violated under the extraordinary circumstances present. His petition is therefore granted pursuant to CPLR §7010(b) to the extent that: (1) he shall continue on the bail set by the April 13, 2020 securing order; (2) he shall appear in the parole violation proceeding whenever his appearance is required by that agency, the next date being May 14, 2020 at 9:00 a.m., and at all other times required by that agency or his parole officer; and (3) he shall fully comply with the conditions of his parole release. It is so ordered and adjudged.
