Case 9:21-cv-00019-LEK-ML Document 1 Filed 01/08/21 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Allen HARPER, José LEON, and Ranfis PEREZ on behalf of themselves and all others similarly situated; and the RELEASE AGING PEOPLE IN PRISON CAMPAIGN (“RAPP”),
Plaintiffs, v.
ANDREW CUOMO, in his official capacity as the Governor of the State of New York; NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; ANTHONY J. ANNUCCI, in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision; JOHN MORLEY, M.D., in his official capacity as the Deputy Commissioner and Chief Medical Officer of the New York State Department of Corrections and Community Supervision; and JEFFREY TEDFORD, in his official capacity as the Superintendent of Adirondack Correctional Facility
Defendants.

Civil Action No. 9:21-cv-19 (LEK/ML)
CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

PRELIMINARY STATEMENT 1. This lawsuit challenges New York’s warehousing of elderly and medically vulnerable people in a remote prison without the basic health and safety protocols necessary to prevent the spread of COVID-19. 2. Beginning in summer 2020, New York State officials transferred nearly 100 elderly and/or medically vulnerable people from prisons around the state to Adirondack

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Correctional Facility (“Adirondack”). State officials effectively created a prison nursing home at Adirondack. Now, as the second wave of the COVID-19 crisis unfolds and plans for the distribution of a vaccine have yet to emerge, state officials persist in their failure to create a safe environment at Adirondack. State officials have refused to provide the necessary resources or adopt any of the necessary protocols at Adirondack, creating a heightened risk of spreading infection and undermining the ability to treat this particularly vulnerable group.
3. Since COVID-19 first began to spread in the United States, medical professionals, advocates, and attorneys have warned Defendants of the danger that elderly, medically vulnerable people in New York’s prisons face and demanded that Defendants modify their policies to create safe environments. Rather than heed these warnings and improve conditions where vulnerable incarcerated people were, Defendants chose to transfer many of them to Adirondack. Defendants knew that the cohort they transferred to Adirondack is at particular risk from COVID-19. Indeed, they appear to have selected them for that reason. Defendants also knew of the paucity of medical resources available at Adirondack and in the surrounding community and that Adirondack staff were not trained to deal with the clinical needs of an elderly population.
4. Prison transfers like these have produced catastrophic COVID-19 spread throughout the country, yet Defendants have not taken the necessary steps to prevent this from happening at Adirondack. Defendants transfer men to Adirondack without screening or testing them prior to transfer. Men from different facilities are crowded together on poorly ventilated busses for the many-hours ride to Adirondack, then immediately integrated into the Adirondack population, without any screening, testing, or quarantine. Defendants have not implemented at Adirondack the most basic measures necessary to prevent COVID-19 transmission in the facility.
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Defendants are not conducting meaningful testing or screening for symptoms; they have not quarantined or re-tested incarcerated people they knew to be exposed to COVID-19; they do not ensure basic hygiene within the facility; and they have forced people to congregate closely under conditions that make it almost impossible to engage in social distancing. For example, during meals, men from all units are mixed together, without masks, eating in close quarters.
5. Defendants’ handling of COVID-19 at Adirondack—particularly at this stage in the pandemic, when they have ample evidence and understanding of the risks the disease poses to elderly and infirm people in congregate settings—constitutes deliberate indifference to a grave threat to the safety of men incarcerated at Adirondack. Defendants’ acts and omissions uniquely imperil this vulnerable population, violating Plaintiffs’ rights under the United States Constitution and the disability rights statutes.
6. Plaintiffs Allen Harper, José Leon, and Ranfis Perez (collectively, “Individual Plaintiffs”) bring this action individually, and on behalf of all others similarly situated, and Plaintiff Release Aging People in Prison Campaign (“RAPP”) brings this action on its own behalf, to challenge the acts and omissions of Governor Andrew Cuomo, the New York State Department of Corrections and Community Supervision (“DOCCS”), DOCCS’s Acting Commissioner Anthony J. Annucci, DOCCS’s Chief Medical Officer John Morley, M.D., and Adirondack Correctional Facility (“Adirondack”) Superintendent Jeffrey Tedford. Plaintiffs assert claims under the Eighth and Fourteenth Amendments to the United States Constitution, Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973.
7. Plaintiffs seek declaratory and injunctive relief for the unconstitutional and discriminatory practices to which Adirondack residents are subject. For the General Class,
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Plaintiffs seek to compel Defendants to implement necessary measures to prevent Adirondack residents from contracting COVID-19 and suffering potentially dire complications as a result. For the Disability Subclass, Plaintiffs seek to compel Defendants to provide reasonable modifications for subclass members’ disabilities, which render them particularly vulnerable to suffering dire complications, up to and including death, if they contract COVID-19.
8. Adirondack residents are at the mercy of their jailers in every respect. Their jailers have behaved with shocking indifference toward their needs, placing them in the crosshairs of a virus to which they are highly vulnerable. Plaintiffs seek court intervention to preserve the health and protect the lives of Adirondack residents.
JURISDICTION AND VENUE 9. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 because it arises under the Constitution and laws of the United States. 10. Plaintiffs seek declaratory and injunctive relief under 28 U.S.C. §§ 1343, 2201, and 2202. 11. Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claims occurred within this District.
PARTIES 12. Plaintiff Allen Harper is a 75-year-old African American man from Brooklyn who has been incarcerated since 2002. Mr. Harper was transferred to Adirondack in or around August of 2020 from Woodbourne Correctional Facility. 13. Mr. Harper has a history of serious heart disease. He has had femoral popliteal bypass surgery, has hypertension, kidney disease, valvular disease (two leaking valves in his heart), and a prostate condition. Mr. Harper takes lisinopril and metolazone to control his
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hypertension. Mr. Harper’s hypertension interferes with the operation of his circulatory functions, and his valvular disease limits his ability to engage in exercise. Without medication to control his hypertension, Mr. Harper would be at serious risk of heart failure, stroke, congestive heart failure, brain hemorrhage, ischemic heart disease and worsening of his chronic kidney disease.
14. Plaintiff José Leon is a 62-year-old Hispanic man from Manhattan who has been incarcerated since 1974. Mr. Leon was transferred to Adirondack in or around July 2020 from Otisville Correctional Facility.
15. Mr. Leon has been diagnosed with hypertension, hypothyroidism, and ulcerative colitis. Mr. Leon has a BMI of 30. He has coronary artery disease and suffered a heart attack in 2019 that required a stent to open a blocked artery in his heart. Mr. Leon now takes blood thinners to prevent the stent in his heart from becoming blocked again. Mr. Leon’s hypertension and coronary artery disease interfere with the functioning of his circulatory system, and without the medications he currently takes, he would be limited in his ability to engage in exercise because of the very high risk of a recurrence of a heart attack. Without adequate control of his hypertension, Mr. Leon is at increased risk of heart failure, stroke, congestive heart failure, brain hemorrhage, and ischemic heart disease.
16. Plaintiff Ranfis Perez is a 60-year-old Hispanic man from Manhattan who has been incarcerated since 2001.
17. Mr. Perez was transferred to Adirondack in or around June of 2020 from Eastern Correctional Facility. Mr. Perez has diabetes, hypertension, and high cholesterol. These diseases interfere with his circulatory and endocrine system functioning and put him at significantly increased risk for heart attack and stroke. In addition to the previously mentioned disease risks
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from untreated hypertension, without medication, Mr. Perez is at risk for life-threatening conditions such as acute complications related to diabetes resulting in a risk of coma or death, as well as chronic kidney disease, blindness, and damage to the small blood vessels in his hands and feet resulting in pain, poor wound healing and increased risk for amputation. These conditions would limit Mr. Perez in the major life activities of seeing, walking, and sleeping.
18. Plaintiff Release Aging People in Prison Campaign (“RAPP”) is a grassroots organizing and policy organization working to end mass incarceration and promote racial justice by focusing primarily on the needs of older and aging incarcerated people in New York State.
19. Founded in 2012, RAPP is led by formerly incarcerated people and currently has a staff of 7 full-time employees, as well as numerous individuals who either work for stipends or volunteer their time.
20. RAPP engages in community organizing, public education, and advocacy efforts—including state legislative advocacy—to advocate for the rights of elderly people in prison and inform members of the public and the state government about the extent of the state’s aging prison population and the harms this population faces. RAPP works to alleviate the effects of those harms on behalf of aging people in prison in various ways, including by advocating for systemic change and helping people secure release from prison and return to the community.
21. As described below, Defendants’ conduct has frustrated RAPP’s mission by, among other things, forcing RAPP to shift its advocacy efforts away from statewide individual and legislative advocacy and toward Adirondack-specific advocacy aimed at limiting the harm posed by the Adirondack transfer plan.
22. Defendant Andrew Cuomo is the Governor of the State of New York, which is a public entity covered by the ADA. He is responsible for supervising and controlling Defendant
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DOCCS, which is a public entity covered by the ADA and a recipient of federal funds within the meaning of Section 504 of the RA.
23. Defendant Cuomo appoints the commissioner of Defendant DOCCS, who serves at his pleasure.
24. Defendant Cuomo has taken a prominent and hands-on role in all aspects of the State’s response to COVID-19, including DOCCS’s response. He has been personally involved in the acts and omissions at the heart of this case, including the failed response to COVID-19 in New York State prisons and Defendants’ unsafe decision to transfer Individual Plaintiffs, and all members of the putative General Class and Subclass, to Adirondack. As various prison facilities in New York experience COVID-19 outbreaks, Defendant Cuomo has doubled down on his policy of transferring the most vulnerable incarcerated people rather than releasing them or creating adequately safe environments anywhere. For example, on October 28, 2020, Defendant Cuomo stated that the Department was considering transferring vulnerable people from Elmira, and other prisons experiencing outbreaks, to other facilities.
25. Defendant Cuomo is sued in his official capacity. He has the authority, if enjoined to do so, to remedy this unlawful conduct.
26. Defendant DOCCS is a New York State agency that enforces the laws and regulations applicable to New York State prisons.
27. Defendant DOCCS is a public entity covered by the ADA and a recipient of federal funds within the meaning of Section 504 of the RA.
28. Defendant DOCCS is statutorily responsible for the confinement and habilitation of individuals placed in state correctional facilities and for their programming, supervision, and conditions of confinement.
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29. Defendant DOCCS operates 52 prisons throughout New York, most of which are in poor areas of the state that lack job opportunities outside of the prison system. One of these prisons is Adirondack Correctional Facility, located at 196 Ray Brook Road, Ray Brook, New York. Defendant DOCCS has the authority, if enjoined to do so, to remedy this unlawful conduct.
30. Defendant Anthony J. Annucci is the Acting Commissioner of Defendant DOCCS.
31. Defendant Annucci is responsible for the administration and operation of DOCCS and the care and custody of people who are incarcerated in DOCCS facilities, including at Adirondack.
32. Defendant Annucci is responsible for the administration and operation of DOCCS’s planning, programs, and services for incarcerated people with disabilities.
33. Defendant Annucci has been personally involved in the acts and omissions at the heart of this case, including Defendants’ failed response to COVID-19 in New York State prisons and Defendants’ unsafe decision to transfer Individual Plaintiffs and members of the putative General Class and Subclass, to Adirondack.
34. Defendant Annucci is sued in his official capacity. He has the authority, if enjoined to do so, to remedy this unlawful conduct.
35. Defendant John Morley, M.D. is the Deputy Commissioner and Chief Medical Officer of Defendant DOCCS.
36. Defendant Morley oversees all of Defendant DOCCS’s health-related programs and is responsible for the management of the Division that provides those programs. He oversees
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Defendant DOCCS’s provision of primary care, coordinated specialty care, and care for infectious and communicative diseases, including COVID-19.
37. Defendant Morley was instrumental in designing Defendant DOCCS’s pandemic plan and “reopening plan.” He was a key player in Defendant DOCCS’s decision to transfer Individual Plaintiffs, and members of the putative General Class and Subclass, to Adirondack and has overseen these transfers.
38. Defendant Morley is responsible for overseeing all aspects of medical care and COVID-19 prevention at Adirondack.
39. Defendant Morley is sued in his official capacity. He has the authority, if enjoined to do so, to remedy Defendants’ unlawful conduct with respect to testing, screening, and access to medical care.
40. Defendant Jeffrey Tedford is the Superintendent of Adirondack Correctional Facility.
41. Subject to the direction of Defendant Annucci, Defendant Tedford is the Chief Administrative Officer of Adirondack. Defendant Tedford is legally responsible, under the laws of the State of New York, for the management and supervision of the facility and for directing the work and defining the responsibilities of all the employees of the facility.
42. As the Superintendent of Adirondack, Defendant Tedford is the legal custodian of Individual Plaintiffs and members of the putative plaintiff General Class and Subclass.
43. Defendant Tedford is sued in his official capacity. He has the authority, if enjoined to do so, to remedy Defendants’ unlawful conduct concerning testing, quarantining, and screening people incarcerated at Adirondack, as well as Defendants’ unlawful conduct
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concerning provision of soap and other hygiene necessities, as well as social distancing in all areas of the prison, including housing units, dining spaces, and bathrooms.
CLASS ALLEGATIONS 44. Plaintiffs properly maintain this action as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of the Individual Plaintiffs and similarly situated individuals in a putative General Class and a putative Disability Subclass. 45. The putative General Class consists of all persons who are incarcerated or who will be incarcerated at Adirondack Correctional Facility during the pendency of Defendant Cuomo’s declaration of a COVID-19 emergency for the State of New York. 46. Everyone in the General Class is currently age 60 or over, and most, if not all, also have underlying medical conditions that put them at particular risk of serious harm or death from COVID-19. 47. According to the Centers for Disease Control (“CDC”), medical conditions that exacerbate the risk of death or serious illness from COVID-19 include, but are not limited to: chronic lung disease or moderate to severe asthma (including chronic obstructive pulmonary disease, (“COPD”) e.g. emphysema and chronic bronchitis); idiopathic pulmonary fibrosis and cystic fibrosis); serious heart conditions (including heart failure, coronary artery disease, congenital heart disease, cardiomyopathies and pulmonary hypertension); people who are immunocompromised (including by cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications); people with severe obesity (body mass index (“BMI”) of 40 or higher); people with diabetes; people with chronic kidney disease
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undergoing dialysis; people with chronic liver disease, including cirrhosis; and people with hemoglobin disorders, including sickle cell disease and thalassemia.
48. All Individual Plaintiffs are members of the General Class, and all are at least 60 years old—Mr. Harper is 75, Mr. Leon is 62, and Mr. Perez is 60. Additionally, each Individual Plaintiff has underlying medical conditions that put him at increased risk of death or serious complications from COVID-19. Mr. Harper has at least two underlying medical conditions— high blood pressure and serious cardiac problems—that put him at increased risk of death or serious complications from COVID-19. Mr. Leon has a history of serious heart illness, including a heart attack last year for which he was hospitalized for six days, and he currently has the serious heart illness of hypertension. Mr. Perez has diabetes, which is recognized by the CDC as a condition that greatly increases the risk for COVID-19 complications.
49. The putative Disability Subclass consists of members of the General Class who have or are perceived to have diabetes and/or heart disease, physical impairments that limit one or more of their major life activities and that place members of the Disability Subclass at increased risk of contracting, becoming severely ill from, and/or dying from COVID-19.
50. Diabetes limits endocrine system functioning, and so is a qualifying disability within the meaning of the ADA. See, e.g., 42 U.S.C. 12102(2)(B) (“disability” is “a physical or mental impairment that substantially limits one or more major life activities,” and “a major life activity . . . includes the operation of a major bodily function, including . . . endocrine . . . functions.”).
51. Serious heart disease, including hypertension, is likewise a disability within the meaning of the ADA, in that it interferes with “the operation of . . . circulatory . . . functions” under 42 U.S.C. § 12102(2)(B).
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52. Similarly, kidney disease is a disability within the meaning of the ADA, as it interferes with both circulatory and endocrine functions under 42 U.S.C. § 12102(2)(B).
53. All Individual Plaintiffs are also members of the Disability Subclass. Mr. Perez has both diabetes and hypertension. These diseases interfere with his circulatory and endocrine system functioning and put him at significantly increased risk for heart attack and stroke. In addition to the previously mentioned disease risks from untreated hypertension, without medication, Mr. Perez is at risk for life-threatening conditions such as acute complications related to diabetes resulting in a risk of coma or death, as well as chronic kidney disease, blindness, and damage to the small blood vessels in his hands and feet resulting in pain, poor wound healing and increased risk for amputation. These conditions would limit Mr. Perez in the major life activities of seeing, walking, and sleeping.
54. Mr. Harper is also a member of this subclass. Mr. Harper’s hypertension interferes with the operation of his circulatory functions, and his valvular disease limits his ability to engage in exercise. Without medication to control his hypertension, Mr. Harper would be at serious risk of heart failure, stroke, congestive heart failure, brain hemorrhage, ischemic heart disease and worsening of his chronic kidney disease. Mr. Harper’s chronic kidney disease also interferes with his endocrine system functioning.
55. Mr. Leon is also a member of this subclass. Mr. Leon’s hypertension and coronary artery disease interfere with the functioning of his circulatory system, and without the medications he currently takes, he would be limited in his ability to engage in exercise because of the very high risk of a recurrence of a heart attack. Without adequate control of his hypertension, Mr. Leon is at increased risk of heart failure, stroke, congestive heart failure, brain hemorrhage, and ischemic heart disease.
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56. A class action is the only practicable means by which the Individual Plaintiffs and the putative class members may challenge Defendants’ acts and omissions that place putative class members at risk of contracting and succumbing to COVID-19.
57. Numerosity: The Class and Subclass are so numerous that joinder of all members is impractical. About 96 people are incarcerated at Adirondack. All people incarcerated in Adirondack are within the General Class. At least 30 people incarcerated at Adirondack are also members of the disability subclass. Disposition of this matter as a class action will avoid a proliferation of lawsuits and will provide to the Parties and the Court the substantial benefits and efficiencies of a counseled, coordinated presentation of the dispute.
a. The compositions of the General Class and Disability Subclass are necessarily fluid as Defendants transfer individuals to and from Adirondack at their discretion, and new class members enter each class upon transfer to Adirondack. It therefore would be impracticable to join each class member to this lawsuit.
b. Among other relief, Individual Plaintiffs seek prospective injunctive relief on behalf of future, unknown General Class and Disability Subclass members, further making joinder impracticable.
58. Commonality: Individual Plaintiffs raise questions of law and fact that are common to all class members and to the subclass members. Common questions raised as to the General Class include: (a) whether COVID-19 presents a heightened risk of harm to class members incarcerated in Adirondack; (b) whether Defendants have taken the necessary steps to respond to this heightened risk or have violated and continue to violate the Eighth Amendment by failing to take the necessary steps to protect class members from the risk posed by the conditions of confinement at Adirondack, in light of what they know about the risks posed by
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COVID-19; and (c) whether Individual Plaintiffs are entitled to declaratory and injunctive relief to vindicate their constitutional rights.
59. Common questions raised as to the Disability Subclass include, but are not limited to: (a) whether Defendants fail to accommodate the needs of people with the disabilities of heart disease, diabetes, and kidney disease, which render them susceptible to contracting, becoming severely ill from, and/or dying from COVID-19; (b) whether Defendants’ failure to accommodate these disabilities violates Title II of the ADA and Section 504 of the RA; and (c) whether Individual Plaintiffs are entitled to declaratory and injunctive relief to vindicate their statutory rights.
60. Typicality: The claims of the Individual Plaintiffs are typical of those of the General Class. Defendants have placed the Individual Plaintiffs at the same significant risk of harm as experienced by all class members through failing to take steps to address the shared risk of contracting, and being rendered seriously ill or injured by, COVID-19 at Adirondack. Individual Plaintiffs, like all Adirondack residents, face an unnecessarily heightened risk of contracting the virus because of Defendants’ conduct. All Individual Plaintiffs are at least 60 years old and have serious underlying medical conditions that put them at heightened risk of death or serious injury if they contract COVID-19.
61. The claims of the Individual Plaintiffs are also typical of those of the Disability Subclass. Like other members of the Disability Subclass, Mr. Perez has diabetes, a condition that makes him a qualified individual with a disability under the ADA. Like other members of the disability subclass, Mr. Leon has pulmonary hypertension, a serious heart condition that makes him a qualified individual with a disability. Mr. Harper also has pulmonary hypertension, and he also has kidney disease, making him a qualified individual with a disability.
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62. Adequacy: The Proposed Class satisfies the adequacy requirements of Fed. R. Civ. P. 23(a)(4), because the class representatives will fairly and adequately represent the interests of the Proposed Class and Disability Subclass.
a. The Individual Plaintiffs seek the same declaratory and injunctive relief as the other members of the Proposed Class and Subclass: a declaratory judgment that the policies at issue here violate the Eighth Amendment, the ADA, and Section 504 of the RA, and preliminary and permanent injunctions enjoining Defendants such that they will come into compliance with those laws. Such relief will benefit all current and future class members who are and may be imprisoned at Adirondack while COVID-19 remains a serious threat to class members’ health. In asserting their own rights, the Individual Plaintiffs will represent the rights of all members of the Proposed Class and Subclass fairly and adequately. The class representatives have no interests that are antagonistic to each other’s interests or to the interests of other members of the Proposed Class and Subclass.
b. Plaintiffs are represented by attorneys employed by Relman Colfax PLLC and the Prisoners’ Rights Project of The Legal Aid Society. Undersigned counsel has ample experience litigating complex lawsuits, including federal class actions and civil rights lawsuits involving the rights of incarcerated people.
63. Defendants have acted and refused to act on grounds generally applicable to all proposed class and subclass members. Declaratory and injunctive relief is appropriate respecting the class and subclass. Individual Plaintiffs therefore seek class certification under Fed. R. Civ. P. 23(b)(2).
64. In the alternative, the requirements of Fed. R. Civ. P. 23(b)(1) are satisfied because prosecuting separate actions would create a risk of inconsistent or varying adjudications
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with respect to individual Class members that would establish incompatible standards for the party opposing the proposed Class.
FACTUAL BACKGROUND The COVID-19 Pandemic
65. COVID-19 is a potentially deadly infectious respiratory disease that is caused by a novel coronavirus (SARS-CoV-2).1
66. The United States is the worldwide COVID-19 epicenter, and the number of new cases continues to rise daily.2 Since the onset of the pandemic, the United States has reported over 21.4 million confirmed cases of COVID-19, resulting in more than 361,000 deaths nationwide.3
67. New York was one of the first states hit by COVID-19. Recognizing the severity of the pandemic, Defendant Cuomo declared a State of Emergency on March 7, 2020, which allowed the state to expedite the provision of medical supplies and testing kits. 4 By March 20, Defendant Cuomo closed all schools and non-essential business, required non-essential workers to work from home, and ordered all individuals over the age of 70 to shelter in place.5
1 Pritish K. Tosh, M.D., Coronavirus: What Is It and How Can I Protect Myself?, MAYO CLINIC (Dec. 22, 2020), https://www.mayoclinic.org/diseases-conditions/coronavirus/expert-answers/novel-coronavirus/faq-20478727. 2 WHO Coronavirus Disease (COVID-19) Dashboard: United States of America, WORLD HEALTH ORG. (Jan. 7, 2021), https://covid19.who.int/. 3 Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES (Jan. 7, 2021), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html. 4 At Novel Coronavirus Briefing, Governor Cuomo Declares State of Emergency to Contain Spread of Virus, N.Y. STATE (Mar. 7, 2020), https://www.governor ny.gov/news/novel-coronavirus-briefing-governor-cuomo-declaresstate-emergency-contain-spread-virus. 5 Ben Axelson, Coronavirus Timeline in New York: Here’s How Gov. Cuomo Has Responded to COVID-19 Pandemic Since January, SYRACUSE.COM (Apr. 15, 2020), https://www.syracuse.com/coronavirus/2020/04/coronavirus-timeline-in-ny-heres-how-gov-cuomo-has-respondedto-covid-19-pandemic-since-january.html.
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68. Since March 2020, the State has maintained that New Yorkers must “do what we
know works - wear a mask, avoid gatherings and socially distance.”6 Even with these precautions
in place, New York is experiencing a dangerous second spike.7
69. COVID-19 can cause extreme pain, akin to “an anvil sitting on [a patient’s]
chest.”8 Approximately 20% of COVID-19 patients will develop severe symptoms that require
hospitalization.9 Of those who recover, many suffer permanent damage to their lungs, heart, and
brain, resulting in long-term breathing problems and an increased risk of heart failure and stroke.
Moreover, COVID-19 frequently causes blood clots, which can cause long-lasting problems in
the liver and kidneys.10
70. COVID-19 is highly contagious. Current research suggests that the novel
coronavirus spreads easily from person to person, most often between people who are in close
contact with one another (i.e. within six feet of each other) and through respiratory droplets that
are produced when an infected person talks, sings, sneezes, or coughs.11 Research has shown that
an aggregate of 15 minutes of contact with an infected individual creates a significant risk of
transmission.12 The virus may also be spread through contaminated surfaces.13
6 Governor Cuomo Updates New Yorkers on State’s Progress During COVID-19 Pandemic, N.Y. STATE (Jan. 6, 2021), https://www.governor.ny.gov/news/governor-cuomo-updates-new-yorkers-states-progress-during-covid-19pandemic-97. 7 N.Y. Flirts With Covid Record After Months of Controlling Cases, BLOOMBERG (Dec. 10, 2020), https://www.bloomberg.com/news/articles/2020-12-10/n-y-flirts-with-covid-record-after-months-of-controllingcases. 8‘An Anvil Sitting on My Chest’: What It’s Like to Have Covid-19, N.Y. TIMES (May 7, 2020), https://www.nytimes.com/article/coronavirus-symptoms html. 9 Knowing the Risks of COVID-19, WORLD HEALTH ORG. (Mar. 8, 2020), https://www.who.int/indonesia/news/detail/08-03-2020-knowing-the-risk-for-covid-19. 10 COVID-19 (coronavirus): Long-Term Effects, MAYO CLINIC (Nov. 17, 2020), https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351. 11 CTRS. FOR DISEASE CONTROL AND PREVENTION, HOW TO PROTECT YOURSELF & OTHERS (Nov. 27, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention html. 12 COVID-19 in a Correctional Facility Employee Following Multiple Brief Exposures to Persons with COVID-19 — Vermont, July–August 2020, Centers for Disease Control and Prevention, (Oct. 21, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6943e1 htm?s_cid=mm6943e1_w. 13 Neeltje van Doremalen et al., Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, 16 N. ENGL J MED.
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71. There is also evidence that COVID-19 spreads through aerosol transmission, such
that there is a greater risk of COVID-19 transmission indoors, especially if spaces are poorly
ventilated.14 The CDC has advised that where “people with COVID-19 seem to have infected
others who were more than 6 feet away,” the “transmissions occurred within enclosed spaces that
had inadequate ventilation.”15
72. Dr. Anthony Fauci, the Director of the National Institute of Allergy and Infectious
Diseases at the National Institute of Health, stated that it has become “much clearer” that
individuals are at greater risk of becoming infected when in indoor spaces with less air
circulation and “any degree of aerosolization.”16 Dr. Joseph Allen, director of Harvard
University’s Healthy Buildings program, which studies how buildings impact public health, has
cautioned, “[a]irborne transmission is happening in normal situations—it doesn’t just have to be
a choir practice or while someone is exercising,” and that “[w]e’ve seen this in a restaurant, on a
school bus, at a camp.”17 Scientists have also detected the virus traveling through air
conditioning and ductwork.18
382 (April 16, 2020), https://www.ncbi nlm.nih.gov/pmc/articles/PMC7121658/pdf/NEJMc2004973.pdf; see also, NATL. INST. OF HEALTH, STUDY SUGGESTS NEW CORONAVIRUS MAY REMAIN ON SURFACES FOR DAYS (Mar. 24, 2020), https://www nih.gov/news-events/nih-research-matters/study-suggests-new-coronavirus-may-remainsurfaces-days; CTRS. FOR DISEASE CONTROL AND PREVENTION, PUBLIC HEALTH GUIDANCE FOR COMMUNITYRELATED EXPOSURE, (Dec. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/php/public-healthrecommendations.html. 14 CTRS. FOR DISEASE CONTROL AND PREVENTION, DECIDING TO GO OUT (Oct. 28, 2020), https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/deciding-to-go-out html. 15 CTRS. FOR DISEASE CONTROL AND PREVENTION, HOW COVID-19 SPREADS (last accessed Jan. 7, 2021), https://tools.cdc.gov/api/v2/resources/media/407478/content html. 16 Noah Higgins-Dunn, Fauci Says He Thinks There is “a Degree” of Airborne Spread of the Coronavirus, CNBC (Aug. 4, 2020, 12:11 PM), https://www.cnbc.com/2020/08/03/fauci-says-theres-a-degree-the-coronavirus-isspreading-through-air-particles.html. 17 CDC Acknowledges COVID-19 Can Spread via Tiny Air Particles, WALL ST. J. (Oct. 5, 2020), https://www.wsj.com/articles/cdc-updates-covid-19-guidelines-acknowledging-virus-can-spread-via-tiny-airparticles-11601921416. 18 Jianyun Lu et al., COVID-19 Outbreak Associated with Air Conditioning in Restaurant, Guangzhou, China, 2020, in 26(7) EMERGING INFECTIOUS DISEASES 1628 (July 2020), https://wwwnc.cdc.gov/eid/article/26/7/20-0764_article; Joséph Allen, Opinion, We Cannot Keep Ignoring the Possibility of Airborne Transmission. Here’s How to Address It., WASH. POST (May 26, 2020, 1:55 PM), https://www.washingtonpost.com/opinions/2020/05/26/key-stoppingcovid-19-addressing-airborne-transmission/.
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73. Eating meals in close proximity has been identified as significantly increasing the
risk of COVID-19 transmission. A September study by the CDC found that adults who tested
positive for COVID-19 were twice as likely to have dined at a restaurant in the last two weeks.19
In discussing the results, the study noted that “[m]asks cannot be effectively worn while eating
and drinking” and that “[e]xposures and activities where mask use and social distancing are
difficult to maintain, including going to locations that offer on-site eating and drinking, might be
important risk factors for SARS-CoV-2 infection.”20
74. Infected individuals can transmit the virus to others even when asymptomatic;
recent research has also shown that up to half of COVID-19 transmissions come from people
who show no symptoms.21 Moreover, emerging research shows that people infected with
COVID-19 tend to be most contagious before they begin to show symptoms.22
75. Everyone is at risk of contracting COVID-19 if they are exposed to the virus, but
people with comorbid health conditions have a significantly higher risk of developing a serious
illness—meaning they may require hospitalization, intensive care, or a ventilator to help them
breathe—or of dying from COVID-19.23 In fact, adults with comorbid conditions are 6 times
more likely to be hospitalized for COVID-19 and 12 times more likely to die.24 In New York
19 Kiva A. Fisher et al., Community and Close Contact Exposures Associated with COVID-19 Among Symptomatic Adults ≥18 Years in 11 Outpatient Health Care Facilities — United States, July 2020, 69 MORBIDITY AND MORTALITY WEEKLY REPORT 1258, 1259 (2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6936a5H.pdf. 20 Id.at 1259, 1261. 21 Moghadas et al., The Implications of Silent Transmission for the Control of COVID-19 Outbreaks, PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCES (July 28, 2020), https://www.pnas.org/content/117/30/17513. 22 Xi He et al., Temporal Dynamics in Viral Shedding and Transmissibility of COVID-19, NATURE MEDICINE (April 15, 2020), https://www nature.com/articles/s41591-020-0869-5. 23 Conditions that the CDC has recognized as leading to this heightened risk include cancer, chronic kidney disease, COPD, Down Syndrome, obesity, severe obesity, serious heart conditions, immunocompromised state from solid organ transplant, sickle cell disease, type 2 diabetes, pregnancy, or a history of smoking. See People with Certain Medical Conditions, CTRS. FOR DISEASE CONTROL & PREVENTION (Dec. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions html. 24 Lena H. Sun, Patients With Underlying Conditions Were 12 Times as Likely to Die of COVID-19 as Otherwise Healthy People, CDC Finds, WASH. POST (June 15, 2020, 8:10 PM),
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State, 90 percent of individuals who have died from COVID-19 had comorbidities, with over
half of those who died suffering from hypertension and nearly 35 percent of them diabetic.25
76. Advanced age also increases one’s risk for severe illness and death from COVID-
19. Adults over 65 are 5 times more likely to be hospitalized for COVID-19 and 90 times more
likely to die when compared to adults under 30. 26 In New York State, over eighty-five percent of
COVID-19-related deaths have been individuals over the age of 60.27
77. People in prison disproportionately suffer from chronic and noncommunicable
diseases like hypertension, diabetes, and asthma, as well as communicable diseases like hepatitis,
HIV, and tuberculosis.28 Moreover, on average, an incarcerated person’s physiological age is
estimated to be 10 to 15 years older than his or her chronological age, reflecting the toll that
incarceration takes on people’s health and their bodies’ functioning.29
78. Race also affects the chances of severe illness or death from COVID-19. The
CDC has estimated that non-Hispanic Black or African American individuals are 3.7 times and
2.8 times as likely to be hospitalized and to die from COVID-19, respectively, as compared to
white, non-Hispanic persons. Hispanic or Latino individuals are 4.1 times more likely to
hospitalized, and 2.8 times more likely to die.30
https://www.washingtonpost.com/health/2020/06/15/patients-with-underlying-conditions-were-12-times-morelikely-die-covid-19-than-otherwise-healthy-people-cdc-finds/. 25 N.Y. STATE DEP’T OF HEALTH, COVID-19 Tracker: Fatalities, https://covid19tracker health ny.gov/views/NYSCOVID19-Tracker/NYSDOHCOVID-19Tracker-Fatalities?%3Aembed=yes&%3Atoolbar=no&%3Atabs=n (last visited Jan. 7, 2021). 26 CTRS. FOR DISEASE CONTROL AND PREVENTION, OLDER ADULTS (Dec. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults html. 27 N.Y. STATE DEP’T OF HEALTH, supra note 25. 28 The American Academy of Family Physicians, Incarceration and Health: A Family Medicine Perspective (Position Paper), https://www.aafp.org/about/policies/all/incarceration html (last visited Jan. 7, 2021). 29 Brie Williams et al., Aging in Correctional Custody: Setting a Policy Agenda for Older Prisoner Health Care, 102 AM. J. PUB. HEALTH 1475, 1477 (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3464842/pdf/AJPH.2012.300704.pdf. 30 CTRS. FOR DISEASE CONTROL AND PREVENTION, COVID-19 HOSPITALIZATION AND DEATH BY RACE/ETHNICITY, (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalizationdeath-by-race-ethnicity.html.
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79. Men also face a greater risk of severe illness and death from COVID-19
infection.31 The CDC has officially added gender to its list of potential risk factors for severe
COVID-19 illness.32 In New York State, men account for over 56 percent of COVID-19
deaths.33
80. COVID-19 therefore poses a substantial risk of serious medical harm to
Individual Plaintiffs and members of the putative General Class and Disability Subclass,
obligating Defendants to take necessary steps to prevent Plaintiffs from contracting it and to
ensure they are properly cared for if they do contract it.
The Public Health Emergency Created by COVID-19 in Prisons
81. The risks associated with COVID-19 are significantly elevated in prison.
82. Without measures to prevent its introduction, COVID-19 can enter prisons easily
through daily staff movements, visitors, transfers of incarcerated people from other prisons, and
outside contact through court hearings and off-site medical appointments.34
83. Both intra and inter-state transfers have resulted in deadly COVID-19 outbreaks
in the recipient facilities.35 Kinross Correctional Facility, located on Michigan’s remote Upper
31 Richard V. Reeves & Tiffany N. Ford, COVID-19 Much More Fatal for Men, Especially Taking Age Into Account, BROOKINGS INSTITUTE (May 15, 2020), https://www.brookings.edu/blog/up-front/2020/05/15/covid-19much-more-fatal-for-men-especially-taking-age-into-account/. See also Maggie Koerth, Why Are More Men Than Women Dying of COVID-19?, FIVETHIRTYEIGHT (April 30, 2020, 5:58 AM), https://fivethirtyeight.com/features/why-are-more-men-than-women-dying-of-covid-19/ (reporting on research showing that, out of 35 countries reporting COVID deaths broken down by sex, men with confirmed COVID-19 infections were more likely to die than women with confirmed infections).. 32 CTRS. FOR DISEASE CONTROL AND PREVENTION, ASSESSING RISK FACTORS FOR SEVERE COVID-19 ILLNESS, (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/assessing-riskfactors.html. 33 N.Y. State Dep’t of Health, supra note 25. 34 CTRS. FOR DISEASE CONTROL AND PREVENTION, INTERIM GUIDANCE ON MANAGEMENT OF CORONAVIRUS DISEASE 2019 (COVID-19) IN CORRECTIONAL AND DETENTION FACILITIES (Dec. 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html#correctional-facilities. . 35 Cary Aspinwall & Ed White, Moving People – And Coronavirus – From Prison to Prison, THE MARSHALL PROJECT (Dec. 21, 2020), https://www.themarshallproject.org/2020/12/21/moving-people-and-coronavirus-fromprison-to-prison.
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Peninsula, experienced a severe COVID-19 outbreak following an October 28, 2020 transfer of nine incarcerated people to Kinross Correctional Facility from Marquette Branch Prison, where there were 350 active COVID-19 infections. As of December 21, 2020, more than 1,100 incarcerated people had been infected at Kinross, and at least seven had died.36
84. Kinross’s crisis reflects a nationwide trend. Oklahoma’s prisons experienced a similar transfer-induced spike: transfers of more than 4,500 prisoners between July and September resulted in an estimated 6,600 prisoners testing positive and 37 deaths.37 Just this past October, a federal Bureau of Prisons transfer of 150 inmates from an Ohio facility to Fort Dix, New Jersey resulted in over 228 COVID-19 cases – the second highest number in the federal prison system.38
85. Once COVID-19 is introduced into a prison, it can spread rapidly in this necessarily congregate environment. The attack rate, or the proportion of those exposed to COVID-19 who ultimately become sick, is as high as 80% in prisons, compared to 20-30% in the rest of the United States.39
86. Because of the ease with which COVID-19 spreads in prison, as well as the stubborn refusal of many authorities to modify entrenched practices to combat it, the positive rate is 4 times higher in prison than in the community. 40 The Federal Bureau of Prisons has reported that, out of the nearly 97,000 federal inmates who have been tested, over 40,000 have
36 Id. 37 Cary Aspinwall & Ed White, supra note 35. 38 Samantha Melamed, COVID-19 outbreak infecting hundreds at Fort Dix is ‘escalating crisis,’ N.J. senators warn, THE PHILADELPHIA INQUIRER (Nov. 10, 2020), https://www.inquirer.com/news/fci-fort-dix-coronavirus-covidoutbreak-transfers-elkton-cory-booker-bob-menendez-20201110 html. 39 Henry Njuguna, M.D. et al., Serial Laboratory Testing for SARS-CoV-2 Infection Among Incarcerated and Detained Persons in a Correctional and Detention Facility, 69 MORBIDITY AND MORTALITY WEEKLY REPORT 836, 837 (2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6926e2-H.pdf. 40 1 in 5 Prisoners in the U.S. Has Had COVID-19, The Marshall Project, (Dec. 18. 2020), available at https://www.themarshallproject.org/2020/12/18/1-in-5-prisoners-in-the-u-s-has-had-covid-19
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ever tested positive.41 Thus, federal prisons have an approximate 41% positive test rate, which is
over 8 times higher than what the World Health Organization considers to be safe.42
87. New York prisons’ experience with the virus this fall shows how rapidly the
contagion spreads in carceral settings once it has been allowed to enter, if—as here—state
authorities refuse to take steps to stop it. On September 28, 2020, Elmira Correctional Facility
(“Elmira”) and Greene Correctional Facility (“Greene”) each reported one COVID-19 case. By
December 2, 2020, roughly 605 and 162 incarcerated individuals at Elmira and Greene,
respectively, were reported to have tested positive for the virus. Greene’s case count, which was
only two at the beginning of the October, jumped by over 90 cases in the first two weeks of the
month. During a two-week period in October, Elmira Correctional Facility went from 20
reported cases to 590 cases.
88. Over the past month, a rapid acceleration of positive cases has become evident
throughout the DOCCS system: the Department had 2000 total reported cases on December 12,
2020 and reported more than 3,000 cases less than three weeks later, on December 31, 2020.43
41 COVID-19 Inmate Test Information, FEDERAL BUREAU OF PRISONS, https://www.bop.gov/coronavirus/ (last visited Jan. 7, 2021). 42 David Dowdy & Gypsyamber D’souza, Covid-19 Testing: Understanding the “Percent Positive,” JOHNS HOPKINS BLOOMBERG SCH. OF PUB. HEALTH (Aug. 10, 2020), https://www.jhsph.edu/covid-19/articles/covid-19testing-understanding-the-percent-positive.html. 43 NY Suspends Visitation at State Prisons Amid Outbreaks, U.S. NEWS AND WORLD REP. (Dec. 30, 2020), https://www.usnews.com/news/best-states/new-york/articles/2020-12-30/ny-suspends-visitation-at-state-prisonsamid-outbreaks. These statistics are almost certainly underreporting the true number of COVID-19 cases that have emerged in DOCCS facilities, as DOCCS did not test the majority of incarcerated individuals for the majority of the pandemic. See Testimony of Anthony J. Annucci, Acting Commissioner NYS Department of Corrections and Community Supervision, Before the NYS Senate Standing Committee on Crime Victims, Crime and Corrections and NYS Senate Standing Committee on Health: COVID-19 Impact on Prisons and Jails (Sept. 22, 2020) https://doccs.ny.gov/system/files/documents/2020/09/9.22.20-doccs-covid-19-impact-prison-and-jail-verbaltestimony.pdf (noting approximately 13,000 COVID tests given to incarcerated population of 36,704 to date). DOCCS does not even consistently test incarcerated individuals for COVID-19 when it knows they have been exposed to COVID-19, even when those individuals specifically request to be tested due to their known exposure. As an example, when Fishkill Correctional Facility experienced a large COVID-19 outbreak earlier this year, and five incarcerated individuals had already died from the virus, DOCCS had tested had “less than 20% of [Fishkill’s] incarcerated population . . . with just over one-third coming back positive.” Gabe Stern, Report details inconsistent
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89. Not only does COVID-19 spread faster in prisons, but it is also more deadly. Experts have found that the adjusted death rate in prison is 3 times higher than the rate in the rest of the United States.44
90. Beyond the “normal” risk of COVID-19 transmission in a prison setting, the men at Adirondack Correctional Facility, all of whom are at least 60 years old and have underlying health conditions—and who have been transferred to Adirondack precisely for that reason—are at an even higher risk of death or serious injury from COVID-19.
91. Out of recognition of the serious threat COVID-19 poses to the prison population, the CDC has issued guidance to prisons on how to prevent the spread of COVID-19. The CDC recommends that facilities:
a. Ensure incarcerated people and staff have an adequate supply of personal protective equipment, personal hygiene supplies, and cleaning supplies, including but not limited to soap, alcohol-based hand sanitizer, facemasks, gloves, and disinfectant; b. Create a contingency plan in case there is a shortage of personal protective equipment; c. Provide soap and hand sanitizer free of charge to allow for frequent use; d. Adhere to all CDC guidelines for cleaning, and disinfect frequently touched surfaces several times per day; e. Educate incarcerated people and staff about how to stop the spread of COVID-19;
procedures in NY prison during COVID-19 outbreak, THE DAILY ORANGE (Sept. 8, 2020), available at http://dailyorange.com/2020/09/report-details-inconsistent-procedures-ny-prison-covid-19-outbreak/. 44 Brendan Saloner, Ph.D., et al., COVID-19 Cases and Deaths in Federal and State Prisons, JAMA NETWORK (July 8, 2020), https://jamanetwork.com/journals/jama/fullarticle/2768249. This rate is adjusted to determine the death rate if “the age and sex distributions of the U.S. and prison populations were equal” in order to account for the demographic differences between the prison population and the greater U.S. population.
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f. Ensure that people socially distance by staying six feet apart from one another at all times.45 As described further below, Adirondack has not adhered to this guidance or taken any other steps to prevent or limit the introduction of COVID-19.
Defendants’ Response to COVID-19 in Prisons 92. The most obvious measure to arrest the spread of COVID-19 in New York’s prisons would be to release a significant number of people incarcerated there, but, as described below, Defendants have refused to do so. Because of this refusal, vulnerable people remain incarcerated in life-threatening conditions, yet Defendants have failed to take the necessary steps to ameliorate the risk the virus poses within prisons. 93. Early in the pandemic, Defendant Cuomo announced that, to combat COVID-19 in its prisons, DOCCS would release approximately 1,100 people arrested for technical parole violations.46 Then, on April 15, 2020, Defendant Cuomo announced his plan to release vulnerable incarcerated people who had less than 90 days remaining on their sentences and were not convicted of a violent felony or sex offense.47 On April 30, 2020, Defendant Cuomo’s office announced a similar initiative for pregnant and postpartum people in custody.48 94. These limited COVID-19 release programs have failed to reduce New York’s prison population sufficiently to reduce the threat posed by COVID-19. The Cuomo administration reported that, as of November 23, 2020 only 3,147 incarcerated individuals had
45 Ctrs. for Disease Ctrl. & Prevention, supra note 34. 46 Denis Slattery, New York to release 1,100 inmates being held on parole violations, N.Y. DAILY NEWS (Mar. 27, 2020), https://www nydailynews.com/coronavirus/ny-coronavirus-new-york-inmates-released-parole-violations20200327-jyrdhpxzdbbtvcb6ei7fy7ebwq-story html. 47 Ryan Tarinelli, Certain NY Prisoners Will See Release Amid Pandemic, Top Cuomo Aide Says, N.Y.L.J. (Apr. 15, 2020), https://www.law.com/newyorklawjournal/2020/04/15/certain-ny-prisoners-will-see-release-amid-pandemictop-cuomo-aide-says/. 48 Nick Reisman, New York Moves to Release Pregnant Inmates, SPECTRUM NEWS (Apr. 30, 2020), https://spectrumlocalnews.com/nys/central-ny/ny-state-of-politics/2020/04/30/new-york-pregnant-inmate-release.
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been released, roughly seven percent of the pre-release population.49 Defendant Cuomo has
granted just 10 commutations since the start of the pandemic, lagging far behind the governors of
other states.50
95. Defendants have been on notice of the risks of people remaining incarcerated, as
medical experts across the country and several doctors in New York’s correctional institutions
have warned about the risks.51
96. Dr. Robert Cohen, former Rikers Island medical director, warned, “[t]he most
important thing we can do right now is discharge all of the people who are old and have serious
medical issues;” “[i]t’s to everybody’s advantage to get them out,” because “those people are
likely to die from a coronavirus infection.”52 Dr. Ross MacDonald, Rikers Island Chief
Physician, warned, “A storm is coming . . . We have told you who is at risk. Please let as many
out as you possibly can.”53
97. Dr. Mary Bassett, the former New York City Health Commissioner, urged
Defendant Cuomo to “grant compassionate release to elderly inmates, as well as those with
49 Reuven Blau, ‘Hundreds’ of Prisoners Approved for Early Release Stuck Behind Bars as COVID Spikes, THE CITY, (Nov. 24, 2020), https://www.thecity.nyc/2020/11/24/21717723/prisoners-approved-for-early-release-stuckbehind-bars-covid. 50 Victoria Law, While COVID-19 Spreads In NY Prisons, Loved Ones On The Outside Plead With Cuomo For Clemency, GOTHAMIST (Nov. 23, 2020), https://gothamist.com/news/while-covid-19-spreads-ny-prisons-loved-onesoutside-plead-cuomo-clemency (reporting three commutations from the start of the pandemic to date as of Nov. 23, 2020); NEW YORK STATE, GOVERNOR CUOMO GRANTS CLEMENCY TO 21 INDIVIDUALS (Dec. 24, 2020), https://www.governor.ny.gov/news/governor-cuomo-grants-clemency-21-individuals (reporting clemencies granted to an additional 21 individuals, among these 7 commutations). In April, Oklahoma Governor Kevin Stitt commuted the sentences of 450 incarcerated individuals; California Governor Gavin Newsom issued 55 commutations between March and November, Id. 51 See, e.g., Declarations of Dr. Jonathan Louis Golob and Dr. Marc Stern, Dawson v. Asher, 2:20-cv-00409JLRMAT (W.D.Wash. Mar. 16, 2020), ECF Nos. 5 & 6; Declaration of Dr. Robert L. Cohen, Sanchez et al. vs. Dallas County Sheriff et al., 3:20-cv-00832-E-BH (N.D. Tex. 2020), ECF No. 39. 52 Jan Ransom & Alan Feuer, ‘A Storm Is Coming’: Fears of an Inmate Epidemic as the Virus Spreads in the Jail, N.Y. TIMES (Apr. 23, 2020), https://www nytimes.com/2020/03/20/nyregion/nyc-coronavirus-rikers-island.html; Zach Williams, Rising Calls to Free Incarcerated New Yorkers, CITY & STATE N.Y. (Mar. 20, 2020), https://www.cityandstateny.com/articles/policy/criminal-justice/rising-calls-free-incarcerated-new-yorkers html.. 53 @RossMacDonaldMD, TWITTER (Mar. 18, 2020, 9:51 PM), https://twitter.com/RossMacDonaldMD/status/1240455802193883137.
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health conditions that put them at higher risk,” noting that “[g]iven the conditions in which incarcerated people live . . . this population is especially vulnerable to the virus, and largely unable to prevent its spread,” which will cause “people in prison who become infected [to] die unnecessarily.”54
98. Despite these warnings, New York has actually slowed its pace of releasing longtime incarcerated people because of COVID-19, rather than accelerating it. For example, in March, DOCCS published a memo stating that all merit time reviews and initial and Limited Credit Time Allowance parole interviews would be postponed two months to June and July 2020.
Transfers to Adirondack Correctional Facility 99. Instead of releasing elderly, medically-vulnerable people, Defendants announced that they would “transfer to Adirondack, incarcerated individuals age 65 and older,” who qualified according to the medical and security requirements Defendants established.55 100. Adirondack is a 500-bed men’s prison run by DOCCS in Ray Brook, New York. In 2018, it was converted to a facility intended to house young people, age 16 to 18. As of April 2020, only 13 people, all teenagers, remained incarcerated at Adirondack.56 101. Beginning in April of 2020, Defendants transferred these 13 young people out of Adirondack, and in May, it began implementing their plan of moving elderly men who had been incarcerated in other facilities around the state into Adirondack. Adirondack now holds
54 Mary Bassett, Eric Gonzalez, & Darren Walker, Andrew Cuomo, Stop a Coronavirus Disaster: Release People from Prison, N.Y. TIMES (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/opinion/nyc-prison-releasecovid.html. 55 N.Y. STATE DEP’T OF CORR. & CMTY. SUPERVISION, DOCCS RE-OPENING PLAN FACT SHEET, (May 29, 2020), https://doccs ny.gov/system/files/documents/2020/06/web-page-doccs-re-opening-fact-sheet-5-29-20-final.pdf. 56 Aaron Cerbone, Adirondack prison swings from juniors to seniors, ADIRONDACK DAILY ENTER. (Jun. 26, 2020), https://www.adirondackdailyenterprise.com/news/local-news/2020/06/adirondack-prison-swings-from-juniors-toseniors/.
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approximately 96 men. Half the men at Adirondack are between 60 and 65 years old. The other half are over 65 years old.
102. DOCCS’s stated criteria for transfer to Adirondack are that a person be over sixty-five years old, have an underlying health condition, and be eligible for placement in a medium-security prison based on low institutional and public risk scores.
103. Thus, by design, incarcerated people at Adirondack are old, infirm, and unthreatening. These are precisely the people that DOCCS should prioritize releasing in light of the COVID-19 crisis. Instead, Defendants transported them to a distant and unsuitable place, where, removed from public view, they face a constitutionally unacceptable risk of harm. Defendants have failed to implement the most basic procedures necessary to protect any population during the COVID-19 pandemic, let alone a population of elderly and high-risk people in prison.
104. For example, the CDC recommends that “Facilities in communities with moderate to substantial levels of community transmission” consider:
 Testing at intake before putting transferees into the general population at the facility;  Housing people individually while test results are pending; and  Implementing a routine 14-day quarantine for people entering a facility. These recommendations are “particularly” urged where incoming people “will transition to a congregate setting with persons at increased risk for severe illness from COVID-19.”57
105. Defendants have not done any of these things at Adirondack, nor have they taken any other measures to prevent new transfers from introducing COVID-19 in the facility. In
57 See CTRS. FOR DISEASE CONTROL AND PREVENTION, INTERIM CONSIDERATIONS FOR SARS-COV-2 TESTING IN CORRECTIONAL AND DETENTION FACILITIES, supra note 34.
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handling transfers, Defendants do not test people before transferring them to Adirondack from prisons around the state, nor do they quarantine people upon arrival.
106. This failure to test for COVID-19 before transfer—an ongoing practice of Defendants—creates a high risk that those coming in from other prisons are bringing COVID-19 with them. Of the 96 people currently incarcerated in Adirondack, a large number were transferred from facilities with extremely high COVID-19 incidence and mortality rates. For example, Mr. Leon was transferred from Otisville Correctional Facility, where almost 10% of the population – 54 out of 584 people – have so far tested positive for COVID-19. A number of people were transferred to Adirondack from Fishkill Correctional Facility (“Fishkill”), the DOCCS facility that, for most of the pandemic, had the highest COVID-19 incidence rate and still has the highest mortality rate – COVID-19 deaths at Fishkill account for nearly one-third of all deaths from COVID-19 in DOCCS facilities. Experiences around the country and widelyknown information about the nature of COVID-19 make it clear that this approach—which Defendants have given no indication of stopping—creates a grave risk of outbreak.
107. Moreover, as Defendants knew, social distancing is not possible on the hours-long transfer bus trips, and these buses transport people mixed in from different facilities around the state to bring them to Adirondack and to other prisons on the way. At least one bus has had a passenger coughing and exhibiting flu-like symptoms during the several hours in which he was in close contact with other passengers. Defendants responded only by returning that person to Fishkill (because he was determined to be too sick to be transported) and proceeding with the plan to transport the other passengers to Adirondack. Not only were the people on the bus with the coughing person not tested upon arrival at Adirondack, they were immediately introduced into the general population.
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108. Unsurprisingly, after these transfers, two of the people bused to Adirondack fell ill with COVID-19.
109. Defendants also do not test transferees upon their arrival at Adirondack, nor do they quarantine them, in violation of obvious COVID-19 danger this practice poses. As a result, Defendants cannot and do not detect new infections and they allow newcomers to expose others at Adirondack to the virus.
Dangerous Conditions at Adirondack Correctional Facility 110. Adirondack now exclusively houses some of the people most vulnerable to COVID-19 in the state, who by virtue of age, underlying medical condition, race, and gender have a heightened risk of serious complications from COVID-19. In spite of this, Defendants have made no efforts to make Adirondack a suitable facility to house this vulnerable population during a pandemic. To the contrary, Defendants’ policies and practices at Adirondack make social distancing and other safeguards impossible. 111. Adirondack consists of several housing units, each with approximately 22-24 rooms. Of these, 16 rooms have doors on them, and 6-8 have no doors. Adirondack houses people in cells both with and without doors. Plaintiff Harper, for example, lives in a room with no door. In these conditions, COVID-19—which is an airborne pathogen—spreads rapidly. Defendants have also placed ten men in Plaintiff Leon’s housing unit in rooms without doors, increasing the likelihood of transmission of COVID-19 within the housing unit. 112. Within the housing units, the indoor recreation areas consist of TV rooms with a few benches for seating. The benches are short and are placed close to each other, such that people cannot maintain six feet of distance from each other while watching
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television, even if they sit on opposite ends of the benches. Sitting at any distance apart is often not possible, as these rooms are regularly packed with people.
113. Each housing unit has one bathroom that is shared by everyone in the unit. Men are required to shave communally during a single period in the evenings, such that they must stand directly next to each other while engaging in an activity that necessarily precludes maskwearing.
114. Adirondack also requires residents to go to a communal mess hall to eat. While other DOCCS facilities allow people to eat in their cells, Adirondack mandates that people eat in the mess hall together. At least three housing units go to the mess hall per shift, so upward of 45 people from different housing units eat together in close quarters. People line up to wait for food in lines where it is not possible to stand six feet apart from each other, and then they eat at tables sitting across from and within six feet of each other.
115. Adirondack provides limited options for avoiding this unsafe environment. The only food people can take out of the mess hall at Adirondack are slices of bread, which people must pick up themselves. Incarcerated people who have diabetes or otherwise cannot subsist on bread are given nothing that they could eat in their cells. Otherwise, people can purchase food from the commissary or have family members pay to send them food that they can eat in their cells – choices that are financially infeasible or nutritionally inadequate for most people on a regular basis.
116. Plaintiff Leon, for example, is unable to socially distance in the mess hall, and so in order to eat meals that he does not pay for separately, he must face exposure to residents of three housing units in a circumstance in which social distancing and mask wearing is not possible.
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117. Many incarcerated people have been given only a few paper face masks, which are designed to be disposable but which they must wash with soap and water to reuse. Staff at Adirondack often do not wear masks or wear their masks below their chins, exposing their noses and mouths, and Defendants have not taken actions to prevent this. Staff regularly do not wear masks inside of the housing units, both when interacting with other staff members and with people who are incarcerated. Furthermore, staff are often assigned to work on different units, so they regularly commingle with people from multiple housing units.
118. Defendants also do not provide soap for handwashing at sinks and give members of the putative General Class only two bars of soap every two weeks, which they are to use for all their needs, including hand-washing in the bathroom, where no other soap is provided. People regularly run out of soap, as one bar per week is insufficient, and if they need more soap, they are required to buy more from the commissary.
119. DOCCS reports that two people at Adirondack have tested positive for COVID-19, but this number is unreliable, as COVID-19 testing at Adirondack is sporadic and haphazard at best. Defendants do not test people incarcerated at Adirondack on a routine basis, not even in response to observed need, known interactions with COVID-19 patients, or before or after hospital trips. Defendants also do not conduct any regular temperature or symptom screening of the population.
120. Defendants appear to have recently – as of the end of December – begun conducting random tests of two people per housing unit every two weeks. It is not clear whether this testing is enshrined in a policy, whether Defendants are implementing it in
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every housing unit, or how long it will continue, but regardless of the answers to any of those questions, this modest testing is completely inadequate to identify the presence or scope of COVID-19 within Adirondack, particularly in light of the above-referenced conditions that Defendants have created at Adirondack. The widely-understood nature of the asymptomatic spread of COVID-19 requires regular and universally-available testing to understand whether COVID-19 is present in the facility, not just whether one person chosen at random has COVID19 on a given day.
121. On September 30 and October 1, 2020, DOCCS conducted what appears to be its only round of facility-wide COVID-19 testing at Adirondack since at least mid-summer. One incarcerated person tested positive for COVID-19 at that time. On October 2, the person who tested positive was moved into quarantine, but no one else from his communal housing unit was quarantined or separated in any way. Instead, people who had been living with him before he tested positive continued to mingle with each other and the prison-wide population, eating meals with people from around the prison in the mess hall and working wherever they were assigned throughout the prison. Moreover, no one in the housing unit of the infected person was tested or screened after the positive result to ascertain whether they had contracted COVID-19 from their daily contact with him.
122. In the week before this individual tested positive, he had participated in a hearing for a grievance with Plaintiff Perez. Another incarcerated person was also in the meeting, along with three staff members. The grievance hearing was held in a room with no windows, with everyone sitting around a table less than six feet apart for approximately one hour.
123. After learning that someone who had been in the grievance hearing had tested positive, Defendants sent the staff members home for two weeks, but they did not quarantine
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Plaintiff Perez or the other incarcerated person. Instead, they sent them back to their housing units, potentially exposing everyone in those units. Defendants did not test or screen Plaintiff Perez or the other incarcerated person after their exposure. This incident illustrates that even under circumstances where Defendants understood that quarantining was necessary and appropriate, and where they instituted such quarantines to protect staff members, they refused to do the same to protect class members.
124. Moreover, by failing to re-test residents, Defendants failed to learn the scope of the possible infection within Adirondack, a crucial step for containing any outbreak.
125. Compounding the harm caused by the lack of adequate quarantine and testing procedures, Adirondack lacks adequate medical resources to care for the medically vulnerable people that Defendants have moved there.
126. Adirondack has two negative-pressure isolation rooms, which are rooms with sufficient air turnover to reduce the likelihood of airborne virus spread. Adirondack has two additional rooms that could possibly be converted to isolation rooms. These four rooms are insufficient for quarantining the population in the event of a COVID-19 outbreak.
127. Adirondack’s entire medical staff consists of only two nurses. People seeking medical care at Adirondack are told to put in a request to go to sick call, which is available once per day, at 6:15 a.m., on weekdays only.
128. The medical facilities and preventive procedures within Adirondack are insufficient to meet the routine needs of the facility’s elderly and infirm population; they are not close to sufficient to prevent or respond to a COVID-19 outbreak.
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129. Defendants have also administered medical care ineffectively in light of the demands that the risks of COVID-19 pose. Plaintiff Leon has been denied necessary medical care because of Defendants’ lack of adequate testing at Adirondack. Plaintiff Leon has colitis, a serious medical condition that requires monitoring through annual colonoscopies. On October 6, 2020, he was admitted to a hospital for preparation for a colonoscopy, but he did not have a colonoscopy because he had not had a sufficiently recent COVID-19 test.
The Lack of Medical Resources for a COVID-19 Outbreak in the Community of Ray Brook
130. The danger of a COVID-19 outbreak in Adirondack is compounded by the lack of medical resources in Ray Brook, New York, where the facility is located, and it poses a danger to the community outside the prison.
131. As described above, it appears that the closest hospital with the capacity to accept people from prison is Albany Medical Center, two and a half hours from Adirondack. Even if staff were able to send incarcerated people from Adirondack to a local hospital that lacked the normally-required security features for some reason, there are only two local options: Adirondack Medical Center, which has 8 intensive care unit beds, or Elizabethtown Community Hospital, which has only 25 inpatient beds total.
132. The medical system that exists in the community was established to serve the regular needs of the population there, not the needs of the population during a pandemic. It certainly cannot mitigate the heightened risk of community spread from Defendants’ addition of 100 elderly, medically needy adults.
133. Defendants’ indifference to containing COVID-19 within Adirondack’s walls creates a heightened risk of spread throughout the Ray Brook community generally, should COVID-19 enter the facility, as part of the danger of a COVID-19 outbreak within a prison is the
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possibility that it will spread to the surrounding community through staff or other civilians who regularly enter and exit the prison. Nearly 30% of residents in Ray Brook are 60 years old or older, and in the event of an outbreak, they would be endangered, because the local medical system would be easily overwhelmed. 58
134. The likelihood of an unmanageable outbreak within Adirondack is also compounded by its proximity to FCI-Ray Brook, a federal prison less than one mile away where forty-three people have currently tested positive for COVID-19.59 As discussed, the risk of COVID-19 spread within prisons is significantly higher than in the community at large and Ray Brook, NY, has two prisons in close proximity, with staff members almost certainly intermingling and interacting in local grocery stores and other community spaces, introducing a heightened risk of inter-prison COVID-19 spread. Through Transfers to and Conditions at Adirondack, Defendants Have Violated the
Eighth Amendment Rights of Plaintiffs and Putative Class Members 135. The Eighth Amendment to the United States Constitution prohibits the infliction of “cruel and unusual punishment.” U.S. Const. amend. VIII. This prohibition applies to “the treatment a prisoner receives in prison and the conditions under which he is confined.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). Prison officials have a duty to take necessary measures to guarantee the safety of incarcerated people, ensure that incarcerated people receive adequate medical care, and protect incarcerated people from infectious diseases. Defendants Have Been Deliberately Indifferent Because They Are Aware of the Risk of Serious Harm that COVID-19 Poses to Elderly and Medically Vulnerable Incarcerated People, Yet
58 U.S. CENSUS BUREAU, ACS DEMOGRAPHIC AND HOUSING ESTIMATES, 2018: ACS 5-YEAR ESTIMATES DATA PROFILES (last accessed Jan. 7, 2021), available at https://data.census.gov/cedsci/table?g=0500000US36031&tid=ACSDP5Y2018.DP05&hidePreview=false.
59 FEDERAL BUREAU OF PRISONS, supra note 45. 36

