X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

OPINION AND ORDER Plaintiff Corey A. Latimer, Sr., proceeding pro se and in forma pauperis, brings this Section 1983 action against defendants New York State Department of Corrections and Community Supervision (“DOCCS”) Commissioner Anthony Annucci (“Commissioner Annucci”), Green Haven Correctional Facility (“Green Haven”) Sergeant Rosita Rossy (“Sgt. Rossy”), and Green Haven Sergeant David Mazella (“Sgt. Mazella”), each in their individual capacities. Plaintiff alleges his constitutional rights were violated when Sgt. Rossy and Sgt. Mazella confiscated his face mask on April 14, 2020, during the COVID-19 pandemic. Now pending is defendants’ motion for summary judgment. (Doc. #69). For the reasons set forth below, the motion is GRANTED. The Court has subject-matter jurisdiction pursuant to 28 U.S.C. §1331. BACKGROUND The parties have submitted memoranda of law and statements of undisputed material facts pursuant to Local Civil Rule 56.1, and the defendants have submitted declarations with exhibits, which together reflect the following factual background.1 Plaintiff was incarcerated at Green Haven in Stormville, New York during the complained-of events — all of which took place in 2020, when the COVID-19 pandemic had just begun. By April 2020, more than one million cases had already been confirmed worldwide. (Doc. #74 (“Burns Decl.”), Ex. C at ECF 10).2 As those numbers continued to grow, so did the demand for, and shortages of, personal protective equipment like gloves, eye shields, and masks — particularly in New York. In April 2020, both the Centers for Disease Control and Prevention (“CDC”) and the New York State Department of Health (“DOH”) announced new guidance that advised wearing cloth face coverings to slow the spread of the virus. (Id., Exs. A, D). The guidance also advised that “[s]urgical masks and N-95 respirators are critical supplies that must continue to be reserved for healthcare workers and other first responders.” (Id., Exs. A, D). Based on this new guidance, Commissioner Annucci issued a memorandum dated April 9, 2020, informing all incarcerated individuals in DOCCS custody that they will be “issued three (3) handkerchiefs,” and that “[e]ffective immediately, [they] may voluntarily choose to utilize the state-issued handkerchief as a cloth face covering during this public health crisis.” (Burns Decl., Ex. E). Plaintiff worked in Green Haven’s medical unit as a mechanic, building machines used for physical therapy. According to plaintiff, at this time, only those working in that department had access to surgical masks, and a nurse gave him one, which plaintiff wore during the following two weeks as protection during the pandemic. On April 14, 2020, Sgt. Rossy and Sgt. Mazella confiscated plaintiff’s face mask in the mess hall, informing him incarcerated individuals were not permitted to wear this type of mask. Plaintiff claims he suffers from asthma and is over the age of fifty, which put him at a high risk of serious illness if he contracted COVID-19. (Burns Decl., Ex. J at 3-4; Doc. #82 (“Pl. Opp.”) 5). Plaintiff surrendered his mask and returned to his cell. Sgt. Mazella attested he told plaintiff the mask was not permitted to be worn because the surgical face mask did not comply with Commissioner Annucci’s April 9, 2020, memorandum. (Burns Decl., Ex. H

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
September 05, 2024
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Learn More
September 06, 2024
Johannesburg

The African Legal Awards recognise exceptional achievement within Africa s legal community during a period of rapid change.


Learn More
September 12, 2024
New York, NY

Consulting Magazine identifies the best firms to work for in the consulting profession.


Learn More

Wisniewski & Associates, LLC seeks attorney licensed in NJ and NY with 2-5 years experience for its multi-state real estate, land use, ...


Apply Now ›

Labor Relations CounselUS-GA-AtlantaJob ID: 2024-0042Type: 4 (Exempt, Bargaining Unit 1 (EB)# of Openings: 1Category: Contract Administratio...


Apply Now ›

ASSISTANT FEDERAL PUBLIC DEFENDERS Two posi...


Apply Now ›
06/27/2024
The American Lawyer

Professional Announcement


View Announcement ›