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Refuse to Take Necessary Steps to Respond to the Risk at Adirondack 136. Defendants are aware of the serious risk COVID-19 poses to medically vulnerable and elderly incarcerated people, and specifically to Plaintiffs and putative class members. Despite this knowledge, Defendants have refused to take necessary measures to respond to this risk at Adirondack, and indeed, have acted in ways that have increased the risk. Defendants have refused to implement testing, contact tracing, quarantine, distancing, and isolation protocols, even when faced with cases of COVID-19 within Adirondack. Defendants have also ignored Plaintiffs’ repeated requests for cleaning supplies, hygiene supplies and other important COVID19 mitigation measures. These actions and failures to act amount to deliberate indifference in response to the risk of COVID-19 at Adirondack. Defendants Are and Have Been Aware of the Risk Created by Transferring Medically Vulnerable and Elderly People to Adirondack and Confining them in the Conditions that Exist at
Adirondack 137. For well over eight months, as described above, Defendants have been warned of and have been aware of the extraordinarily high risk COVID-19 poses to incarcerated people who are elderly and/or have preexisting serious medical conditions. Since Summer 2020, Defendants have been warned of and have been aware of the risks posed by their decision to transfer these men to Adirondack and confine them in the conditions that have existed at Adirondack since these transfers began. 138. Outside of the prison setting, Defendant Cuomo has acted aggressively in combatting and responding to COVID-19, imposing formal restrictions on much of society and urging residents to take a host of voluntary steps to contain the virus’s spread. Yet Defendants have refused to show the same urgency when it comes to protecting elderly and medically vulnerable incarcerated people, who are at their mercy with no ability to protect themselves.
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139. Plaintiff RAPP has contacted Defendants Cuomo, Annucci, Morley, and Tedford repeatedly to inform them of the extent and severity of the risk of concentrating medically vulnerable and elderly men at Adirondack, and the Legal Aid Society and hundreds of other organizations have made similar appeals to Defendants.
140. Organizations, including Plaintiff RAPP, have alerted Defendants specifically to the risk posed by transferring older, medically-vulnerable people to Adirondack and have identified the lack of COVID-related safety measures at Adirondack. On June 25, 2020, for example, RAPP organized a sign-on letter joined by dozens of interested organizations in which it notified Defendant Cuomo and others about the specific risk posed by the Adirondack plan and Defendants’ failures to adopt adequate testing and other measures to protect the elderly men being transferred to the facility. The letter notified Defendant Cuomo that “these transfers fundamentally represent a public health crisis that amounts to a ticking time bomb” and asked for the release of the men at Adirondack or other action that would ensure their safe return to the community. On other occasions, RAPP and other organizations have asked Defendant DOCCS to mitigate the dangerous COVID-19-related conditions at the facility by engaging in proper testing, quarantining, and isolation practices; providing incarcerated people with sufficient cleaning and hygiene supplies; ceasing transfers to the facility; and releasing people from the facility.
141. This Court and other courts in the Second Circuit have put Defendants on notice by repeatedly recognizing that the presence of COVID-19 in a prison creates a serious, lifethreatening medical risk. See, e.g., United States v. Rountree, No. 1:12-CR-0308 (LEK), 2020 WL 2610923, at *5 (N.D.N.Y. May 18, 2020) (prisons are “powder kegs for infection” and have allowed “the COVID-19 virus to spread with uncommon and frightening speed.”) (quoting
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United States v. Skelos, No. 15-CR-317, 2020 WL 1847558, at *1 (S.D.N.Y. Apr. 12, 2020)); Coronel v. Decker, 449 F. Supp. 3d 274, 283 (S.D.N.Y. 2020) (collecting cases); MartinezBrooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350, at *28 (D. Conn. May 12, 2020) (holding that petitioners established likelihood of success in habeas petition alleging that respondents “failed to (1) adequately screen inmates for COVID-19 symptoms, (2) test symptomatic inmates, (3) isolate infected patients, (4) quarantine patients thought to have been exposed, (5) implement adequate social distancing, (6) observe proper sanitation measures, (7) provide staff and inmates with adequate personal protective equipment, soap, and sanitizers, and (8) provide adequate medical care to inmates with COVID-19 as well as other medical conditions.”); Valenzuela Arias v. Decker, No. 20 CIV. 2802 (AT), 2020 WL 1847986, at *7 (S.D.N.Y. Apr. 10, 2020) (finding deliberate indifference where jail officials simply monitored for signs of infection, as monitoring was “too little, too late” and jail conditions “plainly d[id] not allow for the social distancing measures recommended by the CDC.”). Defendants know through ample public information and have acknowledged as much that this already-heightened risk in prison is even more acute for elderly people and people with underlying medical conditions.
142. Through lawsuits challenging COVID-19 conditions in New York State prisons, Defendants have been provided with expert testimony detailing the scope and severity of the risk Adirondack.
143. On several occasions, Defendants have publicly acknowledged the scope and severity of the unique risk COVID-19 poses to elderly and medically vulnerable incarcerated people. Defendant Cuomo has publicly acknowledged the risk COVID-19 poses to incarcerated people on at least 18 separate occasions during his COVID-19 press conferences. On May 23,
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Defendant Cuomo acknowledged that the State chose to test incarcerated elders—albeit a very small percentage of them—“because COVID affects older people more.”60
144. As the Superintendent of Adirondack, Defendant Tedford has reviewed and responded to multiple inmate grievance appeals and complaints detailing dangerous COVID-19related conditions at the prison. Upon information and belief, several class members have written to Defendant Tedford about COVID-19-related conditions at Adirondack. Additionally, each individual plaintiff appealed COVID-19-related grievance responses to Defendant Tedford. These appeals detailed the lack of cleaning and hygiene supplies, insufficient quarantining and isolation practices, and noncompliance with social distancing practices at Adirondack. Defendant Tedford responded to these complaints with vague indications that he was acting to address them, but no such action has taken place.
145. In their capacity as DOCCS Central Office staff members, Defendants Annucci and Morley are personally involved in the activities of the Central Office Review Committee (“CORC”), which reviews grievances filed by incarcerated people. Defendant Morley sits on CORC, and CORC acts at the direction of Defendant Annucci. Each Individual Plaintiff appealed Defendant Tedford’s appeal response to CORC because the responses did not adequately address the concerns raised. With their CORC appeal papers, each Individual Plaintiff detailed dangerous COVID-19-related conditions at Adirondack, including lack of cleaning and hygiene supplies, insufficient quarantining and isolation practices, and noncompliance with social distancing practices.
60 N.Y. State, Governor Cuomo Announces Eighth Region on TRACK TO Hit Benchmark to Begin Reopening Tuesday May 26th, YOUTUBE (May 23, 2020), https://www.youtube.com/watch?v=4NAycLIsyHU.
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146. Upon information and belief, Defendants Annucci and Morley have also received scores of letters from medical experts and advocates detailing dangerous COVID-related conditions at Adirondack and explaining the serious risk COVID-19 poses to elderly and medically vulnerable incarcerated people throughout the state prison system. Defendant Annucci has publicly claimed that he is acting to address complaints such as these, yet he has failed to back up those words with actions.
147. Defendants Annucci and Morley have also repeatedly acknowledged that elderly and medically vulnerable incarcerated people are at heightened risk of contracting COVID-19. Defendant Annucci has repeatedly acknowledged the specific risk COVID-19 poses to elderly incarcerated people with serious pre-existing medical conditions, including on September 22, 2020 in testimony before the New York State Senate Standing Committees on Health and Crime Victims, Crime, and Corrections. Defendant Annucci stated that he was taking action to address these risks.
148. As the Superintendent of Adirondack, Defendant Tedford has also been notified of COVID-related concerns in Adirondack, as he has reviewed multiple inmate grievance appeals detailing dangerous COVID-related conditions at the prison.61
61 Defendant Tedford has failed to respond meaningfully to the primary concerns raised in those grievances. Plaintiffs have appealed grievance responses concerning lack of cleaning and hygiene supplies, insufficient quarantining and isolation practices, and noncompliance with social distancing practices. His responses to Plaintiffs’ concerns have been marginal and have not addressed the most dangerous conditions. Defendant Tedford has overseen the installation of additional hand sanitizer dispensers, and in some housing units, Defendant Tedford has overseen provision of more soap. However, in spite of complaints from people who are incarcerated and from advocacy groups and legal services organizations, Defendant Tedford has made no changes to Adirondack’s dangerous approach to testing and quarantining related to transfers or to testing and quarantining within the prison, even in the face of known COVID-19 exposure, nor has he changed Adirondack’s policies and practices regarding social distancing throughout the facility, including at mealtimes and in bathrooms. These changes are within Defendants’ power to make.
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149. Defendants have been repeatedly put on notice of the circumstances that all class members face. For example, in their CORC appeals, each Individual Plaintiff alerted Defendants Annucci and Morley to their medical needs, age, and need for protection from COVID-19. In their appeals, each Individual Plaintiff explained that their age rendered them susceptible to serious complications from COVID-19. They also stated that their medical conditions constitute co-morbidities as defined by the CDC and rendered them susceptible to serious complications from COVID-19.
150. Defendant Tedford is Plaintiffs’ jailer. Each Individual Plaintiff has written to Defendant Tedford to alert him to their medical needs, age, and need for protection from COVID-19. In these communications, each Individual Plaintiff explained that their age rendered them susceptible to serious complications from COVID-19. Each Individual Plaintiff also stated that their medical conditions constitute co-morbidities as defined by the CDC and rendered them susceptible to serious complications from COVID-19.
Despite their Awareness, Defendants Have Failed to Take Necessary Steps to Respond to the Risk by Mitigating the Spread of COVID-19 at Adirondack and Protecting the Men Incarcerated There
151. Defendants have failed to take necessary steps to improve conditions at Adirondack and limit the spread of COVID-19 to the residents there.
152. Defendants have given no indication that they intend to stop transferring men to Adirondack from other facilities throughout the state, and when transferring people, they do not test them prior to transfer or after transfer, nor do they quarantine people upon arrival. This is true even when Defendants are transferring men to Adirondack from facilities that have had COVID-19 cases and deaths.
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153. Defendants’ refusal to implement these basic COVID-19 prevention measures constitutes a frightening lack of concern for the potential spread of COVID-19 amongst this extremely vulnerable population. It also stands in direct contrast to CDC guidelines, which advise that after a person travels and is potentially exposed to COVID-19, that person should quarantine for 14 days. Specifically, the CDC states:
You may have been exposed to COVID-19 on your travels . . . You may feel well well and not have any symptoms, but you can be contagious without symptoms and spread the virus to others. You and your travel companions . . . pose a risk to your . . . community for 14 days after you were exposed to the virus.62 154. The CDC recommends that, in congregate living conditions “such as in correctional and detention facilities” which “have potential for rapid and widespread transmission of” COVID-19, administrators should employ either a system of contact tracing or “a broader testing strategy, beyond testing only close contacts within the facility, to reduce chances of a large outbreak.”63 But Defendants have employed neither at Adirondack, nor have they employed alternative testing and quarantining protocols directed toward preventing the spread of the virus. 155. Defendants have the resources to screen and test all men incarcerated at Adirondack on a routine basis. They also have the resources to implement a contact tracing system consistent with public health guidance. They simply have chosen not to do so. 156. Even though Adirondack is an environment ripe for widespread transmission, and even though COVID-19 has already entered Adirondack, Defendants do not have a “broader testing strategy.” Defendants instead test incarcerated people infrequently and haphazardly, with
62 CTRS. FOR DISEASE CONTROL AND PREVENTION, AFTER YOU TRAVEL INTERNATIONALLY (Dec. 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/travelers/after-travel-precautions html. 63 CTRS. FOR DISEASE CONTROL AND PREVENTION, INTERIM CONSIDERATIONS FOR SARS-COV-2 TESTING IN CORRECTIONAL AND DETENTION FACILITIES, supra note 34.
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no discernible pattern and seemingly without any connection to conditions or developments at the prison.
157. Each time a person has tested positive at Adirondack, Defendants have failed to quarantine the incarcerated men who were in contact with the patient.
158. Defendants have also refused to implement a contact tracing system at Adirondack. They have no functional system for determining who may have been exposed to COVID-19, let alone tracking those with whom such people subsequently interact. When incarcerated men test positive for COVID-19 at Adirondack, Defendants do not quarantine exposed residents, re-test exposed individuals, or otherwise try to prevent exposed individuals from spreading COVID-19 throughout the prison.
159. Defendants have failed to implement necessary quarantine and isolation practices at Adirondack. Defendants maintain only two negative pressure isolation rooms at Adirondack – a facility that houses nearly 100 medically vulnerable men. Defendants have refused to take steps to bolster Adirondack’s capacity to respond to an outbreak by adding quarantining and isolation space or otherwise reconfiguring the facility to prepare for the potential spread of the pathogen. Knowing full well that there is a significant risk of a widespread outbreak at Adirondack, Defendants have chosen not to prepare for it.
160. Defendants have failed to implement a social distancing protocol at Adirondack, and Defendants’ practices at Adirondack do not allow for social distancing. Defendants continually require men at Adirondack to congregate in bathrooms, recreation yards, and mess halls. Defendants force incarcerated people to eat meals in crowded mess halls, work in close quarters, and allow for unchecked congregating in recreation rooms and housing units.
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161. Defendants have also refused to provide Plaintiffs the basic guidance, hygiene supplies, and cleaning supplies required to protect them from COVID-19 transmission. In addition to the lack of soap, described above, for months, Defendants refused to provide adequate access to hand sanitizer or switch out masks when necessary.
162. These failures individually put members of the General Class at grave risk of COVID-19, and collectively, these failures compound to create a constitutionally unacceptable level of risk of death or serious injury to members of the putative General Class and Disability Subclass.
163. In sum, Defendants have wholesale disregarded the CDC and other public health guidelines at Adirondack. In doing so, they have not explained why they have rejected this guidance or explained what alternative guidance they are following or measures that they are adopting, and their practices have subjected people in their custody to an unreasonable and unnecessary risk of serious harm or death. They know full well the consequences of ignoring public health guidance: by failing to follow infectious disease control practices, Defendants have caused severe outbreaks of COVID-19 at other facilities. Defendants’ refusal to implement these guidelines at Adirondack, where the incarcerated population is uniquely vulnerable, constitutes deliberate indifference to a known risk, particularly as the pandemic rages on and as outbreaks at Elmira, Greene, and other facilities are directly attributable to Defendants’ inaction.
Defendants Have Violated the Rights of the Disability Subclass Under the ADA and RA DOCCS Has Discriminated Against People with Disabilities in
Transferring them to Adirondack 164. As described above, all Individual Plaintiffs are members of the putative Disability Subclass.
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165. Other members of the Disability Subclass also have diabetes and serious heart disease, conditions that limit the functioning of the endocrine system, the circulatory system, and other bodily functions. Additionally, their disabilities substantially limit them, or would limit them absent medication and other mitigating measures, in major life activities such as seeing, sleeping, walking, and engaging in physically-exerting activity.
166. As described above, both the transfer process and the living conditions at Adirondack subject people to unacceptable risks of contracting and suffering serious illness or death from COVID-19. These risks are particularly great for members of the Disability Subclass.
167. Defendants have specifically chosen Individual Plaintiffs and other class members to be subjected to the heightened risks of transfer to and incarceration at Adirondack because they are elderly and have underlying medical conditions that Defendants perceive as disabling and that, for Disability Subclass members, also constitute disabilities. They have thus intentionally discriminated against Individual Plaintiffs and other subclass members in a way that adversely affects them based on having or being perceived to have a disability within the meaning of 42 U.S.C. § 12102(2).
168. The transfers themselves, and then warehousing men in a facility with inadequate medical facilities and social distancing measures, do not protect people incarcerated at Adirondack, but rather endanger them. Furthermore, the limited capacity of local medical resources and the long distance to the closest major hospital make it especially likely that, should a COVID-19 outbreak occur, Defendants will be unable to adequately respond and treat infected people. Accordingly, there is no rational relationship between this disparate treatment and any legitimate purpose.
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169. By selecting this group of men for transfer to Adirondack, where they face a heightened risk of contracting, becoming seriously ill from, and potentially dying from COVID19, Defendants have discriminated against the Disability Subclass on the basis of their actual or perceived disabilities.
DOCCS Has Failed to Make Reasonable Modifications to Prevent Heightened Exposure to the Risks of COVID-19 for People with Disabilities
170. Members of the Disability Subclass require reasonable modifications to reside at Adirondack safely, because they are subjected to heightened risk of contracting COVID-19 and of suffering serious complications if they do by virtue of their disabilities. They have requested these reasonable modifications through Adirondack’s grievance process.
171. Without the ability to live in a prison setting unencumbered by a heightened risk of contracting COVID-19 and becoming seriously ill or dying as a result, members of the Disability Subclass cannot have effective access to Adirondack’s programs, services, and activities.
172. In order for this subclass not to be subjected to a heightened risk in their daily activities, members of the Disability Subclass require reasonable modifications, including testing people for COVID-19 prior to transferring them to Adirondack; quarantining them when they arrive at Adirondack; quarantining people who have been exposed to someone with an active case of COVID-19; and testing people who have been exposed to COVID-19 after a reasonable period post-exposure to determine whether they have contracted COVID-19. These modifications, too, would not involve unreasonable cost or fundamental alteration.
173. Needed reasonable modifications also include the ability to sleep in cells with doors; social distancing in recreation areas, in the law library, in housing units, and at mealtimes; the ability to eat meals from the mess hall in their rooms; keeping staff and units separated from
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one another to contain any outbreak; and for all incarcerated people and staff to wear masks at all times. All these modifications could be made with very little cost or burden—indeed, these precautions are being taken at other prisons and jails around the country—such that they would not fundamentally alter Defendants’ programs.
174. Defendants have failed to make those reasonable modifications. As a result, people with disabilities in Adirondack are at a heightened risk of contracting COVID-19 and becoming seriously ill or dying.
175. Adirondack, which only recently began housing adults, also lacks programming, such as college courses, that other prisons in the DOCCS system provide. Members of the subclass were moved to Adirondack on the basis of their actual or perceived disabilities, so they have also been deprived access to that programming on the basis of disability.
176. To the extent programming is provided, members of this Subclass are forced to choose between not participating in the programming currently offered at Adirondack and participating at the risk of contracting a potentially fatal virus. In order to avoid this discriminatory choice, members of this Subclass require reasonable modifications including requiring social distancing during activities; requiring that all staff wear masks during activities; and conducting activities outdoors.
177. In the alternative, or to the extent these modifications are not possible, members of this Subclass require the reasonable modification of release to home confinement. One of the criteria by which residents of Adirondack have been chosen for transfer there is posing relatively low security risk. If Defendants are unwilling or unable to ensure Disability Subclass members’ general safety and safe ability to access services, release to home confinement is necessary to ensure they do not face discriminatory conditions based on their disabilities.
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Defendants Have Frustrated Plaintiff RAPP’s Mission and Forced it to Divert Resources
178. Plaintiff RAPP is an organization that advocates on behalf of the increasing number of older prisoners. Much of its work includes securing the release, safe return, and reintegration of older and aging people from prison.
179. In early 2020, Plaintiff RAPP was focused primarily on attempting to reform the New York State prison system. It worked to educate and mobilize members of the community and the state legislature to support two pending parole reform bills that it hoped would lead to the release of countless older people whose continued incarceration actively harmed the community while helping no one. It hoped that, after working to secure passage of those bills, it could spend the rest of 2020 ensuring that reforms were implemented in a manner consistent with the promise of those bills.
180. Soon after COVID-19 entered the United States, however, much of New York State shut down and the legislature did not vote on the parole bills in 2020. RAPP recognized that COVID-19—and the Defendants’ failure to take adequate steps to address the virus in state prisons—posed a serious threat to the aging incarcerated populations that RAPP serves and thus needed to temporarily shift its focus away from its broader legislative and systemic reform efforts and toward providing direct assistance to individuals seeking release from prison via individual petitions for clemency and medical parole. It focused on that activity from March through May.
181. In late May, however, RAPP learned of Defendants’ decision to concentrate elderly and medically-vulnerable incarcerated people at Adirondack and, recognizing the threat the plan posed to the lives of the population it serves, diverted efforts away from helping people statewide with individual release petitions and toward opposing the Adirondack Plan.
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182. As part of its advocacy in response to the Adirondack transfers, RAPP determined that the interests of Adirondack residents converged with the interests of incarcerated elderly people being transferred to Adirondack—all stood to be harmed by a potential COVID-19 outbreak at the prison. It therefore sought to organize both local residents and family members of the men who would be imprisoned at Adirondack in opposition to the plan.
183. While community organizing and education are part of RAPP’s core mission, it had never engaged in any significant advocacy efforts in or around Adirondack. The organization’s director and associate director therefore spent considerable time away from New York City to instead be in Adirondack, where they convened a working group focused exclusively on the Adirondack prison plan. That group, which remains in effect as of the filing of this Complaint and includes criminal-justice-focused non-profits and local groups, investigated conditions on the ground, analyzed data relating to the Adirondack transfers, and developed a plan to oppose the Adirondack transfers.
184. RAPP and its partners worked to educate the public and public officials about the dangers posed by the Adirondack plan by, among other things, holding a rally at the facility, increasing press coverage of the plan, organizing a sign-on letter in opposition to the plan, and hosting a virtual press conference with members of the New York State Senate and State Assembly Health Committees. RAPP dedicated a significant amount of man hours to preparing and training people for these efforts and appearances and it also trained local actors so that they might continue advocacy efforts on their own.
185. Since learning of Defendants’ Adirondack plan, RAPP has spent and continues to spend a significant number of hours per week to mitigate the potential harm faced by people incarcerated at Adirondack. It regularly fields calls from family members of men incarcerated at
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Adirondack who are concerned about the lack of adequate safeguards and the facility, providing support, advice, and/or assistance for those who want to advocate on behalf of their family members.
186. The continued incarceration in unusually dangerous circumstances of elderly people in Adirondack also directly frustrates RAPP’s mission of advocating for the rights of elderly prisoners. Defendants’ decision to concentrate this elderly prison population under circumstances that pose a significant risk to their long-term health, if not their lives, harms the community on whose behalf it is RAPP’s mission to advocate and impedes RAPP’s ability to advance this community’s rights.
187. Because of the need to remedy Defendants’ unlawful actions with respect to Adirondack, RAPP has had to forego activities that were planned to be at the core of accomplishing its mission during this time. If it did not have to address the allegations described in this complaint, RAPP would have been able to devote far more time to continuing to help individuals statewide seek release from incarceration and advocating for systemic change rather than having to focus on seeking to minimize the harm of a plan that it felt should never have been adopted in the first place.
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CAUSES OF ACTION Count I – Violation of the Eighth Amendment
(42 U.S.C. § 1983) (All Plaintiffs Against Defendants Cuomo, Annucci, Morley, and Tedford) 188. Plaintiffs incorporate by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein. 189. Defendants have exhibited deliberate indifference to the serious medical needs of Individual Plaintiffs and the putative General Class and Disability Subclass by failing to implement measures to prevent the spread of COVID-19, thus depriving Individual Plaintiffs and members of the General Class and Disability Subclass of their rights, privileges, and immunities in violation of 42 U.S.C. § 1983 and their rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution. 190. Defendants have actual knowledge of the serious medical needs of Individual Plaintiffs and the putative General Class and Disability Subclass and the attendant serious risk that contracting COVID-19 will mean dying or suffering serious complications. Defendants have documented their knowledge of these risks and have repeatedly acknowledged the risk publicly. 191. Defendants have acted under color of law to willfully and knowingly refuse to implement adequate COVID-19 prevention and mitigation measures at Adirondack despite their knowledge of the risk. They have done so through the actions alleged above, including by refusing to test people prior to their transfer to Adirondack; refusing to test people after their transfer to Adirondack; refusing to quarantine people after their transfer to Adirondack; refusing to promulgate or implement adequate quarantining and isolation protocols; refusing to promulgate or implement adequate testing protocols; refusing to promulgate or implement
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adequate contact tracing protocols; refusing to promulgate or implement adequate social distancing protocols; refusing to promulgate or implement adequate cleaning protocols; and refusing to promulgate or implement adequate hygiene protocols. These actions, individually and in combination, have created a serious risk that Individual Plaintiffs and members of the putative General Class and Disability Subclass will contract COVID-19 and suffer death or serious injury as a result.
192. As a direct and proximate result of Defendants’ deliberate indifference to plaintiffs’ known and serious medical needs, Plaintiffs have sustained the injuries herein alleged and will continue to sustain such injuries if Defendants’ conduct is not enjoined.
Count II – Violation of Title II of the Americans with Disabilities Act 42 U.S.C. § 12101, et seq.
(Individual Plaintiffs, on behalf of themselves and members of the Disability Subclass, and RAPP, Against All Defendants)
193. Plaintiffs incorporate by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein.
194. Title II of the ADA states, in pertinent part: [N]o 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. 42 U.S.C. § 12132.
A “public entity” includes state and local governments, their agencies, and their instrumentalities. 42 U.S.C. § 12131(1).
195. Disability discrimination under Title II includes the refusal to make reasonable modifications to policies, practices, and procedures where necessary to ensure that persons with disabilities do not experience discrimination. 28 C.F.R. § 35.130(b)(7).
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196. Defendants DOCCS was at all times relevant to this action, and currently is a “public entity” within the meaning of Title II of the ADA.
197. Defendants Cuomo, Annucci, Morley, and Tedford are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131(1)(A) and (B).
198. Defendants provided and provide “services, programs and activities” including educational programs, services, and activities in DOCCS facilities.
199. The term “disability” includes physical and mental impairments that substantially limit one or more major life activities. 42 U.S.C. § 12102(2). A “‘qualified individual with a disability’ means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
200. Individual Plaintiffs and members of the Disability Subclass were, at all times relevant to this action, and are currently “qualified individuals with disabilities” within the meaning of Title II of the ADA. See 42 U.S.C. § 12102. They all have diabetes and heart disease, which substantially limit major life activities, and they are all incarcerated in Adirondack facilities and, thus, qualified—with or without reasonable modification—to participate in the programs, services, and activities of DOCCS facilities.
201. Defendants have violated the rights of Individual Plaintiffs and members of the Disability Subclass secured by Title II of the ADA and its implementing regulations. See 42 U.S.C. § 12134; 28 C.F.R. § 35.101 et seq.
202. Defendants have denied Individual Plaintiffs and members of the Disability Subclass reasonable modifications necessary to avoid discriminating against them on the basis of their disabilities. As described above, Defendants transferred people to Adirondack on the basis of
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perceived disability, and when members of the Disability Subclass arrived, they were denied the reasonable modifications they require to be able to safely participate in Adirondack’s programs, services, and activities.
203. Defendants have failed to make reasonable modifications to their policies, practices, and procedures even though these modifications are necessary to avoid discriminating against Individual Plaintiffs and members of the Disability Subclass, in violation of 28 C.F.R. § 35.130(b)(7).
204. Specifically, as described above, Defendants have refused to test people for COVID-19 prior to transferring them to Adirondack, have refused to alter their transfer practices to reduce the risk of contracting COVID-19 en route to Adirondack, have refused to quarantine people when they arrive at Adirondack, have refused to test people for COVID-19 at a reasonable date after their arrival, and have refused to quarantine or conduct appropriate testing for people who have been exposed to infected individuals.
205. Moreover, Defendants have refused to ensure that everyone incarcerated at Adirondack has a door on his cell, have refused to allow for social distancing in housing units, recreation areas, the law library, or at mealtimes, and have refused to allow people to eat meals in their cells. As a result, Individual Plaintiffs and members of the Disability Subclass are deprived of the ability to partake in these and other basic activities and services safely.
206. Defendants could modify their practices to make their services safely accessible to people with disabilities without fundamentally altering the services they provide.
207. Because Defendants’ discriminatory and wrongful conduct is ongoing, declaratory and injunctive relief are appropriate remedies. Further, as a direct result of Defendants’ actions,
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Individual Plaintiffs and members of the Disability Subclass are suffering irreparable harm, the danger of a life-threatening illness. Therefore, speedy and immediate relief is appropriate.
208. Title II of the ADA also states, in pertinent part, “no qualified individual with a disability shall, by reason of such disability, be . . . subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “public entity” includes state and local governments, their agencies, and their instrumentalities. 42 U.S.C. § 12131(1).
209. As described above, Individual Plaintiffs and members of the Disability Subclass were singled out among all people incarcerated at DOCCS facilities for transfer to Adirondack because they were perceived to have disabilities within the meaning of the ADA. DOCCS has advanced no explanation for these transfers, and since these transfers made people more vulnerable, there is no rational relationship between the transfers and any legitimate government purpose.
210. Pursuant to 42 U.S.C. § 12133, Plaintiffs are entitled to declaratory and injunctive relief.
Count III – Violation of Section 504 of the Rehabilitation Act 29 U.S.C. § 794
(Individual Plaintiffs, on behalf of themselves and the Disability Subclass, and RAPP Against Defendants DOCCS and Adirondack)
211. Plaintiffs incorporate by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein.
212. Section 504 of the Rehabilitation Act provides, in pertinent part: No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance[.]
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29 U.S.C. § 794(a). 213. Defendants DOCCS was at all times relevant to this action and is currently a
recipient of federal financial assistance within the meaning of Section 504. 214. Individual Plaintiffs and members of the Disability Subclass were at all times
relevant to this action, and are currently “otherwise qualified individuals with disabilities” within the meaning of Section 504. They all have impairments that substantially limit a major life activity, and they were and/or are all incarcerated in DOCCS facilities and qualified—with or without reasonable modification—to participate in the programs and activities at DOCCS facilities.
215. Defendants have violated the rights of Individual Plaintiffs and members of the Disability Subclass secured by Section 504 and its implementing regulations by discriminating against them on the basis of their disabilities or perceived disabilities and by denying them the reasonable accommodations they need to participate in the programs, services, and activities of Adirondack without being subjected to a heightened risk of contracting COVID-19 and of that illness resulting in serious injury or death.
216. Pursuant to 29 U.S.C. § 794(a), Plaintiffs are entitled to declaratory and injunctive relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that the Court grant them the following relief: (1) Certify the proposed General Class and Disability Subclass; (2) Enter a declaratory judgment that the foregoing acts violated Plaintiffs’ rights under the Eighth Amendment, the ADA, and the RA; (3) Enter a preliminary injunction and/or permanent injunction directing Defendants to take all necessary steps to stop violating Plaintiffs’ rights, including but not limited to:
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A. Cease all transfers of people from other prisons to Adirondack until Defendants can demonstrate that transfers can be done in a manner that meets constitutional and statutory standards for ensuring adequate safety of members of the General Class and Disability Subclass;
B. Ensure that everyone incarcerated at Adirondack is housed in conditions that ensure constitutionally and statutorily adequate safety from the risk of contracting COVID-19;
C. Ensure that conditions for eating, visitation, recreation, and programming at Adirondack meet constitutional and statutory safety standards;
D. Conduct COVID-19 testing, screening, and quarantining in a manner sufficient to meet constitutional and statutory safety standards;
E. Appoint an independent monitor with medical expertise to ensure compliance with these conditions, and provide the monitor with unfettered access to medical units, confidential communication with detained individuals in and out of quarantine, and surveillance video of public areas of the facilities;
(4) Retain jurisdiction over this case until Defendants have fully complied with the orders of this Court, and there is a reasonable assurance that they will continue to comply in the future, absent continuing jurisdiction;
(5) Award any and all costs and/or fees incurred in this action that are available under law; and
(6) Order such relief as this Court deems just and equitable. DEMAND FOR JURY TRIAL
Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury on all issues triable as of right.
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Dated: January 8, 2021

_/s/ Rebecca Livengood_______________ Sasha Samberg-Champion (Bar Roll #702397) Jia Cobb (Bar Roll #520798) Gabriel Diaz* Rebecca Livengood (Bar Roll #702388) RELMAN COLFAX PLLC 1225 19th St. NW, Suite 600 Washington, D.C. 20036 T: (202) 728-1888 F: (202) 728-0848
/s/ Stefen R. Short Stefen R. Short (Bar Roll # 519275) Sophia Gebreselassie* David Billingsley* THE LEGAL AID SOCIETY PRISONERS’ RIGHTS PROJECT 199 Water Street, 6th Floor New York, N.Y. 10038 T: (212) 577-3530 F: (202) 728-0848
Attorneys for Plaintiffs
*Pro Hac Vice Applications to Be Submitted

59

 
 January 8, 2021
Contact:
Redmond Haskins The Legal Aid Society 929-441-2384 rhaskins@legal-aid.org

***FOR IMMEDIATE RELEASE***

Legal Aid, Relman Colfax File Landmark Class Action Lawsuit Against Cuomo, DOCCS to Protect New Yorkers Incarcerated at Adirondack Correctional Facility
From COVID-19

New Yorkers Incarcerated at Adirondack C.F. - a Prison Nursing Home - Report Dire Conditions, Lack of Comprehensive Measures to Protect Against the Virus

(ALBANY, NY) – The Legal Aid Society and Relman Colfax PLLC filed a federal class action lawsuit today in the United States District Court for the Northern District of New York against Governor Andrew Cuomo and the New York State Department of Correction and Community Supervision (DOCCS) to secure critical protections from COVID-19 for elderly and medically vulnerable incarcerated New Yorkers who were chosen for transfer to Adirondack Correctional Facility from other prisons over the past several months based on their age and medical conditions. Despite transforming Adirondack into a prison nursing home in the middle of the pandemic, the State has failed to implement even the most basic measures necessary to keep the people at Adirondack safe from COVID-19. The State’s failures have exposed this incredibly vulnerable group of individuals to unnecessary risk of illness and death.
Legal Aid and Relman Colfax filed this federal class action lawsuit on behalf of roughly 100 New Yorkers currently incarcerated at Adirondack and the Release Aging People in Prison Campaign (RAPP), a grassroots organization that works to end mass incarceration and promote racial justice through the release from prison of older and aging people and those serving long and life sentences.
Background Since the onset of the COVID-19 pandemic, medical professionals, advocates, and attorneys have warned Governor Cuomo and DOCCS of the danger that elderly and medically vulnerable people in New York prisons faced, and demanded that the State implement measures to protect this population. Simultaneously, it became increasingly clear that prison transfers were catalyzing catastrophic COVID-19 spread around the country.

Rather than heed these warnings, the Cuomo Administration worsened the risk in the middle of the pandemic by transferring a large group of elderly and medically vulnerable people to Adirondack from numerous facilities throughout the state. These people are now concentrated at a facility that is hours from the nearest major hospital and bereft of the medical infrastructure and resources that other DOCCS prisons have, as the state remains without a plan for providing vaccine access to people who are incarcerated.
Governor Cuomo and DOCCS knew that Adirondack--which had most recently been a youth prison--was not equipped to serve a high-need population, particularly amidst a public health crisis. Moreover, prior to initiating these transfers, the administration knew of the paucity of medical resources available at Adirondack and in the surrounding community and that Adirondack staff were not trained to deal with the clinical needs of an elderly population.
But instead of reversing course on this disastrous plan, Governor Cuomo and DOCCS doubled-down. Over a span of several months, DOCCS continued to transfer people to Adirondack from prisons all over New York, including from several facilities that have experienced high concentrations of COVID-19, without even testing them prior to transfer. DOCCS transported these people on crowded and poorly-ventilated buses, carrying people from different facilities, and immediately integrated them into the population at Adirondack, without any testing or quarantine period.
Months later, DOCCS still had not implemented most of the basic measures necessary to prevent COVID-19 from spreading throughout the facility. DOCCS has not:
• Conducted regular, medically-informed screening for symptoms; • Implemented an adequate testing regimen, instead testing randomly and haphazardly; • Quarantined or re-tested those in custody at Adirondack who it knew were exposed to COVID-19; • Promoted basic hygiene within the facility; • Implemented and enforced social distancing, particularly during meal times, when people from all units
are mixed together, without masks, eating at closer distances than is recommended for adequate protection - indeed, Adirondack actually forbids individuals eating food from the mess hall in their rooms.
This lawsuit seeks declaratory and injunctive relief for the unconstitutional and discriminatory practices to which these New Yorkers have been and continue to be subjected. Plaintiffs seek an order requiring Governor Cuomo and DOCCS to implement necessary and prudent measures to prevent incarcerated New Yorkers at Adirondack from contracting COVID-19 and suffering potentially dire complications as a result.
“Not only have Governor Cuomo and DOCCS failed to release enough people to facilitate social distancing in their prisons, but they have also failed to implement the most basic protections to mitigate the spread of the pathogen. Nowhere are these failures clearer than at Adirondack - a prison nursing home and a ticking time bomb. If the State fails to drastically improve conditions at Adirondack, more New Yorkers who are incarcerated there will contract the virus and potentially succumb to it. So will staff and members of the surrounding community,” said Stefen R. Short, Supervising Attorney with the Prisoners’ Rights Project at The Legal Aid Society. “Since Albany has completely turned its back on the most vulnerable people incarcerated in state prisons - and people who live in work in the surrounding communities - we petition the court to secure these fundamental safeguards. When it comes to COVID-19 prevention in his prisons, Governor Cuomo refuses to match his rhetoric with meaningful action. We are hopeful the court will force him to do so.”
“Defendants have known for nearly a year of the risks COVID-19 poses to people in prison, particularly elderly people with underlying health conditions. Transferring this vulnerable group in the face of these risks to a remote facility far from medical resources with no precautions flouts all reason and reflects a complete disregard for the safety of people Defendants have a responsibility to protect,” said Rebecca Livengood, counsel at Relman Colfax.

“New York State is sending incarcerated older New Yorkers to grow old, sick, and die at this prison nursing home,” said Jose Saldana, Director of the Release Aging People in Prison Campaign, who himself served 38 years in prison. “As the State and its prison system experience a serious second wave of the COVID-19 virus, Governor Cuomo and state prison officials should be doing everything possible to promote public health within prisons and the communities that surround them. Operating a prison nursing home is exactly the wrong way to go about this. We're hoping that the courts will do what Albany has refused to do: support the basic rights, health, and safety of incarcerated people."
###
The Legal Aid Society exists for one simple yet powerful reason: to ensure that New Yorkers are not denied their right to equal justice because of poverty. For over 140 years, we have protected, defended, and advocated
for those who have struggled in silence for far too long. Every day, in every borough, The Legal Aid Society changes the lives of our clients and helps improve our communities. www.legalaidnyc.org

 
 Case 9:21-cv-00019-LEK-ML Document 8-1 Filed 01/11/21 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Allen HARPER, José LEON, and Ranfis PEREZ on behalf of themselves and all others similarly situated; and the RELEASE AGING PEOPLE IN PRISON CAMPAIGN (“RAPP”),

Plaintiffs, v.
ANDREW CUOMO, in his official capacity as the Governor of the State of New York; NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; ANTHONY J. ANNUCCI, in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision; JOHN MORLEY, M.D., in his official capacity as the Deputy Commissioner and Chief Medical Officer of the New York State Department of Corrections and Community Supervision; and JEFFREY TEDFORD, in his official capacity as the Superintendent of Adirondack Correctional Facility

Civil Action No. 9:21-cv-19 (LEK/ML)

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ REQUEST FOR PRELIMINARY INJUCTION

Case 9:21-cv-00019-LEK-ML Document 8-1 Filed 01/11/21 Page 2 of 42
TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................................................... iv INTRODUCTION......................................................................................................................... 1 FACTUAL BACKGROUND ....................................................................................................... 2 ARGUMENT............................................................................................................................... 10
A. STANDARD OF REVIEW AND RELIEF SOUGHT............................................... 10
B. PLAINTIFFS WILL SUFFER IRREPERABLE HARM IN THE FORM OF EXTREME AND VERY SERIOUS DAMAGE, INCLUDING THE POSSIBILITY OF LONG-TERM INJURY AND DEATH, IN THE ABSENCE OF A PRELIMINARY INJUNCTION ................................................................................ 11
C. LIKELIHOOD OF SUCCESS ON THE MERITS .................................................... 15
1. Plaintiffs are Likely to Succeed on the Merits of Their ADA and RA Claims ......................................................................................................................... 15
a. Individual Plaintiffs and Members of the Disability Subclass are Qualified Individuals with Disabilities ............................................... 16
b. Defendant DOCCS is an Entity Subject to the ADA and RA ........... 17
c. Individual Plaintiffs and Members of the Disability Subclass Were Denied the Opportunity to Benefit from Defendants’ Services, Programs, or Activities ....................................................................... 18
d. Defendants Cannot Demonstrate That the Relief Plaintiffs Seek Would Impose an Undue Hardship..................................................... 20
2. Plaintiffs are Likely to Succeed on the Merits of their Eighth Amendment Claim............................................................................................................... 21
a. Defendants Have Exposed Individual Plaintiffs and Members of the General Class to a Substantial Risk of Serious Harm......................... 22
b. Defendants Have Acted with Deliberate Indifference in Exposing Plaintiffs to a Serious Risk of Harm ................................................... 23
ii

Case 9:21-cv-00019-LEK-ML Document 8-1 Filed 01/11/21 Page 3 of 42 D. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST SUPPORT A
PRELIMINARY INJUNCTION ................................................................................ 29 E. THE REMEDY PLAINTIFFS SEEK IS APPROPRIATE ........................................ 31 CONCLUSION ........................................................................................................................... 33
iii

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TABLE OF AUTHORITIES

Cases

Pages

ACLU v. Clapper, 804 F.3d 617 (2d Cir. 2015) ........................................................................... 10

Banks v. Booth, 468 F. Supp. 3d 101 (D.D.C. 2020) .............................................................. 29, 30

Basank v. Decker, 449 F. Supp. 3d 205 (S.D.N.Y. 2020) ...................................................... 12, 13

Connecticut Dep’t of Envtl. Prot. v. OSHA, 356 F.3d 226 (2d. Cir. 2004) .................................. 12

Coronel v. Decker, 449 F. Supp. 3d 274 (S.D.N.Y. 2020) ..................................................... 29, 30

DeShaney v. Winnebago Co. Dep’t of Soc. Serv., 489 U.S. 189 (1989)....................................... 21

Disabled in Action v. Bd. Of Elections in City of New York, 752 F.3d 189 (2d Cir. 2014) .......... 19

Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009) ............................... 10

Farmer v. Brennan, 511 U.S. 825 (1994) ......................................................................... 21, 22, 23

Fulton v. Goord, 591 F.3d 37 (2d Cir. 2009)................................................................................ 17

Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170 (7th Cir. 2013) ................................................... 17

Helling v. McKinney, 509 U.S. 25 (1993)......................................................................... 10, 21, 22

Hope v. Pelzer, 536 U.S. 730 (2002) ............................................................................................ 24

Hutto v. Finley, 437 U.S. 678 (1978)............................................................................................ 22

Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) .................. 12

Jolly v. Coughlin, 76 F.3d 468 (2d. Cir. 1996) ............................................................................. 10

Martinez v. Cuomo, 459 F. Supp. 3d 517 (S.D.N.Y. 2020).......................................................... 18

Martinez-Brooks v. Easter, 459 F. Supp. 3d 411 (D. Conn. 2020)........................................ passim

Mays v. Dart, 453 F. Supp. 3d 1074 (N.D. Ill. 2020) ............................................................. 13, 22

Mays v. Dart, 974 F.3d 810 (7th Cir. 2020) ........................................................................... 25, 26

Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998)................................................................. 15, 18

iv

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Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2d Cir. 1995)...................................................... 12

Tom Doherty Ass’ts, Inc. v. Saban Entertainment, Inc., 60 F.3d 27 (2d Cir. 1995) ..................... 11

United States v. Georgia, 546 U.S. 151 (2006) ............................................................................ 19

Winter v. NRDC, 555 U.S. 7 (2008) ............................................................................................. 10

Wright v. New York State Dep’t of Corr., 831 F.3d 64 (2d Cir. 2016) .................................. passim

Statutes

Pages

42 U.S.C. § 12102......................................................................................................................... 16

28 C.F.R. § 35 ......................................................................................................................... 18, 20

29 C.F.R. § 1630.2 ........................................................................................................................ 17

Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 ....................................... 16, 20

Title V of the Rehabilitation Act, 29 U.S.C. § 794....................................................................... 16

Other Authorities

Pages

Adam Federman, Small Adirondack Hospital Preps For COVID-19 In The Rural North Country’s ‘Calm Before The Storm’, Adirondack Explorer (Mar. 25, 2020), https://www.adirondackexplorer.org/stories/small-adirondack-hospital-preps-for-covid19-in-the-rural-north-countrys-calm-before-the-storm..................................................... 14

Brandy Henry, Social Distancing and Incarceration: Policy and Management Strategies to Reduce COVID-19 Transmission and Promote Health Equity Through Decarceration, 47 Health Education and Behavior 536-539 (May 2020) ....................................... 5, 13, 32

Brendan Saloner, Ph.D., et al., COVID-19 Cases and Deaths in Federal and State Prisons, JAMA Network (July 8, 2020), https://jamanetwork.com/journals/jama/fullarticle/2768249 .............................................. 5

Ctrs. for Disease Control and Prevention, Assessing Risk Factors for Severe COVID19 Illness, (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/coviddata/investigations-discovery/assessing-risk-factors.html.................................................. 4

Ctrs. for Disease Control & Prevention, COVID-19 Hospitalization and Death by Race/Ethnicity (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/coviddata/investigations-discovery/ hospitalization-death-by-race-ethnicity.html ..................... 4

v

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Ctrs. for Disease Control & Prevention, Evidence used to update the list of underlying medical conditions that increase a person’s risk of severe illness from COVID-19 (Nov. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/evidence-table.html ....................................................................................... 12
Ctrs. for Disease Control and Prevention, Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities (Dec. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/testing.html......................................................................................................... 7
Ctrs. for Disease Control and Prevention, Older Adults (Dec. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/ older-adults.html ................................................................................................................ 3
Ctrs. for Disease Control & Prevention, Past Seasons Estimated Influenza Disease Burden, https://www.cdc.gov/flu/about/burden/past seasons.html ...................... 2
Ctrs. for Disease Control & Prevention, People with Certain Medical Conditions (Dec. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html ........................................................... 12
Ctrs. for Disease Control & Prevention, Scientific Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2 (Nov. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/maskingscience-sars-cov2.html ................................................................................................. 3, 14
Ctrs. for Disease Control and Prevention, Weekly Updates by Select Demographic and Geographic Characteristics (Jan. 6, 2021), https://www.cdc.gov/nchs/nvss/vsrr/covid_weekly/index.htm ................................... 3, 12
Daniel P. Oran, AM & Eric J. Topol, M.D., Prevalence of Asymptomatic SARS-CoV-2 Infection, 173 Annals of Internal Medicine 362, (2020), https://www.acpjournals.org/doi/10.7326/M20-3012 ........................................................ 2
Elizabethtown Community Hospital, Inpatient Care, https://www.ech.org/Departments-andPrograms/Inpatient-Care-Department .............................................................................. 15
Halley Bondy, 39% of Covid-19 deaths have occurred in nursing homes – many could have been prevented: report, NBC News Know Your Value (Dec. 8, 2020 1:29 PM), https://www.nbcnews.com/know-your-value/feature/39-covid-19-deaths-have-occurrednursing-homes-many-could-ncna1250374 ........................................................................ 4
Henry Njuguna, M.D. et al., Serial Laboratory Testing for SARS-CoV-2 Infection Among
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Incarcerated and Detained Persons in a Correctional and Detention Facility, 69 Morbidity and Mortality Weekly Report 836, 837 (2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6926e2-H.pdf ................................ 5
Jan Ransom & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html ........... 5
Jordan Allen et al., Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (Jan. 8, 2021), https://www.nytimes.com/interactive/2020/us/ coronavirus-us-cases.html .................................................................................................. 2
Maggie Koerth, Why Are More Men Than Women Dying of COVID-19?, FiveThirtyEight (April 30, 2020, 5:58 AM), https://fivethirtyeight.com/features/why-are-more-men-thanwomen-dying-of-covid-19/ ................................................................................................ 4
Mayo Clinic Staff, COVID-19 (coronavirus): Long-Term Effects, Mayo Clinic (Nov. 17, 2020), https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/ coronavirus-long-term-effects/art-20490351 ............................................................... 2, 11
N.Y. State, Governor Cuomo Announces Eighth Region on TRACK TO Hit Benchmark to Begin Reopening Tuesday May 26th, Youtube (May 23, 2020), https://www.youtube.com/watch?v=4NAycLIsyHU ....................................................... 24
N.Y. State Dep’t of Corr. & Cmty. Supervision, DOCCS COVID-19 Report, https://doccs.ny.gov/doccs-covid-19-report ..................................................................... 24
N.Y. State Dep’t of Corr. & Cmty. Supervision, DOCCS Re-Opening Plan Fact Sheet, (May 29, 2020), https://doccs.ny.gov/system/files/documents/2020/06/web-page-doccsre-opening-fact-sheet-5-29-20-final.pdf ............................................................................ 5
RAPP, June 25, 2020 RAPP Adirondack Letter, http://rappcampaign.com/wpcontent/uploads/Adirondack-Sign-on-Letter_June-2020-new.pdf .................................. 24
RAPP, “Re: Releasing New Yorkers from Prison is the Only Way to Save Lives in the Wake of COVID-19,” http://rappcampaign.com/wp-content/uploads/Legisletter-Cuomo.pdf .......................................................................................................... 6, 23
Richard V. Reeves & Tiffany N. Ford, COVID-19 Much More Fatal for Men, Especially Taking Age Into Account, Brookings Institute (May 15, 2020), https://www.brookings.edu/blog/up-front/2020/05/15/covid-19-much-more-fatal-formen-especially-taking-age-into-account/ ........................................................................... 4
Shan Li, Covid-19 Surge Strikes Two New York Prisons, Wall St. J. (Oct. 21, 2020),
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https://www.wsj.com/articles/covid-19-surge-strikes-two-new-york-prisons11603315628 ...................................................................................................................... 6 Sharon H. Bergquist et al., Non-hospitalized Adults with COVID-19 Differ Noticeably from Hospitalized Adults in Their Demographic, Clinical, and Social Characteristics, SN Comprehensive Clinical Medicine (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7426161/ .......................................... 2, 3 The Marshall Project, A State by State Look at Coronavirus in Prisons, The Marshall Project, https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-inprisons .............................................................................................................................. 13 Timothy Williams, Benjamin Weiser and William K. Rashbaum, ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirus-prisons-jails.html ....................... 32 U.S. Equal Employment Opportunity Commission, Diabetes in the Workplace and the ADA, (May 15, 2013), https://www.eeoc.gov/laws/guidance/diabetes-workplace-and-ada ..... 17 Xi He et al., Temporal Dynamics in Viral Shedding and Transmissibility of COVID-19, Nature Medicine (April 15, 2020), https://www.nature.com/articles/s41591-020-0869-5 ........... 3 Zak Cheney-Rice, We’re Going to All Start Dropping’: Rikers Inmates on Life as Prisoners of COVID-19, N.Y. Mag. Intelligencer (Apr. 1, 2020), https://nymag.com/intelligencer/2020/04/rikers-inmates-on-life-as-prisoners-of-thecoronavirus.html ................................................................................................................ 5
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I. Introduction Defendants have transferred the most vulnerable people in their prison system, elderly
people with underlying health conditions, to the remote Adirondack Correctional Facility (“Adirondack”) during the most deadly pandemic in generations. In doing so, they have failed to conduct basic testing, screening, quarantining, and social distancing practices that would protect this population from death or serious injury resulting from COVID-19. These actions have created the conditions for a deadly outbreak. Plaintiffs bring this case, and seek a preliminary injunction from the Court, in order to prevent such an outbreak and mitigate the risk facing people incarcerated at Adirondack.
Specifically, Plaintiffs Allen Harper, Jose Leon, and Ranfis Perez (“Individual Plaintiffs”), on behalf of themselves and members of a General Class and Disability Subclass, along with the Release Aging People in Prison Campaign (“RAPP”), seek declaratory and injunctive relief under Title II of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973 (“RA”), and the Eighth Amendment to the United States Constitution to remedy Defendants’ ongoing violations of their statutory and constitutional rights. Defendants Governor Andrew Cuomo, the New York State Department of Corrections and Community Supervision (“DOCCS”), DOCCS’s Acting Commissioner Anthony J. Annucci, DOCCS’s Chief Medical Officer John Morley, M.D., and Adirondack Correctional Facility (“Adirondack”) Superintendent Jeffrey Tedford (collectively, “Defendants”) have discriminated against and failed to provide reasonable modifications to Individual Plaintiffs and the members of the Disability Subclass, and have violated the Eighth Amendment rights of all members of the General Class.
Although all of Plaintiffs’ claims merit urgent consideration and require relief, Plaintiffs
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seek through their Preliminary Injunction narrower relief aimed at immediately preventing COVID-19 from entering the facility and identifying and containing it if it does enter. To that end, Plaintiffs ask that the Court order Defendants to implement appropriate screening, testing, quarantining, and contact tracing protocols for all staff and residents of Adirondack, and that Defendants be enjoined from transferring anyone into the facility until they are able to do so in a way that does not create an unnecessary and unreasonable risk of introducing COVID-19 to Adirondack, pursuant to the conditions described below.
II. Factual Background COVID-19 is an acute respiratory illness caused by a highly contagious, novel virus to
which humans have no pre-existing immunity. Ex. 14, Shaman Decl. at ¶ 9. COVID-19 can be fatal, and many of those who survive COVID-19 suffer debilitating long-term damage to the heart, lungs, brain, and vascular system.1 As of Jan. 6, 2021, COVID-19 has infected an estimated 21.2 million people in the United States,2 and almost 360,000 people in the United States have died from COVID-19 or related complications. COVID-19 is thus about 14 times more deadly than seasonal influenza.3
The virus spreads quickly in part because it can spread from asymptomatic carriers. Ex. 14, Shaman Decl. at ¶ 9. People who spread COVID-19 often show only mild symptoms or no symptoms at all.4 The virus is most contagious 2-3 days before any symptoms arise, and even
1 Mayo Clinic Staff, COVID-19 (coronavirus): Long-Term Effects, MAYO CLINIC (Nov. 17, 2020), https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351. 2 Jordan Allen et al., Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (Jan. 8, 2021), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html. 3 From the 2010-11 to 2019-20 flu seasons, there were an estimated 296,300,000 symptomatic influenza cases, and 359,000 estimated deaths, for a fatality rate of 0.12%. CTRS. FOR DISEASE CONTROL & PREVENTION, PAST SEASONS ESTIMATED INFLUENZA DISEASE BURDEN, https://www.cdc.gov/flu/about/burden/past-seasons html. 4 Daniel P. Oran, AM & Eric J. Topol, M.D., Prevalence of Asymptomatic SARS-CoV-2 Infection, 173 Annals of Internal Medicine 362, (2020), https://www.acpjournals.org/doi/10.7326/M20-3012 (finding that 40-45% of people had no symptoms); Sharon H. Bergquist et al., Non-hospitalized Adults with COVID-19 Differ Noticeably from
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those without symptoms may be contagious for more than two weeks after infection.5 Because of
these factors, asymptomatic transmissions are thought to account for more than half of all
infections, and there is no way to know who is infected or contagious without testing.6
While everyone is at risk of contracting COVID-19, several factors can exacerbate the
risk that death or serious injury will result from the virus. For example, the risk of death or
serious injury resulting from COVID-19 is especially grave for older people. As of January 6,
2021, people at least 65 years old constituted 4 out of 5 U.S. COVID-19 related deaths,7 and
people at least 55 years old constituted 92% of deaths.8
Several medical conditions also exacerbate the risk. One study found that 70% of those
hospitalized from COVID-19 had at least one underlying condition that increased their risk.9 The
Centers for Disease Control and Prevention (“CDC”) recognizes that such medical conditions
include heart conditions (including heart failure, coronary artery disease, congenital heart
disease, cardiomyopathies and pulmonary hypertension); diabetes; and some forms of chronic
kidney disease.10
Race and gender also affect susceptibility to death or serious injury from COVID-19. The
CDC has estimated that non-Hispanic Black or African American individuals are 3.7 times and
2.8 times as likely to be hospitalized and to die from COVID-19, respectively, as compared to
Hospitalized Adults in Their Demographic, Clinical, and Social Characteristics, SN COMPREHENSIVE CLINICAL MEDICINE (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7426161/, (finding that 52% of people reported no symptoms or only mild ones). 5 Xi He et al., Temporal Dynamics in Viral Shedding and Transmissibility of COVID-19, NATURE MEDICINE (April 15, 2020), https://www nature.com/articles/s41591-020-0869-5. 6 CTRS. FOR DISEASE CONTROL & PREVENTION, SCIENTIFIC BRIEF: COMMUNITY USE OF CLOTH MASKS TO CONTROL THE SPREAD OF SARS-COV-2 (Nov. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/masking-sciencesars-cov2.html. 7 CTRS. FOR DISEASE CONTROL AND PREVENTION, WEEKLY UPDATES BY SELECT DEMOGRAPHIC AND GEOGRAPHIC CHARACTERISTICS (Jan. 6, 2021), https://www.cdc.gov/nchs/nvss/vsrr/covid_weekly/index htm. 8 Id. 9 Sharon H. Bergquist, et al., supra note 4. 10 CTRS. FOR DISEASE CONTROL AND PREVENTION, OLDER ADULTS (Dec. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults html
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white, non-Hispanic persons. Hispanic or Latino individuals are 4.1 times more likely to be
hospitalized, and 2.8 times more likely to die.11 Men also face a greater risk of severe illness and
death from COVID-19 infection,12 so much so that the CDC has added gender to its list of
potential risk factors for severe COVID-19 illness.13
Congregate living spaces are ripe for the spread of COVID-19. The virus spreads through
droplets expelled into the air from a person’s respiratory system while breathing, coughing,
talking, speaking, singing, or eating, which may then infect others. Ex. 14, Shaman Decl. at ¶ 11.
In situations where people spend a significant period of time physically close to one another,
particularly in indoor settings with poor ventilation, transmission of the virus becomes much
more likely. Ex. 14, Shaman Decl. at ¶¶ 11-12. In part because of their congregate nature, for
example, nursing homes are particularly dangerous environments for the spread of COVID-19.
By December 2020, 39% of COVID-19 deaths had occurred in nursing homes.14
Likewise, incarcerated people are at exceptionally high risk of infection and serious
illness or death from COVID-19. When people are incarcerated, they have little to no agency
over their environment and have extremely limited privacy, so they have little ability to socially
11 CTRS. FOR DISEASE CONTROL & PREVENTION, COVID-19 HOSPITALIZATION AND DEATH BY RACE/ETHNICITY, CENTERS FOR DISEASE CONTROL, (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/coviddata/investigations-discovery/hospitalization-death-by-race-ethnicity.html. 12 Richard V. Reeves & Tiffany N. Ford, COVID-19 Much More Fatal for Men, Especially Taking Age Into Account, Brookings Institute (May 15, 2020), https://www.brookings.edu/blog/up-front/2020/05/15/covid-19-muchmore-fatal-for-men-especially-taking-age-into-account/. See Maggie Koerth, Why Are More Men Than Women Dying of COVID-19?, FIVETHIRTYEIGHT (April 30, 2020, 5:58 AM), https://fivethirtyeight.com/features/why-aremore-men-than-women-dying-of-covid-19/ (reporting on research showing that, out of 35 countries reporting COVID-19 deaths broken down by sex, men with confirmed COVID-19 infections were more likely to die than women with confirmed infections). 13 CTRS. FOR DISEASE CONTROL AND PREVENTION, ASSESSING RISK FACTORS FOR SEVERE COVID-19 ILLNESS, (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/assessing-riskfactors.html. 14 Halley Bondy, 39% of Covid-19 deaths have occurred in nursing homes – many could have been prevented: report, NBC NEWS KNOW YOUR VALUE (Dec. 8, 2020 1:29 PM), https://www nbcnews.com/know-yourvalue/feature/39-covid-19-deaths-have-occurred-nursing-homes-many-could-ncna1250374.
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distance absent policies and procedures enabling them to do so. 15 See, e.g., Ex. 1, Harper Decl.
at ¶¶ 12-14, 10; Ex. 2, Leon Decl. at ¶¶ 14-17; Ex. 3, Perez Decl. at ¶¶ 10-12. Frequently,
including at Adirondack, incarcerated people are required to sleep in rooms without doors; to
share sinks, toilets, showers and phones; and to sit next to and across from each other at
mealtimes.16 For these reasons, without measures to ameliorate its spread, COVID-19 spreads
twice as fast in a prison setting as it does in the general community, and the infected fall ill two
to four times more often.17
Defendants have compounded these risks by making Adirondack into a prison nursing
home. They have brought in exclusively elderly and vulnerable prisoners, many with serious
underlying medical conditions. In May of 2020, Defendants announced that they would convert
Adirondack, formerly a youth facility, into a prison for “incarcerated individuals age 65 or older”
who met certain medical and mental health requirements.18 Since that time, approximately 96
men, all of whom are over the age of 60, and half of whom are over 65, have been brought in
from all over the state. All have health conditions that may place them at risk for serious illness
from COVID-19. See, e.g., Ex. 1, Harper Decl. at ¶¶ 4, 10; Ex. 20, Harper Med. Records; Ex. 2,
Leon Decl. at ¶¶ 4, 10; Ex. 17, Leon Med. Records; Ex. 3, Perez Decl. at ¶ 4; Ex. 19, Perez Med.
Records.
15 Brandy Henry, Social Distancing and Incarceration: Policy and Management Strategies to Reduce COVID-19 Transmission and Promote Health Equity Through Decarceration, 47 HEALTH EDUCATION AND BEHAVIOR 536-539 (May 2020). 16 Jan Ransom & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. TIMES (Mar. 30, 2020), https://www nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html; Zak Cheney-Rice, We’re Going to All Start Dropping’: Rikers Inmates on Life as Prisoners of COVID-19, N.Y. MAG. INTELLIGENCER (Apr. 1, 2020), https://nymag.com/intelligencer/2020/04/rikers-inmates-on-life-as-prisoners-of-the-coronavirus.html. 17 Henry Njuguna, M.D. et al., Serial Laboratory Testing for SARS-CoV-2 Infection Among Incarcerated and Detained Persons in a Correctional and Detention Facility, 69 MORBIDITY AND MORTALITY WEEKLY REPORT 836, 837 (2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6926e2-H.pdf; Brendan Saloner, Ph.D., et al., COVID-19 Cases and Deaths in Federal and State Prisons, JAMA NETWORK (July 8, 2020), https://jamanetwork.com/journals/jama/fullarticle/2768249. 18 N.Y. STATE DEP’T OF CORR. & CMTY. SUPERVISION, DOCCS RE-OPENING PLAN FACT SHEET, (May 29, 2020), https://doccs ny.gov/system/files/documents/2020/06/web-page-doccs-re-opening-fact-sheet-5-29-20-final.pdf
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Defendants have been on notice of all these risks in the prison system for months, as
there have been over 3400 COVID-19 cases and 27 deaths among incarcerated people in
DOCCS facilities. See Ex. 21, DOCCS COVID-19 Data Compilation. A similar number of staff
members have been infected, though with fewer deaths. In addition to numerous warnings from
state and local health officials, New York state prisons have suffered several recent outbreaks since the start of the pandemic that illustrate how rapidly the disease spreads.19 At Woodburne
Correctional Facility, there were no active COVID-19 cases reported on December 1, 2020, yet now there have been 219 cases, including two deaths.20 Greene Correctional Facility reported two COVID-19 cases on October 1, 2020; two weeks later, there were over 90 cases.21 Similarly, Elmira reported only one case on September 28, 2020.22 By October 28, 2020, the number had skyrocketed to 590.23
Moreover, Plaintiff RAPP has contacted Defendants Cuomo, Annucci, Morley, and
Tedford repeatedly to inform them of the extent and severity of the risk of concentrating medically vulnerable and elderly people in prison, generally, and at Adirondack, specifically.24
Plaintiff RAPP and other advocacy groups have alerted Defendants specifically to the risk posed
by transferring elderly and medically vulnerable people to Adirondack and have identified the inadequacy of COVID-19-related measures at Adirondack.25 They have asked Defendants to
mitigate the dangerous COVID-19-related conditions at the facility by engaging in proper
19 See, e.g., Shan Li, Covid-19 Surge Strikes Two New York Prisons, WALL ST. J. (Oct. 21, 2020), https://www.wsj.com/articles/covid-19-surge-strikes-two-new-york-prisons-11603315628. 20 Compare Ex. 21, DOCCS COVID-19 Data Compilation at 5 (Dec. 1, 2020), with Ex. 21, DOCCS COVID-19 Data Compilation at 8 (Dec. 22, 2020). 21 Compare Ex. 21, DOCCS COVID-19 Data Compilation at 2 (Oct. 1, 2020), with Ex. 21, DOCCS COVID-19 Data Compilation at 4 (Oct. 28, 2020). 22 Ex. 21, DOCCS COVID-19 Data Compilation at 1 (Sep. 28, 2020). 23 Ex. 21, DOCCS COVID-19 Data Compilation at 4 (Oct. 28, 2020). 24 See, e.g., “Re: Releasing New Yorkers from Prison is the Only Way to Save Lives in the Wake of COVID-19,” http://rappcampaign.com/wp-content/uploads/Legis-letter-Cuomo.pdf. (hereinafter “RAPP Advocacy Letter”). 25 Id.
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testing, quarantining, and isolation practices; providing incarcerated people with sufficient cleaning and hygiene supplies; ceasing transfers to the facility, and releasing people from the facility.26 RAPP has also convened a local working group and organized numerous local volunteers to educate the public and to advocate that public officials take steps to mitigate the risks COVID-19 poses at Adirondack.
Despite these warnings, Defendants have done little to protect from COVID-19 the elderly and infirm people who are, by design, concentrated at Adirondack. The CDC recommends that facilities like Adirondack conduct testing at intake before putting transferees into the general population at the facility; house people individually while test results are pending; and implement a routine 14-day quarantine for people entering a facility.27 These recommendations are “particularly” important when incoming people “will transition to a congregate setting with persons at increased risk for severe illness from COVID-19.”28
DOCCS has done none of this at Adirondack, disregarding CDC and other public health guidelines without adopting any alternative guidance to prevent the entry of COVID-19 to the facility or limiting its spread among the population. It does not test people before transferring them to Adirondack from prisons around the state, nor does it separate or quarantine people upon arrival or while test results are pending. See, e.g., Ex. 19, Perez Med. Records at 1 (no COVID19 test prior to June 29, 2020, when Mr. Perez was tested at Adirondack); Ex. 17, Leon Med. Records at 1 (last test at Otisville pre-transfer was June 4, 2020; first test at Adirondack was June 28 with result received on July 3), 4 (transfer paperwork dated June 18). The hours-long bus
26 Id. 27 CTRS. FOR DISEASE CONTROL AND PREVENTION, INTERIM CONSIDERATIONS FOR SARS-COV-2 TESTING IN CORRECTIONAL AND DETENTION FACILITIES (Dec. 3, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/testing html. 28 Id.
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rides on which incarcerated people are transferred include people from numerous facilities around the state. See, e.g., Ex. 1, Harper Decl. at ¶ 5; Ex. 4, Spadaro Decl. at ¶ 5. They are transported in rows immediately in front of and behind each other, a practice that precludes social distancing. Ex. 1, Harper Decl. at ¶ 5.
Once at Adirondack, people are often housed in cells without doors. Ex. 1, Harper Decl. at ¶ 12. They congregate in recreation areas where they are required to sit on small benches, such that sitting any distance apart is impossible. Ex. 3, Perez Decl. at ¶ 12. Multiple housing units eat in a communal mess hall, where 45-50 people at a time wait in line for food and sit across from or next to each other, well within six feet. Ex. 1, Harper Decl. at ¶ 14. Other than food they buy from the commissary, the only food people are allowed to eat in their cells are slices of bread. Ex. 4, Spadaro Decl. at ¶ 25. Many people are therefore forced to eat their meals in the mess hall three times a day, potentially exposing themselves to COVID-19 infection. See Ex. 8, Leon Supp. Decl. at ¶¶ 10-11.
Defendants do not conduct any regular temperature or symptom screening of incarcerated people, see Ex. 8, Leon Supp. Decl. at ¶ 4, and testing is haphazard. Several Plaintiffs have stated that over the course of several months, they have been tested once at Adirondack. Ex. 1, Harper Decl. at ¶ 8; Ex. 2, Leon Decl. at ¶ 8; Ex. 3, Perez Decl. at ¶ 6. Defendants’ responses to positive testing have also been inadequate. In those cases where a person has tested positive, Defendants have failed to quarantine and test people who have been in close contact with the person, allowing other potentially infected people to continue commingling with the rest of the population. For example, on September 30 and October 1, 2020, DOCCS conducted what appears to be its only round of facility-wide COVID-19 testing at Adirondack since at least midsummer. Ex. 3, Perez Decl. at ¶ 6; Ex. 12, Applegate Decl. at ¶ 7. One incarcerated person tested
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positive for COVID-19 at that time. On October 2, the person who tested positive was moved into quarantine, but no one else from his communal housing unit was quarantined or separated in any way. Instead, people who had been living with him before he tested positive continued to mingle with each other and the prison-wide population, eating meals with people from around the prison in the mess hall and working wherever they were assigned throughout the prison. Indeed, in the week before this individual tested positive, he had participated in a grievance hearing with Plaintiff Perez. Another incarcerated person was also in the meeting, along with three staff members. The grievance hearing was held in a room with no windows, with everyone sitting around a table less than six feet apart for approximately one hour. After learning that someone who had been in the grievance hearing had tested positive, Defendants sent the staff members home for two weeks, but they did not quarantine Plaintiff Perez or the other incarcerated person. Instead, they sent them back to their housing units, conducting no follow-up testing or screening and potentially exposing everyone in those units. This incident illustrates that even under circumstances where Defendants understood that quarantining was necessary and appropriate, and where they instituted such quarantines to protect staff members, they refused to do the same to protect class members. Moreover, by failing to re-test residents, Defendants failed to learn the scope of the possible infection within Adirondack, a crucial step for containing any outbreak.
Simply put, Adirondack is a disaster waiting to happen. Plaintiffs ask that this Court grant a preliminary injunction to require Defendants to conduct regular asymptomatic testing of all incarcerated people and staff at Adirondack, isolate those people known to have been exposed, and halt transfers until an appropriate testing regimen can be instated.
III. Argument
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Plaintiffs bring claims under the ADA, RA, and Eighth Amendment. For the reasons discussed herein, Plaintiffs meet the standards for a preliminary injunction with respect to each claim.
A. Standard of Review and Relief Sought A party seeking a preliminary injunction or temporary restraining order must show (1) “a
likelihood of success on the merits,” (2) “a likelihood of irreparable harm in the absence of preliminary relief,” and (3) “that the balance of equities tips in the party’s favor, and that an injunction is in the public interest.” ACLU v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015) (citing Winter v. NRDC, 555 U.S. 7, 20 (2008)). See also Jolly v. Coughlin, 76 F.3d 468, 473 (2d. Cir. 1996) (quotation marks omitted).
“A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quotation marks omitted). The irreparable harm must be “neither remote nor speculative, but actual and imminent, and one that cannot be remedied if the court waits until the end of trial to resolve the harm.” Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 447 (D. Conn. 2020) (quoting Faively Transport, 559 F.3d at 118). The fact that the harm has not yet come to pass is irrelevant to the irreparable harm analysis, as “a remedy for unsafe conditions need not await a tragic event.” Helling v. McKinney, 509 U.S. 25, 33 (1993).
In assessing preliminary injunction requests, courts distinguish between injunctions that impose mandatory relief, “commanding some positive act,” and injunctions that impose prohibitory relief, enjoining a defendant from engaging in some conduct. Courts apply a heightened standard for mandatory relief, requiring, in addition to the preliminary injunction criteria outlined above, that movants seeking mandatory relief make “a clear showing that the
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moving party is entitled to the relief requested,” or that “extreme or very serious damage will result from a denial of preliminary relief.” Tom Doherty Ass’ts, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir. 1995).
Here, Plaintiffs seek both prohibitory and mandatory relief. Plaintiffs seek prohibitory relief in the form of halting transfers until Defendants can demonstrate that they are conducting them in a manner that does not create an unconstitutional risk to safety. For this relief, the prohibitory preliminary injunction standard applies. Plaintiffs also seek mandatory relief in the form of testing of asymptomatic officers and incarcerated people and quarantining and retesting of people who have come into contact with individuals known to be infected. For this relief, the mandatory standard applies. Plaintiffs meet the applicable standard for all relief they seek.
B. Plaintiffs Will Suffer Irreparable Harm in the Form of Extreme and Very Serious Damage, Including the Possibility of Long-Term Injury and Death, in the Absence of a Preliminary Injunction. The irreparable harm Plaintiffs face is the danger of death or serious long-term injury that
would result from an outbreak of COVID-19 within Adirondack, given Defendants’ refusal to put in place policies that would prevent it. COVID-19 can be fatal, and many of those who survive suffer debilitating long-term damage to the heart, lungs, brain, and vascular system.29 Moreover, Adirondack is populated exclusively with people who are at the gravest risk for serious harm from COVID-19 – older men, many of whom have chronic conditions rendering them especially susceptible to severe or fatal illness. 30 As of December 12, 2020, the CDC records that men over the age of 55—the entire Adirondack population—have accounted for half
29 MAYO CLINIC, supra note 1. 30 Additionally, a constitutional violation constitutes irreparable harm. “In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm.” Martinez-Brooks, 459 F. Supp. 3d at 411 (quoting Basank, 449 F. Supp. 3d at 213, and citing Connecticut Dep’t of Envtl. Prot. v. OSHA, 356 F.3d 226 (2d. Cir. 2004)). The unreasonably high risk of a COVID-19 outbreak among highly vulnerable incarcerated people constitutes irreparable harm because it violates the right to be from cruel and unusual punishment. Martinez-Brooks, 459 F. Supp. 3d at 411.
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of all COVID-19-related deaths in the United States.31 People over the age of 50 are at least 4 times more likely to need hospitalization due to COVID-19 than the population at large, and at least 30 times more likely to die. Chronic conditions such as diabetes, kidney disease, obesity, and heart conditions—which afflict members of the Plaintiff classes—further exacerbate risk.32
A substantial risk of death or serious illness constitutes irreparable harm, as courts in the Second Circuit consistently recognize. See, e.g., Martinez-Brooks, 459 F. Supp. 3d at 447–48 (irreparable harm where plaintiffs face “[a] substantial risk of serious illness or death”)33 citing Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 43–44 (2d Cir. 1997) (irreparable harm where the closure of a treatment program would pose risk of serious harm to plaintiffs, including “death, illness or disability”); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332–33 (2d Cir. 1995) (affirming District Court’s irreparable harm finding based on substantial “risk of injury [and] infection” to plaintiff).
Indeed, courts around the country have recognized that the specific risk of death or injury COVID-19 poses to incarcerated people, and particularly to the medically vulnerable, satisfies the irreparable harm requirement. See, e.g., Martinez-Brooks, 459 F. Supp. 3d at 448 (irreparable harm where class of people incarcerated at FCI Danbury, in particular the medically vulnerable subclass, faced “grave risk” of death from COVID-19); Mays v. Dart, 453 F. Supp. 3d 1074, 1098 (N.D. Ill. 2020) (irreparable harm where incarcerated plaintiffs were at risk of “severe
31 Men aged 55 and over account for 135,391 out of 276,061 (49%) of all U.S. COVID-19 related deaths. CTRS. FOR DISEASE CONTROL AND PREVENTION, supra note 7. 32 CTRS. FOR DISEASE CONTROL & PREVENTION, PEOPLE WITH CERTAIN MEDICAL CONDITIONS (Dec. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions html; CTRS. FOR DISEASE CONTROL & PREVENTION, EVIDENCE USED TO UPDATE THE LIST OF UNDERLYING MEDICAL CONDITIONS THAT INCREASE A PERSON’S RISK OF SEVERE ILLNESS FROM COVID-19 (Nov. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/evidence-table.html. 33 Although Martinez-Brooks involved a petition for a temporary restraining order rather than a preliminary injunction, “It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases).
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health consequences, including death” and “permanent lung damage” from COVID-19), aff’d in relevant part, 974 F.3d 810 (7th Cir. 2020); Basank v. Decker, 449 F. Supp. 3d 205, 210–13 (S.D.N.Y. 2020) (irreparable harm because “[t]he nature of detention facilities makes exposure and spread of the virus particularly harmful”). Indeed, in Martinez-Brooks, the Court found that the threat of COVID-19 in prison “easily satisfy[ied] the irreparable harm prerequisite” under the heightened standard applied to mandatory injunctions. See Martinez-Brooks, 459 F. Supp. 3d at 438 (mandatory standard applied to plaintiffs’ claims), 448 (plaintiffs satisfied that standard).
The risk of irreparable harm is imminent. The United States is experiencing its greatest surge of COVID-19 infections yet. Ex. 14, Shaman Decl. at ¶¶ 26-28; 32. The country’s correctional systems have not been spared. During the week of December 15, 2020, new cases among incarcerated people across the country, at well over 25,000, broke the record that been set the previous week.34 New York State prisons are also experiencing their most severe surge yet. Since December 2, the total number of positive COVID-19 cases has increased by 89 percent, and the number of COVID-related deaths has risen 50 percent.35 Defendants have failed to respond to this increase by implementing necessary policies to contain the spread.
Prisons by their very nature are “epicenters of infectious diseases,” if measures are not taken to combat virus spread.36 Asymptomatic carriers—or people without symptoms—have long been known to spread COVID-19. Experts estimate that asymptomatic transmissions account for more than 50% of all transmissions.37 Without proactive and consistent testing of
34 A State by State Look at Coronavirus in Prisons, THE MARSHALL PROJECT, https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons (last visited Jan. 8, 2021). 35 Compare Ex. 21, DOCCS COVID-19 Data Compilation at 10 (January 6, 2021) (reporting 3,459 total positive cases and 27 deaths) with Ex. 21, DOCCS COVID-19 Data Compilation at 6 (December 2, 2020) (reporting 1,826 total positive cases and 18 deaths). 36 Brandy Henry, supra note 15. 37 CTRS. FOR DISEASE CONTROL & PREVENTION, supra note 6.
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asymptomatic staff, residents, and people transferred into Adirondack, every person at the facility could seed an outbreak.
In view of this, Defendants’ failure to conduct a meaningful testing and quarantining regimen creates an imminent risk of irreparable harm. Defendants’ failure to test transferees creates an imminent risk of COVID-19 entering the prison, and their failure to test people incarcerated at Adirondack prevents Defendants from knowing the extent of the presence of COVID-19 within the facility. Moreover, in light of this failure, Defendants’ refusal to quarantine or screen people who have been exposed to COVID-19 creates an imminent risk of spread within the prison.
The threat of death or serious injury from this imminent risk is particularly acute because if an outbreak does occur, it will overwhelm the local health care infrastructure. Adirondack is poorly equipped to deal with health crises. Adirondack’s medical staff consists of only two nurses. Incarcerated people may visit the infirmary once a day, at 6:15 AM, on weekdays only. Adirondack has at most four rooms with appropriate ventilation to isolate infectious patients. The closest hospital that appears equipped to handle incarcerated patients—Albany Medical Center— is over two hours away. The two nearby hospitals, where people incarcerated at Adirondack may not even be eligible to receive care, are Adirondack Medical Center, which has only eight intensive care beds,38 and Elizabethtown Community Hospital, in Vermont, which has only 25 inpatient beds total.39 Neither Adirondack Correctional Facility nor the surrounding communities are equipped to handle a major outbreak of COVID-19 at the prison.
38 Adam Federman, Small Adirondack Hospital Preps For COVID-19 In The Rural North Country’s ‘Calm Before The Storm’, ADIRONDACK EXPLORER (Mar. 25, 2020), https://www.adirondackexplorer.org/stories/smalladirondack-hospital-preps-for-covid-19-in-the-rural-north-countrys-calm-before-the-storm. 39 Elizabethtown Community Hospital, Inpatient Care, https://www.ech.org/Departments-and-Programs/InpatientCare-Department (last visited Jan. 8, 2021).
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Defendants’ failure to implement necessary testing and quarantine policies thus creates an imminent, grave, and unnecessarily high risk of death or serious injury among the Adirondack population. To address the risk and ensure it does not materialize, Plaintiffs ask that the Court issue a preliminary injunction requiring Defendants to take the necessary testing and quarantining measures to protect people at Adirondack. Without this relief, there is a serious risk that Adirondack, like many New York State prisons, will be overrun by the virus.
C. Likelihood of Success on the Merits Plaintiffs seek relief under the ADA, RA, and Eighth Amendment. While Plaintiffs meet
the preliminary injunction standard for all claims, as discussed below, success on any individual claim would be sufficient to warrant the relief Plaintiffs seek.
1. Plaintiffs are Likely to Succeed on the Merits of Their ADA and RA Claims.
Defendants have discriminated against members of the Disability Subclass and have failed to provide them with reasonable modifications that would allow them to access programs and services at Adirondack safely.
The ADA prohibits public entities, including prisons and prison systems, from discriminating on the basis of disability. See, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 201 (1998). Under Title II of 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.” 42 U.S.C. § 12132. The RA similarly provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the 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). Courts construe the ADA and RA to
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have comparable requirements. See, e.g., Wright v. New York State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016).
In order to make a prima facie case of an ADA or RA violation, a plaintiff must show “1) that he is a qualified individual with a disability; 2) [Defendant] is an entity subject to the [ADA or RA]; and 3) he was denied the opportunity to benefit from [Defendant’s] services, programs, or activities or [Defendant] otherwise discriminated against him by reason of his disability.” Wright, 831 F.3d at 72. Once a plaintiff makes a prima facie showing under the ADA or RA, the burden shifts to the defendant, who must prove that the modification plaintiffs seek would “impose undue hardship on the operation of its services, programs, or activities.” Wright, 831 F.3d at 76 (quotation marks and alterations omitted).
a. Individual Plaintiffs and Members of the Disability Subclass are Qualified Individuals with Disabilities.
Plaintiffs in the Disability Subclass are qualified individuals with disabilities within the meaning of the ADA. They have impairments that, with or without medication, 42 U.S.C. § 12102(4)(E)(i)(I), substantially limit “major life activities,” 42 U.S.C. § 12102(2), including their ability to walk and their ability to operate “major bodily function[s], including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Id. Individual Plaintiffs in the Disability Subclass have substantial physical impairments that constitute disabilities under the ADA. Plaintiff Perez has diabetes, which interferes with his endocrine functioning, and as a consequence of which, without medication, he would be limited in his ability to sleep, see, walk around, and engage in otherwise routine daily activities. See, e.g., Ex. 19, Perez Med. Records at 1; 29 C.F.R. § 1630.2(j)(3)(iii); U.S. Equal Employment Opportunity Commission, Diabetes in the Workplace and the ADA (“As a result of changes made by the ADAAA, individuals who
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have diabetes should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of endocrine function.”) Similarly, Plaintiffs Harper and Leon suffer from hypertension and a history of heart disease. Without medication, their blood pressure would rise and they would be at serious risk for stroke or heart attack. See, e.g., Ex. 20, Harper Med. Records at 10, 14, 15, 34; Ex. 17, Leon Med. Records at 3, 6, 7; Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1173 (7th Cir. 2013) (“[Plaintiff]’s alleged chronic blood-pressure condition—for which he has taken medication for more than eight years—could also qualify as a disability . . . ‘[S]omeone who began taking medication for hypertension before experiencing substantial limitations related to the impairment would still be an individual with a disability if, without the medication, he or she would now be substantially limited in functions of the cardiovascular or circulatory system.’”) (quoting 29 C.F.R. Pt. 1630, App. at Section 1630.2(j)(1)(vi)).
b. Defendant DOCCS is an Entity Subject to the ADA and RA. Defendant DOCCS is a public entity and recipient of federal funds, and thus it is subject to the ADA and RA. See, e.g., Wright, 831 F.3d at 72. (“DOCCS is an entity that is subject to the [ADA and RA].”); Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (same).
c. Individual Plaintiffs and Members of the Disability Subclass Were Denied the Opportunity to Benefit from Defendants’ Services, Programs, or Activities.
Defendants denied Plaintiffs the opportunity to benefit from their services, programs or activities by reason of Plaintiffs’ disabilities. “[S]ervices, programs, [and] activities” under the ADA include “recreational activities, medical services, and educational and vocational programs.” Wright, 831 F.3d at 72 (quoting Yeskey, 524 U.S. at 210) (quotation marks omitted). The law in the Second Circuit is consistent with Department of Justice regulations, which
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provide that the ADA encompasses “anything a public agency does.” 28 C.F.R. Pt. 35, App. B. Under Title II of the ADA, public entities must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i). See also, e.g., Martinez v. Cuomo, 459 F. Supp. 3d 517, 523 (S.D.N.Y. 2020) (RA, like ADA, requires reasonable modifications providing meaningful access to services).
Members of the Disability Subclass are particularly vulnerable to complications from COVID-19 as compared to the prison population at large by virtue of their disabilities. See Ex. 16, Fenig Decl. at ¶¶ 53-65. They require reasonable modifications to safely access Adirondack’s services, programs, and activities. Defendants have failed to provide reasonable modifications to them by failing to effectively provide basic protections from the uncontrolled spread of COVID19, thereby increasing the likelihood that members of the disability subclass will contract COVID-19 and suffer serious complications as a result. Such reasonable modifications include measures to prevent the unnecessary spread of COVID-19 within Adirondack, including testing asymptomatic people, testing and quarantining people known to have come into contact with COVID-19-positive individuals, testing people before transferring them to Adirondack, and quarantining and testing people after they arrive at Adirondack. Necessary reasonable modifications also include allowing adequate distancing at mealtimes, including by allowing people to eat in their rooms, along with allowing adequate distancing in bathrooms and recreation areas. Reasonable modifications also require ensuring that people have doors on their bedrooms to limit airborne spread. Defendants have failed to make these reasonable
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modifications despite being warned by experts around the country and from advocates within New York that this conduct puts people in its care at a grave risk of serious illness or death.
Defendants have thus failed to provide effective access, because Plaintiffs in the Disability Subclass cannot safely access any of the prison’s services. They cannot safely use the day rooms for recreation, safely shave in the bathrooms, or safely eat in the mess hall because they cannot partake in any of these services without risking unmasked exposure to people housed throughout the prison. Defendants’ failure to provide a safe environment thus deters Plaintiffs from using basic prison services. See, e.g., Disabled in Action v. Bd. Of Elections in City of New York, 752 F.3d 189, 200 (2d Cir. 2014) (“deterrence constitutes an injury under the ADA”). Indeed, Plaintiffs in the Disability Subclass sometimes abstain from eating in the mess hall altogether. They are instead forced to pay for food to eat in their rooms, the only alternative. As the Supreme Court has explained, the “deliberate refusal of prison officials to accommodate [an incarcerated person’s] disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs” could “quite plausib[ly]” constitute a violation of Title II. See United States v. Georgia, 546 U.S. 151, 157 (2006). Moreover, “[a] reasonable accommodation must provide effective access to prison activities and programs.” Wright, 831 F.3d at 73.
Not only have Defendants discriminated against Plaintiffs in the Disability Subclass by failing to provide them reasonable modifications as described above, they have also discriminated against them by transferring them to Adirondack. As Defendants’ public statements made clear, Plaintiffs would not have been transferred to Adirondack unless they had or were perceived to have a disability. Yet after transferring members of the Disability Subclass, Defendants have chosen not to make the reasonable modifications necessary to allow them to
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safely access the prison’s programs and services. Plaintiffs were thus denied access to programming in contravention of the ADA and RA. See, e.g., 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(1).
The reasonable modifications that members of the Disability Subclass seek are readily available to Defendants. According to Mr. Schwartz, it is within Defendants’ capacity to conduct pre-transfer testing, post-transfer testing and quarantining, regular facility-wide testing, and testing and quarantining for individuals known to have been exposed to someone with COVID19 that Disability Subclass Plaintiffs seek. See, e.g., Ex. 15, Schwartz Decl. at ¶ 24. These measures would dramatically reduce the likelihood of members of the Disability Subclass contracting and suffering serious complications from COVID-19. See, e.g., Ex. 16, Fenig Decl. at ¶¶ 30-41.
d. Defendants Cannot Demonstrate That the Relief Plaintiffs Seek Would Impose an Undue Hardship.
Because Plaintiffs in the Disability Subclass have made a prima facie case that Defendants have failed to make reasonable accommodations for their needs, the burden shifts to Defendants to demonstrate that the accommodation they seek would “impose undue hardship on the operation of its services, programs, or activities.” Wright, 831 F.3d at 76 (quotation marks and alterations omitted). Defendants cannot meet this burden. As prison expertise confirms, DOCCS can provide these modifications without imposing an undue hardship or “fundamentally altering” the nature of Defendants’ services. Ex. 15, Schwartz Decl. at ¶¶ 24, 34, 36-37, 41.
Accordingly, Plaintiffs in the Disability Subclass are likely to prevail on their claim that Defendants have failed to provide them with reasonable modifications and have discriminated against them on the bases of their disabilities in violation of the ADA and RA.
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2. Plaintiffs are Likely to Succeed on the Merits of their Eighth Amendment Claim.
“[W]hen the State . . . so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., . . . medical care, and reasonable safety—it transgresses the . . . Eighth Amendment.” Helling, 509 U.S. at 32 (citing DeShaney v. Winnebago Co. Dep’t of Soc. Serv., 489 U.S. 189, 200 (1989)) (quotation marks omitted). A prisoner’s Eighth Amendment right to humane conditions of confinement is violated when, under an objective analysis, he is incarcerated “under conditions posing a substantial risk of serious harm” and, when, under a subjective analysis, prison officials have acted with “deliberate indifference to inmate health or safety.” See Martinez-Brooks, 459 F. Supp. 3d at 439 (quoting Farmer v. Brennan, 511 U.S. 825, 832–833 (1994)).
Both prongs of the Eight Amendment test are satisfied in this case. In the middle of the COVID-19 pandemic, Defendants have concentrated medically vulnerable, elderly, and disabled men under conditions that objectively pose a substantial risk of allowing the airborne and rapidly transmissible COVID-19 virus to enter Adirondack and spread uncontrollably. Defendants know full well that every person incarcerated at Adirondack is uniquely vulnerable to death or serious complications from COVID-19 and that combatting the virus’s spread requires measures that they have refused to take at Adirondack.
a. Defendants Have Exposed Individual Plaintiffs and Members of the General Class to a Substantial Risk of Serious Harm.
The first prong of the Eighth Amendment analysis is satisfied when someone is imprisoned under conditions that expose them to a substantial risk of serious damage to their health. See Farmer, 511 U.S. at 843. It is not constitutionally significant that the risk has not materialized; officials violate the Eighth Amendment when they subject incarcerated people to
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risks that are “very likely to cause serious illness and needless suffering the next week or month or year.” Helling, 509 U.S. at 33. Plaintiffs readily satisfy this standard, as there is a serious risk that they will be infected with COVID-19 and suffer serious health consequences—or die—as a result.
Indeed, courts have found that the possibility of the spread of communicable disease in prisons—even diseases far less serious than COVID-19—meets the objective-risk standard of the Eighth Amendment. See, e.g., Helling, 509 U.S. at 33 (where “inmates in punitive isolation were crowded into cells,” and “some of them had infectious maladies such as hepatitis and venereal disease . . . the Eighth Amendment required a remedy.”) (citing Hutto v. Finley, 437 U.S. 678, 682 (1978); Martinez-Brooks, 459 F. Supp. 3d at 439 (“Courts have long recognized that prison officials have an Eighth Amendment duty to protect inmates from exposure to communicable disease.”). Unsurprisingly, courts have found that the risk of potential spread of COVID-19, specifically, satisfies the Eighth Amendment’s objective prong. See, e.g., Martinez-Brooks, 459 F. Supp. 3d at 439 (finding that the risk of COVID-19 in prison “easily satisfie[s]” objective prong); Mays, 453 F. Supp. 3d at 1091 (finding that the risk of COVID-19 in jail satisfies analogous objective prong of the Fourteenth Amendment for pre-trial detainees).
The danger of the spread of COVID-19 is so significant that the country has effectively shut down much of the economy to avoid it, and many states, including in New York, continue to impose even more serious restrictions as winter begins. The risk in this case—both because of the elevated likelihood of spread within a prison and the particular vulnerability of Adirondack’s population—is even higher than that which exists in virtually every other prison and certainly outside prisons. There can simply be no doubt that the potential spread of the virus at Adirondack poses a “serious risk to the health or safety” of the people imprisoned therein, such
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that the Eighth Amendment requires a response from Defendants to try to mitigate that risk. b. Defendants Have Acted with Deliberate Indifference in Exposing Plaintiffs to a Serious Risk of Harm.
The second, subjective, prong of the Eighth Amendment analysis requires that Defendants have acted with “deliberate indifference” to the risk of serious harm—in other words, that officials know “that inmates face a substantial risk of serious harm and disregard[] that risk by failing to take reasonable measures to abate it.” Martinez-Brooks, 459 F. Supp. 3d at 440 (citing Farmer, 511 U.S. at 847). Here, Defendants both knew of the substantial risk and disregarded that risk by failing to take any necessary measures to limit it.
Defendants are aware of the substantial risk that the spread of COVID-19 poses to the elderly and medically vulnerable population at Adirondack. COVID-19 has spurred lockdowns, quarantines, and social distancing measures over the past year—indeed, Defendant Cuomo has mandated many of these measures. Defendants were also aware of the specific risk that COVID19 poses to elderly and medically vulnerable prisoners. From the early days of the pandemic, health officials and advocates warned Defendants about the high likelihood of COVID-19 spread in prison settings40 and, on June 25, 2020, Plaintiff RAPP and dozens of other concerned organizations warned Defendant Cuomo that the plan to transfer elderly and infirm men to Adirondack “fundamentally represent[ed] a public health crisis that amounts to a ticking time bomb.”41 Defendants’ experience at other prisons has borne out that risk. As of December 22, 2020, New York state prisons have confirmed 2,479 and 2,627 COVID-19 cases for incarcerated people and staff, respectively.42 Even more relevant, Defendants’ recent experience at
40 RAPP Advocacy Letter, supra note 24. 41 RAPP, June 25, 2020 RAPP Adirondack Letter, http://rappcampaign.com/wp-content/uploads/Adirondack-Signon-Letter_June-2020-new.pdf. 42 N.Y. STATE DEP’T OF CORR. & CMTY. SUPERVISION, DOCCS COVID-19 REPORT, https://doccs.ny.gov/doccscovid-19-report (last accessed Jan. 8, 2021).
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Woodbourne Correctional Facility—which has the second-highest concentration of elderly incarcerated people in the state system, after Adirondack—demonstrates not only the danger that COVID-19 poses in a prison setting with a high concentration of elderly people, but how quickly it can spin out of control. As of December 1, 2020, there had been zero COVID-19 cases at the facility, but today there have been 219, with two resulting in death.43 Indeed, Defendant Cuomo has acknowledged this risk to elderly and medically vulnerable people in prison.44 Defendants thus knew of the risk facing members of the General Class, all of whom are at least sixty years old and have underlying medical conditions. See, e.g., Hope v. Pelzer, 536 U.S. 730, 738 (2002) (court “may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious”).
Defendants are deliberately indifferent because, in spite of this knowledge, they refuse to take necessary steps to try to mitigate the risk. Contrasted with the robust, proactive actions that Defendant Cuomo has undertaken to prevent the spread of COVID-19 in other areas, Defendants have done virtually nothing at Adirondack to minimize the spread of the virus, and many of their actions have exacerbated the likelihood that it will spread. Of course, prisons present challenges for social distancing efforts that do not exist in the community at large, see, e.g., Mays v. Dart, 974 F.3d 810, 820–21 (7th Cir. 2020), but the Constitution requires a necessary response to at least try to abate the risk.
The deliberate indifference standard is guided by the threat to incarcerated people and the options available to prison officials to protect against that threat. As the court explained in Martinez-Brooks, “While the Warden is free to exercise discretion in choosing among equally
43 Compare Ex. 21, DOCCS COVID-19 Data Compilation at 5 (Dec. 1, 2020), with Ex. 21, DOCCS COVID-19 Data Compilation at 10 (January 6, 2021). 44 See, e.g., N.Y. State, Governor Cuomo Announces Eighth Region on TRACK TO Hit Benchmark to Begin Reopening Tuesday May 26th, YOUTUBE (May 23, 2020), https://www.youtube.com/watch?v=4NAycLIsyHU.
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effective measures to protect inmates from serious risks, choosing inevitably inadequate measures to the exclusion of a plainly superior one constitutes deliberate indifference.” 459 F. Supp. 3d at 443. Thus, in Martinez-Brooks, the court found that plaintiffs were likely to succeed on their deliberate indifference claim where prison officials had failed to make use of the compassionate release process to send incarcerated people home. The court reasoned that “even with the measures that the Warden has put in place,” the virus “continues to pose a grave risk to vulnerable inmates’ health.” Martinez-Brooks, 459 F. Supp. 3d at 443. By failing to employ the compassionate release procedure, prison officials “failed to implement what appears to be the sole measure capable of adequately protecting vulnerable inmates . . . in favor of measures that, even if they were fully and painstakingly implemented, would still leave vulnerable inmates subject to a grave risk to their health.” Martinez-Brooks, 459 F. Supp. 3d at 443.
In a prison filled with extremely vulnerable people who are at risk of serious illness and death if they contract COVID-19, the necessary steps to respond to that threat include making efforts to prevent the virus from entering the facility and implementing policies and practices that will limit its spread should it enter. Defendants’ efforts to combat the spread of COVID-19 at Adirondack are so inadequate to protect members of the General Class that they reflect deliberate indifference to this risk. Defendants’ paltry measures flout public health guidance, including CDC guidance, at every turn, and fall short of what prisons and jails around the country are doing. As the Court of Appeals for the Seventh Circuit explained in Mays, while “[t]he CDC Guidelines . . . do not themselves set a constitutional standard,” they do “provide the authoritative source of guidance on prevention and safety mechanisms for a novel coronavirus in a historic global pandemic where the public health standards are emerging and changing.” Mays, 974 F.3d at 823. As a result, “implementation (and proper execution) of guidelines that express
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an expert agency’s views on best practices are certainly relevant” to the constitutional evaluation. Mays, 974 F.3d at 823.
Here, Defendants fail to test transferees and fail to quarantine them upon their arrival at Adirondack, “plac[ing] both the existing and incoming inmates at significant risk of COVID-19 infection.” Moreover, Defendants’ method of transferring people to Adirondack—mixing men from different facilities who have not been tested for COVID-19, on a poorly ventilated bus, without adequate social distancing measures—“present[s] a dangerous situation since it unnecessarily exposed them to SARS-CoV-2 viral transmission during their bus transport.” Ex. 16, Fenig Decl. at ¶ 29. CDC guidelines “recommend avoiding transfers between facilities if at all possible” but recommend that individuals be quarantined upon arrival at a new facility before they are assimilated into the general population. Ex. 16, Fenig Decl. at ¶¶ 33, 38. These common-sense measures “provide[] protection to the destination facility inmates by preventing their exposure to asymptomatic carriers of COVID-19 from other incoming facilities.” Ex. 16, Fenig Decl. at ¶ 33. While the prison could take steps to ameliorate transfer risks, Schwartz Dec. at ¶ 24, Defendants have failed entirely to do so here.
Once General Class members enter the prison, there is no effort to implement policies providing for regular universal testing, regular symptom screening, quarantining of exposed people, social distancing in housing units, or keeping housing units within the prison separate from each other. Given the potential for asymptomatic transfer of COVID-19, “[r]outine testing of asymptomatic individuals is an important strategy to detect COVID-19 outbreaks early and minimize the number of exposed and affected individuals.” Ex. 16, Fenig Decl. at ¶ 39.
Defendants’ responses to positive tests and exposures are similarly inadequate. When one person tested positive for COVID-19, staff members he had had close contact with were sent
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home to quarantine, while absolutely no testing, quarantining, or screening was done for incarcerated people with whom he had been in close contact. Ex. 10, Perez Decl. at ¶¶ 6-7; Ex. 12, Applegate Decl. at ¶¶ 10-13, 17. Because of the possibility of asymptomatic transfer, the CDC recommends that an incarcerated person who has had close contact with a person suspected or confirmed to have COVID-19 be removed from their housing units for fourteen days for quarantine or, if that is impractical, the entire unit may be “quarantined in place.” Ex. 16, Fenig Decl. at ¶¶ 30-31. Defendants obviously understand the importance of quarantining, as they sent home staff members who had been exposed, but they were deliberately indifferent to the need to quarantine people who are incarcerated.
Defendants have also failed to provide for social distancing within Adirondack that would limit the spread of COVID-19. Although the CDC Guidelines make clear that social distancing is essential to prevent the spread of COVID-19, distancing at Adirondack is “inconsistently enforced at best, and ignored at worst.” Ex. 16, Fenig Decl. at ¶ 14. Up to 15-20 people at a time must cram into day rooms on a daily basis to watch television and socialize; men at Adirondack stand next to each other while waiting in lines for medication or other services; they frequently congregate in the bathroom, including standing next to each other without masks on for extended periods of time while shaving; and, “most concerning[ly,]” they must sit within six feet of each other while eating in the dining halls, which, because it “necessitates that the individual remove their mask, becomes a particularly perilous activity, as there is no barrier to mitigate the viral spread.” Ex. 16, Fenig Decl. at ¶¶ 16-19.
Increasing the potential for harm is that, in the dining hall and at other times, people from different housing units are allowed to congregate under non-socially distanced conditions, which creates an opportunity for the virus to spread throughout the entire prison rather than being
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limited to a single unit. Ex. 16, Fenig Decl. at ¶ 22 (“Mitigating the potential spread of COVID19 in congregate living situations such as prisons is best achieved when cohorts of inmates are siloed, such as in housing units. If an infectious outbreak occurs, close contact exposure of different housing units to each other would allow COVID-19 to infect a much larger number of inmates and staff. Adirondack Correctional Facility[’s] incapacity to safely keep inmate cohorts separated undermines the ability to contain a potential outbreak, therefore placing these clients as well as all inmates and staff at risk of infection.”). This risk of intra-unit spread is heightened by the practice of having guards work in different housing units.
Defendants’ acts and omissions at Adirondack fall well short of their constitutional duties. Instead of taking the transfer, testing, screening, quarantining, and social-distancing precautions that the CDC guidelines counsel and that other prisons and jails are taking, Defendants have ignored these requirements in favor of an approach that will be inevitably insufficient to prevent the entry and spread of COVID-19. Through this wanton disregard for the threat that COVID-19 poses to the population at Adirondack, Defendants have created a tinder box that requires only the predictable entry of COVID-19 in order to consume the General Class. Defendants have acted with deliberate indifference to a substantial risk of serious harm, such that Plaintiffs are likely to succeed on the merits of their Eighth Amendment claims.
D. The Balance of Equities and the Public Interest Support a Preliminary Injunction. Where, as here, the government is the party opposing a preliminary injunction, the final
two factors in the analysis—the balance of the equities and the public interest—merge. See, e.g., Martinez-Brooks, 459 F. Supp. 3d at 448 (quoting Coronel v. Decker, 449 F. Supp. 3d 274, 287 (S.D.N.Y. 2020)). Because relief here would promote public health, prevent death, and prevent further constitutional injury without significant financial cost or logistical burden and no
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irreparable harm to Defendants, all factors weigh in favor of granting injunctive relief in this case.
The requested relief will promote public health by preventing unnecessary illness and death both within Adirondack and in the surrounding community. Spread between prisons and communities is common, and indeed, prisons act as reservoirs for viruses, continuing their circulation in the community after traditional public health measures would have curtailed that spread. Ex. 13, Shaman Decl. at ¶ 23. Ray Brook, New York, where Adirondack is located, has few public health resources – its local hospitals, Adirondack Medical Center and Elizabethtown Community Hospital, have only 8 intensive care beds and 25 inpatient beds, respectively.45 That medical system was established to serve the regular needs of the population there, not the needs of the population during a pandemic. It certainly cannot mitigate the heightened risk of community spread from Defendants’ addition of 100 elderly, medically needy adults. Courts have recognized this risk. See, e.g., Banks v. Booth, 468 F. Supp. 3d 101, 124 (D.D.C. 2020) (“No man’s health is an island. If Plaintiffs contract COVID-19, they risk infecting others inside the DOC facilities. Plaintiffs also risk infecting DOC staff members who work inside DOC facilities but also live in the community, thus increasing the number of people vulnerable to infection in the community at large.”).
The harm Plaintiffs seek to prevent, death or serious injury, is also extreme and weighs heavily in assessing the balance of equities. See, e.g., Martinez-Brooks, 468 F. Supp. 3d at 124 (“Moreover, the Petitioners’ interest in avoiding serious illness or death must weigh heavily on the scales.”).
Defendants’ conduct also violates Plaintiffs’ right under the Eighth Amendment to be
45 Elizabeth Izzo, Local hospitals move to expand capacity, ADIRONDACK DAILY ENTERPRISE (Mar. 24, 2020), https://www.adirondackdailyenterprise.com/news/local-news/2020/03/local-hospitals-move-to-expand-capacity/.
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free from cruel and unusual punishment, and “the public interest is best served by ensuring that the constitutional rights of persons within the United States are upheld.” Id. at 124 (quoting Coronel, 449 F.Supp.3d at 287). As courts have explained, “there is no harm to the Government when a court prevents unlawful practices.” Banks, 468 F. Supp. 3d at 124.
Protecting these vital interests comes at a little relative cost to Defendants. Defendants can significantly mitigate the imminent risk of a deadly outbreak among the most vulnerable incarcerated people with only a few basic measures that include testing before transfer, quarantining and testing after transfer, testing for asymptomatic incarcerated people and staff, and quarantining and testing people who have come into contact with someone known to have an active case of COVID-19. While an injunction requiring testing would impose some logistical and financial burden, it will be limited. Testing is available to the public nationwide, and already employed to some extent by DOCCS. The testing contemplated by the injunction would also be limited to people entering or currently living and working in Adirondack, and does not place a burden on the DOCCS system as a whole.
Halting transfers of untested people and isolating those who test positive poses no risk to Defendants at all. Prison officials around the country have taken similar measures, and there is no reason why Defendants cannot implement them here. In fact, the relief requested actually benefits Defendants and the community at large by mitigating the risk that staff and those they interact with outside the prison will become infected. While Defendants do have an interest in maintaining procedures that ensure safety, order, and security, the measures sought in the preliminary injunction in no way undermine these goals.
Finally, the harm to Defendants, if any, will not be irreparable. If the Plaintiffs should not ultimately prevail, Defendants can return to their current practices, having suffered only the
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financial cost of implementing improved procedures for a limited time. Finances can be recouped. Lost lives cannot.
E. The Remedy Plaintiffs Seek is Appropriate Plaintiffs seek an injunction ordering Defendants to immediately:
1. Regularly screen and test all staff and incarcerated people at Adirondack, including asymptomatic people, in a manner that allows timely isolation of positive cases;
2. Isolate 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 CDC guidelines, by housing incarcerated people separately from those who have not tested positive, and requiring staff to stay home from work; and
3. Cease all transfers of people from other prisons to Adirondack until Defendants can demonstrate that: 1. Everyone who is being transferred has been tested, quarantined pending results, and been determined to be negative for COVID-19 prior to testing; 2. Staff who are conducting transfers have been tested, quarantined pending results, and been determined to be negative for COVID-19 prior to conducting transfers; 3. People are transferred only from one facility at a time and are not exposed to people from other facilities during transport; 4. People being transferred and staff wear masks and are able to maintain social distance during transport; and 5. People are quarantined separately from current Adirondack residents for a period of two weeks upon arrival. These are the most basic and least intrusive measures that can effectively prevent an
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outbreak at Adirondack, because they constitute the most minimal action Defendants could take to identify and separate positive COVID-19 cases from the rest of the Adirondack population.46 Because the virus spreads without symptoms and does not discriminate between the incarcerated or staff, the only way to identify positive cases is with regular screening and testing of all people at Adirondack, regardless of whether they show symptoms. Defendants must also promptly isolate positive individuals because the virus spreads easily in facilities where people often have no choice but to engage in close enough contact for virus transmission to occur.47 Finally, Defendants cannot continue their reckless practice of transferring new people into Adirondack without ensuring that they test negative for the virus. Trying to control the virus will prove pointless if new people of unknown COVID-19 status are continually added to the population. Hence, the relief requested is tailored to minimize the imposition on Defendants’ interest in the orderly and secure administration of its facilities, while also making a significant first step in protecting the lives and constitutional rights of the Plaintiff classes.
IV. Conclusion For the reasons stated herein, Plaintiffs ask that the Court grant the narrow relief
Plaintiffs seek to protect against the imminent threat of death or serious physical injury.

Dated: January 11, 2021

Respectfully Submitted,
/s/ Rebecca Livengood Sasha Samberg-Champion (Bar Roll #702397) Jia Cobb* Gabriel Diaz* Rebecca Livengood (Bar Roll #702388) RELMAN COLFAX PLLC

46 Indeed, the CDC recommendations for all correctional facilities go much farther than the relief requested here, see CENTERS FOR DISEASE CONTROL AND PREVENTION, supra note 27. 47 Timothy Williams, Benjamin Weiser and William K. Rashbaum, ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. TIMES (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirusprisons-jails html; see Henry, supra note 15.
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1225 19th St. NW, Suite 600 Washington, D.C. 20036 T: (202) 728-1888 F: (202) 728-0848 /s/ Stefen R. Short Stefen R. Short (Bar Roll # 519275) Sophia Gebreselassie* David Billingsley* THE LEGAL AID SOCIETY PRISONERS’ RIGHTS PROJECT 199 Water Street, 6th Floor New York, N.Y. 10038 T: (212) 577-3530 F: (202) 728-0848 Attorneys for Plaintiffs *Pro Hac Vice Applications to Be Submitted
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CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of January, 2021, a copy of the foregoing Memorandum of Law in Support of Plaintiffs’ Request for Preliminary Injunction and all related filings and attachments were filed using the CM/ECF system for the Northern District of New York and will be hand-delivered via process server upon the following Defendants:
Andrew M. Cuomo Governor of New York State NYS State Capitol Building Albany, NY 12224
Office of the Attorney General The Capitol o/b/o Andrew Cuomo, Governor of the State of New York Albany, NY 12224-0341 ATTN: A&O/Personal Service
New York State Department of Corrections and Community Supervision Harriman State Campus 1220 Washington Avenue, Bldg. #2 Albany, New York 12226
Anthony J. Annucci Acting Commissioner New York State Department of Corrections and Community Supervision Harriman State Campus 1220 Washington Avenue, Bldg. #2 Albany, New York 12226
John Morley, M.D. Deputy Commissioner and Chief Medical Officer New York State Department of Corrections and Community Supervision Harriman State Campus 1220 Washington Avenue, Bldg. #2 Albany, New York 12226
Jeffrey Tedford Superintendent, Adirondack Correctional Facility Adirondack Correctional Facility 196 Ray Brook Rd. P.O. Box 110 Ray Brook, NY 12977
/s/ Rebecca Livengood Rebecca Livengood Attorney for Plaintiffs
34

 
 CASREF
U.S. District Court Northern District of New York - Main Office (Syracuse) [NextGen CM/ECF
Release 1.5 (Revision 1.5.3)] (Prisoner) CIVIL DOCKET FOR CASE #: 9:21-cv-00019-LEK-ML

Harper et al v. Cuomo et al Assigned to: Senior Judge Lawrence E. Kahn Referred to: Magistrate Judge Miroslav Lovric Cause: 28:1331 Fed. Question

Date Filed: 01/08/2021 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff
Allen Harper on behalf of themselves and all others similarly situated

represented by Rebecca Livengood Relman Colfax PLLC 1225 19th St, N.W. Suite 600 Washington, DC 20036 202-728-1888 Email: rlivengood@relmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sasha Samberg-Champion Relman Colfax PLLC 1225 19th St, N.W. Suite 600 Washington, DC 20036 202-728-1888 Email: ssambergchampion@relmanlaw.com TERMINATED: 02/08/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stefen R. Short Legal Aid Society - NY Office Prisoners Rights Project 199 Water Street 6th Floor New York, NY 10038 212-577-3935 Fax: 646-616-4225

Plaintiff
Jose Leon on behalf of themselves and all others similarly situated

Email: sshort@legal-aid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Billingsley Legal Aid Society 199 Water St. Ste 6th Floor New York, NY 10038 313-333-1522 Email: dbillingsley@legal-aid.org ATTORNEY TO BE NOTICED
Gabriel Diaz Relman Colfax PLLC 1225 19th St, N.W. Suite 600 Washington, DC 20036 202-728-1888 Email: gdiaz@relmanlaw.com ATTORNEY TO BE NOTICED
Jia M. Cobb Relman, Colfax PLLC 1225 19th Street, N.W. Suite 600 Washington, DC 20036 202-728-1888 Email: jcobb@relmanlaw.com ATTORNEY TO BE NOTICED
Sophia Assefa Gebreselassie Legal Aid Society - NY Office Prisoners Rights Project 199 Water Street 6th Floor New York, NY 10038 646-838-2549 Email: sgebreselassie@legal-aid.org ATTORNEY TO BE NOTICED
represented by Rebecca Livengood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ranfis Perez on behalf of themselves and all others similarly situated

Sasha Samberg-Champion (See above for address) TERMINATED: 02/08/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefen R. Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Billingsley (See above for address) ATTORNEY TO BE NOTICED
Gabriel Diaz (See above for address) ATTORNEY TO BE NOTICED
Jia M. Cobb (See above for address) ATTORNEY TO BE NOTICED
Sophia Assefa Gebreselassie (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Livengood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sasha Samberg-Champion (See above for address) TERMINATED: 02/08/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefen R. Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Billingsley

Plaintiff
Release Aging People in Prison Campaign "RAPP"

(See above for address) ATTORNEY TO BE NOTICED
Gabriel Diaz (See above for address) ATTORNEY TO BE NOTICED
Jia M. Cobb (See above for address) ATTORNEY TO BE NOTICED
Sophia Assefa Gebreselassie (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Livengood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sasha Samberg-Champion (See above for address) TERMINATED: 02/08/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefen R. Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Billingsley (See above for address) ATTORNEY TO BE NOTICED
Gabriel Diaz (See above for address) ATTORNEY TO BE NOTICED
Jia M. Cobb (See above for address) ATTORNEY TO BE NOTICED
Sophia Assefa Gebreselassie

(See above for address) ATTORNEY TO BE NOTICED

V. Defendant Andrew Cuomo in his official capacity as the Governor of the State of New York
Defendant New York State Department of Corrections and Community Supervision
Defendant Anthony J. Annucci in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision

represented by Michael G. McCartin Office of Attorney General - Albany The Capitol Albany, NY 12224 518-776-2620 Fax: 518-915-7738 Email: michael.mccartin@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Konstandinos D. Leris New York State Attorney General Albany The Capitol Albany, NY 12224 518-776-2574 Email: kostas.leris@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Michael G. McCartin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Konstandinos D. Leris (See above for address) ATTORNEY TO BE NOTICED
represented by Michael G. McCartin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Konstandinos D. Leris (See above for address) ATTORNEY TO BE NOTICED

Defendant John Morley M.D., in his official capacity as the Deputy Commissioner and Chief Medical Officer of the New York State Department of Corrections and Community Supervision
Defendant Jeffrey Tedford in his official capacity as the Superintendent of Adirondack Correctional Facility

represented by Michael G. McCartin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Konstandinos D. Leris (See above for address) ATTORNEY TO BE NOTICED
represented by Michael G. McCartin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Konstandinos D. Leris (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

01/08/2021 1

CLASS ACTION COMPLAINT WITH JURY DEMAND against Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford (Filing fee $402 receipt number ANYNDC-5374903) filed by Ranfis Perez, Jose Leon, Allen Harper, Release Aging People in Prison Campaign. (Attachments: # 1 Civil Cover Sheet)(meb) (Entered: 01/08/2021)

01/08/2021

2 Summons Issued as to Andrew Cuomo. (Attachments: # 1 Summons issued as to NYS AG, # 2 Summons issued as to DOCCS, # 3 Summons issued as to Annucci, # 4 Summons issued as to Morley, # 5 Summons issued as to Tedford)(meb) (Entered: 01/08/2021)

01/08/2021

3 G.O. 25 FILING ORDER ISSUED: Initial Rule 16 Conference set for 4/14/2021 at 10:00 AM via telephone before Magistrate Judge Miroslav Lovric. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 4/7/2021. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (meb) (Entered: 01/08/2021)

01/08/2021 01/08/2021 01/08/2021 01/08/2021 01/11/2021

4 NOTICE of Admission Requirement as to Party Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign; Attorney Jia Cobb. Phone number is (202) 728-1888. Admissions due by 1/22/2021. (Copy served by regular mail)(meb) (Entered: 01/08/2021)
5 NOTICE of Admission Requirement as to Party Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign; Attorney Gabriel Diaz. Phone number is (202) 728-1888. Admissions due by 1/22/2021. (Copy served by regular mail)(meb) (Entered: 01/08/2021)
6 NOTICE of Admission Requirement as to Party Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign; Attorney Sophia Gebreselassie. Phone number is (212) 577-3530. Admissions due by 1/22/2021. (Copy served by regular mail)(meb) (Entered: 01/08/2021)
7 NOTICE of Admission Requirement as to Party Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign; Attorney David Billingsley. Phone number is (212) 577-3530. Admissions due by 1/22/2021. (Copy served by regular mail)(meb) (Entered: 01/08/2021)
8 MOTION for Preliminary Injunction by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Attachments: # 1 Memorandum of Law, # 2 Declaration Executed declaration of Rebecca Livengood testifying to good and sufficient cause for expedited relief., # 3 Declaration Executed exhibit declaration of Rebecca Livengood, # 4 Exhibit(s) Executed declaration of Plaintiff Allen Harper, # 5 Exhibit(s) Executed declaration of Plaintiff Jose Leon, # 6 Exhibit(s) Executed declaration of Plaintiff Ranfis Perez, # 7 Exhibit(s) Executed declaration of John Spadaro, inmate at Adirondack Correctional Facility, # 8 Exhibit(s) Executed declaration of Juan Cangiano, former inmate at Adirondack Correctional Facility, # 9 Exhibit(s) Executed declaration of Gregory Jenkins, inmate at Adirondack Correctional Facility, # 10 Exhibit(s) Executed supplemental declaration of Plaintiff Allen Harper, # 11 Exhibit(s) Executed supplemental declaration of Plaintiff Jose Leon, # 12 Exhibit(s) Executed declaration of Amalia Perez, paralegal at Plaintiffs' counsel's firm, # 13 Exhibit(s) Executed supplemental declaration of Plaintiff Ranfis Perez, # 14 Exhibit(s) Executed supplemental declaration of John Spadaro, inmate at Adirondack Correctional Facility, # 15 Exhibit(s) Executed declaration of Bradford Applegate, inmate at Adirondack Correctional Facility, # 16 Exhibit(s) Executed

01/12/2021
01/14/2021 01/14/2021

declaration of Francisco Salinas, inmate at Adirondack Correctional Facility, # 17 Exhibit(s) Executed declaration of Dr. Jeffrey L. Shaman, # 18 Exhibit(s) Executed declaration of Jeffrey Schwartz,
# 19 Exhibit(s) Executed declaration of Dr. Mark Fenig, # 20 Exhibit(s) Plaintiff Jose Leon's excerpted medical records, # 21 Exhibit(s) Juan Cangiano's excerpted medical records, # 22 Exhibit(s) Plaintiff Ranfis Perez's excerpted medical records, # 23 Exhibit(s) Plaintiff Allen Harper's excerpted medical records, # 24 Exhibit(s) DOCCS COVID-19 data compilation, # 25 Exhibit(s) Executed declaration of Stefen R. Short., # 26 Exhibit(s) Copy of Complaint (Dkt. 1), # 27 Proposed Order/Judgment Proposed Order granting Plaintiffs' Request for Preliminary Injunction, # 28 Proposed Order/Judgment Proposed Order granting Plaintiffs' Request for Leave to File Excess Pages)(Livengood, Rebecca) (Entered: 01/11/2021)
9 TEXT ORDER: The Court has reviewed Plaintiffs' motion for a preliminary injunction, which Plaintiffs brought via application for an order to show cause. Dkt. Nos. 8-1 ("Motion"); 8-2 ("Livengood Affidavit"). The Court has reviewed the Livengood Affidavit and finds that it "clearly and specifically show[s] good and sufficient cause why the standard Notice of Motion procedure cannot be used." See L.R. 7.1(e). The Court GRANTS Plaintiffs' order to show cause. Plaintiffs' request for leave to exceed the page limit, Dkt. No. 8-28, in their Motion is GRANTED. Defendants are directed to submit a response by January 19, 2021. Plaintiffs are directed to submit a reply by January 22, 2021. The Motion will be decided on the submission of the papers only; no oral arguments will be entertained. Plaintiffs are directed to serve Defendants with the Complaint, Dkt. No. 1, and Motion no later than January 13, 2021. Response to Motion due by 1/19/2021. Reply to Response to Motion due by 1/22/2021. Signed by Senior Judge Lawrence E. Kahn on January 12, 2021. (sas) (Entered: 01/12/2021)
10 AFFIDAVIT of Service for Complaint, summons, General Order 25, Proposed Order to Show Cause and accompanying attachments and exhibits, 1/12/2021 Order (Dkt. 9) served on Anthony Annucci in his official capacity as the Acting Commissioner of the NY State Dept. of Corr. and Comm. Supervision on 1/13/2021, filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Livengood, Rebecca) (Entered: 01/14/2021)
11 AFFIDAVIT of Service for Complaint, Summons, General Order 25, Proposed Order to Show Cause and accompanying attachments and exhibits, 1/12/2021 Order (Dkt. 9) served on Anthony Annucci on

01/14/2021 01/14/2021 01/14/2021 01/15/2021 01/15/2021 01/19/2021

behalf of the New York State Dept. of Corrections and Community Supervision on 1/13/2021, filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Livengood, Rebecca) (Entered: 01/14/2021)
12 AFFIDAVIT of Service for Complaint, Summons, General Order 25, Proposed Order to Show Cause and accompanying attachments and exhibits, 1/12/2021 Order (Dkt. 9) served on Office of Attorney General on behalf of Andrew Cuomo in his Official Capacity as the Governor of New York on 1/13/2021, filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Livengood, Rebecca) (Entered: 01/14/2021)
13 AFFIDAVIT of Service for Complaint, Summons, General Order 25, Proposed Order to Show Cause and accompanying attachments and exhibits, 1/12/2021 Order (Dkt. 9) served on John Morley, M.D., in his Official Capacity as the Deputy Commissioner and Chief Medical Officer of the New York State Department of Corrections and Community Supervision on 1/13/2021, filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Livengood, Rebecca) (Entered: 01/14/2021)
14 AFFIDAVIT of Service for Complaint, Summons, General Order 25, Proposed Order to Show Cause and accompanying attachments and exhibits, 1/12/2021 Order (Dkt. 9) served on Andrew Cuomo in his Official Capacity as the Governor of the State of New York on 1/13/2021, filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Livengood, Rebecca) (Entered: 01/14/2021)
15 MOTION for Limited Admission Pro Hac Vice of Gabriel Diaz Filing fee $100, receipt number ANYNDC-5383384. filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. Motions referred to Miroslav Lovric. (Livengood, Rebecca) (Entered: 01/15/2021)
16 MOTION for Limited Admission Pro Hac Vice of Jia M. Cobb Filing fee $100, receipt number ANYNDC-5383417. filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. Motions referred to Miroslav Lovric. (Livengood, Rebecca) (Entered: 01/15/2021)
17 NOTICE of Appearance by Michael G. McCartin on behalf of Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford (McCartin, Michael) (Entered: 01/19/2021)

01/19/2021 01/19/2021 01/20/2021
01/20/2021
01/20/2021 01/21/2021

18 NOTICE of Appearance by Konstandinos D. Leris on behalf of Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford (Attachments: # 1 Declaration of Service)(Leris, Konstandinos) (Entered: 01/19/2021)
19 RESPONSE in Opposition re 8 MOTION for Preliminary Injunction filed by Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford. (Attachments: # 1 Declaration of Bryan Hilton, # 2 Declaration of Scott Kelly, # 3 Exhibit(s) COVID19 Testing Memo, # 4 Declaration of Rhonda Marrone, R.N.)(McCartin, Michael) (Entered: 01/19/2021)
20 ORDER granting 15 Motion for Limited Admission Pro Hac Vice. Counsel is hereby advised that as of January 16, 2018, the NYND has converted to NextGen. Due to this conversion, you must now register for Pro Hac Vice access through your PACER account. This is the only notice you will receive concerning this requirement. You will not have access to electronically file in this case until your Pro Hac Vice request has been processed through the PACER system. Step-by-step instructions on how to complete this process are available at http://www.nynd.uscourts.gov/attorneyadmissions-nextgen. Signed by Magistrate Judge Miroslav Lovric on 1/20/2021. (jdp, ) (Entered: 01/20/2021)
21 ORDER granting 16 Motion for Limited Admission Pro Hac Vice. Counsel is hereby advised that as of January 16, 2018, the NYND has converted to NextGen. Due to this conversion, you must now register for Pro Hac Vice access through your PACER account. This is the only notice you will receive concerning this requirement. You will not have access to electronically file in this case until your Pro Hac Vice request has been processed through the PACER system. Step-by-step instructions on how to complete this process are available at http://www.nynd.uscourts.gov/attorneyadmissions-nextgen. Signed by Senior Judge Thomas J. McAvoy on 1/20/2021. (jdp, ) (Entered: 01/20/2021)
22 MOTION for Limited Admission Pro Hac Vice of Sophia Gebreselassie Filing fee $100, receipt number ANYNDC-5388788. filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. Motions referred to Miroslav Lovric. (Short, Stefen) (Entered: 01/20/2021)
23 AFFIDAVIT of Service for Complaint, Summons, General Order 25, Proposed Order to Show Cause and accompanying attachments and

01/21/2021
01/21/2021 01/22/2021 01/22/2021 01/22/2021 01/22/2021 01/24/2021

exhibits, 1/12/2021 Order (Dkt. 9) served on Jeffrey Tedford in his official capacity as the Superintendent of Adirondack Correctional Facility on 1/19/2021, filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Livengood, Rebecca) (Entered: 01/21/2021)
24 TEXT ORDER: Having reviewed the Plaintiffs' motion for a preliminary injunction, Dkt. No. 8-1 ("Motion"), and Defendants' response, Dkt. No. 19, the Court notes the existence of factual disputes pertaining to the safety protocols at Adirondack Correctional Facility. See, e.g., Dkt. Nos. 19-1 11 ("Thus, there is simply no veracity to the plaintiffs' claims that staff are not screened before entering ACF, or before transferring inmates between facilities.") ; 19-4 13. "It is well established that 'the existence of factual disputes necessitates an evidentiary hearing... before a motion for preliminary injunction may be decided.'" Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 449-50 (D. Conn. 2020) (quoting Kern v. Clark, 331 F.3d 9, 12 (2d Cir. 2003)). Accordingly, this matter is hereby REFERRED to Judge Lovric for purposes of conducting a hearing and issuing a report-recommendation on the Motion. Signed by Senior Judge Lawrence E. Kahn on January 21, 2021. (sas) (Entered: 01/21/2021)
25 NOTICE of Appearance by Jia M. Cobb on behalf of All Plaintiffs (Cobb, Jia) (Entered: 01/21/2021)
26 NOTICE of Appearance by David Billingsley on behalf of All Plaintiffs (Billingsley, David) (Entered: 01/22/2021)
27 NOTICE of Appearance by Gabriel Diaz on behalf of All Plaintiffs (Diaz, Gabriel) (Entered: 01/22/2021)
28 TEXT ORDER: a telephone conference is scheduled for 1/25/2021 at 11:00 a.m. The parties should be prepared to discuss the scheduling of a hearing pursuant to Text Order 24 . SO ORDERED by Magistrate Judge Miroslav Lovric on 1/22/2021.(jdp ) (Entered: 01/22/2021)
29 REPLY to Response to Motion re 8 MOTION for Preliminary Injunction filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Attachments: # 1 Exhibit(s) DOCCS COVID-19 Data Compilation)(Livengood, Rebecca) (Entered: 01/22/2021)
30 ORDER granting 22 Motion for Limited Admission Pro Hac Vice. Counsel is hereby advised that as of January 16, 2018, the NYND has converted to NextGen. Due to this conversion, you must

01/25/2021 01/26/2021 01/26/2021
02/01/2021 02/01/2021

now register for Pro Hac Vice access through your PACER account. This is the only notice you will receive concerning this requirement. You will not have access to electronically file in this case until your Pro Hac Vice request has been processed through the PACER system. Step-by-step instructions on how to complete this process are available at http://www.nynd.uscourts.gov/attorneyadmissions-nextgen. Signed by Magistrate Judge Miroslav Lovric on 1/24/2021. (jdp, ) (Entered: 01/24/2021)
31 NOTICE of Appearance by Sophia Assefa Gebreselassie on behalf of All Plaintiffs (Gebreselassie, Sophia) (Entered: 01/25/2021)
Minute Entry for proceedings held before Magistrate Judge Miroslav Lovric: a telephone conference was held on 1/25/2021. A hearing on the Motion for Preliminary Injunction 8 is scheduled for 2/8/2021 at 9:30 a.m., via video conferencing. Appearances: R. Livengood, Esq., S. Short, Esq., D. Billingsley, Esq., G. Diaz, Esq., and S. Gebreselassie, Esq., for Plaintiffs; and M. McCartin, Esq., and K. Leris, Esq., for Defendants. (jdp ) (Entered: 01/27/2021)
32 TEXT ORDER: A hearing on the Motion for Preliminary Injunction 8 is scheduled for 2/8/2021 at 9:30 a.m., via video conferencing. On or before 2/1/2021, Plaintiffs shall file: (1) a witness list, (2) an exhibit list, (3) copies of all exhibits to be offered at the hearing, and (4) briefs, no more than 15 pages in length and double spaced, summarizing what each witness will testify about and the significance of each exhibit to be offered at the hearing. Defendants shall file the same four categories of documents on or before 2/2/2021. Defendants shall coordinate with DOCCS to ensure that all witnesses who are in the custody of DOCCS will be produced at the hearing via video conferencing. The deadline for Defendants to file their answer or otherwise respond to Plaintiffs complaint is extended to 2/22/2021. SO ORDERED by Magistrate Judge Miroslav Lovric on 1/26/2021.(jdp ) (Entered: 01/27/2021)
33 Letter Motion from Plaintiffs' Counsel for Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign requesting Translation Services during February 8 Hearing on Motion for Preliminary Injunction submitted to Judge Lovric . (Livengood, Rebecca) (Entered: 02/01/2021)
34 NOTICE by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign re 8 MOTION for Preliminary Injunction , 32 Order,,,, Set Hearings,,, of Plaintiffs' Anticipated Witnesses and Exhibits (Attachments: # 1 Witness List, # 2 Exhibit List, # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s),

02/02/2021 02/02/2021 02/02/2021 02/02/2021 02/03/2021
02/04/2021 02/04/2021

# 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s), # 13 Exhibit(s), # 14 Exhibit(s), # 15 Exhibit(s), # 16 Exhibit(s), # 17 Exhibit(s), # 18 Exhibit(s), # 19 Exhibit(s), # 20 Exhibit(s), # 21 Exhibit(s), # 22 Exhibit(s))(Diaz, Gabriel) (Entered: 02/01/2021)
35 TEXT ORDER: Letter Motion 33 is GRANTED in part. Plaintiffs are required to arrange and pay for interpreter services. Plaintiffs may contact the courtroom deputy to obtain a list and contact information for interpreters pursuant to 18 U.S.C. § 1827. SO ORDERED by Magistrate Judge Miroslav Lovric on 2/2/2021. (jdp ) (Entered: 02/02/2021)
36 Witness List by Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford. (Leris, Konstandinos) (Entered: 02/02/2021)
37 Exhibit List with attached exhibits by Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford. (Attachments: # 1 Exhibit(s) Combined Exhibits)(Leris, Konstandinos) (Entered: 02/02/2021)
38 TRIAL BRIEF by Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford. (Leris, Konstandinos) (Entered: 02/02/2021)
39 Letter Motion from Kostas Leris for Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford requesting Permission to add an exhibit to defendants' exhibit list submitted to Judge Lovric . (Attachments: # 1 Exhibit(s) Updated Exhibit List, # 2 Exhibit(s) Proposed Exhibit)(Leris, Konstandinos) (Entered: 02/03/2021)
40 TEXT ORDER: Letter Motion 39 is GRANTED. The Clerk of Court is directed to file Defendants updated exhibit list [39-1] and exhibit 46 [39-2] on the docket. SO ORDERED by Magistrate Judge Miroslav Lovric on 2/4/2021. (jdp ) (Entered: 02/04/2021)
41 AMENDED Exhibit List and Exhibit 46 filed by Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford. (Attachments: # 1 Exhibit 46)(jdp ) (Entered: 02/04/2021)

02/05/2021 02/08/2021 02/08/2021 02/08/2021 02/08/2021
02/09/2021

42 MOTION to Withdraw as Attorney Sasha SambergChampion Response to Motion due by 2/26/2021 filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Attachments: # 1 Proposed Order/Judgment) Motions referred to Miroslav Lovric. (Livengood, Rebecca) (Entered: 02/05/2021)
43 ORDER granting 42 Motion to Withdraw as Attorney. Attorney Sasha Samberg-Champion terminated. Signed by Magistrate Judge Miroslav Lovric on 2/8/2021. (jdp ) (Entered: 02/08/2021)
44 Letter Motion from Kostas Leris for Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford requesting Permission to add two additional exhibits submitted to Judge Lovric . (Attachments: # 1 Exhibit(s) Ranfis Perez Grievance packet, # 2 Exhibit(s) Jose Leon Grievance packet)(Leris, Konstandinos) (Entered: 02/08/2021)
45 RESPONSE TO LETTER BRIEF filed by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign as to 44 Letter Request/Motion, filed by Anthony J. Annucci, Jeffrey Tedford, John Morley, New York State Department of Corrections and Community Supervision, Andrew Cuomo . (Attachments: # 1 Exhibit(s))(Livengood, Rebecca) (Entered: 02/08/2021)
TEXT MINUTE ENTRY for preliminary injunction hearing held on 2/8/2021, before Magistrate Judge Miroslav Lovric via video teleconferencing: Plaintiffs began presenting their case-in-chief and called witnesses: Mark Fenig, M.D., and Bradford Applegate. The hearing is to be continued on 2/9/2020. Appearances: R. Livengood, Esq., G. Diaz, Esq., J. Cobb, Esq., S. Short, Esq., D. Billingsley, Esq., and S. Gebreselassie, Esq., Counsel for Plaintiffs; A. Harper, Plaintiff (not present for testimony of Mr. Applegate); M. McCartin, Esq., and K. Leris, Esq., Counsel for Defendants; and J. Stroffolino, Court Reporter. (Time: 10:00 a.m. - 3:50 p.m.) (jdp ) (Entered: 02/09/2021)
46 Letter Motion from Kostas Leris for Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford requesting Permission to file second amended exhibit list submitted to Judge Lovric . (Attachments: # 1 Exhibit(s) Defendants' Exhibit 47, # 2 Exhibit(s) Defendants' Exhibit 48, # 3 Exhibit(s) Defendants' Exhibit 49)(Leris, Konstandinos) (Entered: 02/09/2021)

02/09/2021 02/09/2021
02/10/2021 02/10/2021 02/10/2021
02/11/2021

47 LETTER BRIEF Jointly Submitted re Status of Preliminary Injunction Hearing Exhibits by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Short, Stefen) (Entered: 02/09/2021)
TEXT MINUTE ENTRY for continuation of preliminary injunction hearing held on 2/9/2021, before Magistrate Judge Miroslav Lovric via video teleconferencing: Plaintiffs continued presenting their casein-chief and called witnesses: Jeffrey L. Shaman, Ph.D, Francisco Salinas, Ranfis Perez, and Allen Harper. The hearing is to be continued on 2/10/2020. Appearances: R. Livengood, Esq., G. Diaz, Esq., J. Cobb, Esq., S. Short, Esq., D. Billingsley, Esq., and S. Gebreselassie, Esq., Counsel for Plaintiffs; M. McCartin, Esq., and K. Leris, Esq., Counsel for Defendants; Laura Silver Kuhne, Spanish Interpreter for witness Perez; and J. Stroffolino, Court Reporter. (Time: 9:00 a.m. 4:45 p.m.) (jdp, ) (Entered: 02/10/2021)
48 LETTER BRIEF re Plaintiffs' Demonstrative Aid by Allen Harper, Jose Leon, Ranfis Perez, Release Aging People in Prison Campaign. (Attachments: # 1 Demonstrative Aid)(Livengood, Rebecca) (Entered: 02/10/2021)
49 Exhibit List Defendants' Second Amended Exhibit List by Anthony J. Annucci, Andrew Cuomo, John Morley, New York State Department of Corrections and Community Supervision, Jeffrey Tedford. (Leris, Konstandinos) (Entered: 02/10/2021)
TEXT MINUTE ENTRY for continuation of preliminary injunction hearing held on 2/10/2021, before Magistrate Judge Miroslav Lovric via video teleconferencing: Plaintiffs continued presenting their casein-chief and called witnesses: Ranfis Perez and Jeffrey A. Schwartz. The hearing will be continued on 2/11/2020. Plaintiffs' exhibits 1-20 and Defendants' exhibits 1-45 and 47-49 were admitted into evidence, without objection. Appearances: R. Livengood, Esq., G. Diaz, Esq., J. Cobb, Esq., S. Short, Esq., D. Billingsley, Esq., and S. Gebreselassie, Esq., Counsel for Plaintiffs; M. McCartin, Esq., and K. Leris, Esq., Counsel for Defendants; Elizabeth Caruso, Spanish Interpreter for witness Perez; and J. Stroffolino, Court Reporter. (Time: 9:00 a.m. - 3:45 p.m.) (jdp ) (Entered: 02/11/2021)
50 TEXT ORDER: Defendants' Letter Motion 44 is DENIED as moot. Defendants' Letter Motion 46 is GRANTED, as set forth on the record during the preliminary injunction continuation hearing on 2/10/2021. SO ORDERED by Magistrate Judge Miroslav Lovric on 2/11/2021.(jdp ) (Entered: 02/11/2021)

02/11/2021 02/12/2021 02/16/2021 03/01/2021

TEXT MINUTE ENTRY for continuation of preliminary injunction hearing held on 2/11/2021, before Magistrate Judge Miroslav Lovric via video teleconferencing: Plaintiffs completed presenting their case-in-chief after calling witness: Jeffrey A. Schwartz. Defendants began presenting their case-in-chief and called witness: Kelly Slaven. The hearing will be continued on 2/12/2020. Appearances: R. Livengood, Esq., G. Diaz, Esq., J. Cobb, Esq., S. Short, Esq., D. Billingsley, Esq., and S. Gebreselassie, Esq., Counsel for Plaintiffs; M. McCartin, Esq., and K. Leris, Esq., Counsel for Defendants; and J. Stroffolino, Court Reporter. (Time: 1:30 p.m. - 4:35 p.m.) (jdp ) (Entered: 02/12/2021)
TEXT MINUTE ENTRY for continuation of preliminary injunction hearing held on 2/12/2021, before Magistrate Judge Miroslav Lovric via video teleconferencing: Defendants continued presenting their case-in-chief and called witnesses: Kelly Slaven, Benjamin Malark, and Jeffrey Tedford. The hearing will be continued on 2/16/2020. Appearances: R. Livengood, Esq., G. Diaz, Esq., J. Cobb, Esq., S. Short, Esq., D. Billingsley, Esq., and S. Gebreselassie, Esq., Counsel for Plaintiffs; M. McCartin, Esq., and K. Leris, Esq., Counsel for Defendants; and J. Stroffolino, Court Reporter. (Time: 9:00 a.m. 5:00 p.m.) (jdp ) (Entered: 02/12/2021)
TEXT MINUTE ENTRY for continuation of preliminary injunction hearing held on 2/16/2021, before Magistrate Judge Miroslav Lovric via video teleconferencing: Defendants completed presenting their case-in-chief after calling witnesses: Jeffrey Tedford, Rhonda Marrone, and Bonnie Perryman. Defendants offered their exhibit 46 into evidence and it was not received for the reasons stated on the record. The parties presented closing arguments and the Court reserved its decision. The deadline for Defendants to answer or otherwise respond to the Complaint, will be ten days after the Court issues its Report-Recommendation on Plaintiffs' Motion 8 . Appearances: R. Livengood, Esq., G. Diaz, Esq., J. Cobb, Esq., S. Short, Esq., D. Billingsley, Esq., and S. Gebreselassie, Esq., Counsel for Plaintiffs; M. McCartin, Esq., and K. Leris, Esq., Counsel for Defendants; and J. Stroffolino, Court Reporter. (Time: 9:00 a.m. 4:45p.m.) (jdp ) (Entered: 02/17/2021)
51 ORDER, REPORT AND RECOMMENDATIONS: RECOMMENDED that Plaintiffs' 18 Motion for a Preliminary Injunction is DENIED; ORDERED that Defendants respond to
Plaintiffs' 1 Complaint within 10 days of this Order, Report and Recommendation; and it is ORDERED that the Clerk shall provide copies of this Order, Report and Recommendation to the parties. (

03/03/2021

Objections to R&R due by 3/15/2021) Signed by Magistrate Judge Miroslav Lovric on 3/1/2021. (jdp ) (Entered: 03/01/2021)
***Answer due date updated for Anthony J. Annucci answer due 3/11/2021; Andrew Cuomo answer due 3/11/2021; John Morley answer due 3/11/2021; New York State Department of Corrections and Community Supervision answer due 3/11/2021; Jeffrey Tedford answer due 3/11/2021. (meb) (Entered: 03/03/2021)

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 Case 9:21-cv-00019-LEK-ML Document 51 Filed 03/01/21 Page 1 of 38

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________
ALLEN HARPER, on behalf of himself and all others similarly situated; JOSE LEON, on behalf of himself and all others similarly situated; RANFIS PEREZ, on behalf of himself and all others similarly situated; and RELEASE AGING PEOPLE IN PRISON CAMPAIGN, “RAPP,”
Plaintiffs,
v.
ANDREW CUOMO, in his official capacity as the Governor of the State of New York; NEW YORK STATE DEP’T OF CORR. AND CMTY. SUPERVISION; ANTHONY J. ANNUCCI, in his official capacity as the Acting Commissioner of the New York State Dep’t of Corr. and Cmty. Supervision; JOHN MORLEY, M.D., in his official capacity as the Deputy Comm’r and Chief Medical Officer of the New York State Dep’t of Corr. and Cmty. Supervision; and JEFFREY TEDFORD, in his official capacity as the Superintendent of Adirondack Corr. Facility,
Defendants. ____________________________________________
APPEARANCES:
RELMAN COLFAX PLLC Co-Counsel for Plaintiffs
1225 19th Street, N.W., Suite 600 Washington, D.C. 20036
LEGAL AID SOCIETY Co-Counsel for Plaintiffs
199 Water Street, 6th Floor New York, New York 10038

9:21-CV-0019 (LEK/ML)
OF COUNSEL: REBECCA LIVENGOOD, ESQ. GABRIEL DIAZ, ESQ. JIA M. COBB, ESQ. STEFEN SHORT, ESQ. DAVID BILLINGSLEY, ESQ. SOPHIA GEBRESELASSIE, ESQ.

Case 9:21-cv-00019-LEK-ML Document 51 Filed 03/01/21 Page 2 of 38

LETITIA A. JAMES Attorney General for the State of New York
Counsel for Defendants The Capitol Albany, New York 12224

MICHAEL G. MCCARTIN, ESQ. KONSTANDINOS D. LERIS, ESQ. Assistant Attorneys General

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION This matter has been referred to me for a Report and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge. Currently before the Court, in this civil rights action filed by Allen Harper, Jose Leon, Ranfis Perez, and Release Aging People in Prison Campaign (“RAPP”) (collectively “Plaintiffs”) against Andrew Cuomo, New York State Department of Corrections and Community Supervision (“DOCCS”), Anthony J. Annucci, John Morley, and Jeffrey Tedford (collectively “Defendants”), is Plaintiffs’ motion for a preliminary injunction pursuant to Fed. R. Civ. P. 65. (Dkt. No. 8.) Defendants have opposed Plaintiffs’ motion; Plaintiffs have replied to Defendants’ opposition; and the Court has held a hearing on Plaintiffs’ motion. (Dkt. No. 19; Dkt. No. 29; Text Minute Entries, 2/8/2021, 2/9/2021, 2/10/2021, 2/11/2021, 2/12/2021, and 2/16/2021.) For the reasons set forth below, I recommend that Plaintiffs’ motion be denied. I. RELEVANT BACKGROUND A. Plaintiffs’ Claims Generally, liberally construed, Plaintiffs’ Complaint alleges that Defendants have transferred nearly one hundred elderly and medically vulnerable inmates to Adirondack Correctional Facility (“Adirondack”) without the basic health and safety protocols necessary to prevent the spread of COVID-19. (See generally Dkt. No. 1 [Pls.’ Compl.].)

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Generally, based on these allegations, the Complaint asserts three causes of action: (1) a claim of deliberate indifference to Plaintiffs’ medical needs against Defendants Cuomo, Annucci, Morley, and Tedford pursuant to the Eighth and Fourteenth Amendments and 42 U.S.C. § 1983; (2) a claim that Defendants discriminated against Plaintiffs in violation of Title II of the Americans with Disabilities Act (“ADA”); and (3) a claim that Defendants DOCCS and Adirondack1 discriminated against Plaintiffs in violation of Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794. (Id.)
B. Parties’ Briefing on Plaintiffs’ Motion 1. Plaintiffs’ Memorandum of Law-in-Chief
Generally, in support of their motion for preliminary injunction, Plaintiffs assert four main arguments. (See generally Dkt. No. 8, Attach. 1.)
First, Plaintiffs argue that they have demonstrated irreparable harm in the form of potential death or serious long-term injury that may result because of Defendants’ failure to institute policies that would prevent an outbreak of COVID-19 at Adirondack. (Id. at 19-23.) More specifically, Plaintiffs argue that “Adirondack is populated exclusively with people who are at the gravest risk for serious harm from COVID-19.” (Id. at 19.) In addition, Plaintiffs argue that “courts around the country have recognized that the specific risk of death or injury COVID-19 poses to incarcerated people, and particularly to the medically vulnerable, satisfies the irreparable harm requirement.” (Id. at 20.) Plaintiffs argue that Defendants’ failure to

1

The Court notes that although Plaintiffs assert this claim against “Defendants DOCCS

and Adirondack” (Dkt. No. 1 at 56), Plaintiffs do not identify Adirondack as a Defendant in the

caption of their Complaint, nor is Adirondack likely an entity amenable to suit. See Dove v.

Broome Cnty. Corr. Facility, 10-CV-0002, 2011 WL 1118452, at *1, n.1 (N.D.N.Y. Feb. 17,

2011) (Peebles, M.J.) (“[T]he Broome County Correctional Facility is not a separate entity with

its own legal identity and amenable to suit.”), report-recommendation adopted by 2011 WL

867072 (N.D.N.Y. Mar. 10, 2011) (Hurd, J.).

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conduct a meaningful testing and quarantining regimen creates an imminent risk of spread within Adirondack, which is particularly acute because if an outbreak did occur at Adirondack, it would overwhelm the local healthcare infrastructure. (Id. at 21-22.)
Second, Plaintiffs argue that they are likely to succeed on the merits of their claims. (Id. at 23-36.) More specifically, Plaintiffs assert that they are likely to succeed on the merits of their ADA and RA claims because (a) Defendants have intentionally discriminated against members of the disability subclass by transferring them to Adirondack, and (b) Defendants have failed to provide reasonable modifications—including testing asymptomatic people, testing and quarantining people known to have come into contact with COVID-19 positive individuals, testing people before transferring them to Adirondack, quarantining and testing people after they arrive at Adirondack, allowing adequate distancing between inmates at mealtimes, in the bathrooms, and in recreation areas, and ensuring that inmates have doors on their bedrooms— and Defendants’ failure to provide these modifications deters Plaintiffs’ from accessing the programs and services at Adirondack safely. (Id.) Plaintiffs also assert that Defendants cannot demonstrate that the relief Plaintiffs seek would impose an undue hardship. (Id.) In addition, Plaintiffs argue that they are likely to succeed on the merits of their Eighth Amendment claim because (a) Defendants have exposed Plaintiffs to a substantial risk that COVID-19 will enter Adirondack and spread uncontrollably, and (b) Defendants have acted with deliberate indifference in exposing Plaintiffs to a serious risk of harm. (Id.)
Third, Plaintiffs argue that the balance of the equities and public interest support a preliminary injunction. (Id. at 36-39.) More specifically, Plaintiffs argue that the preliminary injunction would promote public health, prevent death, and prevent further constitutional injury
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without significant financial cost or logistical burden and no irreparable harm to Defendants. (Id.)
Fourth, Plaintiffs argue that the remedy they seek is appropriate. (Id. at 39-40.) More specifically, Plaintiffs argue that they seek an injunction ordering Defendants to immediately: (a) regularly screen and test all staff and incarcerated people at Adirondack, in a manner that allows timely isolation of positive cases; (b) isolate and distance those who tested positive and those suspected of having been exposed to COVID-19 from the rest of the Adirondack population; (c) cease transfers of inmates from other prisons to Adirondack until (i) everyone who is being transferred has been tested, quarantined pending results, and determined to be negative for COVID-19 before the transfer, (ii) staff conducting transfers have been tested, quarantined pending results, and determined to be negative for COVID-19 before the transfer, (iii) inmates are transferred from only one facility at a time and are not exposed to people from other facilities during transport, (iv) inmates being transferred and staff wear masks and are able to maintain social distance during transport, and (v) newly transferred inmates are quarantined separately from the current Adirondack population for a period of two weeks upon arrival at Adirondack. (Id.)
2. Defendants’ Opposition Memorandum of Law Generally, in opposition to Plaintiffs’ motion, Defendants assert three main arguments. (See generally Dkt. No. 19.) First, Defendants argue that Plaintiffs cannot establish a substantial likelihood of success on the merits. (Id. at 15-23.) More specifically, Defendants argue that Plaintiffs cannot prevail on their ADA and RA claims because (a) Plaintiffs were not denied the opportunity to participate in or benefit from any of DOCCS’s services, programs, or activities at Adirondack, (b) Plaintiffs
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cannot establish that Defendants acted with deliberate indifference—which is required to establish their intentional discrimination claim—in light of the fact that only three inmates at Adirondack have tested positive (two in July 2020 and one in September 2020) for COVID-19 and no inmates have died. (Id. at 18-21.) In addition, Defendants argue that Plaintiffs cannot prevail on their Eighth Amendment claims because they cannot demonstrate a clear likelihood of success on their claim that Adirondack’s response to COVID-19 reflects deliberate indifference to a substantial risk of serious harm in violation of the Eighth Amendment. (Id. at 21-23.)
Second, Defendants argue that Plaintiffs cannot establish irreparable harm. (Id. at 24.) More specifically, Defendants argue that Plaintiffs’ allegation that they may contract COVID-19 and die as a result, is too speculative to be an injury that is “actual and imminent.” (Id.)
Third, Defendants argue that Plaintiffs cannot establish that the balance of hardships tips in their favor or that granting preliminary injunctive relief is in the public interest. (Id. at 25-26.) More specifically, Defendants argue that they are diligently serving the State’s public health interest by preventing COVID-19 from spreading within Adirondack and keeping incarcerated people at Adirondack free of COVID-19 for when they are released from confinement. (Id.)
3. Plaintiffs’ Reply Memorandum of Law Generally, in further support of their motion for preliminary injunction, Plaintiffs assert five main arguments. (See generally Dkt. No. 29.) First, Plaintiffs argue that Defendants’ argument that Adirondack’s case numbers render a preliminary injunction premature, is factually misleading and legally unfounded. (Id. at 5-8.) More specifically, Plaintiffs argue that the low case numbers at Adirondack are “a product of Defendants’ luck” and “COVID-19 outbreaks take hold very quickly, even in prisons that had previously been unaffected.” (Id. at 6.) Plaintiffs argue that rather than look at whether there has
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not yet been an outbreak at Adirondack, the Court must determine whether Defendants are satisfying their statutory and constitutional obligations to take necessary steps to respond to the risk COVID-19 poses to Plaintiffs, which they are not. (Id. at 7-8.)
Second, Plaintiffs argue that they are likely to succeed on the merits of their ADA and RA claims that Defendants (a) failed to make reasonable modifications, and (b) discriminated against Plaintiffs based on disparate treatment. (Id. at 8-9.) More specifically, Plaintiffs argue that Defendants’ opposition did not address their reasonable modification claim, “offering only the conclusory and unsupported assertion that no denial has taken place.” (Id. at 8.) However, Plaintiffs argue that Defendants failed to provide reasonable modifications that would enable them access to Adirondack’s programs and services like safely using the day rooms, eating in the dining halls, and shaving in the bathrooms. (Id.) In addition, Plaintiffs argue that Defendants wrongly contend that the same deliberate indifference standard governs Eighth Amendment, ADA, and RA claims. (Id.) However, Plaintiffs argue that the “less onerous” standard for deliberate indifference under the ADA and RA is a “deliberate indifference to the strong likelihood of a [statutory] violation.” (Id. at 9.) Plaintiffs argue that Defendants knew of the discrimination at issue here, had authority to correct it, and failed to respond adequately. (Id.)
Third, Plaintiffs argue that they are likely to succeed on the merits of their Eighth Amendment claim. (Id. at 10-13.) More specifically, Plaintiffs argue that Defendants’ focus on the lack of cases to date in Adirondack is legally baseless because (a) Defendants have an Eighth Amendment duty to respond reasonably to the risk of harm, not just materialized harm, and (b) the Eighth Amendment focuses on Defendants’ conduct, not on whatever outcomes have so far taken place because of that conduct. (Id. at 10.) In addition, Plaintiffs argue that Defendants’ conduct to date falls well short of the Eighth Amendment’s requirements, which requires prison
7

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officials to respond “reasonably” to serious threats to health and safety. (Id. at 11-12.) Plaintiffs argue that (a) the reasonableness of the response depends on the particular risk of harm incarcerated people face—as a result, mitigating measures that are adequate in one prison, may amount to deliberate indifference in another, and (b) Defendants are not adequately isolating and quarantining people who have contracted COVID-19, limiting group gatherings, providing inmates continuous access to soap, or testing inmates before transferring them in or when they have had close contact with infected people. (Id. at 12-13.)
Fourth, Plaintiffs argue that the risk of a deadly outbreak is imminent and grave, warranting a finding of irreparable harm. (Id. at 13-14.) More specifically, Plaintiffs argue that the demonstrated spread of COVID-19 in other New York prisons establishes that the harm is not “speculative.” (Id.) In addition, Plaintiffs argue that other courts “have had no trouble finding that the risk of contracting COVID-19 in prison constitutes irreparable harm sufficient to warrant preliminary injunctive relief.” (Id. at 13-14.)
Fifth, Plaintiffs argue that the balance of the equities falls clearly in favor of granting the preliminary injunction. (Id. at 14.) More specifically, Plaintiffs argue that Defendants assert no reason why the requested relief would impose any hardship, burden, or cost on them or the public. (Id.) In addition, Plaintiffs argue that they, too, seek to further the interest of public health. (Id.)
C. Hearing on Plaintiffs’ Motion The Court held a video conferencing hearing on Plaintiffs’ motion on February 8, 2021, February 9, 2021, February 10, 2021, February 11, 2021, February 12, 2021, and February 16, 2021. (See generally Text Minute Entries, 2/8/2021, 2/9/2021, 2/10/2021, 2/11/2021, 2/12/2021, 2/16/2021.) At the hearing, Plaintiffs called the following witnesses: (1) Mark Fenig, (2)
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Bradford Applegate, (3) Jeffrey Shaman, (4) Francisco Salinas, (5) Ranfis Perez, (6) Allen Harper, and (7) Jeffrey Schwartz. (See generally Text Minute Entries, 2/8/2021, 2/9/2021, 2/10/2021, 2/11/2021.) Plaintiffs also presented exhibits 1-20, that were admitted into the record at the hearing. (See generally Text Minute Entry, 2/10/2021.) At the hearing, Defendants called the following witnesses: (1) Kelly Slaven, (2) Benjamin Malark, (3) Jeffrey Tedford, (4) Rhonda Marrone, and (5) Bonnie Perryman. (See generally Text Minute Entries, 2/11/2021, 2/16/2021.) In addition, Defendants presented exhibits 1-45 and 47-49, that were admitted into the record at the hearing. (See generally Text Minute Entry, 2/10/2021.) At the conclusion of the hearing, the Court provided the parties with an opportunity to supplement the record and submit additional arguments.2 II. GOVERNING LEGAL STANDARD
“‘The purpose of a preliminary injunction is . . . to preserve the relative positions of the parties.’” N. Am. Soccer League, LLC. v. U.S. Soccer Fed'n, Inc., 883 F.3d 32, 37-38 (2d Cir. 2018) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). “A preliminary injunction is an ‘extraordinary and drastic remedy’ . . . ; it is never awarded as of right. . . . ” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations omitted). Generally, in the

2

The Court notes that after considering (1) the testimony and exhibits presented at the

hearing, and (2) the declarations submitted by the parties with respect to Plaintiffs’ motion for a

preliminary injunction, the safety protocols in response to COVID-19 at Adirondack are, like

everywhere, evolving as the world learns more about COVID-19. The safety protocols at

Adirondack in June 2020, were not the same safety protocols in place at the time that the hearing

was conducted. For example, during the hearing, it was revealed that thirty-seven inmates at

Adirondack received their first round of the COVID-19 vaccination on February 8, 2021.

Yesterday, on February 28, 2020, the United States approved a third COVID-19 vaccine. As a

result, it would not be surprising to learn that additional safety protocols have been enacted since

the conclusion of the hearing. Despite the ever-changing landscape before the Court in this

matter, as set forth more fully, infra, after carefully considering the conditions at Adirondack as

testified to at the preliminary injunction hearing, I recommend denying Plaintiffs’ motion for a

preliminary injunction.

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Second Circuit, a party seeking a preliminary injunction must establish the following three elements: (1) that there is either (a) a likelihood of success on the merits and a balance of equities tipping in the party’s favor or (b) a sufficiently serious question as to the merits of the case to make it a fair ground for litigation and a balance of hardships tipping decidedly in the party’s favor; (2) that the party will likely experience irreparable harm if the preliminary injunction is not issued; and (3) that the public interest would not be disserved by the relief. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (reciting standard limited to first part of second above-stated element and using word “equities” without the word “decidedly”); accord, Glossip v. Gross, 576 U.S. 863 (2015); see also Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 825 (2d Cir. 2015) (reciting standard including second part of second above-stated element and using words “hardships” and “decidedly”); Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 38 (2d Cir. 2010) (holding that “our venerable standard for assessing a movant’s probability of success on the merits remains valid [after the Supreme Court's decision in Winter]”).
With regard to the first part of the first element, a “likelihood of success” requires a demonstration of a “better than fifty percent” probability of success. Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985), disapproved on other grounds, O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, n.2 (1987). “A balance of equities tipping in favor of the party requesting a preliminary injunction” means a balance of the hardships against the benefits. See, e.g., Ligon v. City of New York, 925 F. Supp.2d 478, 539 (S.D.N.Y. 2013) (characterizing the balancing “hardship imposed on one party” and “benefit to the other” as a “balanc[ing] [of] the equities”); Jones v. Nat'l Conference of Bar Examiners, 801 F. Supp. 2d 270, 291 (D. Vt. 2011) (considering the harm to plaintiff and any “countervailing benefit” to plaintiff in balancing the
10

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equities); Smithkline Beecham Consumer Healthcare, L.P. v. Watson Pharm., Inc., 99-CV-9214, 1999 WL 34981557, at *4-5 (S.D.N.Y. Sept. 13, 1999) (considering the harm to defendant and the “benefit” to consumers in balancing the equities); Arthur v. Assoc. Musicians of Greater New York, 278 F. Supp. 400, 404 (S.D.N.Y. 1968) (characterizing “balancing the equities” as “requiring plaintiffs to show that the benefit to them if an injunction issues will outweigh the harm to other parties”); Rosenstiel v. Rosenstiel, 278 F. Supp. 794, 801-02 (S.D.N.Y. 1967) (explaining that, in order to “balance the equities,” the court “will consider the hardship to the plaintiff . . ., the benefit to [the] plaintiff . . ., and the relative hardship to which a defendant will be subjected”) (internal quotation marks omitted).3
With regard to the second part of the first element, “[a] sufficiently serious question as to the merits of the case to make it a fair ground for litigation” means a question that is so “substantial, difficult and doubtful” as to require “a more deliberate investigation.” Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953); accord, Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205-06 (2d Cir. 1970).4 “A balance of hardships tipping decidedly toward the party requesting a preliminary injunction” means that, as compared to the hardship suffered by other party if the preliminary injunction is granted, the hardship suffered by the moving party if the preliminary injunction is denied will be so much greater that it may be characterized as a “real hardship,” such as being “driven out of business . . . before a trial could

3

See also Abbot Labs. v. Mead Johnson & Co., 971 F.2d 6, 12, n.2 (7th Cir. 1992)

(“Weighing the equities as a whole favors X, making preliminary relief appropriate, even though

the undiscounted balance of harm favors Y.”) (emphasis added).

4

See also Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir.

1997); Rep. of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988); City of Chanute

v. Kansas Gas and Elec. Co., 754 F.2d 310, 314 (10th Cir. 1985); R.R. Yardmasters of Am. v.

Penn. R.R. Co., 224 F.2d 226, 229 (3d Cir. 1955).

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be held.” Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 58 (2d Cir. 1979); Int'l Bus. Mach. v. Johnson, 629 F. Supp.2d 321, 333-34 (S.D.N.Y. 2009); see also Semmes Motors, Inc., 429 F.2d at 1205 (concluding that the balance of hardships tipped decidedly in favor of the movant where it had demonstrated that, without an injunctive order, it would have been forced out of business as a Ford distributor).5
With regard to the second element, “irreparable harm” is “certain and imminent harm for which a monetary award does not adequately compensate.” Wisdom Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 113 (2d Cir. 2003). Irreparable harm exists “where, but for the grant of equitable relief, there is a substantial chance that upon final resolution of the action the parties cannot be returned to the positions they previously occupied.” Brenntag Int'l Chem., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir. 1999).
With regard to the third element, the “public interest” is defined as “[t]he general welfare of the public that warrants recognition and protection,” and/or “[s]omething in which the public as a whole has a stake[,] esp[ecially], an interest that justifies governmental regulation.” Public Interest, Black's Law Dictionary (9th ed. 2009).

5

The Court notes that, under the Second Circuit's formulation of this standard, the

requirement of a balance of hardships tipping decidedly in the movant's favor is added only to

the second part of the first element (i.e., the existence of a sufficiently serious question as to the

merits of the case to make it a fair ground for litigation), and not also to the first part of the first

element (i.e., the existence of a likelihood of success on the merits), which (again) requires

merely a balance of equities (i.e., hardships and benefits) tipping in the movant's favor. See

Citigroup Global Markets, Inc., 598 F.3d at 36 (“Because the moving party must not only show

that there are ‘serious questions’ going to the merits, but must additionally establish that ‘the

balance of hardships tips decidedly’ in its favor . . ., its overall burden is no lighter than the one it

bears under the ‘likelihood of success’ standard.”) (internal citation omitted); cf. Golden Krust

Patties, Inc. v. Bullock, 957 F. Supp.2d 186, 192 (E.D.N.Y. 2013) (“[T]he Winter standard . . .

requires the balance of equities to tip in the movant's favor, though not necessarily ‘decidedly’

so, even where the movant is found likely to succeed on the merits.”).

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The Second Circuit recognizes three limited exceptions to the above-stated general standard. Citigroup Global Markets, Inc., 598 F.3d at 35, n.4.
First, where the moving party seeks to stay government action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous “serious questions” standard but should grant the injunction only if the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim. Id. (citing Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995)); see also Otoe-Missouria Tribe of Indians v. New York State Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014) (“A plaintiff cannot rely on the ‘fair-ground-for-litigation’ alternative to challenge governmental action taken in the public interest pursuant to a statutory or regulatory scheme.”) (internal quotation marks omitted). This is because “governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.” Able, 44 F.3d at 131.
Second, a heightened standard–requiring both a “clear or substantial” likelihood of success and a “strong” showing of irreparable harm”–is required when the requested injunction (1) would provide the movant with all the relief that is sought and (2) could not be undone by a judgment favorable to non-movant on the merits at trial. Citigroup Global Markets, Inc., 598 F.3d at 35, n.4 (citing Mastrovincenzo v. City of New York, 435 F.3d 78, 90 (2d Cir. 2006)); New York v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (“When either condition is met, the movant must show [both] a ‘clear’ or ‘substantial’ likelihood of success on the merits . . . and make a ‘strong showing” of irreparable harm’ . . . .”) (emphasis added).
Third, the above-described heightened standard may also be required when the preliminary injunction is “mandatory” in that it would “alter the status quo by commanding some
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positive act,” as opposed to being “prohibitory” by seeking only to maintain the status quo. Citigroup Global Markets, Inc., 598 F.3d at 35, n.4 (citing Tom Doherty Assocs. v. Saban Entm't, 60 F.3d 27, 34 (2d Cir. 1995)).6
Here, Plaintiffs seek a mandatory preliminary injunction, and thus, are subject to the heightened standard. III. ANALYSIS
A. Likelihood of Success on the Merits After carefully considering the matter, I find that Plaintiffs have not met their burden of establishing a “clear or substantial” likelihood of success on the merits.
1. Plaintiffs’ Eighth Amendment Claims 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)).

6

Alternatively, in such a circumstance, the “clear or substantial likelihood of success”

requirement may be dispensed with if the movant shows that “extreme or very serious damage

will result from a denial of preliminary relief.” Citigroup Global Markets, Inc., 598 F.3d at 35,

n.4 (citing Tom Doherty Assocs. v. Saban Entm't, 60 F.3d 27, 34 [2d Cir. 1995]).

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On the record before me at the preliminary injunction stage, I find that Plaintiffs have not demonstrated a clear likelihood of success on their claim that Defendants’ response to COVID19 reflects deliberate indifference to a substantial risk of serious harm.7
a. Objective Element Plaintiffs have not shown a clear likelihood of success in demonstrating that they face “a substantial risk of serious harm” based on the conditions at Adirondack, Lewis v. Siwicki, 944 F.3d 427, 430-31 (2d Cir. 2019) (quoting Farmer, 511 U.S. at 834), given the measures that prison officials have instituted to address COVID-19 and the low COVID-19 positivity rate that those measures have attained at Adirondack. There is no “bright line test” to determine if a risk of serious harm is “substantial” for Eighth Amendment purposes. Lewis, 944 F.3d at 432. Rather, a court must “assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original); see Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017) (citing Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)) (“There is no ‘static

7

“The question here is not whether [D]efendant[s] can or should do more, or whether court

would adopt different policies if it were in charge of the Jails.” Criswell v. Boudreaux, 20-CV-

1048, 2020 WL 7646405, at *18 (E.D. Cal. Dec. 23, 2020). As one court has recently explained

when considering a motion for a preliminary injunction brought by prisoners alleging deliberate

indifference claims based on the prison’s response to COVID-19:

No one questions the magnitude of the challenge that COVID-19 presents in a prison setting, and if the Court were in the Governor’s or Secretary’s position, it may adopt additional or different measures. But the question before the Court is not what it thinks is the best possible solution. Rather, the question is whether Defendants’ actions to date are reasonable.

Plata v. Newsom, 445 F. Supp. 3d 557, 568 (2020).

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test’ to determine whether a deprivation is sufficiently serious; instead, ‘the conditions themselves must be evaluated in light of contemporary standards of decency.’”); Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (citing Helling, 509 U.S. at 35-36; Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (“Ultimately, to establish the objective element of an Eighth Amendment claim, a prisoner must prove that the conditions of his confinement violate contemporary standards of decency.”). “In other words,” the Supreme Court has written, “the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Helling, 509 U.S. at 36.
The Supreme Court has made clear that whether a particular danger poses a substantial risk of serious harm in a prison must be evaluated in light of the steps that the facility has already taken to mitigate the danger. Id. at 35-36. For instance, when addressing a prisoner’s Eighth Amendment challenge to environmental tobacco smoke exposure in Helling, the Court held that a lower court must consider the prison’s new “formal smoking policy” and the recent changes to the prisoner’s confinement circumstances in assessing whether conditions at the prison presented a substantial risk to the plaintiff’s health. Id. at 36. The Court described it as “[p]lainly relevant” to “the objective factor” that the plaintiff had been moved to a new prison and was “no longer the cellmate of a five-pack-a-day smoker.” Id. at 35. The Court also stated that “[i]t is possible that the new [formal smoking] policy will be administered in a way that will minimize the risk to [the plaintiff] and make it impossible for him to prove that he will be exposed to unreasonable risk with respect to his future health or that he is now entitled to an injunction.” Id. at 36. Thus, determining whether prison conditions pose a substantial risk of serious harm from COVID-19, or any other risk, must be determined “after accounting for the protective measures [the prison system] has taken.” Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020).
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Under these principles, there is no question that an inmate can face a substantial risk of serious harm in prison from COVID-19 if a prison does not take adequate measures to counter the spread of the virus. “Courts have long recognized that conditions posing an elevated chance of exposure to an infectious disease can pose a substantial risk of serious harm.” Chunn v. Edge, 465 F. Supp. 3d 168, 200 (E.D.N.Y. 2020). Thus, the Supreme Court has rejected the proposition that prison officials are permitted to “be deliberately indifferent to the exposure of inmates to a serious, communicable disease.” Helling, 509 U.S. at 33. Moreover, the Second Circuit has explained that “correctional officials have an affirmative obligation to protect inmates from infectious disease.” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996); see Phelps, 308 F.3d at 185 (noting that the Eighth Amendment reaches conditions that present an “unreasonable risk of serious damage to [prisoners’] future health”).
As noted above, however, the relevant inquiry is whether Plaintiffs have shown a substantial risk of serious harm from COVID-19 at Adirondack in light of the countermeasures that the facility has in place to mitigate the risk of harm. The preliminary injunction record leaves substantial reason to doubt Plaintiffs will ultimately succeed in making that showing. Adirondack’s response to COVID-19 has been aggressive and has included, inter alia, (1) measures to enforce social distancing in the dining hall (Dkt. No. 37, Attach. 1 at 1) 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 (id. at 25-26), (3) random testing for COVID-19 among inmates (which amounts to testing ten percent of the inmate population per week) (Dkt. No. 19, Attach. 1 at 5; Dkt. No. 19, Attach. 3 at 1), (4) additional cleaning supplies provided to each housing unit, (5) a computer tablet program that permits inmates to download movies and music
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for recreation in their single occupancy cells, (6) doors on most cells (Dkt. No. 37, Attach. 1 at 7), (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 (id. at 78), (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 (id. at 34) including at least one negative pressure isolation room.
In addition, the data—though limited—suggests that these measures have been quite effective in containing COVID-19 thus far. Not a single Adirondack inmate has died from or been hospitalized as a result of COVID-19, even though Adirondack’s population has a relatively high rate of comorbidities. (Dkt. No. 19, Attach. 1 at 7-8; Dkt. No. 19, Attach. 4 at 2); see Malcom v. Starr, 20-CV-2503, 2021 WL 190870, at *9 (D. Minn. Jan. 15, 2021) (“The limitation of a highly infectious illness to a single active case in a prison setting cannot in any reasonable way be viewed as a ‘deliberate indifference’ to Petitioners’ serious medical need.”); Criswell v. Boudreaux, 20-CV-1048, 2020 WL 7646405, at *20 (E.D. Cal. Dec. 23, 2020) (holding that “the test results from the October 2020 testing of 135 inmates, which yielded only one positive test, to
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be at least somewhat persuasive. While the court understands plaintiffs’ concerns that this testing event is not a representative sample and only provides a snapshot at that particular time, it stands to reason that the policies employed by defendant must have been effective at least to some extent for there to be a nearly zero positivity rate for those 135 inmates tested at that time.”).
A plaintiff can certainly raise a claim under the Eighth Amendment based on risks that have not manifested themselves in any adverse health outcome. See Helling, 509 U.S. at 33. However, given that COVID-19 can lead to adverse health consequences quickly, and that Adirondack has seen no deaths or hospitalization so far, it is hard to conclude that inmates are at an elevated risk of contracting COVID-19 inside Adirondack relative to the risk they would face in the surrounding community. That raises serious questions about whether Plaintiffs can satisfy the objective prong of the Eighth Amendment test. It is hard to say that prisoners are exposed to a risk that “is not one that today’s society chooses to tolerate,” or a risk “so grave that it violates contemporary standards of decency,” id. at 36, if the risk inside the facility is no greater than— and perhaps less than—the risk outside of it.
A comparison to cases in which district courts have found a substantial risk of serious harm for Eighth Amendment purposes illustrates the point. The courts in those cases have commonly relied on evidence of elevated COVID-19 risks compared to the outside community. In Mays v. Dart, for example, the court relied on statistical evidence that the jail “currently has the highest rate of new coronavirus infections in the country,” and it determined that the plaintiffs had “demonstrated that certain of the conditions created by the intentional actions of the Sheriff enable the spread of coronavirus and significantly heighten detainees’ risk of contracting the virus.” Mays v. Dart, 453 F. Supp. 3d 1074, 1092 (N.D. Ill. 2020). In Banks v.
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Booth, the court found that the plaintiffs were likely to prevail only after concluding that the defendants’ argument “that Plaintiffs’ risk of infection is the same as that of the outside community” was undercut by undisputed data showing that “the infection rate in [Department of Corrections] facilities was over seven times the infection rate of the District of Columbia at large.” Banks v. Booth, 20-CV-0849, 2020 WL 1914896, at *6 (D.D.C. Apr. 19, 2020). In Martinez-Brooks v. Easter, the court relied on the fact that it was “undisputed that there is an active and serious outbreak of COVID-19” at the facility in question, Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 439 (D. Conn. 2020), which the Attorney General had identified “as one of three experiencing significant outbreaks” across the entire Bureau of Prisons (“BOP”) system of more than 100 facilities, 459 F. Supp. 3d at 426. In Alcantara, the court found that in light of the COVID-19 outbreak at the detention facility, the immigration detainees’ continued confinement amounted to punishment that was “excessive in relation to its purpose.” Alcantara v. Archambeault, 20-CV-0756, 2020 WL 2315777, at *8-9 (S.D. Cal. May 1, 2020).
This case is quite different, at least at this stage of the litigation, because Plaintiffs have not made a comparable showing that those within the facility face a higher risk of infection than those outside of it. Under those circumstances and on this preliminary injunction record, I conclude that Plaintiffs have not demonstrated a clear likelihood of success in establishing that they face a risk so grave that it violates contemporary standards of decency, given Adirondack’s existing precautions.
b. Subjective Element Plaintiffs have also not shown a clear likelihood that they will succeed in establishing the subjective component of an Eighth Amendment violation—that Adirondack officials have exhibited “‘deliberate indifference’ to inmate health or safety,” Farmer, 511 U.S. at 834 (quoting
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Wilson, 501 U.S. at 302-03), in their response to COVID-19. The Eighth Amendment prohibits

only cruel and unusual “punishments,” as a result, a prisoner who seeks to establish an Eighth

Amendment violation based on conditions of confinement must demonstrate that officials’

conduct reflects “the deliberate infliction of punishment,” and not just “an ordinary lack of due

care for prisoner interests or safety.” Francis v. Fiacco, 942 F.3d 126, 150 (2d Cir. 2019); see

Farmer, 511 U.S. at 834-35 (“Deliberate indifference describes a state of mind more

blameworthy than negligence.”). While officials need not engage in “acts or omissions for the

very purpose of causing harm or with knowledge that harm will result,” they must at least

“know[ ] of and disregard[ ] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at

835, 837. In other words, they must act with a mens rea “consistent with recklessness in the

criminal law.” Id. at 837. Under this standard, “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 that inference.” Id. at 835; see, e.g., Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.

2006) (“This mental state requires that the charged official act or fail to act while actually aware

of a substantial risk that serious inmate harm will result.”). “[A]n official’s failure to alleviate a

significant risk that he should have perceived but did not, while no cause for commendation,

cannot . . . be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838. “Whether

a prison official had the requisite knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from circumstantial evidence.” Id. at 842.

i.

Adirondack’s Aggressive Actions to Combat COVID-19

Belie Claims of Deliberate Indifference

Under these principles, even if I determined that Plaintiffs had made the required

objective showing of substantial risk from COVID-19 under current conditions at Adirondack, I

would nevertheless conclude that Plaintiffs had not demonstrated a clear likelihood that

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Defendants or Adirondack officials have displayed “deliberate indifference” to the risks of COVID-19 at the facility. As set forth above in Part III.A.1.a. of this Order and ReportRecommendation, the evidence shows that Adirondack officials have been acting urgently to prevent COVID-19 from spreading and from causing harm. These and other measures indicate that prison officials are “trying, very hard, to protect inmates against the virus and to treat those who have contracted it,” and belie any suggestion that prison officials “have turned the kind of blind eye and deaf ear to a known problem that would indicate” deliberate indifference. Money v. Pritzker, 453 F. Supp. 3d 1103, 1132 (N.D. Ill. Apr. 10, 2020); see Swain v. Junior, 958 F.3d 1081, 1090 (11th Cir. 2020) (“Accepting, as the district court did, that the defendants adopted extensive safety measures such as increasing screening, providing protective equipment, adopting social distancing when possible, quarantining symptomatic inmates, and enhancing cleaning procedures, the defendants’ actions likely do not amount to deliberate indifference.”); Brown v. Wetzel, 20-CV-0512, 2020 WL 8413496, at *1 (W.D. Pa. Dec. 18, 2020) (denying the plaintiff’s second motion for a preliminary injunction for substantially the same reasons as plaintiff’s first motion for a preliminary injunction was denied, holding that “the record reflects that officials [at the prison] have implemented policies to mitigate the risk of exposure [to COVID-19]. Those policies, including requiring the use of masks, limiting inmates’ movements to promote social distancing, screening incoming visitors and staff; quarantining inmates that test positive for COVID-19; and providing inmates with antibacterial soap, which they are encouraged to use, appear to be consistent with Centers for Disease Control and Prevention (“CDC”) guidance for limiting the spread of the virus. Given these precautions, Plaintiff does not show that the specific relief he requests . . . [is] necessary to avoid irreparable harm.”); United States v. Credidio, 19-CR-0111, 2020 WL 1644010, at *2 (S.D.N.Y. Apr. 2, 2020) (“[T]he Court
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cannot find that the BOP has been deliberately indifferent to [the inmate’s] needs, in light of the numerous and significant plans and protocols recently implemented by the BOP to protect prisoners.”).
Plaintiffs argue for a contrary result because, in their view, Defendants “have not taken meaningful efforts to prevent COVID-19 from entering the facility and have not enacted adequate protocols to either identify its presence in the facility or stop it from spreading should it enter.” (Dkt. No. 29 at 12.) However, Defendants’ policies are evolving as new information regarding COVID-19 becomes available. In addition, Adirondack has implemented and adopted policies intended to address the COVID-19 pandemic. (Dkt. No. 37, Attach. 1 at 72-94.) While there is evidence that some inmates were transported to Adirondack without proper COVID-19 precautions (i.e. without wearing masks throughout the duration of the trip, without proper distancing between individuals in the transport vehicle, and without testing and isolation before and after the transport), the record does not suggest that any such instances reflected deliberate indifference, rather than negligent errors in implementing a new policy under emergency conditions. In fact, the CDC’s guidance on the proper procedure for transporting inmates was amended on July 14, 2020,8 which was after Bradford Applegate, Francisco Salinas, and Plaintiff Perez testified that they were transported to Adirondack. See Malcolm, 2021 WL 190870, at *9 (“Although Petitioners seem to be arguing that the Eighth Amendment requires Respondents to maintain perfect compliance with those policies, perfection is not constitutionally required.”); Swain, 958 F.3d at 1089 (“[L]apses in enforcement” of social-distancing policies during COVID-

8

See Centers for Disease Control and Prevention, Interim Guidance on Management of

Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,

https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-

correctional-detention.html (last visited March 1, 2021).

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19 “do little to establish that the defendants were deliberately indifferent,” absent evidence that prison officials were “ignoring or approving the alleged lapses.”); cf. Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (concluding that although “deprivation of toiletries, and especially toilet paper, can rise to the level of unconstitutional conditions of confinement,” the plaintiff failed to establish deliberate indifference when “[i]t appear[ed] . . . that the defendants were negligent in replenishing [the plaintiff's] supply”); Rangolan v. Cnty. of Nassau, 217 F.3d 77, 79 (2d Cir. 2000) (finding no deliberate indifference when “the County took steps to protect” a vulnerable inmate “but mistakenly failed to implement them”). The sweeping measures that Defendants and Adirondack officials have adopted—which the record reflects meaningful efforts—counsel strongly against a finding that Defendants are being deliberately indifferent to risks associated with COVID-19.
ii. Plaintiffs Have Not Shown Defendants’ Failure to Fully Implement Several CDC Recommendations Reflects a Mens Rea More Culpable Than Negligence
Plaintiffs contend that Adirondack officials have displayed deliberate indifference to the risks of the virus because they have not fully implemented several measures that the CDC recommends. Plaintiffs have adduced evidence that Adirondack officials have fallen short of the CDC’s guidance in several respects: (1) inmates were transferred to Adirondack from other prisons without being tested before transfer, without quarantine on arrival, and it was not possible to maintain six feet of distance between inmates during the transfer to Adirondack, (2) inmates who were in close contact of someone with confirmed or suspected COVID-19 were not placed in quarantine for fourteen days, and (3) inadequate social distancing occurs in the bathrooms and day rooms at Adirondack.
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Under standards of care that both parties have accepted, Adirondack officials’ apparent failure to fully implement the CDC guidance in these areas constitutes a deficiency in Adirondack’s response to COVID-19. Defendants have not disputed that the CDC protocols should guide their response to COVID-19. In fact, Defendants’ witnesses embraced the CDC standards. To the extent that these areas remain deficient, they warrant prison officials’ attention.
To establish an Eighth Amendment violation, however, Plaintiffs must show not only that prison officials have committed errors but also that prison officials made those errors with a mental state equivalent to criminal recklessness, “know[ing] of and disregard[ing] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Here, the surrounding circumstances suggest that it is far more likely that Defendants have made negligent errors in implementing complex guidelines during a novel crisis than that they have knowingly disregarded an excessive risk of serious harm. Adirondack’s swift and extensive countermeasures are evidence that Defendants are taking the threat of COVID-19 seriously, amid “shifting parameters and guidance regarding how to combat a previously little known virus,” Money, 453 F. Supp. 3d at 1131, rather than consciously turning a blind eye to any known danger. In fact, the changing nature of Defendants’ countermeasures and procedures as additional information about COVID-19 becomes available is evidence that Defendants are not acting with a mental state equivalent to criminal recklessness. See Malcolm, 2021 WL 190870, at *8 (finding that prison officials increased the amount of PPE and cleaning supplies available to inmates, which reflects an evolving response to COVID-19 and does not support a finding of deliberate indifference); Brown, 2020 WL 8413496, at *4 (finding that since the denial of the plaintiff’s first motion for a preliminary injunction, “additional protocols have been implemented, including the use of
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enhanced PPE on [p]laintiff’s unit. Given these precautions, [p]laintiff has not shown that the specific measures he requests . . . are necessary to avoid irreparable harm.”).
Moreover, the principal CDC guidance that Defendants appear to have fallen short to date—transfer of inmates among DOCCS facilities and the use of quarantine—requires complex implementation. The guidance pertaining to transferring inmates among facilities, calls for a limit of transfers, but that if a transfer is necessary, DOCCS should perform a verbal screening and temperature check before leaving the facility and ensuring that the receiving facility has the capacity to quarantine or isolate the individual upon arrival. (Dkt. No. 37, Attach. 1 at 51.)
Plaintiffs’ incarcerated witnesses testified regarding varying degrees of compliance with respect to this guidance. For example, Francisco Salinas testified that his temperature was taken, and he was asked COVID-19 screening questions before leaving Fishkill Correctional Facility (“Fishkill”). Plaintiff Harper testified that his temperature was taken before leaving Woodbourne Correctional Facility (“Woodbourne”). Each of Plaintiffs’ incarcerated witnesses testified that during their transfer to Adirondack, inmates were spaced one inmate per bench despite the room available for two or three inmates on the bench. This evidence reflects an effort by Defendants and Adirondack officials, albeit not perfectly, to reasonably socially distance the inmates.
In addition, the parties acknowledge that Adirondack is a DOCCS facility that has over one hundred and seventy-five beds but is “currently far under that capacity” with less than one hundred inmates. (Dkt. No. 8, Attach. 18 at 6; Dkt. No. 19, Attach. 4 at 2.) Adirondack was “repurposed” in the spring of 2020, “as a medium security adult prison” that houses only male inmates who are “at least sixty years old and . . . have serious pre-existing medical conditions.” (Dkt. No. 8, Attach. 18 at 6.) These inmates were transferred to Adirondack “specifically . . . to
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minimize contact and potential to get COVID-19.” (Dkt. No. 19, Attach. 4 at 2.) Inmates at Adirondack, unlike some other DOCCS facilities, “have their own separate rooms and do NOT bunk together.” (Id. at 3.) Thus, the transfer of Plaintiffs to Adirondack, while not in perfect compliance with the CDC guidance, was conducted for the purpose of providing additional protection to Plaintiffs in light of the COVID-19 pandemic.9
The guidance also calls for quarantining an asymptomatic individual who has had close contact of someone with COVID-19 and monitoring that individual for symptoms at least once per day for fourteen days. (Dkt. No. 37, Attach. 1 at 53.) Plaintiffs presented evidence at the preliminary injunction hearing that Defendants did not comply with this guideline after inmate Bradford Applegate tested positive for COVID-19 in early October 2020. However, Plaintiffs also presented evidence that Defendants complied with this guidance after an Adirondack staff member tested positive in the later part of December 2020. Shortfalls in the immediate implementation of guidelines this complex and resource-intensive do not suggest knowing disregard of a substantial risk of harm, rather than negligent error. See Criswell, 2020 WL 7646405, at * 20 (holding that instances where the defendant’s intake and observation policies were not followed, “whether they be due to mistake or carelessness, do not rise to the level of reckless disregard.”).
Finally, any inference that Defendants or Adirondack officials have been knowingly disregarding an excessive risk in their implementation of CDC guidance is undercut by the data about the effectiveness of Adirondack’s countermeasures thus far. As noted above, Adirondack has had no COVID-19-connected fatalities or COVID-19-linked hospitalization. (Dkt. No. 19,

9

The Court also notes that no inmates have been transferred to Adirondack since August

2020. (Dkt. No. 8, Attach. 18 at 9; Dkt. No. 19, Attach. 4 at 2.)

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Attach. 4 at 1, 3.) Plaintiffs offer little reason to conclude that prison officials have drawn the inference that inmates currently face a substantial risk of serious harm inside Adirondack, in the face of data suggesting that the rate of deaths and hospitalizations may be lower inside the facility than outside of it. See Farmer, 511 U.S. at 837 (deliberate indifference requires that a prison official have drawn the inference that a substantial risk of serious harm exists).
iii. Plaintiffs Have Not Established Deliberate Indifference Based on the Failure to Implement Additional Measures Not Called for Under CDC Guidelines
Plaintiffs also contend that Defendants and Adirondack officials are being deliberately indifferent because they have failed to adopt several steps recommended by Plaintiffs’ experts, but not called for by the CDC’s guidance. Plaintffs fall far short of establishing deliberate indifference on those grounds. With respect to at least one of the measures that Plaintiffs seek— testing of all inmates preferably every two weeks but no less than once a month (Dkt. No. 8, Attach. 15 at 11)—Plaintiffs have failed to demonstrate that such an approach was practicable in the initial months of the pandemic, given shortages in supplies. See Hernandez v. Keane, 341 F.3d 137, 146 (2d Cir. 2003) (finding no deliberate indifference from delays in treatment when they were mostly “caused by factors outside defendants’ control”); Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974) (indicating that deliberate indifference will not be found if treatment requested was “impossible under the circumstances” or not “practicable”). Since December 21, 2020, Defendants have randomly tested ten inmates per week from different housing units, for COVID-19. (Dkt. No. 19, Attach. 1 at 5.) This random testing policy was “made in consultation” with the New York State Department of Health. (Id.)
Petitioners also take aim at Adirondack’s failure to take additional steps that go beyond CDC guidelines, such as (1) inmates who are being transferred have been tested and quarantined
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pending results and have been determined to be negative for COVID-19 prior to transfer (Dkt. No. 8 at 2) (this recommendation was added to the CDC guidelines based on a revision dated July 14, 2020),10 (2) staff who are conducting transfers have been tested and quarantined pending results and have been determined to be negative for COVID-19 prior to conducting transfers (Dkt. No. 8 at 2), (3) inmates are transferred only from one facility at a time and are not exposed to inmates from other facilities during the transport (id.), (4) post-transfer testing (Dkt. No. 8, Attach. 1 at 28), and (5) “regular” facility-wide testing (id.).
As discussed above, the CDC guidelines have not called for those practices, and Plaintiffs have not demonstrated that Defendants’ failure to adopt those specific approaches falls below any standard of care. I cannot conclude on this record that Defendants’ or Adirondack officials’ failure to adopt those measures exposes inmates to a substantial risk of serious harm or that any Defendants or Adirondack officials have drawn the inference that their failure to take such measures creates any such risk. Cf. Valentine, 956 F.3d at 802 (finding that plaintiffs were unlikely to establish deliberate indifference when the evidence showed that prison officials were taking measures “informed by guidance from the CDC and medical professionals”).
2. Plaintiffs’ ADA and RA Claims On the record before me at the preliminary injunction stage, I find that Plaintiffs have not demonstrated a clear likelihood of success on their ADA and RA claims. 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). The statute
10 See Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (last visited March 1, 2021).
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provides that “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.” Harris, 572 F.3d at 73. (citing 42 U.S.C. § 12132).11
Similarly, 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 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). Moreover, where, as here, the subtle distinctions between the statutes are not implicated, courts “‘treat claims under the two statutes identically.’” Wright, 831 F.3d at 72 (quoting Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)).
“In order to establish a prima facie violation under these acts, [an inmate] 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., 331 F.3d at 272). It is well-settled that “neither Title II of the ADA nor § 504 of
11 A state prison is a “public entity” for purposes of the ADA. See Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (“State prisons fall squarely within the statutory definition of ‘public entity,’ which includes ‘any department, agency, special purpose district, or other instrumentality of a State or States or local government.’”); Wright, 831 F.3d at 72 (“Both the ADA and the RA undoubtedly apply to state prisons and their prisoners.”); Allah v. Goord, 405 F. Supp. 2d 265, 279 (S.D.N.Y. 2005) (“Courts within this Circuit have consistently held that prisons fall within the ADA and the [RA] definition of the term ‘public entity.’”).
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the Rehabilitation Act provides for individual capacity suits against state officials.” Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001).
Defendants appear to concede, for purposes of Plaintiffs’ motion for a preliminary injunction, elements one and two. (Dkt. No. 19 at 18-19.) However, Defendants dispute that Plaintiffs have established a likelihood of success with respect to element three.
There are “three available theories” of discrimination that can be used to establish the third prong of an ADA and RA claim: “(1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009).
Plaintiffs allege the first and third bases for their ADA and RA claims, that: (1) Defendants have failed to provide them with reasonable modifications that would allow them to access programs and services at Adirondack safely, and (2) Defendants intentionally discriminated against them. (Dkt. No. 8, Attach. 1 at 23.)
a. Failure to Provide Reasonable Modifications With respect to Plaintiffs’ failure to provide reasonable modifications claim, I find that Defendants have taken reasonable measures to “prevent the unnecessary spread of COVID-19 within Adirondack.” See Wright v. New York State Dep’t of Corr., 831 F.3d 64, 73 (2d Cir. 2016) (internal quotation marks omitted) (quoting Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 189 (2d Cir. 2015)) (“[A] reasonable accommodation need not be perfect or the one most strongly preferred by the plaintiff, but it still must be effective.”). 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 (Dkt. No. 37, Attach. 1 at 25-26), (3) cloth and
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disposable masks, (4) random COVID-19 testing of asymptomatic inmates, (5) policies that ensure adequate social distancing in the dining hall (id. at 1), (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. (id. at 40-41), (8) cleaning 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 materials, access to a gym, basketball, ping-pong, and going to the yard. See Norfleet v. Gaetz, 820 F. App’x 464, 469-70 (7th Cir. 2020) (finding that the inmate plaintiff failed to “introduce[] sufficient evidence to call into question whether” a sports wheelchair was a necessary and reasonable accommodation).
Although Plaintiffs introduced evidence at the preliminary injunction hearing that, at various times, social distancing in the day rooms to watch television or bathrooms to shave, was difficult, if not impossible, there was also evidence that social distancing in other facilities, where not all inmates are disabled as defined by the ADA and RA, was similarly difficult, if not impossible. See Malcolm v. Starr, 2021 WL 190870, at *9, n.6 (D. Minn. Jan. 15, 2021) (recommending that the plaintiffs’ motion for a temporary restraining order be denied where, with respect to their RA claims, the plaintiffs alleged that they were subject to the same circumstances as all other inmates, some of whom were non-disabled inmates). For example, Francisco Salinas testified that before being transferred to Adirondack, he was incarcerated at Fishkill, where he was housed in a dorm-style living arrangement, where each inmate had their own cube to sleep in, but were not socially distanced from one another. In addition, Plaintiff Harper testified that before being transferred to Adirondack, he was incarcerated at Woodbourne, where he was also housed in a cube separated by dividers with fifty-seven other inmates.
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Moreover, Plaintiffs presented testimony at the preliminary injunction hearing that other inmates, who were not necessarily disabled as defined by the RA and ADA, were transferred among DOCCS facilities subject to the same circumstances that Plaintiffs and other Adirondack inmates experienced. For example, Plaintiff Harper testified that during his transfer from Woodbourne to Adirondack, the transport vehicle that he was in stopped at Washington Correctional Facility and Clinton Correctional Facility, where other inmates were unloaded.
In addition, the Court notes that there was testimony at the preliminary injunction hearing that other DOCCS facilities do not have day rooms in each housing unit. For example, Eastern Correctional Facility only has a television available for inmates on the yard. Thus, Plaintiffs have not established that they have been unable to access programs, services, and activities that other inmates routinely access. See Wright v. New York State Dep’t of Corr., 831 F.3d 64, 73 (2d Cir. 2016) (remanding on a motion for summary judgment where the plaintiff “testified that while at the Marcy and Franklin facilities he has been unable to access programs, services, and activities that other inmates routinely access.”).
As a result, I find that Plaintiffs have not demonstrated a clear likelihood of success on their claim that Defendants failed to provide reasonable modifications to them. See Kearney v. Adams, 15-CV-824, 2018 WL 3121618, at *9-10 (N.D.N.Y. Feb. 8, 2018) (Hummel, M.J.) (recommending that the plaintiff's ADA claim be dismissed at summary judgment stage where the plaintiff “fail[ed] to identify any programs or services that he was excluded from because of DOCCS’” failure to provide him with bilateral knee braces and crutches, where the denial of those accommodations was based on a doctor’s medical determination that they were not medically necessary, and where DOCCS provided the plaintiff with reasonable accommodations such as a walker), report and recommendation adopted 2018 WL 1470579, (N.D.N.Y. Mar. 26,
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2018) (Sharpe, J.); Hall v. N.Y. State Dep't of Corr. & Cmty. Supervision, 12-CV-0377, 2015 WL 901010, at *3-6 (N.D.N.Y. Mar. 3, 2015) (Suddaby, J.) (dismissing ADA and RA claims alleging disparate treatment and failure to reasonably accommodate the plaintiff's mental illness, where the plaintiff's denial of access to programs and services was based largely on his conviction of disciplinary offenses, the complaint failed to allege that “non-mentally-ill inmates convicted of a disciplinary offense and serving a sentence in SHU” received access to those programs); Roberts v. City of New York, 14-CV-5198, 2016 WL 4146135, at *9 (S.D.N.Y. Aug. 2, 2016) (dismissing ADA and RA claims where the plaintiff failed to allege that he “was excluded from participation in any program or activity, or otherwise treated differently, because of” his diabetes); Rosado v. Herard, 12-CV-8943, 2014 WL 1303513, at *4-6 (S.D.N.Y. Mar. 25, 2014) (dismissing ADA and RA claims where the plaintiff’s allegations suggested that he was denied access to therapeutic group sessions because of his ethnicity, not because of his mental illness).
b. Intentional Discrimination With respect to Plaintiffs’ intentional discrimination claim, I find that Defendants have not acted with deliberate indifference. As Plaintiffs set forth in their reply, the definition of deliberate indifference with respect to ADA and RA claims differs from the definition of deliberate indifference with respect to Eighth Amendment claims. (Dkt. No. 29 at 8-9.) However, even under this “less onerous” standard, I find that Plaintiffs failed to establish a clear likelihood of success on the merits. “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.
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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 standard for deliberate indifference is set out in Loeffler,” which 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). “Loeffler explained that such indifference must reflect a ‘deliberate choice among various alternatives’ and may not be inferred from mere ‘negligence of bureaucratic inaction.’” Id. at 73-74 (citing Loeffler, 582 F.3d at 276).
As set forth more fully above, I find that Defendants have provided reasonable modifications to allow Plaintiffs to safely access Adirondack’s programs and services. While Defendants acknowledge that Adirondack “has been functioning as a facility for older inmates, who in general are more susceptible to serious harm from COVID-19 than younger inmates,” Plaintiffs were “specifically transferred to [Adirondack] to minimize any contact and potential to get COVID-19” because there are fewer than one hundred inmates at Adirondack and the facility has over one hundred and seventy-five beds, which “more easily enables social distancing.” (Dkt. No. 19, Attach. 4 at 2.) 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 arguably be acting in a fashion that is deliberately indifferent.
As a result, I find that this factor weighs against granting Plaintiffs’ motion for a preliminary injunction.
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B. Irreparable Harm “Irreparable harm is injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by an award of monetary damages.” New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 660 (2d Cir. 2015). The showing of irreparable harm “is the single most important prerequisite for the issuance of a preliminary injunction.” Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 233-34 (2d Cir. 1999). The Court can presume irreparable injury where it is alleged that a constitutional right has been violated. See Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (finding that the district court’s presumption of irreparable harm based on a showing of substantial likelihood of success on the merits on an Eighth Amendment claim was appropriate because “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm”). However, “if a court finds it unlikely that a plaintiff will succeed on the merits of a constitutional claim, the argument that he is entitled to a presumption of irreparable harm based on the alleged constitutional violation is without merit.” Van Diver v. Nagy, 20-CV-11340, 2020 WL 4696598, at *5 (W.D. Mich. Aug. 13, 2020). Here, it appears unlikely that Plaintiffs will face an immediate and irreparable injury absent a preliminary injunction in light of the significant preventative measures taken by Defendants and Adirondack officials to prevent the spread of COVID-19. Even without a global pandemic, “there is always an unfortunate risk that detainees will be exposed to certain communicable diseases” while incarcerated “due in obvious part to limited space, overpopulation, and lack of resources” in the prison system. Matos v. Lopez Vega, 20-CV60784, 2020 WL 2298775, at *10 (S.D. Fla. May 6, 2020). These shortcomings, however, “do not automatically translate into a constitutional violation.” Matos, 2020 WL 2298775, at *10.
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Here, I find that Plaintiffs have failed to establish that they will suffer an irreparable injury—one that is actual and imminent—absent the requested injunctive relief.
As a result, I find that the irreparable-injury factor weighs against granting Plaintiffs’ motion for a preliminary injunction.
C. Balance of Equities and Public Interest “Given that Plaintiff has failed to show either a substantial likelihood of success on the merits or a threat of irreparable injury, the last two factors of the four factor balancing test do not alter the outcome of this case.” White v. Corr. Medical Services, 08-CV-277, 2009 WL 529082, at *4 (W.D. Mich. Mar. 2, 2009) (citing Gonzalez v. National Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000) (“Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.”)); see also In re DeLorean Co., 755 F.2d 1223, 1228 (6th Cir. 1985) (noting that the district court may decline to analyze all four factors where fewer factors are dispositive of the issue). Further, regarding the public interest at stake, “the Court’s intervention in internal prison operations without an urgently compelling and extraordinary reason is viewed as against the public interest.” Miles v. Kentucky Dep't of Corr., 16-CV-P73, 2016 WL 3636070, at *4 (W.D. Ky. June 29, 2016) (citing Lang v. Thompson, 10-CV-379, 2010 WL 4962933, at *7 (E.D. Ky. Nov. 30, 2010)); see Matheis v. CDCR, 20-CV-2100, 2021 WL 718603, at *4 (S.D. Cal. Feb. 24, 2021) (“The Court cannot substitute CDCR’s own judgment on what would best serve the public interest, such as calculating whether transferring an inmate during times of COVID-19 would be net beneficial.”); Scofield v. Butler, 20-CV-0652, 2020 WL 8513820, at *2 (M.D. Ala. Dec. 30, 2020) (holding that the plaintiff failed to establish that his requested injunction would not be adverse to the interests of the Government and public because “[t]he Government has a significant public interest in the administration of its prisons.”); Criswell v. Boudreaux, 2020 WL
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7646405, at *19 (E.D. Cal. Dec. 23, 2020) (citing Roman v. Wolf, 977 F.3d 935, 945-46 (9th Cir. 2020)) (“The Ninth Circuit also reiterated that ‘the district court possesses broad equitable authority to remedy a likely constitutional violation,’ but cautioned against ‘micromanag[ing]’ and ‘wad[ing] into facility administration at a granular level beyond what is required to remedy the constitutional violation identified.’”).
As a result, I find that this factor weighs against granting Plaintiffs’ motion for a preliminary injunction.
ACCORDINGLY, it is RECOMMENDED that Plaintiffs’ motion for a preliminary injunction (Dkt. No. 8) be DENIED; and it is further ORDERED that Defendants shall answer or otherwise respond to Plaintiffs’ Complaint (Dkt. No. 1) within ten days of the date of this Order and Report-Recommendation; and it is further ORDERED that the Clerk of the Court shall provide the parties with a copy of this Order and Report-Recommendation. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: March _31_, 2021 Binghamton, New York
38

 
 Case 9:21-cv-00019-LEK-ML Document 8-1 Filed 01/11/21 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Allen HARPER, José LEON, and Ranfis PEREZ on behalf of themselves and all others similarly situated; and the RELEASE AGING PEOPLE IN PRISON CAMPAIGN (“RAPP”),

Plaintiffs, v.
ANDREW CUOMO, in his official capacity as the Governor of the State of New York; NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; ANTHONY J. ANNUCCI, in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision; JOHN MORLEY, M.D., in his official capacity as the Deputy Commissioner and Chief Medical Officer of the New York State Department of Corrections and Community Supervision; and JEFFREY TEDFORD, in his official capacity as the Superintendent of Adirondack Correctional Facility

Civil Action No. 9:21-cv-19 (LEK/ML)

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ REQUEST FOR PRELIMINARY INJUCTION

Case 9:21-cv-00019-LEK-ML Document 8-1 Filed 01/11/21 Page 2 of 42
TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................................................... iv INTRODUCTION......................................................................................................................... 1 FACTUAL BACKGROUND ....................................................................................................... 2 ARGUMENT............................................................................................................................... 10
A. STANDARD OF REVIEW AND RELIEF SOUGHT............................................... 10
B. PLAINTIFFS WILL SUFFER IRREPERABLE HARM IN THE FORM OF EXTREME AND VERY SERIOUS DAMAGE, INCLUDING THE POSSIBILITY OF LONG-TERM INJURY AND DEATH, IN THE ABSENCE OF A PRELIMINARY INJUNCTION ................................................................................ 11
C. LIKELIHOOD OF SUCCESS ON THE MERITS .................................................... 15
1. Plaintiffs are Likely to Succeed on the Merits of Their ADA and RA Claims ......................................................................................................................... 15
a. Individual Plaintiffs and Members of the Disability Subclass are Qualified Individuals with Disabilities ............................................... 16
b. Defendant DOCCS is an Entity Subject to the ADA and RA ........... 17
c. Individual Plaintiffs and Members of the Disability Subclass Were Denied the Opportunity to Benefit from Defendants’ Services, Programs, or Activities ....................................................................... 18
d. Defendants Cannot Demonstrate That the Relief Plaintiffs Seek Would Impose an Undue Hardship..................................................... 20
2. Plaintiffs are Likely to Succeed on the Merits of their Eighth Amendment Claim............................................................................................................... 21
a. Defendants Have Exposed Individual Plaintiffs and Members of the General Class to a Substantial Risk of Serious Harm......................... 22
b. Defendants Have Acted with Deliberate Indifference in Exposing Plaintiffs to a Serious Risk of Harm ................................................... 23
ii

Case 9:21-cv-00019-LEK-ML Document 8-1 Filed 01/11/21 Page 3 of 42 D. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST SUPPORT A
PRELIMINARY INJUNCTION ................................................................................ 29 E. THE REMEDY PLAINTIFFS SEEK IS APPROPRIATE ........................................ 31 CONCLUSION ........................................................................................................................... 33
iii

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TABLE OF AUTHORITIES

Cases

Pages

ACLU v. Clapper, 804 F.3d 617 (2d Cir. 2015) ........................................................................... 10

Banks v. Booth, 468 F. Supp. 3d 101 (D.D.C. 2020) .............................................................. 29, 30

Basank v. Decker, 449 F. Supp. 3d 205 (S.D.N.Y. 2020) ...................................................... 12, 13

Connecticut Dep’t of Envtl. Prot. v. OSHA, 356 F.3d 226 (2d. Cir. 2004) .................................. 12

Coronel v. Decker, 449 F. Supp. 3d 274 (S.D.N.Y. 2020) ..................................................... 29, 30

DeShaney v. Winnebago Co. Dep’t of Soc. Serv., 489 U.S. 189 (1989)....................................... 21

Disabled in Action v. Bd. Of Elections in City of New York, 752 F.3d 189 (2d Cir. 2014) .......... 19

Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009) ............................... 10

Farmer v. Brennan, 511 U.S. 825 (1994) ......................................................................... 21, 22, 23

Fulton v. Goord, 591 F.3d 37 (2d Cir. 2009)................................................................................ 17

Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170 (7th Cir. 2013) ................................................... 17

Helling v. McKinney, 509 U.S. 25 (1993)......................................................................... 10, 21, 22

Hope v. Pelzer, 536 U.S. 730 (2002) ............................................................................................ 24

Hutto v. Finley, 437 U.S. 678 (1978)............................................................................................ 22

Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) .................. 12

Jolly v. Coughlin, 76 F.3d 468 (2d. Cir. 1996) ............................................................................. 10

Martinez v. Cuomo, 459 F. Supp. 3d 517 (S.D.N.Y. 2020).......................................................... 18

Martinez-Brooks v. Easter, 459 F. Supp. 3d 411 (D. Conn. 2020)........................................ passim

Mays v. Dart, 453 F. Supp. 3d 1074 (N.D. Ill. 2020) ............................................................. 13, 22

Mays v. Dart, 974 F.3d 810 (7th Cir. 2020) ........................................................................... 25, 26

Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998)................................................................. 15, 18

iv

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Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2d Cir. 1995)...................................................... 12

Tom Doherty Ass’ts, Inc. v. Saban Entertainment, Inc., 60 F.3d 27 (2d Cir. 1995) ..................... 11

United States v. Georgia, 546 U.S. 151 (2006) ............................................................................ 19

Winter v. NRDC, 555 U.S. 7 (2008) ............................................................................................. 10

Wright v. New York State Dep’t of Corr., 831 F.3d 64 (2d Cir. 2016) .................................. passim

Statutes

Pages

42 U.S.C. § 12102......................................................................................................................... 16

28 C.F.R. § 35 ......................................................................................................................... 18, 20

29 C.F.R. § 1630.2 ........................................................................................................................ 17

Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 ....................................... 16, 20

Title V of the Rehabilitation Act, 29 U.S.C. § 794....................................................................... 16

Other Authorities

Pages

Adam Federman, Small Adirondack Hospital Preps For COVID-19 In The Rural North Country’s ‘Calm Before The Storm’, Adirondack Explorer (Mar. 25, 2020), https://www.adirondackexplorer.org/stories/small-adirondack-hospital-preps-for-covid19-in-the-rural-north-countrys-calm-before-the-storm..................................................... 14

Brandy Henry, Social Distancing and Incarceration: Policy and Management Strategies to Reduce COVID-19 Transmission and Promote Health Equity Through Decarceration, 47 Health Education and Behavior 536-539 (May 2020) ....................................... 5, 13, 32

Brendan Saloner, Ph.D., et al., COVID-19 Cases and Deaths in Federal and State Prisons, JAMA Network (July 8, 2020), https://jamanetwork.com/journals/jama/fullarticle/2768249 .............................................. 5

Ctrs. for Disease Control and Prevention, Assessing Risk Factors for Severe COVID19 Illness, (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/coviddata/investigations-discovery/assessing-risk-factors.html.................................................. 4

Ctrs. for Disease Control & Prevention, COVID-19 Hospitalization and Death by Race/Ethnicity (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/coviddata/investigations-discovery/ hospitalization-death-by-race-ethnicity.html ..................... 4

v

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Ctrs. for Disease Control & Prevention, Evidence used to update the list of underlying medical conditions that increase a person’s risk of severe illness from COVID-19 (Nov. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/evidence-table.html ....................................................................................... 12
Ctrs. for Disease Control and Prevention, Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities (Dec. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/testing.html......................................................................................................... 7
Ctrs. for Disease Control and Prevention, Older Adults (Dec. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/ older-adults.html ................................................................................................................ 3
Ctrs. for Disease Control & Prevention, Past Seasons Estimated Influenza Disease Burden, https://www.cdc.gov/flu/about/burden/past seasons.html ...................... 2
Ctrs. for Disease Control & Prevention, People with Certain Medical Conditions (Dec. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html ........................................................... 12
Ctrs. for Disease Control & Prevention, Scientific Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2 (Nov. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/maskingscience-sars-cov2.html ................................................................................................. 3, 14
Ctrs. for Disease Control and Prevention, Weekly Updates by Select Demographic and Geographic Characteristics (Jan. 6, 2021), https://www.cdc.gov/nchs/nvss/vsrr/covid_weekly/index.htm ................................... 3, 12
Daniel P. Oran, AM & Eric J. Topol, M.D., Prevalence of Asymptomatic SARS-CoV-2 Infection, 173 Annals of Internal Medicine 362, (2020), https://www.acpjournals.org/doi/10.7326/M20-3012 ........................................................ 2
Elizabethtown Community Hospital, Inpatient Care, https://www.ech.org/Departments-andPrograms/Inpatient-Care-Department .............................................................................. 15
Halley Bondy, 39% of Covid-19 deaths have occurred in nursing homes – many could have been prevented: report, NBC News Know Your Value (Dec. 8, 2020 1:29 PM), https://www.nbcnews.com/know-your-value/feature/39-covid-19-deaths-have-occurrednursing-homes-many-could-ncna1250374 ........................................................................ 4
Henry Njuguna, M.D. et al., Serial Laboratory Testing for SARS-CoV-2 Infection Among
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Incarcerated and Detained Persons in a Correctional and Detention Facility, 69 Morbidity and Mortality Weekly Report 836, 837 (2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6926e2-H.pdf ................................ 5
Jan Ransom & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html ........... 5
Jordan Allen et al., Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (Jan. 8, 2021), https://www.nytimes.com/interactive/2020/us/ coronavirus-us-cases.html .................................................................................................. 2
Maggie Koerth, Why Are More Men Than Women Dying of COVID-19?, FiveThirtyEight (April 30, 2020, 5:58 AM), https://fivethirtyeight.com/features/why-are-more-men-thanwomen-dying-of-covid-19/ ................................................................................................ 4
Mayo Clinic Staff, COVID-19 (coronavirus): Long-Term Effects, Mayo Clinic (Nov. 17, 2020), https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/ coronavirus-long-term-effects/art-20490351 ............................................................... 2, 11
N.Y. State, Governor Cuomo Announces Eighth Region on TRACK TO Hit Benchmark to Begin Reopening Tuesday May 26th, Youtube (May 23, 2020), https://www.youtube.com/watch?v=4NAycLIsyHU ....................................................... 24
N.Y. State Dep’t of Corr. & Cmty. Supervision, DOCCS COVID-19 Report, https://doccs.ny.gov/doccs-covid-19-report ..................................................................... 24
N.Y. State Dep’t of Corr. & Cmty. Supervision, DOCCS Re-Opening Plan Fact Sheet, (May 29, 2020), https://doccs.ny.gov/system/files/documents/2020/06/web-page-doccsre-opening-fact-sheet-5-29-20-final.pdf ............................................................................ 5
RAPP, June 25, 2020 RAPP Adirondack Letter, http://rappcampaign.com/wpcontent/uploads/Adirondack-Sign-on-Letter_June-2020-new.pdf .................................. 24
RAPP, “Re: Releasing New Yorkers from Prison is the Only Way to Save Lives in the Wake of COVID-19,” http://rappcampaign.com/wp-content/uploads/Legisletter-Cuomo.pdf .......................................................................................................... 6, 23
Richard V. Reeves & Tiffany N. Ford, COVID-19 Much More Fatal for Men, Especially Taking Age Into Account, Brookings Institute (May 15, 2020), https://www.brookings.edu/blog/up-front/2020/05/15/covid-19-much-more-fatal-formen-especially-taking-age-into-account/ ........................................................................... 4
Shan Li, Covid-19 Surge Strikes Two New York Prisons, Wall St. J. (Oct. 21, 2020),
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https://www.wsj.com/articles/covid-19-surge-strikes-two-new-york-prisons11603315628 ...................................................................................................................... 6 Sharon H. Bergquist et al., Non-hospitalized Adults with COVID-19 Differ Noticeably from Hospitalized Adults in Their Demographic, Clinical, and Social Characteristics, SN Comprehensive Clinical Medicine (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7426161/ .......................................... 2, 3 The Marshall Project, A State by State Look at Coronavirus in Prisons, The Marshall Project, https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-inprisons .............................................................................................................................. 13 Timothy Williams, Benjamin Weiser and William K. Rashbaum, ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirus-prisons-jails.html ....................... 32 U.S. Equal Employment Opportunity Commission, Diabetes in the Workplace and the ADA, (May 15, 2013), https://www.eeoc.gov/laws/guidance/diabetes-workplace-and-ada ..... 17 Xi He et al., Temporal Dynamics in Viral Shedding and Transmissibility of COVID-19, Nature Medicine (April 15, 2020), https://www.nature.com/articles/s41591-020-0869-5 ........... 3 Zak Cheney-Rice, We’re Going to All Start Dropping’: Rikers Inmates on Life as Prisoners of COVID-19, N.Y. Mag. Intelligencer (Apr. 1, 2020), https://nymag.com/intelligencer/2020/04/rikers-inmates-on-life-as-prisoners-of-thecoronavirus.html ................................................................................................................ 5
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I. Introduction Defendants have transferred the most vulnerable people in their prison system, elderly
people with underlying health conditions, to the remote Adirondack Correctional Facility (“Adirondack”) during the most deadly pandemic in generations. In doing so, they have failed to conduct basic testing, screening, quarantining, and social distancing practices that would protect this population from death or serious injury resulting from COVID-19. These actions have created the conditions for a deadly outbreak. Plaintiffs bring this case, and seek a preliminary injunction from the Court, in order to prevent such an outbreak and mitigate the risk facing people incarcerated at Adirondack.
Specifically, Plaintiffs Allen Harper, Jose Leon, and Ranfis Perez (“Individual Plaintiffs”), on behalf of themselves and members of a General Class and Disability Subclass, along with the Release Aging People in Prison Campaign (“RAPP”), seek declaratory and injunctive relief under Title II of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973 (“RA”), and the Eighth Amendment to the United States Constitution to remedy Defendants’ ongoing violations of their statutory and constitutional rights. Defendants Governor Andrew Cuomo, the New York State Department of Corrections and Community Supervision (“DOCCS”), DOCCS’s Acting Commissioner Anthony J. Annucci, DOCCS’s Chief Medical Officer John Morley, M.D., and Adirondack Correctional Facility (“Adirondack”) Superintendent Jeffrey Tedford (collectively, “Defendants”) have discriminated against and failed to provide reasonable modifications to Individual Plaintiffs and the members of the Disability Subclass, and have violated the Eighth Amendment rights of all members of the General Class.
Although all of Plaintiffs’ claims merit urgent consideration and require relief, Plaintiffs
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seek through their Preliminary Injunction narrower relief aimed at immediately preventing COVID-19 from entering the facility and identifying and containing it if it does enter. To that end, Plaintiffs ask that the Court order Defendants to implement appropriate screening, testing, quarantining, and contact tracing protocols for all staff and residents of Adirondack, and that Defendants be enjoined from transferring anyone into the facility until they are able to do so in a way that does not create an unnecessary and unreasonable risk of introducing COVID-19 to Adirondack, pursuant to the conditions described below.
II. Factual Background COVID-19 is an acute respiratory illness caused by a highly contagious, novel virus to
which humans have no pre-existing immunity. Ex. 14, Shaman Decl. at ¶ 9. COVID-19 can be fatal, and many of those who survive COVID-19 suffer debilitating long-term damage to the heart, lungs, brain, and vascular system.1 As of Jan. 6, 2021, COVID-19 has infected an estimated 21.2 million people in the United States,2 and almost 360,000 people in the United States have died from COVID-19 or related complications. COVID-19 is thus about 14 times more deadly than seasonal influenza.3
The virus spreads quickly in part because it can spread from asymptomatic carriers. Ex. 14, Shaman Decl. at ¶ 9. People who spread COVID-19 often show only mild symptoms or no symptoms at all.4 The virus is most contagious 2-3 days before any symptoms arise, and even
1 Mayo Clinic Staff, COVID-19 (coronavirus): Long-Term Effects, MAYO CLINIC (Nov. 17, 2020), https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351. 2 Jordan Allen et al., Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (Jan. 8, 2021), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html. 3 From the 2010-11 to 2019-20 flu seasons, there were an estimated 296,300,000 symptomatic influenza cases, and 359,000 estimated deaths, for a fatality rate of 0.12%. CTRS. FOR DISEASE CONTROL & PREVENTION, PAST SEASONS ESTIMATED INFLUENZA DISEASE BURDEN, https://www.cdc.gov/flu/about/burden/past-seasons html. 4 Daniel P. Oran, AM & Eric J. Topol, M.D., Prevalence of Asymptomatic SARS-CoV-2 Infection, 173 Annals of Internal Medicine 362, (2020), https://www.acpjournals.org/doi/10.7326/M20-3012 (finding that 40-45% of people had no symptoms); Sharon H. Bergquist et al., Non-hospitalized Adults with COVID-19 Differ Noticeably from
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those without symptoms may be contagious for more than two weeks after infection.5 Because of
these factors, asymptomatic transmissions are thought to account for more than half of all
infections, and there is no way to know who is infected or contagious without testing.6
While everyone is at risk of contracting COVID-19, several factors can exacerbate the
risk that death or serious injury will result from the virus. For example, the risk of death or
serious injury resulting from COVID-19 is especially grave for older people. As of January 6,
2021, people at least 65 years old constituted 4 out of 5 U.S. COVID-19 related deaths,7 and
people at least 55 years old constituted 92% of deaths.8
Several medical conditions also exacerbate the risk. One study found that 70% of those
hospitalized from COVID-19 had at least one underlying condition that increased their risk.9 The
Centers for Disease Control and Prevention (“CDC”) recognizes that such medical conditions
include heart conditions (including heart failure, coronary artery disease, congenital heart
disease, cardiomyopathies and pulmonary hypertension); diabetes; and some forms of chronic
kidney disease.10
Race and gender also affect susceptibility to death or serious injury from COVID-19. The
CDC has estimated that non-Hispanic Black or African American individuals are 3.7 times and
2.8 times as likely to be hospitalized and to die from COVID-19, respectively, as compared to
Hospitalized Adults in Their Demographic, Clinical, and Social Characteristics, SN COMPREHENSIVE CLINICAL MEDICINE (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7426161/, (finding that 52% of people reported no symptoms or only mild ones). 5 Xi He et al., Temporal Dynamics in Viral Shedding and Transmissibility of COVID-19, NATURE MEDICINE (April 15, 2020), https://www nature.com/articles/s41591-020-0869-5. 6 CTRS. FOR DISEASE CONTROL & PREVENTION, SCIENTIFIC BRIEF: COMMUNITY USE OF CLOTH MASKS TO CONTROL THE SPREAD OF SARS-COV-2 (Nov. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/masking-sciencesars-cov2.html. 7 CTRS. FOR DISEASE CONTROL AND PREVENTION, WEEKLY UPDATES BY SELECT DEMOGRAPHIC AND GEOGRAPHIC CHARACTERISTICS (Jan. 6, 2021), https://www.cdc.gov/nchs/nvss/vsrr/covid_weekly/index htm. 8 Id. 9 Sharon H. Bergquist, et al., supra note 4. 10 CTRS. FOR DISEASE CONTROL AND PREVENTION, OLDER ADULTS (Dec. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults html
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white, non-Hispanic persons. Hispanic or Latino individuals are 4.1 times more likely to be
hospitalized, and 2.8 times more likely to die.11 Men also face a greater risk of severe illness and
death from COVID-19 infection,12 so much so that the CDC has added gender to its list of
potential risk factors for severe COVID-19 illness.13
Congregate living spaces are ripe for the spread of COVID-19. The virus spreads through
droplets expelled into the air from a person’s respiratory system while breathing, coughing,
talking, speaking, singing, or eating, which may then infect others. Ex. 14, Shaman Decl. at ¶ 11.
In situations where people spend a significant period of time physically close to one another,
particularly in indoor settings with poor ventilation, transmission of the virus becomes much
more likely. Ex. 14, Shaman Decl. at ¶¶ 11-12. In part because of their congregate nature, for
example, nursing homes are particularly dangerous environments for the spread of COVID-19.
By December 2020, 39% of COVID-19 deaths had occurred in nursing homes.14
Likewise, incarcerated people are at exceptionally high risk of infection and serious
illness or death from COVID-19. When people are incarcerated, they have little to no agency
over their environment and have extremely limited privacy, so they have little ability to socially
11 CTRS. FOR DISEASE CONTROL & PREVENTION, COVID-19 HOSPITALIZATION AND DEATH BY RACE/ETHNICITY, CENTERS FOR DISEASE CONTROL, (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/coviddata/investigations-discovery/hospitalization-death-by-race-ethnicity.html. 12 Richard V. Reeves & Tiffany N. Ford, COVID-19 Much More Fatal for Men, Especially Taking Age Into Account, Brookings Institute (May 15, 2020), https://www.brookings.edu/blog/up-front/2020/05/15/covid-19-muchmore-fatal-for-men-especially-taking-age-into-account/. See Maggie Koerth, Why Are More Men Than Women Dying of COVID-19?, FIVETHIRTYEIGHT (April 30, 2020, 5:58 AM), https://fivethirtyeight.com/features/why-aremore-men-than-women-dying-of-covid-19/ (reporting on research showing that, out of 35 countries reporting COVID-19 deaths broken down by sex, men with confirmed COVID-19 infections were more likely to die than women with confirmed infections). 13 CTRS. FOR DISEASE CONTROL AND PREVENTION, ASSESSING RISK FACTORS FOR SEVERE COVID-19 ILLNESS, (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/assessing-riskfactors.html. 14 Halley Bondy, 39% of Covid-19 deaths have occurred in nursing homes – many could have been prevented: report, NBC NEWS KNOW YOUR VALUE (Dec. 8, 2020 1:29 PM), https://www nbcnews.com/know-yourvalue/feature/39-covid-19-deaths-have-occurred-nursing-homes-many-could-ncna1250374.
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distance absent policies and procedures enabling them to do so. 15 See, e.g., Ex. 1, Harper Decl.
at ¶¶ 12-14, 10; Ex. 2, Leon Decl. at ¶¶ 14-17; Ex. 3, Perez Decl. at ¶¶ 10-12. Frequently,
including at Adirondack, incarcerated people are required to sleep in rooms without doors; to
share sinks, toilets, showers and phones; and to sit next to and across from each other at
mealtimes.16 For these reasons, without measures to ameliorate its spread, COVID-19 spreads
twice as fast in a prison setting as it does in the general community, and the infected fall ill two
to four times more often.17
Defendants have compounded these risks by making Adirondack into a prison nursing
home. They have brought in exclusively elderly and vulnerable prisoners, many with serious
underlying medical conditions. In May of 2020, Defendants announced that they would convert
Adirondack, formerly a youth facility, into a prison for “incarcerated individuals age 65 or older”
who met certain medical and mental health requirements.18 Since that time, approximately 96
men, all of whom are over the age of 60, and half of whom are over 65, have been brought in
from all over the state. All have health conditions that may place them at risk for serious illness
from COVID-19. See, e.g., Ex. 1, Harper Decl. at ¶¶ 4, 10; Ex. 20, Harper Med. Records; Ex. 2,
Leon Decl. at ¶¶ 4, 10; Ex. 17, Leon Med. Records; Ex. 3, Perez Decl. at ¶ 4; Ex. 19, Perez Med.
Records.
15 Brandy Henry, Social Distancing and Incarceration: Policy and Management Strategies to Reduce COVID-19 Transmission and Promote Health Equity Through Decarceration, 47 HEALTH EDUCATION AND BEHAVIOR 536-539 (May 2020). 16 Jan Ransom & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. TIMES (Mar. 30, 2020), https://www nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html; Zak Cheney-Rice, We’re Going to All Start Dropping’: Rikers Inmates on Life as Prisoners of COVID-19, N.Y. MAG. INTELLIGENCER (Apr. 1, 2020), https://nymag.com/intelligencer/2020/04/rikers-inmates-on-life-as-prisoners-of-the-coronavirus.html. 17 Henry Njuguna, M.D. et al., Serial Laboratory Testing for SARS-CoV-2 Infection Among Incarcerated and Detained Persons in a Correctional and Detention Facility, 69 MORBIDITY AND MORTALITY WEEKLY REPORT 836, 837 (2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6926e2-H.pdf; Brendan Saloner, Ph.D., et al., COVID-19 Cases and Deaths in Federal and State Prisons, JAMA NETWORK (July 8, 2020), https://jamanetwork.com/journals/jama/fullarticle/2768249. 18 N.Y. STATE DEP’T OF CORR. & CMTY. SUPERVISION, DOCCS RE-OPENING PLAN FACT SHEET, (May 29, 2020), https://doccs ny.gov/system/files/documents/2020/06/web-page-doccs-re-opening-fact-sheet-5-29-20-final.pdf
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Defendants have been on notice of all these risks in the prison system for months, as
there have been over 3400 COVID-19 cases and 27 deaths among incarcerated people in
DOCCS facilities. See Ex. 21, DOCCS COVID-19 Data Compilation. A similar number of staff
members have been infected, though with fewer deaths. In addition to numerous warnings from
state and local health officials, New York state prisons have suffered several recent outbreaks since the start of the pandemic that illustrate how rapidly the disease spreads.19 At Woodburne
Correctional Facility, there were no active COVID-19 cases reported on December 1, 2020, yet now there have been 219 cases, including two deaths.20 Greene Correctional Facility reported two COVID-19 cases on October 1, 2020; two weeks later, there were over 90 cases.21 Similarly, Elmira reported only one case on September 28, 2020.22 By October 28, 2020, the number had skyrocketed to 590.23
Moreover, Plaintiff RAPP has contacted Defendants Cuomo, Annucci, Morley, and
Tedford repeatedly to inform them of the extent and severity of the risk of concentrating medically vulnerable and elderly people in prison, generally, and at Adirondack, specifically.24
Plaintiff RAPP and other advocacy groups have alerted Defendants specifically to the risk posed
by transferring elderly and medically vulnerable people to Adirondack and have identified the inadequacy of COVID-19-related measures at Adirondack.25 They have asked Defendants to
mitigate the dangerous COVID-19-related conditions at the facility by engaging in proper
19 See, e.g., Shan Li, Covid-19 Surge Strikes Two New York Prisons, WALL ST. J. (Oct. 21, 2020), https://www.wsj.com/articles/covid-19-surge-strikes-two-new-york-prisons-11603315628. 20 Compare Ex. 21, DOCCS COVID-19 Data Compilation at 5 (Dec. 1, 2020), with Ex. 21, DOCCS COVID-19 Data Compilation at 8 (Dec. 22, 2020). 21 Compare Ex. 21, DOCCS COVID-19 Data Compilation at 2 (Oct. 1, 2020), with Ex. 21, DOCCS COVID-19 Data Compilation at 4 (Oct. 28, 2020). 22 Ex. 21, DOCCS COVID-19 Data Compilation at 1 (Sep. 28, 2020). 23 Ex. 21, DOCCS COVID-19 Data Compilation at 4 (Oct. 28, 2020). 24 See, e.g., “Re: Releasing New Yorkers from Prison is the Only Way to Save Lives in the Wake of COVID-19,” http://rappcampaign.com/wp-content/uploads/Legis-letter-Cuomo.pdf. (hereinafter “RAPP Advocacy Letter”). 25 Id.
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testing, quarantining, and isolation practices; providing incarcerated people with sufficient cleaning and hygiene supplies; ceasing transfers to the facility, and releasing people from the facility.26 RAPP has also convened a local working group and organized numerous local volunteers to educate the public and to advocate that public officials take steps to mitigate the risks COVID-19 poses at Adirondack.
Despite these warnings, Defendants have done little to protect from COVID-19 the elderly and infirm people who are, by design, concentrated at Adirondack. The CDC recommends that facilities like Adirondack conduct testing at intake before putting transferees into the general population at the facility; house people individually while test results are pending; and implement a routine 14-day quarantine for people entering a facility.27 These recommendations are “particularly” important when incoming people “will transition to a congregate setting with persons at increased risk for severe illness from COVID-19.”28
DOCCS has done none of this at Adirondack, disregarding CDC and other public health guidelines without adopting any alternative guidance to prevent the entry of COVID-19 to the facility or limiting its spread among the population. It does not test people before transferring them to Adirondack from prisons around the state, nor does it separate or quarantine people upon arrival or while test results are pending. See, e.g., Ex. 19, Perez Med. Records at 1 (no COVID19 test prior to June 29, 2020, when Mr. Perez was tested at Adirondack); Ex. 17, Leon Med. Records at 1 (last test at Otisville pre-transfer was June 4, 2020; first test at Adirondack was June 28 with result received on July 3), 4 (transfer paperwork dated June 18). The hours-long bus
26 Id. 27 CTRS. FOR DISEASE CONTROL AND PREVENTION, INTERIM CONSIDERATIONS FOR SARS-COV-2 TESTING IN CORRECTIONAL AND DETENTION FACILITIES (Dec. 3, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/testing html. 28 Id.
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rides on which incarcerated people are transferred include people from numerous facilities around the state. See, e.g., Ex. 1, Harper Decl. at ¶ 5; Ex. 4, Spadaro Decl. at ¶ 5. They are transported in rows immediately in front of and behind each other, a practice that precludes social distancing. Ex. 1, Harper Decl. at ¶ 5.
Once at Adirondack, people are often housed in cells without doors. Ex. 1, Harper Decl. at ¶ 12. They congregate in recreation areas where they are required to sit on small benches, such that sitting any distance apart is impossible. Ex. 3, Perez Decl. at ¶ 12. Multiple housing units eat in a communal mess hall, where 45-50 people at a time wait in line for food and sit across from or next to each other, well within six feet. Ex. 1, Harper Decl. at ¶ 14. Other than food they buy from the commissary, the only food people are allowed to eat in their cells are slices of bread. Ex. 4, Spadaro Decl. at ¶ 25. Many people are therefore forced to eat their meals in the mess hall three times a day, potentially exposing themselves to COVID-19 infection. See Ex. 8, Leon Supp. Decl. at ¶¶ 10-11.
Defendants do not conduct any regular temperature or symptom screening of incarcerated people, see Ex. 8, Leon Supp. Decl. at ¶ 4, and testing is haphazard. Several Plaintiffs have stated that over the course of several months, they have been tested once at Adirondack. Ex. 1, Harper Decl. at ¶ 8; Ex. 2, Leon Decl. at ¶ 8; Ex. 3, Perez Decl. at ¶ 6. Defendants’ responses to positive testing have also been inadequate. In those cases where a person has tested positive, Defendants have failed to quarantine and test people who have been in close contact with the person, allowing other potentially infected people to continue commingling with the rest of the population. For example, on September 30 and October 1, 2020, DOCCS conducted what appears to be its only round of facility-wide COVID-19 testing at Adirondack since at least midsummer. Ex. 3, Perez Decl. at ¶ 6; Ex. 12, Applegate Decl. at ¶ 7. One incarcerated person tested
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positive for COVID-19 at that time. On October 2, the person who tested positive was moved into quarantine, but no one else from his communal housing unit was quarantined or separated in any way. Instead, people who had been living with him before he tested positive continued to mingle with each other and the prison-wide population, eating meals with people from around the prison in the mess hall and working wherever they were assigned throughout the prison. Indeed, in the week before this individual tested positive, he had participated in a grievance hearing with Plaintiff Perez. Another incarcerated person was also in the meeting, along with three staff members. The grievance hearing was held in a room with no windows, with everyone sitting around a table less than six feet apart for approximately one hour. After learning that someone who had been in the grievance hearing had tested positive, Defendants sent the staff members home for two weeks, but they did not quarantine Plaintiff Perez or the other incarcerated person. Instead, they sent them back to their housing units, conducting no follow-up testing or screening and potentially exposing everyone in those units. This incident illustrates that even under circumstances where Defendants understood that quarantining was necessary and appropriate, and where they instituted such quarantines to protect staff members, they refused to do the same to protect class members. Moreover, by failing to re-test residents, Defendants failed to learn the scope of the possible infection within Adirondack, a crucial step for containing any outbreak.
Simply put, Adirondack is a disaster waiting to happen. Plaintiffs ask that this Court grant a preliminary injunction to require Defendants to conduct regular asymptomatic testing of all incarcerated people and staff at Adirondack, isolate those people known to have been exposed, and halt transfers until an appropriate testing regimen can be instated.
III. Argument
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Plaintiffs bring claims under the ADA, RA, and Eighth Amendment. For the reasons discussed herein, Plaintiffs meet the standards for a preliminary injunction with respect to each claim.
A. Standard of Review and Relief Sought A party seeking a preliminary injunction or temporary restraining order must show (1) “a
likelihood of success on the merits,” (2) “a likelihood of irreparable harm in the absence of preliminary relief,” and (3) “that the balance of equities tips in the party’s favor, and that an injunction is in the public interest.” ACLU v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015) (citing Winter v. NRDC, 555 U.S. 7, 20 (2008)). See also Jolly v. Coughlin, 76 F.3d 468, 473 (2d. Cir. 1996) (quotation marks omitted).
“A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quotation marks omitted). The irreparable harm must be “neither remote nor speculative, but actual and imminent, and one that cannot be remedied if the court waits until the end of trial to resolve the harm.” Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 447 (D. Conn. 2020) (quoting Faively Transport, 559 F.3d at 118). The fact that the harm has not yet come to pass is irrelevant to the irreparable harm analysis, as “a remedy for unsafe conditions need not await a tragic event.” Helling v. McKinney, 509 U.S. 25, 33 (1993).
In assessing preliminary injunction requests, courts distinguish between injunctions that impose mandatory relief, “commanding some positive act,” and injunctions that impose prohibitory relief, enjoining a defendant from engaging in some conduct. Courts apply a heightened standard for mandatory relief, requiring, in addition to the preliminary injunction criteria outlined above, that movants seeking mandatory relief make “a clear showing that the
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moving party is entitled to the relief requested,” or that “extreme or very serious damage will result from a denial of preliminary relief.” Tom Doherty Ass’ts, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir. 1995).
Here, Plaintiffs seek both prohibitory and mandatory relief. Plaintiffs seek prohibitory relief in the form of halting transfers until Defendants can demonstrate that they are conducting them in a manner that does not create an unconstitutional risk to safety. For this relief, the prohibitory preliminary injunction standard applies. Plaintiffs also seek mandatory relief in the form of testing of asymptomatic officers and incarcerated people and quarantining and retesting of people who have come into contact with individuals known to be infected. For this relief, the mandatory standard applies. Plaintiffs meet the applicable standard for all relief they seek.
B. Plaintiffs Will Suffer Irreparable Harm in the Form of Extreme and Very Serious Damage, Including the Possibility of Long-Term Injury and Death, in the Absence of a Preliminary Injunction. The irreparable harm Plaintiffs face is the danger of death or serious long-term injury that
would result from an outbreak of COVID-19 within Adirondack, given Defendants’ refusal to put in place policies that would prevent it. COVID-19 can be fatal, and many of those who survive suffer debilitating long-term damage to the heart, lungs, brain, and vascular system.29 Moreover, Adirondack is populated exclusively with people who are at the gravest risk for serious harm from COVID-19 – older men, many of whom have chronic conditions rendering them especially susceptible to severe or fatal illness. 30 As of December 12, 2020, the CDC records that men over the age of 55—the entire Adirondack population—have accounted for half
29 MAYO CLINIC, supra note 1. 30 Additionally, a constitutional violation constitutes irreparable harm. “In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm.” Martinez-Brooks, 459 F. Supp. 3d at 411 (quoting Basank, 449 F. Supp. 3d at 213, and citing Connecticut Dep’t of Envtl. Prot. v. OSHA, 356 F.3d 226 (2d. Cir. 2004)). The unreasonably high risk of a COVID-19 outbreak among highly vulnerable incarcerated people constitutes irreparable harm because it violates the right to be from cruel and unusual punishment. Martinez-Brooks, 459 F. Supp. 3d at 411.
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of all COVID-19-related deaths in the United States.31 People over the age of 50 are at least 4 times more likely to need hospitalization due to COVID-19 than the population at large, and at least 30 times more likely to die. Chronic conditions such as diabetes, kidney disease, obesity, and heart conditions—which afflict members of the Plaintiff classes—further exacerbate risk.32
A substantial risk of death or serious illness constitutes irreparable harm, as courts in the Second Circuit consistently recognize. See, e.g., Martinez-Brooks, 459 F. Supp. 3d at 447–48 (irreparable harm where plaintiffs face “[a] substantial risk of serious illness or death”)33 citing Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 43–44 (2d Cir. 1997) (irreparable harm where the closure of a treatment program would pose risk of serious harm to plaintiffs, including “death, illness or disability”); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332–33 (2d Cir. 1995) (affirming District Court’s irreparable harm finding based on substantial “risk of injury [and] infection” to plaintiff).
Indeed, courts around the country have recognized that the specific risk of death or injury COVID-19 poses to incarcerated people, and particularly to the medically vulnerable, satisfies the irreparable harm requirement. See, e.g., Martinez-Brooks, 459 F. Supp. 3d at 448 (irreparable harm where class of people incarcerated at FCI Danbury, in particular the medically vulnerable subclass, faced “grave risk” of death from COVID-19); Mays v. Dart, 453 F. Supp. 3d 1074, 1098 (N.D. Ill. 2020) (irreparable harm where incarcerated plaintiffs were at risk of “severe
31 Men aged 55 and over account for 135,391 out of 276,061 (49%) of all U.S. COVID-19 related deaths. CTRS. FOR DISEASE CONTROL AND PREVENTION, supra note 7. 32 CTRS. FOR DISEASE CONTROL & PREVENTION, PEOPLE WITH CERTAIN MEDICAL CONDITIONS (Dec. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions html; CTRS. FOR DISEASE CONTROL & PREVENTION, EVIDENCE USED TO UPDATE THE LIST OF UNDERLYING MEDICAL CONDITIONS THAT INCREASE A PERSON’S RISK OF SEVERE ILLNESS FROM COVID-19 (Nov. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/evidence-table.html. 33 Although Martinez-Brooks involved a petition for a temporary restraining order rather than a preliminary injunction, “It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases).
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health consequences, including death” and “permanent lung damage” from COVID-19), aff’d in relevant part, 974 F.3d 810 (7th Cir. 2020); Basank v. Decker, 449 F. Supp. 3d 205, 210–13 (S.D.N.Y. 2020) (irreparable harm because “[t]he nature of detention facilities makes exposure and spread of the virus particularly harmful”). Indeed, in Martinez-Brooks, the Court found that the threat of COVID-19 in prison “easily satisfy[ied] the irreparable harm prerequisite” under the heightened standard applied to mandatory injunctions. See Martinez-Brooks, 459 F. Supp. 3d at 438 (mandatory standard applied to plaintiffs’ claims), 448 (plaintiffs satisfied that standard).
The risk of irreparable harm is imminent. The United States is experiencing its greatest surge of COVID-19 infections yet. Ex. 14, Shaman Decl. at ¶¶ 26-28; 32. The country’s correctional systems have not been spared. During the week of December 15, 2020, new cases among incarcerated people across the country, at well over 25,000, broke the record that been set the previous week.34 New York State prisons are also experiencing their most severe surge yet. Since December 2, the total number of positive COVID-19 cases has increased by 89 percent, and the number of COVID-related deaths has risen 50 percent.35 Defendants have failed to respond to this increase by implementing necessary policies to contain the spread.
Prisons by their very nature are “epicenters of infectious diseases,” if measures are not taken to combat virus spread.36 Asymptomatic carriers—or people without symptoms—have long been known to spread COVID-19. Experts estimate that asymptomatic transmissions account for more than 50% of all transmissions.37 Without proactive and consistent testing of
34 A State by State Look at Coronavirus in Prisons, THE MARSHALL PROJECT, https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons (last visited Jan. 8, 2021). 35 Compare Ex. 21, DOCCS COVID-19 Data Compilation at 10 (January 6, 2021) (reporting 3,459 total positive cases and 27 deaths) with Ex. 21, DOCCS COVID-19 Data Compilation at 6 (December 2, 2020) (reporting 1,826 total positive cases and 18 deaths). 36 Brandy Henry, supra note 15. 37 CTRS. FOR DISEASE CONTROL & PREVENTION, supra note 6.
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asymptomatic staff, residents, and people transferred into Adirondack, every person at the facility could seed an outbreak.
In view of this, Defendants’ failure to conduct a meaningful testing and quarantining regimen creates an imminent risk of irreparable harm. Defendants’ failure to test transferees creates an imminent risk of COVID-19 entering the prison, and their failure to test people incarcerated at Adirondack prevents Defendants from knowing the extent of the presence of COVID-19 within the facility. Moreover, in light of this failure, Defendants’ refusal to quarantine or screen people who have been exposed to COVID-19 creates an imminent risk of spread within the prison.
The threat of death or serious injury from this imminent risk is particularly acute because if an outbreak does occur, it will overwhelm the local health care infrastructure. Adirondack is poorly equipped to deal with health crises. Adirondack’s medical staff consists of only two nurses. Incarcerated people may visit the infirmary once a day, at 6:15 AM, on weekdays only. Adirondack has at most four rooms with appropriate ventilation to isolate infectious patients. The closest hospital that appears equipped to handle incarcerated patients—Albany Medical Center— is over two hours away. The two nearby hospitals, where people incarcerated at Adirondack may not even be eligible to receive care, are Adirondack Medical Center, which has only eight intensive care beds,38 and Elizabethtown Community Hospital, in Vermont, which has only 25 inpatient beds total.39 Neither Adirondack Correctional Facility nor the surrounding communities are equipped to handle a major outbreak of COVID-19 at the prison.
38 Adam Federman, Small Adirondack Hospital Preps For COVID-19 In The Rural North Country’s ‘Calm Before The Storm’, ADIRONDACK EXPLORER (Mar. 25, 2020), https://www.adirondackexplorer.org/stories/smalladirondack-hospital-preps-for-covid-19-in-the-rural-north-countrys-calm-before-the-storm. 39 Elizabethtown Community Hospital, Inpatient Care, https://www.ech.org/Departments-and-Programs/InpatientCare-Department (last visited Jan. 8, 2021).
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Defendants’ failure to implement necessary testing and quarantine policies thus creates an imminent, grave, and unnecessarily high risk of death or serious injury among the Adirondack population. To address the risk and ensure it does not materialize, Plaintiffs ask that the Court issue a preliminary injunction requiring Defendants to take the necessary testing and quarantining measures to protect people at Adirondack. Without this relief, there is a serious risk that Adirondack, like many New York State prisons, will be overrun by the virus.
C. Likelihood of Success on the Merits Plaintiffs seek relief under the ADA, RA, and Eighth Amendment. While Plaintiffs meet
the preliminary injunction standard for all claims, as discussed below, success on any individual claim would be sufficient to warrant the relief Plaintiffs seek.
1. Plaintiffs are Likely to Succeed on the Merits of Their ADA and RA Claims.
Defendants have discriminated against members of the Disability Subclass and have failed to provide them with reasonable modifications that would allow them to access programs and services at Adirondack safely.
The ADA prohibits public entities, including prisons and prison systems, from discriminating on the basis of disability. See, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 201 (1998). Under Title II of 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.” 42 U.S.C. § 12132. The RA similarly provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the 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). Courts construe the ADA and RA to
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have comparable requirements. See, e.g., Wright v. New York State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016).
In order to make a prima facie case of an ADA or RA violation, a plaintiff must show “1) that he is a qualified individual with a disability; 2) [Defendant] is an entity subject to the [ADA or RA]; and 3) he was denied the opportunity to benefit from [Defendant’s] services, programs, or activities or [Defendant] otherwise discriminated against him by reason of his disability.” Wright, 831 F.3d at 72. Once a plaintiff makes a prima facie showing under the ADA or RA, the burden shifts to the defendant, who must prove that the modification plaintiffs seek would “impose undue hardship on the operation of its services, programs, or activities.” Wright, 831 F.3d at 76 (quotation marks and alterations omitted).
a. Individual Plaintiffs and Members of the Disability Subclass are Qualified Individuals with Disabilities.
Plaintiffs in the Disability Subclass are qualified individuals with disabilities within the meaning of the ADA. They have impairments that, with or without medication, 42 U.S.C. § 12102(4)(E)(i)(I), substantially limit “major life activities,” 42 U.S.C. § 12102(2), including their ability to walk and their ability to operate “major bodily function[s], including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Id. Individual Plaintiffs in the Disability Subclass have substantial physical impairments that constitute disabilities under the ADA. Plaintiff Perez has diabetes, which interferes with his endocrine functioning, and as a consequence of which, without medication, he would be limited in his ability to sleep, see, walk around, and engage in otherwise routine daily activities. See, e.g., Ex. 19, Perez Med. Records at 1; 29 C.F.R. § 1630.2(j)(3)(iii); U.S. Equal Employment Opportunity Commission, Diabetes in the Workplace and the ADA (“As a result of changes made by the ADAAA, individuals who
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have diabetes should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of endocrine function.”) Similarly, Plaintiffs Harper and Leon suffer from hypertension and a history of heart disease. Without medication, their blood pressure would rise and they would be at serious risk for stroke or heart attack. See, e.g., Ex. 20, Harper Med. Records at 10, 14, 15, 34; Ex. 17, Leon Med. Records at 3, 6, 7; Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1173 (7th Cir. 2013) (“[Plaintiff]’s alleged chronic blood-pressure condition—for which he has taken medication for more than eight years—could also qualify as a disability . . . ‘[S]omeone who began taking medication for hypertension before experiencing substantial limitations related to the impairment would still be an individual with a disability if, without the medication, he or she would now be substantially limited in functions of the cardiovascular or circulatory system.’”) (quoting 29 C.F.R. Pt. 1630, App. at Section 1630.2(j)(1)(vi)).
b. Defendant DOCCS is an Entity Subject to the ADA and RA. Defendant DOCCS is a public entity and recipient of federal funds, and thus it is subject to the ADA and RA. See, e.g., Wright, 831 F.3d at 72. (“DOCCS is an entity that is subject to the [ADA and RA].”); Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (same).
c. Individual Plaintiffs and Members of the Disability Subclass Were Denied the Opportunity to Benefit from Defendants’ Services, Programs, or Activities.
Defendants denied Plaintiffs the opportunity to benefit from their services, programs or activities by reason of Plaintiffs’ disabilities. “[S]ervices, programs, [and] activities” under the ADA include “recreational activities, medical services, and educational and vocational programs.” Wright, 831 F.3d at 72 (quoting Yeskey, 524 U.S. at 210) (quotation marks omitted). The law in the Second Circuit is consistent with Department of Justice regulations, which
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provide that the ADA encompasses “anything a public agency does.” 28 C.F.R. Pt. 35, App. B. Under Title II of the ADA, public entities must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i). See also, e.g., Martinez v. Cuomo, 459 F. Supp. 3d 517, 523 (S.D.N.Y. 2020) (RA, like ADA, requires reasonable modifications providing meaningful access to services).
Members of the Disability Subclass are particularly vulnerable to complications from COVID-19 as compared to the prison population at large by virtue of their disabilities. See Ex. 16, Fenig Decl. at ¶¶ 53-65. They require reasonable modifications to safely access Adirondack’s services, programs, and activities. Defendants have failed to provide reasonable modifications to them by failing to effectively provide basic protections from the uncontrolled spread of COVID19, thereby increasing the likelihood that members of the disability subclass will contract COVID-19 and suffer serious complications as a result. Such reasonable modifications include measures to prevent the unnecessary spread of COVID-19 within Adirondack, including testing asymptomatic people, testing and quarantining people known to have come into contact with COVID-19-positive individuals, testing people before transferring them to Adirondack, and quarantining and testing people after they arrive at Adirondack. Necessary reasonable modifications also include allowing adequate distancing at mealtimes, including by allowing people to eat in their rooms, along with allowing adequate distancing in bathrooms and recreation areas. Reasonable modifications also require ensuring that people have doors on their bedrooms to limit airborne spread. Defendants have failed to make these reasonable
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modifications despite being warned by experts around the country and from advocates within New York that this conduct puts people in its care at a grave risk of serious illness or death.
Defendants have thus failed to provide effective access, because Plaintiffs in the Disability Subclass cannot safely access any of the prison’s services. They cannot safely use the day rooms for recreation, safely shave in the bathrooms, or safely eat in the mess hall because they cannot partake in any of these services without risking unmasked exposure to people housed throughout the prison. Defendants’ failure to provide a safe environment thus deters Plaintiffs from using basic prison services. See, e.g., Disabled in Action v. Bd. Of Elections in City of New York, 752 F.3d 189, 200 (2d Cir. 2014) (“deterrence constitutes an injury under the ADA”). Indeed, Plaintiffs in the Disability Subclass sometimes abstain from eating in the mess hall altogether. They are instead forced to pay for food to eat in their rooms, the only alternative. As the Supreme Court has explained, the “deliberate refusal of prison officials to accommodate [an incarcerated person’s] disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs” could “quite plausib[ly]” constitute a violation of Title II. See United States v. Georgia, 546 U.S. 151, 157 (2006). Moreover, “[a] reasonable accommodation must provide effective access to prison activities and programs.” Wright, 831 F.3d at 73.
Not only have Defendants discriminated against Plaintiffs in the Disability Subclass by failing to provide them reasonable modifications as described above, they have also discriminated against them by transferring them to Adirondack. As Defendants’ public statements made clear, Plaintiffs would not have been transferred to Adirondack unless they had or were perceived to have a disability. Yet after transferring members of the Disability Subclass, Defendants have chosen not to make the reasonable modifications necessary to allow them to
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safely access the prison’s programs and services. Plaintiffs were thus denied access to programming in contravention of the ADA and RA. See, e.g., 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(1).
The reasonable modifications that members of the Disability Subclass seek are readily available to Defendants. According to Mr. Schwartz, it is within Defendants’ capacity to conduct pre-transfer testing, post-transfer testing and quarantining, regular facility-wide testing, and testing and quarantining for individuals known to have been exposed to someone with COVID19 that Disability Subclass Plaintiffs seek. See, e.g., Ex. 15, Schwartz Decl. at ¶ 24. These measures would dramatically reduce the likelihood of members of the Disability Subclass contracting and suffering serious complications from COVID-19. See, e.g., Ex. 16, Fenig Decl. at ¶¶ 30-41.
d. Defendants Cannot Demonstrate That the Relief Plaintiffs Seek Would Impose an Undue Hardship.
Because Plaintiffs in the Disability Subclass have made a prima facie case that Defendants have failed to make reasonable accommodations for their needs, the burden shifts to Defendants to demonstrate that the accommodation they seek would “impose undue hardship on the operation of its services, programs, or activities.” Wright, 831 F.3d at 76 (quotation marks and alterations omitted). Defendants cannot meet this burden. As prison expertise confirms, DOCCS can provide these modifications without imposing an undue hardship or “fundamentally altering” the nature of Defendants’ services. Ex. 15, Schwartz Decl. at ¶¶ 24, 34, 36-37, 41.
Accordingly, Plaintiffs in the Disability Subclass are likely to prevail on their claim that Defendants have failed to provide them with reasonable modifications and have discriminated against them on the bases of their disabilities in violation of the ADA and RA.
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2. Plaintiffs are Likely to Succeed on the Merits of their Eighth Amendment Claim.
“[W]hen the State . . . so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., . . . medical care, and reasonable safety—it transgresses the . . . Eighth Amendment.” Helling, 509 U.S. at 32 (citing DeShaney v. Winnebago Co. Dep’t of Soc. Serv., 489 U.S. 189, 200 (1989)) (quotation marks omitted). A prisoner’s Eighth Amendment right to humane conditions of confinement is violated when, under an objective analysis, he is incarcerated “under conditions posing a substantial risk of serious harm” and, when, under a subjective analysis, prison officials have acted with “deliberate indifference to inmate health or safety.” See Martinez-Brooks, 459 F. Supp. 3d at 439 (quoting Farmer v. Brennan, 511 U.S. 825, 832–833 (1994)).
Both prongs of the Eight Amendment test are satisfied in this case. In the middle of the COVID-19 pandemic, Defendants have concentrated medically vulnerable, elderly, and disabled men under conditions that objectively pose a substantial risk of allowing the airborne and rapidly transmissible COVID-19 virus to enter Adirondack and spread uncontrollably. Defendants know full well that every person incarcerated at Adirondack is uniquely vulnerable to death or serious complications from COVID-19 and that combatting the virus’s spread requires measures that they have refused to take at Adirondack.
a. Defendants Have Exposed Individual Plaintiffs and Members of the General Class to a Substantial Risk of Serious Harm.
The first prong of the Eighth Amendment analysis is satisfied when someone is imprisoned under conditions that expose them to a substantial risk of serious damage to their health. See Farmer, 511 U.S. at 843. It is not constitutionally significant that the risk has not materialized; officials violate the Eighth Amendment when they subject incarcerated people to
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risks that are “very likely to cause serious illness and needless suffering the next week or month or year.” Helling, 509 U.S. at 33. Plaintiffs readily satisfy this standard, as there is a serious risk that they will be infected with COVID-19 and suffer serious health consequences—or die—as a result.
Indeed, courts have found that the possibility of the spread of communicable disease in prisons—even diseases far less serious than COVID-19—meets the objective-risk standard of the Eighth Amendment. See, e.g., Helling, 509 U.S. at 33 (where “inmates in punitive isolation were crowded into cells,” and “some of them had infectious maladies such as hepatitis and venereal disease . . . the Eighth Amendment required a remedy.”) (citing Hutto v. Finley, 437 U.S. 678, 682 (1978); Martinez-Brooks, 459 F. Supp. 3d at 439 (“Courts have long recognized that prison officials have an Eighth Amendment duty to protect inmates from exposure to communicable disease.”). Unsurprisingly, courts have found that the risk of potential spread of COVID-19, specifically, satisfies the Eighth Amendment’s objective prong. See, e.g., Martinez-Brooks, 459 F. Supp. 3d at 439 (finding that the risk of COVID-19 in prison “easily satisfie[s]” objective prong); Mays, 453 F. Supp. 3d at 1091 (finding that the risk of COVID-19 in jail satisfies analogous objective prong of the Fourteenth Amendment for pre-trial detainees).
The danger of the spread of COVID-19 is so significant that the country has effectively shut down much of the economy to avoid it, and many states, including in New York, continue to impose even more serious restrictions as winter begins. The risk in this case—both because of the elevated likelihood of spread within a prison and the particular vulnerability of Adirondack’s population—is even higher than that which exists in virtually every other prison and certainly outside prisons. There can simply be no doubt that the potential spread of the virus at Adirondack poses a “serious risk to the health or safety” of the people imprisoned therein, such
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that the Eighth Amendment requires a response from Defendants to try to mitigate that risk. b. Defendants Have Acted with Deliberate Indifference in Exposing Plaintiffs to a Serious Risk of Harm.
The second, subjective, prong of the Eighth Amendment analysis requires that Defendants have acted with “deliberate indifference” to the risk of serious harm—in other words, that officials know “that inmates face a substantial risk of serious harm and disregard[] that risk by failing to take reasonable measures to abate it.” Martinez-Brooks, 459 F. Supp. 3d at 440 (citing Farmer, 511 U.S. at 847). Here, Defendants both knew of the substantial risk and disregarded that risk by failing to take any necessary measures to limit it.
Defendants are aware of the substantial risk that the spread of COVID-19 poses to the elderly and medically vulnerable population at Adirondack. COVID-19 has spurred lockdowns, quarantines, and social distancing measures over the past year—indeed, Defendant Cuomo has mandated many of these measures. Defendants were also aware of the specific risk that COVID19 poses to elderly and medically vulnerable prisoners. From the early days of the pandemic, health officials and advocates warned Defendants about the high likelihood of COVID-19 spread in prison settings40 and, on June 25, 2020, Plaintiff RAPP and dozens of other concerned organizations warned Defendant Cuomo that the plan to transfer elderly and infirm men to Adirondack “fundamentally represent[ed] a public health crisis that amounts to a ticking time bomb.”41 Defendants’ experience at other prisons has borne out that risk. As of December 22, 2020, New York state prisons have confirmed 2,479 and 2,627 COVID-19 cases for incarcerated people and staff, respectively.42 Even more relevant, Defendants’ recent experience at
40 RAPP Advocacy Letter, supra note 24. 41 RAPP, June 25, 2020 RAPP Adirondack Letter, http://rappcampaign.com/wp-content/uploads/Adirondack-Signon-Letter_June-2020-new.pdf. 42 N.Y. STATE DEP’T OF CORR. & CMTY. SUPERVISION, DOCCS COVID-19 REPORT, https://doccs.ny.gov/doccscovid-19-report (last accessed Jan. 8, 2021).
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Woodbourne Correctional Facility—which has the second-highest concentration of elderly incarcerated people in the state system, after Adirondack—demonstrates not only the danger that COVID-19 poses in a prison setting with a high concentration of elderly people, but how quickly it can spin out of control. As of December 1, 2020, there had been zero COVID-19 cases at the facility, but today there have been 219, with two resulting in death.43 Indeed, Defendant Cuomo has acknowledged this risk to elderly and medically vulnerable people in prison.44 Defendants thus knew of the risk facing members of the General Class, all of whom are at least sixty years old and have underlying medical conditions. See, e.g., Hope v. Pelzer, 536 U.S. 730, 738 (2002) (court “may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious”).
Defendants are deliberately indifferent because, in spite of this knowledge, they refuse to take necessary steps to try to mitigate the risk. Contrasted with the robust, proactive actions that Defendant Cuomo has undertaken to prevent the spread of COVID-19 in other areas, Defendants have done virtually nothing at Adirondack to minimize the spread of the virus, and many of their actions have exacerbated the likelihood that it will spread. Of course, prisons present challenges for social distancing efforts that do not exist in the community at large, see, e.g., Mays v. Dart, 974 F.3d 810, 820–21 (7th Cir. 2020), but the Constitution requires a necessary response to at least try to abate the risk.
The deliberate indifference standard is guided by the threat to incarcerated people and the options available to prison officials to protect against that threat. As the court explained in Martinez-Brooks, “While the Warden is free to exercise discretion in choosing among equally
43 Compare Ex. 21, DOCCS COVID-19 Data Compilation at 5 (Dec. 1, 2020), with Ex. 21, DOCCS COVID-19 Data Compilation at 10 (January 6, 2021). 44 See, e.g., N.Y. State, Governor Cuomo Announces Eighth Region on TRACK TO Hit Benchmark to Begin Reopening Tuesday May 26th, YOUTUBE (May 23, 2020), https://www.youtube.com/watch?v=4NAycLIsyHU.
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effective measures to protect inmates from serious risks, choosing inevitably inadequate measures to the exclusion of a plainly superior one constitutes deliberate indifference.” 459 F. Supp. 3d at 443. Thus, in Martinez-Brooks, the court found that plaintiffs were likely to succeed on their deliberate indifference claim where prison officials had failed to make use of the compassionate release process to send incarcerated people home. The court reasoned that “even with the measures that the Warden has put in place,” the virus “continues to pose a grave risk to vulnerable inmates’ health.” Martinez-Brooks, 459 F. Supp. 3d at 443. By failing to employ the compassionate release procedure, prison officials “failed to implement what appears to be the sole measure capable of adequately protecting vulnerable inmates . . . in favor of measures that, even if they were fully and painstakingly implemented, would still leave vulnerable inmates subject to a grave risk to their health.” Martinez-Brooks, 459 F. Supp. 3d at 443.
In a prison filled with extremely vulnerable people who are at risk of serious illness and death if they contract COVID-19, the necessary steps to respond to that threat include making efforts to prevent the virus from entering the facility and implementing policies and practices that will limit its spread should it enter. Defendants’ efforts to combat the spread of COVID-19 at Adirondack are so inadequate to protect members of the General Class that they reflect deliberate indifference to this risk. Defendants’ paltry measures flout public health guidance, including CDC guidance, at every turn, and fall short of what prisons and jails around the country are doing. As the Court of Appeals for the Seventh Circuit explained in Mays, while “[t]he CDC Guidelines . . . do not themselves set a constitutional standard,” they do “provide the authoritative source of guidance on prevention and safety mechanisms for a novel coronavirus in a historic global pandemic where the public health standards are emerging and changing.” Mays, 974 F.3d at 823. As a result, “implementation (and proper execution) of guidelines that express
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an expert agency’s views on best practices are certainly relevant” to the constitutional evaluation. Mays, 974 F.3d at 823.
Here, Defendants fail to test transferees and fail to quarantine them upon their arrival at Adirondack, “plac[ing] both the existing and incoming inmates at significant risk of COVID-19 infection.” Moreover, Defendants’ method of transferring people to Adirondack—mixing men from different facilities who have not been tested for COVID-19, on a poorly ventilated bus, without adequate social distancing measures—“present[s] a dangerous situation since it unnecessarily exposed them to SARS-CoV-2 viral transmission during their bus transport.” Ex. 16, Fenig Decl. at ¶ 29. CDC guidelines “recommend avoiding transfers between facilities if at all possible” but recommend that individuals be quarantined upon arrival at a new facility before they are assimilated into the general population. Ex. 16, Fenig Decl. at ¶¶ 33, 38. These common-sense measures “provide[] protection to the destination facility inmates by preventing their exposure to asymptomatic carriers of COVID-19 from other incoming facilities.” Ex. 16, Fenig Decl. at ¶ 33. While the prison could take steps to ameliorate transfer risks, Schwartz Dec. at ¶ 24, Defendants have failed entirely to do so here.
Once General Class members enter the prison, there is no effort to implement policies providing for regular universal testing, regular symptom screening, quarantining of exposed people, social distancing in housing units, or keeping housing units within the prison separate from each other. Given the potential for asymptomatic transfer of COVID-19, “[r]outine testing of asymptomatic individuals is an important strategy to detect COVID-19 outbreaks early and minimize the number of exposed and affected individuals.” Ex. 16, Fenig Decl. at ¶ 39.
Defendants’ responses to positive tests and exposures are similarly inadequate. When one person tested positive for COVID-19, staff members he had had close contact with were sent
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home to quarantine, while absolutely no testing, quarantining, or screening was done for incarcerated people with whom he had been in close contact. Ex. 10, Perez Decl. at ¶¶ 6-7; Ex. 12, Applegate Decl. at ¶¶ 10-13, 17. Because of the possibility of asymptomatic transfer, the CDC recommends that an incarcerated person who has had close contact with a person suspected or confirmed to have COVID-19 be removed from their housing units for fourteen days for quarantine or, if that is impractical, the entire unit may be “quarantined in place.” Ex. 16, Fenig Decl. at ¶¶ 30-31. Defendants obviously understand the importance of quarantining, as they sent home staff members who had been exposed, but they were deliberately indifferent to the need to quarantine people who are incarcerated.
Defendants have also failed to provide for social distancing within Adirondack that would limit the spread of COVID-19. Although the CDC Guidelines make clear that social distancing is essential to prevent the spread of COVID-19, distancing at Adirondack is “inconsistently enforced at best, and ignored at worst.” Ex. 16, Fenig Decl. at ¶ 14. Up to 15-20 people at a time must cram into day rooms on a daily basis to watch television and socialize; men at Adirondack stand next to each other while waiting in lines for medication or other services; they frequently congregate in the bathroom, including standing next to each other without masks on for extended periods of time while shaving; and, “most concerning[ly,]” they must sit within six feet of each other while eating in the dining halls, which, because it “necessitates that the individual remove their mask, becomes a particularly perilous activity, as there is no barrier to mitigate the viral spread.” Ex. 16, Fenig Decl. at ¶¶ 16-19.
Increasing the potential for harm is that, in the dining hall and at other times, people from different housing units are allowed to congregate under non-socially distanced conditions, which creates an opportunity for the virus to spread throughout the entire prison rather than being
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limited to a single unit. Ex. 16, Fenig Decl. at ¶ 22 (“Mitigating the potential spread of COVID19 in congregate living situations such as prisons is best achieved when cohorts of inmates are siloed, such as in housing units. If an infectious outbreak occurs, close contact exposure of different housing units to each other would allow COVID-19 to infect a much larger number of inmates and staff. Adirondack Correctional Facility[’s] incapacity to safely keep inmate cohorts separated undermines the ability to contain a potential outbreak, therefore placing these clients as well as all inmates and staff at risk of infection.”). This risk of intra-unit spread is heightened by the practice of having guards work in different housing units.
Defendants’ acts and omissions at Adirondack fall well short of their constitutional duties. Instead of taking the transfer, testing, screening, quarantining, and social-distancing precautions that the CDC guidelines counsel and that other prisons and jails are taking, Defendants have ignored these requirements in favor of an approach that will be inevitably insufficient to prevent the entry and spread of COVID-19. Through this wanton disregard for the threat that COVID-19 poses to the population at Adirondack, Defendants have created a tinder box that requires only the predictable entry of COVID-19 in order to consume the General Class. Defendants have acted with deliberate indifference to a substantial risk of serious harm, such that Plaintiffs are likely to succeed on the merits of their Eighth Amendment claims.
D. The Balance of Equities and the Public Interest Support a Preliminary Injunction. Where, as here, the government is the party opposing a preliminary injunction, the final
two factors in the analysis—the balance of the equities and the public interest—merge. See, e.g., Martinez-Brooks, 459 F. Supp. 3d at 448 (quoting Coronel v. Decker, 449 F. Supp. 3d 274, 287 (S.D.N.Y. 2020)). Because relief here would promote public health, prevent death, and prevent further constitutional injury without significant financial cost or logistical burden and no
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irreparable harm to Defendants, all factors weigh in favor of granting injunctive relief in this case.
The requested relief will promote public health by preventing unnecessary illness and death both within Adirondack and in the surrounding community. Spread between prisons and communities is common, and indeed, prisons act as reservoirs for viruses, continuing their circulation in the community after traditional public health measures would have curtailed that spread. Ex. 13, Shaman Decl. at ¶ 23. Ray Brook, New York, where Adirondack is located, has few public health resources – its local hospitals, Adirondack Medical Center and Elizabethtown Community Hospital, have only 8 intensive care beds and 25 inpatient beds, respectively.45 That medical system was established to serve the regular needs of the population there, not the needs of the population during a pandemic. It certainly cannot mitigate the heightened risk of community spread from Defendants’ addition of 100 elderly, medically needy adults. Courts have recognized this risk. See, e.g., Banks v. Booth, 468 F. Supp. 3d 101, 124 (D.D.C. 2020) (“No man’s health is an island. If Plaintiffs contract COVID-19, they risk infecting others inside the DOC facilities. Plaintiffs also risk infecting DOC staff members who work inside DOC facilities but also live in the community, thus increasing the number of people vulnerable to infection in the community at large.”).
The harm Plaintiffs seek to prevent, death or serious injury, is also extreme and weighs heavily in assessing the balance of equities. See, e.g., Martinez-Brooks, 468 F. Supp. 3d at 124 (“Moreover, the Petitioners’ interest in avoiding serious illness or death must weigh heavily on the scales.”).
Defendants’ conduct also violates Plaintiffs’ right under the Eighth Amendment to be
45 Elizabeth Izzo, Local hospitals move to expand capacity, ADIRONDACK DAILY ENTERPRISE (Mar. 24, 2020), https://www.adirondackdailyenterprise.com/news/local-news/2020/03/local-hospitals-move-to-expand-capacity/.
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free from cruel and unusual punishment, and “the public interest is best served by ensuring that the constitutional rights of persons within the United States are upheld.” Id. at 124 (quoting Coronel, 449 F.Supp.3d at 287). As courts have explained, “there is no harm to the Government when a court prevents unlawful practices.” Banks, 468 F. Supp. 3d at 124.
Protecting these vital interests comes at a little relative cost to Defendants. Defendants can significantly mitigate the imminent risk of a deadly outbreak among the most vulnerable incarcerated people with only a few basic measures that include testing before transfer, quarantining and testing after transfer, testing for asymptomatic incarcerated people and staff, and quarantining and testing people who have come into contact with someone known to have an active case of COVID-19. While an injunction requiring testing would impose some logistical and financial burden, it will be limited. Testing is available to the public nationwide, and already employed to some extent by DOCCS. The testing contemplated by the injunction would also be limited to people entering or currently living and working in Adirondack, and does not place a burden on the DOCCS system as a whole.
Halting transfers of untested people and isolating those who test positive poses no risk to Defendants at all. Prison officials around the country have taken similar measures, and there is no reason why Defendants cannot implement them here. In fact, the relief requested actually benefits Defendants and the community at large by mitigating the risk that staff and those they interact with outside the prison will become infected. While Defendants do have an interest in maintaining procedures that ensure safety, order, and security, the measures sought in the preliminary injunction in no way undermine these goals.
Finally, the harm to Defendants, if any, will not be irreparable. If the Plaintiffs should not ultimately prevail, Defendants can return to their current practices, having suffered only the
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financial cost of implementing improved procedures for a limited time. Finances can be recouped. Lost lives cannot.
E. The Remedy Plaintiffs Seek is Appropriate Plaintiffs seek an injunction ordering Defendants to immediately:
1. Regularly screen and test all staff and incarcerated people at Adirondack, including asymptomatic people, in a manner that allows timely isolation of positive cases;
2. Isolate 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 CDC guidelines, by housing incarcerated people separately from those who have not tested positive, and requiring staff to stay home from work; and
3. Cease all transfers of people from other prisons to Adirondack until Defendants can demonstrate that: 1. Everyone who is being transferred has been tested, quarantined pending results, and been determined to be negative for COVID-19 prior to testing; 2. Staff who are conducting transfers have been tested, quarantined pending results, and been determined to be negative for COVID-19 prior to conducting transfers; 3. People are transferred only from one facility at a time and are not exposed to people from other facilities during transport; 4. People being transferred and staff wear masks and are able to maintain social distance during transport; and 5. People are quarantined separately from current Adirondack residents for a period of two weeks upon arrival. These are the most basic and least intrusive measures that can effectively prevent an
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outbreak at Adirondack, because they constitute the most minimal action Defendants could take to identify and separate positive COVID-19 cases from the rest of the Adirondack population.46 Because the virus spreads without symptoms and does not discriminate between the incarcerated or staff, the only way to identify positive cases is with regular screening and testing of all people at Adirondack, regardless of whether they show symptoms. Defendants must also promptly isolate positive individuals because the virus spreads easily in facilities where people often have no choice but to engage in close enough contact for virus transmission to occur.47 Finally, Defendants cannot continue their reckless practice of transferring new people into Adirondack without ensuring that they test negative for the virus. Trying to control the virus will prove pointless if new people of unknown COVID-19 status are continually added to the population. Hence, the relief requested is tailored to minimize the imposition on Defendants’ interest in the orderly and secure administration of its facilities, while also making a significant first step in protecting the lives and constitutional rights of the Plaintiff classes.
IV. Conclusion For the reasons stated herein, Plaintiffs ask that the Court grant the narrow relief
Plaintiffs seek to protect against the imminent threat of death or serious physical injury.

Dated: January 11, 2021

Respectfully Submitted,
/s/ Rebecca Livengood Sasha Samberg-Champion (Bar Roll #702397) Jia Cobb* Gabriel Diaz* Rebecca Livengood (Bar Roll #702388) RELMAN COLFAX PLLC

46 Indeed, the CDC recommendations for all correctional facilities go much farther than the relief requested here, see CENTERS FOR DISEASE CONTROL AND PREVENTION, supra note 27. 47 Timothy Williams, Benjamin Weiser and William K. Rashbaum, ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. TIMES (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirusprisons-jails html; see Henry, supra note 15.
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1225 19th St. NW, Suite 600 Washington, D.C. 20036 T: (202) 728-1888 F: (202) 728-0848 /s/ Stefen R. Short Stefen R. Short (Bar Roll # 519275) Sophia Gebreselassie* David Billingsley* THE LEGAL AID SOCIETY PRISONERS’ RIGHTS PROJECT 199 Water Street, 6th Floor New York, N.Y. 10038 T: (212) 577-3530 F: (202) 728-0848 Attorneys for Plaintiffs *Pro Hac Vice Applications to Be Submitted
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CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of January, 2021, a copy of the foregoing Memorandum of Law in Support of Plaintiffs’ Request for Preliminary Injunction and all related filings and attachments were filed using the CM/ECF system for the Northern District of New York and will be hand-delivered via process server upon the following Defendants:
Andrew M. Cuomo Governor of New York State NYS State Capitol Building Albany, NY 12224
Office of the Attorney General The Capitol o/b/o Andrew Cuomo, Governor of the State of New York Albany, NY 12224-0341 ATTN: A&O/Personal Service
New York State Department of Corrections and Community Supervision Harriman State Campus 1220 Washington Avenue, Bldg. #2 Albany, New York 12226
Anthony J. Annucci Acting Commissioner New York State Department of Corrections and Community Supervision Harriman State Campus 1220 Washington Avenue, Bldg. #2 Albany, New York 12226
John Morley, M.D. Deputy Commissioner and Chief Medical Officer New York State Department of Corrections and Community Supervision Harriman State Campus 1220 Washington Avenue, Bldg. #2 Albany, New York 12226
Jeffrey Tedford Superintendent, Adirondack Correctional Facility Adirondack Correctional Facility 196 Ray Brook Rd. P.O. Box 110 Ray Brook, NY 12977
/s/ Rebecca Livengood Rebecca Livengood Attorney for Plaintiffs
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EXHIBIT 14

Case 9:21-cv-00019-LEK-ML Document 8-17 Filed 01/11/21 Page 2 of 31

Case 9:21-cv-00019-LEK-ML Document 8-17 Filed 01/11/21 Page 3 of 31

focus is principally the study of the survival, transmission and ecology of infectious agents,

including the effects of meteorological and hydrological conditions on these processes. My work

to date has primarily focused on mosquito-borne and respiratory pathogens. I use mathematical

and statistical models to describe, understand, and forecast the transmission dynamics of these

disease systems.

3. I have studied infectious diseases for 20+ years. I hold a BA in Biology from the

University of Pennsylvania and a PhD in Climate Science from Columbia University.

4. My research has been funded by multiple agencies including the National

Institutes of Health, National Science Foundation, Department of Defense, Centers for Disease

Control and Prevention (CDC), National Oceanic and Atmospheric Administration, and National

Aeronautics and Space Administration.

5. My work is at the vanguard of infectious disease modeling and forecasting. My

group won the first CDC Predict the Influenza Challenge and has brought the use of model-

inference systems, i.e. mathematical models coupled with Bayesian inference approaches, to the

fore of infectious disease epidemiology.

6. 7. bono.

My C.V. is attached as Exhibit A. I am donating my time preparing this Declaration and any live testimony pro

8. I have not previously testified as an expert by declaration or at trial.

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What are the particular dangers associated with COVID-19 within a prison/congregate living environment?
9. Coronavirus disease 2019 (COVID-19) is caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), a respiratory virus that emerged in humans during 2019. Following the initial emergence, the virus rapidly spread from its epicenter in China throughout the world. This spread was facilitated by two epidemiological characteristics that make the virus very difficult to contain: 1) it is a newly emerged respiratory virus to which the vast majority of humans appear to have little pre-existing immunity; and 2) the majority of infections caused by SARS-CoV-2 are subclinical but still contagious, facilitating high rates of transmission from persons unaware of their own infection. The former property implies that most persons are susceptible to infection with SARS-CoV-2. The latter property indicates that, for most, the infection is mild or asymptomatic and thus does not disrupt these individuals from their normal routines of interaction — e.g., going to work, shopping, using public transit, plane travel. Because asymptomatic, mildly symptomatic, and even pre-symptomatic infections are contagious, there exist ample opportunities for a host to unknowingly spread the virus.
10. The sole activity of a virus is replication, which it accomplishes by invading another organism and commandeering the cellular machinery of that host to produce copies of itself. These copies are then disseminated to other cells within the host, as well as to the environment for transmission to another host.
11. Infectious hosts shed the SARS-CoV-2 virus principally in the oral and nasal mucosa of the respiratory tract. During breathing, speaking, singing, coughing and sneezing, persons expel droplets from the respiratory tract into the environment. Some of the droplets from an infectious individual will contain the virus, which can infect a naïve host upon contact with
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the respiratory tract or eyes of that host. A number of modes of transmission can, in theory, support this transfer of virus, including droplet spray, aerosolization and sedimentation on objects with which a naïve host comes in contact. It remains unclear which mode or modes of transmission are most important. As a consequence, it is important that people socially distance, wear masks, ventilate rooms and wash hands to guard against all potential modes of transmission.
12. The spread of the SARS-CoV-2 virus is facilitated by opportunities for person-toperson transmission. It is these opportunities that sustain the virus in the broader community by providing it new hosts to exploit. Crowded indoor environments with poor ventilation, little social distancing and no mask use are optimal settings for virus transmission. Poor ventilation limits the mixing and dilution of droplets and aerosols containing the virus, and thus concentrates the pathogen increasing the chances of transmission. Limited social distancing allows spread by droplets and spray. A lack of masks enables spread by droplets and aerosols.
13. Infectious individuals in crowded indoor environments with poor ventilation, little social distancing and no mask use can spread the virus to one or more individuals. There are many documented instances in which numerous individuals were infected with SARS-CoV-2 at an indoor event (a party, a bar, a choir practice) by a single infectious individual. These “superspreader” events can transmit the virus to dozens of others.
14. Dense congregate environments, such as prisons, nursing homes, and long-term care facilities, are prime localities for the spread of SARS-CoV-2. These indoor settings with individuals in unavoidable close contact provide opportunity for superspreading events, the
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establishment of sustained chains of transmission, and spillover, through staff and visitors, to the broader community.1
15. However, spread in these congregate settings is not inevitable; the risk of transmission can be minimized through sensible public health and testing policies. Modeling work I have performed simulating SARS-CoV-2 transmission in nursing home settings indicates that testing of both staff and visitors entering a facility can help prevent the introduction and spread of the virus within the facility. It is similarly advisable to regularly test employees, people being transferred into prisons, and visitors to prisons, prior to entry, in order to screen for infection and prevent introduction of the virus into the facility.
16. Because testing is not without error, due to slow turnaround or suboptimal test sensitivity, it is advisable to test prison staff as often as possible and all visitors upon each visit. In addition, prisoners should be routinely tested to determine if the virus has leaked into the facility. By testing the prisoners often, chains of transmission can be identified earlier, before many individuals are infected. Routine, sensitive, rapid turnaround testing of staff, visitors and prisoners, in addition to social distancing, personal protective equipment, ventilation and surface cleaning are essential tools for limiting introduction of the virus and outbreaks in prison environments. Further, rates of testing should increase as infection rates in the broader community increase.
17. Elderly prisoners, particularly those with certain chronic conditions such as diabetes, hypertension, chronic respiratory disease, and cardiovascular disease, are at elevated risk of adverse outcomes, hospitalization and death following infection with SARS-CoV-2.
1 Stuart A. Kinner, et al., Prisons and custodial settings are part of a comprehensive response to COVID-19, 5 THE LANCET PUBLIC HEALTH 4, e188 (2020), available at https://www.thelancet.com/action/showPdf?pii=S24682667%2820%2930058-X.
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18. Most transmission occurs from infectious persons who are not aware of their infection. The majority of SARS-CoV-2 infections are undocumented, i.e. individuals who are never tested and confirmed as having an infection. Most undocumented infectious individuals experience mild or no symptoms and as a consequence do not alter their normal routines of going to work or school, shopping, and social interactions. Further, among those whose symptoms are more severe and who are tested and confirmed as having an infection, contagiousness typically commences 2-3 days prior to the onset of symptoms. This pre-symptomatic shedding is another means by which infected individuals unknowingly transmit SARS-CoV-2. As a consequence, the virus can spread for some time among individuals within a setting, such as a prison, before being detected through identification of a symptomatic infection.
What are the risks of community spread in the larger community once COVID-19 is in a prison, and what are the impacts on hospital capacity/community healthcare resources in the event of an outbreak within a prison?
19. The percentage of the population still susceptible to SARS-CoV-2 infection remains high in most areas of the country, including upstate New York. This high susceptibility can readily support transmission in the community.
20. In the larger community, elderly persons, the immunocompromised, and those with conditions such as cancer, diabetes, hypertension, chronic pulmonary disease and cardiovascular disease are particularly at risk of experiencing adverse outcomes upon infection with SARS-CoV-2
21. The virus is very difficult to contain once present in a community as the majority of transmission occurs from people unaware of their infection.
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22. As seen presently (as of December 6, 2020) hospital resources are stretched in much of the country. Hospitalizations for COVID-19 are at record levels and some hospitals have asked infected healthcare personnel to work in order to avoid personnel shortages. Such circumstances degrade the quality of patient care and need to be avoided by limiting transmission in the community.
23. Prisons are not operated in isolation. Corrections officers, staff, visitors and medical personnel enter and exit the prison environment daily, and residents are transferred among prisons. This movement of people into and out of the prison provides opportunities for introducing SARS-CoV-2 into the prison population and for acquiring the virus and bringing it back to surrounding communities. This potential movement of the virus between community and prison, which is often unobserved, allows prisons to act as reservoirs for the disease and disruptors of care services in the broader community. Specifically, the virus, once introduced, can spread rapidly in the closed prison environment, infecting many prisoners at once. Such elevated infection rates not only increase the risk of virus spillover to surrounding communities but also can strain local hospital resources through a flood of sick prisoners and compromise bed availability.2
Where are things currently in the lifecycle of the COVID-19 disease? 24. During the next 3-4 months, spread of the virus will be very difficult to control. There are a number of reasons for this. 25. Presently (as of December 6, 2020), community infection rates, the fraction of the population infected with SARS-CoV-2, are at record levels in the US. My group at Columbia
2 Dan Noyes, San Quentin coronavirus: Inmate shares how massive COVID-19 outbreak started, ABC 7 NEWS (July 8, 2020), available at https://abc7news.com/san-quentin-covid-cases-coronavirus-19-death-row/6307270/.
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University estimates that 1% of the United States population is actively infected with the virus, i.e. contagious, and another 1% is latently infected.
26. The virus thrives off opportunities for person-to-person transmission, which are most abundant when people gather indoors. During the coming winter months, people will spend more time indoors, both at home and when going outside the home to shop, dine, etc., which will increase person-to-person contact indoors.
27. The risks associated with increased indoor person-to-person contact are particularly acute in congregate living environments.
28. Evidence indicates the SARS-CoV-2 virus is more transmissible when conditions are colder and drier as they are during winter. Dryness, i.e. low humidity, is particularly problematic, as this condition seems to increase virus viability outside the host, and, unlike temperature, humidity indoors is not generally regulated. As a consequence, humidity conditions are often very dry indoors during winter, which appears to support more transmission of SARSCoV-2. Sensitivity to humidity is well-documented for influenza, and a similar seasonal cycle of wintertime transmission is observed for other human coronaviruses.
29. As community spread increases, so does the risk that staff will bring the virus into congregate living environments, increasing the risk there.
30. SARS-CoV-2 has been present in the United States for nearly a year. Since March, it has significantly disrupted day-to-day activity, interaction and commerce. Understandably, people are tired of the virus—tired of not seeing their families, tired of not traveling, tired of not engaging with the world as they had previously. This fatigue, which leads to lapses in social distancing and other non-pharmaceutical interventions, may provide additional transmission opportunities for the virus.
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31. Effective vaccines began to be rolled out during December 2020; however, there will not be enough doses delivered to sufficient numbers of people to end the pandemic in the US until late spring or summer 2021 or later. Further, many people may refuse the vaccine. Over the next months, we will have to continue our reliance on non-pharmaceutical interventions to control the virus.
32. Given these circumstances, I expect one hundred thousand or more cases per day in the United States for the next 2 months. Since December 6, 2020, the U.S. 7-day moving average of new cases has exceeded 200,000 per day. These levels are more than double the rates experienced during the peak of the summer wave. While this rate of case accrual may not persist at such a high level, I expect it will take some time to drop below one hundred thousand new cases per day.
I declare under penalty of perjury that the foregoing is true and correct. EXECUTED WITHIN THE UNITED STATES ON: ______________________, 2021.
BY: _____________________________ Jeffrey L. Shaman
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EXHIBIT A

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Jeffrey Shaman Curriculum Vitae
Department of Environmental Health Sciences Mailman School of Public Health, Columbia University
722 West 168th Street Allan Rosenfield Building, Room 1104E
New York, NY 10032 www.columbia.edu/~jls106
AREAS OF INTEREST: Climate and health, infectious disease transmission and epidemiology, mosquito-borne disease, mosquito ecology, modeling and prediction of infectious disease, large-scale climate dynamics, tropical meteorology, climate prediction, the hydrologic cycle
EDUCATION:
University of Pennsylvania, Bachelor of Arts in Biology, Cum Laude with honors in the major, 1990 Columbia University, Master of Arts, Department of Earth and Environmental Sciences, 2000 Columbia University, Master of Philosophy, Department of Earth and Environmental Sciences, 2002 Columbia University, Doctor of Philosophy, Department of Earth and Environmental Sciences, 2003, Awarded with
Distinction Harvard University, National Oceanic and Atmospheric Administration Post-Doctoral Fellow in Climate and Global Change,
2003-2005
APPOINTMENTS:
Professor, Department of Environmental Health Sciences, Mailman School of Public Health, Columbia University, 2019present
Director, Climate and Health Program, Mailman School of Public Health, Columbia University, 2017-present Associate Professor, Department of Environmental Health Sciences, Mailman School of Public Health, Columbia University,
2014-2018 Co-Director, Climate and Health Program, Mailman School of Public Health, Columbia University, 2014-2016 Assistant Professor, Department of Environmental Health Sciences, Mailman School of Public Health, Columbia University,
2011-2014 Assistant Professor, College of Oceanic and Atmospheric Sciences, Oregon State University, 2005-2011 National Oceanic and Atmospheric Administration Post-Doctoral Fellow, Harvard University, 2003-2005 National Aeronautics and Space Administration Earth System Science Fellow (graduate), 2000-2003 Laboratory Technician, Children's Hospital of Philadelphia and the University of Pennsylvania. Immunological research
involving molecular and cellular experimentation investigating the class II system and its genetic expression, 1992-1994 Field Researcher, The University of Pennsylvania. Plant biology surveys, experimentation and research of forest regrowth
and plant community competition, 1990-1991
AFFILIATIONS:
Associate Chair, Earth Institute Faculty, Columbia University, 2020-present Earth Institute, Columbia University, Faculty Member, 2020-present Data Science Institute, Columbia University, Affiliate Member, 2017-present American Museum of Natural History, Division of Invertebrate Zoology, Research Associate, 2016-present Columbia Center for Environmental Health in Northern Manhattan, Mailman School of Public Health, Columbia University,
2011-present International Research Institute for Climate and Society, Columbia University, 2011-present Earth Institute, Columbia University, Associate Faculty Member, 2016-2020 Earth Institute, Columbia University, Junior Faculty Fellow, 2012-2016 Institute for Social and Economic Research and Policy, Columbia University, Faculty Fellow, 2012-2018 College of Earth,
Oceanic and Atmospheric Sciences, Oregon State University, Courtesy, 2011-2014 Center for Communicable Disease Dynamics, Harvard School of Public Health, 2009-2015
GRADUATE AND POSTDOCTORAL ADVISORS:
Mark A. Cane, Columbia University (graduate) Eli Tziperman, Harvard University (post-doctoral)

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AWARDS:
Dean’s Excellence in Faculty Leadership Award, Mailman School of Public Health, 2020 International Society for Disease Surveillance Outstanding Research Article in Biosurveillance in the Scientific Achievement
Category, first prize (for Pei et al., 2018), 2018 Tow Faculty Leadership Award, Mailman School of Public Health, 2015-2018 Winner, Centers for Disease Control and Prevention ‘Predict the Influenza Season Challenge’, 2014 International Society for Disease Surveillance Outstanding Research Article in Biosurveillance in the Scientific Achievement
Category, first prize (for Shaman and Karspeck, 2012), 2013 Junior Faculty Career Development Award, Columbia University Center for Environmental Health in Northern Manhattan,
2012-2014 National Oceanic and Atmospheric Administration Post-Doctoral Fellowship in Climate and Global Change, 2003-2005 Bruce C. Heezen Prize for graduate students making exceptional scientific contributions, 2003 Columbia Sigma Xi, 2003 Ph.D. Awarded with Distinction, 2003 NASA Earth System Science Fellowship, 2000-2003
MANUSCRIPTS IN REVIEW AND PRESS:
Pei S, Teng X, Lewis P, Shaman J. Optimizing influenza surveillance networks using uncertainty propagation. Accepted. Baker RE, Worby CJ, Yang W, Saad-Roy CM, Shaman J, Metcalf CJE, Vecchi G, Grenfell GT. Implications of climatic and
demographic change for influenza dynamics and evolution. In review. Keyes KM, Kandula S, Olfson M, Gould MS, Martinez-Ales G, Rutherford C, Shaman J. Suicide and the agent-host-
environment triad: leveraging surveillance sources to inform prevention. Accepted. Galanti M, Shaman J. Direct observation of multiple subsequent infections with endemic coronaviruses. Accepted. Branas CC, Rundle A, Pei S, Yang W, Carr BG, Sims S, Zebrowski A, Doorley R, Schluger N, Quinn JW, Shaman J.
Flattening the curve before it flattens us: hospital critical care capacity limits and mortality from novel coronavirus (SARS-CoV2) cases in US counties - 3 and 6 week projections from April 2, 2020. In review. Lamb MR, Kandula S, Shaman J. Differential COVID-19 case positivity in New York City neighborhoods: socioeconomic factors and mobility. Accepted. Ukawuba I, Shaman J. Use of climate in a simple entomological model of malaria transmission. In preparation. Yang W, Kandula S, Huynh M, Greene SK, Van Wye G, Li W, Chan HT, McGibbon E, Yeung A, Olson D, Fine A, Shaman J. Estimating the infection fatality risk of COVID-19 in New York City during the spring 2020 pandemic wave: a modelbased analysis. Accepted. Rader B, White LF, Burns MR, Chen J, Brilliant J, Cohen J, Shaman J, Brilliant L, Hawkins J, Scarpino SV, Astley CM, Brownstein JS. Mask wearing and control of SARS-CoV-2 transmission in the United States. In review. Lewandowski SA, Kioumourtzoglou MA, Shaman JL. Heat stress illness outcomes and annual indices of outdoor heat at U.S. Army installations. In submission. Ma, Y. S. Pei, J. Shaman, R. Dubrow and K. Chen. Role of air temperature and humidity in the transmission of SARS-CoV-2 in the United States. In revision. Martinez-Ales G, Pamplin II, JR, Rutherford C, Gimbrone C, Kandula S, Olson M, Gould MS, Shaman J, Keyes KM. Age, period, and cohort effects on suicide death in the US from 1999 to 2017: moderation by sex, race, and firearm involvement. In submission.
PEER REVIEWED PUBLICATIONS:
Matienzo N, Youssef MM, Comito D, Lane B, Ligon C, Morita H, Winchester A, Decker ME, Dayan P, Shopsin B, Shaman J. Respiratory viruses in pediatric emergency department patients and their family members. Influenza and Other Respiratory Viruses, 15(1):91-98, doi:10.1111/irv.12789, 2021.
Pei S, Kandula S, Shaman J. Differential Effects of Intervention Timing on COVID-19 Spread in the United States. Science Advances, 6(49):eabd6370, doi:10.1126/sciadv.abd6370, 2020.
Pei S, Dahl K, Yamana TK, Licker R, Shaman J. Compound risks of hurricane evacuation amid the COVID-19 pandemic in the United States. GeoHealth, 4(12):e2020GH000319, doi:10.1029/2020GH000319, 2020.
Cruz AT, Shaman J, Dayan P. The challenge of clearly counting COVID-19 cases in children. Pediatrics, 146(6):e2020031682, doi:10.1542/peds.2020-027425, 2020.
Bomfim R, Pei S, Shaman J, Yamana T, Makse HA, Andrade Jr. JS, Lima Neto AS, Furtado V. Predicting dengue outbreaks at neighborhood level using human mobility in urban areas. Journal of the Royal Society Interface, 17(171):20200691, doi:10.1098/rsif.2020.0691, 2020..
Shaman J, Galanti M. Will SARS-CoV-2 become endemic? Science, 370(6516):527-529, doi:10.1126/science.abe5960, 2020. Kramer SC, Pei S, Shaman J. Forecasting influenza in Europe using a metapopulation model incorporating cross-border
commuting and air travel. PLOS Computational Biology, 16(10):e1008233, doi:10.1371/journal.pcbi.1008233, 2020.

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Pei S, Shaman J. Aggregating forecasts of multiple respiratory pathogens supports more accurate forecasting of influenza-like illness. PLOS Computational Biology, 16(10):e1008301, doi:10.1371/journal.pcbi.1008301, 2020.
Galanti M, Comito D, Ligon C, Lane B, Matienzo N, Ibrahim S, Shittu A, Tagne E, Birger R, Ud-Dean M, Filip I, Morita H, Rabadan R, Anthony S, Freyer GA, Dayan P, Shopsin B, Shaman J. Active surveillance documents rates of clinical care seeking due to respiratory illness. Influenza and Other Respiratory Viruses, 14(5):499-506, doi:10.1111/irv.12753, 2020.
Emeruwa UN, Ona S, Shaman J, Turitz A, Wright JD, Gyamfi-Bannerman C, Melamed A. Associations between built environment, neighborhood socioeconomic status and SARS-CoV-2 infection among pregnant women in New York City. JAMA, 324(4):390-392, doi:10.1001/jama.2020.11370, 2020.
Shea B, Knowlton K, Shaman J. The state of climate-health education at health professions schools: a baseline assessment. JAMA Open Network, 3(5):e206609, doi:10.1001/jamanetworkopen.2020.6609, 2020.
Li R, Pei S, Chen B, Song Y, Zhang T, Yang W, Shaman J. Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (SARS-CoV2). Science, 368(6490):489-493, doi:10.1126/science.abb3221, 2020.
Gervais M, Shaman J, Kushnir Y. Impact of the North Atlantic Warming Hole on sensible weather. Journal of Climate, 33(10):4255-4271, doi:10.1175/JCLI-D-1909636.1, 2020.
Heaney A, Alexander K, Shaman J. Ensemble forecast and parameter inference of childhood diarrhea in Chobe District, Botswana. Epidemics, 30:100372, doi:10.1016.jepidem.2019.100372,2020.
Yamana TK, Shaman J. A framework for evaluating the effects of observational type and quality on vector-borne disease forecast. Epidemics, 30:100359, doi:10.1016.jepidem.2019.100359,2020.
Krasna H, Czabanowska K, Jiang S, Khadka S, Morita H, Kornfeld J, Shaman J. The future of careers at the intersection of climate change and public health: What can job postings and an employer survey tell us? International Journal of Environmental Research and Public Health, 17(4):1310, doi:10.3390/ijerph170418310, 2020.
Orenbuch R, Filip I, Comito D, Shaman J, Pe’er I, Rabadan R. arcasHLA: high resolution HLA typing from RNAseq. Bioinformatics, 36(1):33-40, doi:10.1093/bioinformatics/btz474, 2020.
Heaney A, Shaman J, Alexander K. El Nino-Southern Oscillation and under-5 diarrhea in Botswana. Nature Communications, 10:5798, doi:10.1038/s41467-019-13584-6, 2019.
Reich NG, McGowan C, Yamana T, Tushar A, Ray E, Osthus D, Kandula S, Fox S, Brooks L, Crawford-Crudell W, Gibson GC, Moore E, Silva R, Biggerstaff M, Johansson MA, Rosenfeld R, Shaman J. A collaborative multi-model ensemble for real-time influenza forecasting in the U.S.: Results from the 2017/2018 season. PLOS Computational Biology, 15(11):e1007486, doi:10.1371/journal.pcbi.1007486, 2019..
Johansson M et al. Advancing probabilistic epidemic forecasting through an open challenge: The Dengue Forecasting Project. Proceedings of the National Academy of Sciences, 116(48):24268-24274, doi:10.1073/pnas.1909865116, 2019.
Sy KTL, Shaman J, Kandula S, Pei S, Gould M, Keyes KM. Spatiotemporal clustering of suicide deaths from 1999 to 2016: a spatial epidemiological approach. Social Psychiatry and Psychiatric Epidemiology, 54:1471-1482, doi:10.1007/ s00127-019001736-4, 2019..
Lipsitch M, Shaman J. Comment on: ‘Antibiotic footprint’ as a communication tool to aid reduction of antibiotic consumption. Journal of Antimicrobial Chemotherapy, 74(11):3404-3406, doi:10.1093/jac/dkz320, 2019..
Reich NG, Osthus D, Ray E, Yamana T, Biggerstaff M, Johansson MA, Rosenfeld R, Shaman J. Reply to Bracher: Scoring probabilistic forecasts to maximize public health interpretability. Proceedings of the National Academy of Sciences, 116(42):20811-20812, doi:10.1073/pnas.1912694116, 2019.
Kandula S, Shaman J. Reappraising the utility of Google Flu Trends. PLOS Computational Biology, 15(8):e1007258, doi:10.1371/journal.pcbi.1007258, 2019.
Kandula S, Pei S, Shaman J. Improved forecasts of influenza-associated hospitalization rates with Google search trends. Journal of the Royal Society Interface, 16:20190080, doi:10.1098/rsif.2019.0080, 2019.
Kandula S, Shaman J. Near-term forecasts of influenza-like illness: an evaluation of autoregressive time series approaches. Epidemics, 27:41-51, doi:10.1016/j.epidem.2019.01.002, 2019.
Li X, Xu B, Shaman J. The impact of environmental transmission and epidemiological features on the geographical translocation of highly pathogenic avian influenza virus. International Journal of Environmental Research and Public Health, 16(11):1890, doi:10.3390/ijerph16111890, 2019.
Li X, Xu B, Shaman J. Pathobiological features that favor the intercontinental dissemination of highly pathogenic avian influenza virus H5N8. Royal Society Open, 6:190276, doi:10.1098/rsos.190276, 2019.
Gervais M, Shaman J, Kushnir Y. Impacts of the North Atlantic warming hole in future climate projections: mean atmospheric circulation and the North Atlantic jet. Journal of Climate, 32(10):2673-2689, doi:10.1175/JCLID-18-0647.1, 2019.
Galanti M, Birger R, Ud-Dean SMM, Filip I, Morita H, Comito D, Anthony S, Freyer GA, Ibrahim S, Lane B, Matienzo M, Ligon C, Rabadan R, Shittu A, Tagne E, Shaman J. Symptoms of respiratory viral infections across age groups. Epidemiology and Infection, 147:e176, 1-6, doi:10.1017/S0950268819000505, 2019.
DeFelice NB, Birger R, DeFelice N, Gagner A, Campbell SR, Romano C, Santoriello M, Henke J, Wittie J, Cole B, Kaiser C, Shaman J. Real time 2017 West Nile virus forecast: operational challenges. JAMA Open Network, 2(4):e193175, doi:10.1001/jamanetworkopen.2019.3175, 2019.
Galanti M, Birger R, Ud-Dean SMM, Filip I, Morita H, Comito D, Anthony S, Freyer GA, Ibrahim S, Lane B, Ligon C, Rabadan R, Shittu A, Tagne E, Shaman J. Longitudinal active sampling for respiratory viral infections across age groups. Influenza and Other Respiratory Viruses, 13(3):226-232, doi:10.1111/irv.12629, 2019.

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Reis J, Yamana T, Kandula S, Shaman J. Superensemble forecast of respiratory syncytial virus outbreaks at regional, state and municipal levels. Epidemics, 26:1-8, doi:10.1016/j.epidem.2018.07.001, 2019,
Kramer SC, Shaman J. Development and validation of influenza forecasting for 64 temperate and tropical countries. PLOS Computational Biology, 15(2):e1006742, doi:10.1371/journal.pcbi.1006742, 2019.
Pei S, Cane MA, Shaman J. Predictability in process-based ensemble forecast of influenza. PLOS Computational Biology, 15(2):e1006783, doi:10.1371/journal.pcbi.1006783, 2019.
Yang W, Li J, Shaman J. Characteristics of measles epidemics in China (1951-2004) and implications for elimination. PLOS Computational Biology, 15(2):e1006806, doi:10.1371/journal.pcbi.1006806, 2019.
McGowan C, Biggerstaff M, Johansson M, Apfeldrf KM, Ben-Nun M, Brooks L, Convertino M, Erraguntla M, Farrow DC, Freeze J, Ghosh S, Hyun S, Kandula S, Lega J, Liu Y, Michaud N, Morita H, Niemi J, Ramakrishnan N, Ray EL, Reich NG, Riley P, Shaman J, Tibshirani R, Vespignani A, Zhang Q, Reed C. Collaborative efforts to forecast seasonal influenza in the United States, 2015-2016. Scientific Reports, 9:683, doi:10.1038/s41598-018-36361-9, 2019.
Reich NG, Brooks L, Fox S, Kandula S, McGowan C, Moore E, Osthus D, Ray E, Tushar A, Yamana T, Biggerstaff M, Johansson MA, Rosenfeld R, Shaman J. Forecasting seasonal influenza in the U.S.: a collaborative multi-year, multimodel assessment of forecast performance. Proceedings of the National Academy of Sciences, 116(8):3146-3154, doi:10.1073/pnas.1812594116, 2019.
Pei S, Morone F, Liljeros F, Makse HA, Shaman J. Inference of the nosocomial transmission dynamics of Methicillinresistant Staphylococcus aureus. eLife, 7:e40977, doi:10.7554/eLife.40977, 2018.
Alexander K, Heaney A, Shaman J. Distant climate controls and dryland flood pulse dynamics influence diarrheal disease and population vulnerability to climate change. PLOS Medicine, 15(11):e1002688, doi:10.1371/journal.pmed.1002688, 2018.
Morita H, Kramer S, Heaney A, Gil H, Shaman J. Influenza forecast optimization when using different surveillance data types and geographic scale. Influenza and Other Respiratory Viruses, 12(6):755-764, doi:10.1111/irv.12594, 2018.
Fu C, Dong Z, Shen J, Yang Z, Liao Y, Hu W, Pei S, Wang M, Shaman J. Population impact of the Lanzhou Lamb Rotavirus (LLR) vaccine: data from 9 years of immunization in Guangzhou, China. JAMA Network Open, 1(4):e181382, doi:10.1001/jamanetworkopen.2018.1382, 2018.
Yang W, Cummings MJ, Bakamutumaho B, Kayiwa J, Owor N, Namagambo B, Byaruhanga T, Lutwama JJ, O’Donnell, MR, Shaman J. Transmission dynamics of influenza in two major cities of Uganda. Epidemics, 24:43-48, doi.org/10.1016/ j.epidem.2018.03.002, 2018.
Biggerstaff M, Johansson M, Alper D, Brooks LC, Chakraborty P, Farrow DC, Hyun S, Kandula S, McGowan C, Ramakrishnan N, Rosenfeld R, Shaman J, Tibshirani R, Tibshirani RJ, Vespignani A, Yang W, Zhang Q, Reed C. Results from the second year of a collaborative effort to forecast influenza seasons in the United States. Epidemics, 24:26-33, doi.org/10.1016/j.epidem.2018.02.003, 2018.
Doms C, Kramer SC, Shaman J. Assessing the use of influenza forecasts and epidemiological modeling in public health decision making. Scientific Reports, 8:12406, doi:10.1038/s41598-018-30378-w, 2018.
Shea B, Knowlton K, Shaman J. The need for informed climate-health governance. International Journal of Health Governance, 23(3):196-204, doi:10.1108/IJHG-01-2018-0001, 2018.
Kandula S, Yamana T, Pei S, Yang W, Morita H, Shaman J. Evaluation of mechanistic and statistical methods in forecasting influenza-like illness. Journal of the Royal Society Interface, 15:20180174, doi:10.1098/rsif.2018.0174, 2018.
Birger R, Morita H, Comito D, Filip I, Galanti M, Lane B, Ligon C, Rosenbloom D, Shittu A, Ud-Dean M, Desalle R, Planet P, Shaman J. Asymptomatic shedding of respiratory virus among an ambulatory population across seasons. mSphere, 3:e00249- 18. https://doi.org/10.1128/mSphere.00249-18, 2018.
Gervais M, Shaman J, Kushnir Y. Mechanisms Governing the Development of the North Atlantic Warming Hole in the CESM-LE Future Climate Simulations. Journal of Climate, 31(15):5927-5946, doi:10.1175/JCLI-D-17-0635.1, 2018.
Yang W, Cummings MJ, Bakamutumaho B, Kayiwa J, Owor N, Namagambo B, Byaruhanga T, Lutwama JJ, O’Donnell, MR, Shaman J. Dynamics of influenza in the tropical Africa: temperature, humidity and co-circulating (sub)types. Influenza and Other Respiratory Viruses, 12(4):446-456, doi:10.1111/irv.12556, 2018.
Shaman J, Knowlton K. The need for climate and health education. American Journal of Public Health, 108(S2):S66-S67, 2018.
Ukawuba I, Shaman J. Association of spring-summer hydrology and meteorology and human West Nile virus infection in West Texas, USA, 2002-2016. Parasites & Vectors, 11:224, doi:10.1186/s13071-018-2781-0, 2018.
Reis J, Shaman J. Simulation of four respiratory viruses and inference of epidemiological parameters. Infectious Disease Modeling, 3:23-34, doi:10.1016/j.idm.2018.03.006, 2018.
Chattopadhyay I, Kiciman E, Elliott JW, Shaman J, Rzhetsky A. Conjunctions of factors triggering waves of seasonal influenza. eLife, 7:e30756, doi:10.7554/eLife.30756, 2018.
DeFelice NB, Schneider ZD, Little E, Barker C, Caillouet KA, Campbell SR, Damian D, Irwin P, Jones HMP, Townsend J, Shaman J. Use of temperature to improve West Nile virus forecasts. PLOS Computational Biology, 14(3):e1006047, doi:10.1371/journal.pcbi.1006047, 2018.
Pei S, Kandula S, Yang W, Shaman J. Forecasting the spatial transmission of influenza in the United States. Proceedings of the National Academy of Sciences, 115(11):2752-2757, doi:10.1073/pnas.1708856115, 2018.
Shaman J, Morita H, Birger R, Boye M, Comito D, Lane B, Ligon C, Smith H, Desalle R, Planet P. Asymptomatic summertime shedding of respiratory viruses. The Journal of Infectious Diseases, 217(7):1074-1077, doi:10.1093/infdis/

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jix685, 2018. Cummings MJ, Barnabas B, Yang W, Wamala JF, Kayiwa J, Owor N, Namagambo B, Byaruhanga T, Wolf A, Lutwama JJ,
Shaman J, O’Donnell MR. Emergence and early-phase transmission dynamics of 2009 pandemic A/H1N1 influenza in Kampala, Uganda, 2009-2010. American Journal of Tropical Medicine and Hygiene, 98(1):203-206, doi/10.4269/ ajtmh.17-0524, 2018. Shaman J, Kandula S, Yang W, Karspeck A. The use of ambient humidity conditions to improve influenza forecast. PLOS Computational Biology, 13(11):e1005844, doi:10.1371/journal.pcbi.1005844, 2017. Yamana T, Kandula S, Shaman J. Individual versus superensemble forecasts of seasonal influenza outbreaks in the United States. PLOS Computational Biology, 13(11):e1005801, doi:10.1371/journal.pcbi.1005801, 2017. Kandula S, Hsu DJ, Shaman J. Sub-regional nowcasts of seasonal influenza using search trends. Journal of Medical Internet Research, 19(11):e370, doi:10.2196/jmir.7486, 2017. Pei S, Shaman J. Counteracting structural errors in ensemble forecast of influenza outbreaks. Nature Communications, 8, Article Number 925, doi:10.1038/s41467-017-01033-1, 2017. Little E, Bajwa W, Shaman J. Local environmental and meteorological conditions influencing the invasive mosquito Ae. albopictus and arbovirus transmission risk in New York City. PLOS Neglected Tropical Diseases, 11(8):e0005828, doi:10.1371/journal.pntd.0005828, 2017. Quinn A, Shaman J. Health symptoms in relation to temperature, humidity, and self-reported perceptions of climate in New York City residential environments. International Journal of Biometeorology, 61(7):1209-1220, doi:10.1007/ s00484-016-1299-4, 2017. Quinn A, Kinney PL, Shaman J. Predictors of summertime heat index levels in New York City apartments. Indoor Air, 27(4):840-851, doi:10.1111/ina.12367, 2017. Fu C, Shen J, Lu L, Li Y, Cao Y, Wang M, Pei S, Yang Z, Guo Q, Shaman J. Pre-vaccination evolution of antibodies among infants 0, 3 and 6 months of age: a longitudinal analysis of measles enterovirus 71 and coxsackievirus 16. Vaccine, 35(31):3817-3822, doi:10.1016/j.vaccine.2017.06.002, 2017. Yang W, Wen L, Li S-L, Chen K, Zhang W-Y, Shaman J. Geospatial characteristics of measles transmission in China during 2005-2014. PLOS Computational Biology, 13(4):e1005474, doi:10.1371/journal.pcbi.1005474, 2017. Tamerius J, Ojeda S, Uejio CK, Shaman J, Lopez B, Sanchez N, Gordon A. Extreme indoor conditions mediate influenza transmission in a low-resource tropical setting. International Journal of Biometeorology, 61(4):613-622, doi:10.1007/ s00484-016-1238-4, 2017. Pei S, Teng X, Morone F, Shaman J, Makse HA. Efficient collective influence maximization in cascading processes with first-order transitions. Scientific Reports, 7:45240, doi:10.1038/srep45240, 2017. Kandula S, Yang W, Shaman J. Type- and Subtype-Specific Influenza Forecast. American Journal of Epidemiology, 185(5):395-402, doi:10.1093/aje/kww211, 2017. DeFelice NB, Little E, Campbell SR, Shaman J. Ensemble Forecast of Human West Nile Virus cases and Mosquito Infection Rates. Nature Communications, 8, Article Number 14592, doi:10.1038/ncomms14592, 2017. DeBlander E, Shaman J. Teleconnection between the South Atlantic Convergence Zone and the Southern Indian Ocean: Implications for Tropical Cyclone Steering. Journal of Geophysical Research Atmospheres, 122, 728-740, doi:10.1002/2016JD025373, 2017. Li R, Bai Y, Heaney A, Kandula S, Cai J, Zhao X, Xu B, Shaman J. Inference and Forecast of H7N9 Influenza in China. Eurosurveillance, 22(7):pii=30462, doi:10.2807/1560-7917.ES.2017.22.7.30462, 2017. Quinn A, Shaman J. Indoor temperature and humidity in New York City apartments during winter. Science of the Total Environment, 583:29-35, doi:10.1016/j.scitotenv.2016.12.183, 2017. Lee WV, Shaman J. Heat-coping strategies, cooling appliance usage patterns, and bedroom thermal satisfaction in New York City. Science of the Total Environment, 574:1217-1231, doi:10.1016/j.scitotenv.2016.07.006, 2017. Fu C, Lu L, Wu H, Shaman J, Cao Y, Wang M. Placental antibody transfer rate may be reversely related to maternal levels: specific for measles, hand-foot-mouth disease, poliomyelitis and HIV. Scientific Reports, 6:38874, doi:10.1038/ srep38874, 2016. Yang W, Olson DR, Shaman J. Forecasting influenza outbreaks in boroughs and neighborhoods of New York City. PLOS Computational Biology, 12(11):e1005201, doi:10.1371/journal.pcbi.1005201, 2016. Heaney A, Little E, Ng S, Shaman J. Climate Change and Infectious Disease in Central Africa: a Review of Climate Data Quality. Annals of New York Academy of Sciences, 1382(1):31-43, doi:10.1111/nyas.13090, 2016. Yamana T, Kandula S, Shaman J. Superensemble Forecasts of Dengue Outbreaks. Journal of the Royal Society Interface, 13:20160410, doi:10.1098/rsif.2016.0410, 2016. Reis J, Shaman J. Retrospective parameter estimation and forecast of respiratory syncytial virus in the United States. PLOS Computational Biology, 12(10):e1005133, doi:10.1371/journal.pcbi.1005133, 2016 Shaman J, Tziperman E. The superposition of eastward and westward Rossby waves in response to localized forcing. Journal of Climate, 29(20):7547-7557, doi:10.1175/JCLI-D-16-0119.1, 2016 Little E, Campbell SR, Shaman J. Development and Validation of a Climate-Based Ensemble Prediction Model for West Nile Virus Infection Rates in Culex Mosquitoes, Suffolk County, New York. Parasites & Vectors, 9:443, doi: 10.1186/ s13071-016-1720-1, 2016 Biggerstaff M, Alper D, Dredze M, Fox, S, Fung IC-H, Hickmann KS, Leis B, Rosenfeld R, Shaman J, Tsou M-H, Velardi P, Vespignani A, Finelli L for the Influenza Forecasting Contest Working Group. Results from the Centers for Disease

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Control and Prevention’s Predict the 2013-2014 Influenza Season Challenge. BMC Infectious Diseases, 16:357,
doi:10.1186/S12879-016-1669-x, 2016. Nguyen JL, Yang W, Ito K, Matte T, Shaman J, Kinney PL, The temporal association and prediction of cardiovascular disease
mortality with increases in seasonal influenza infections. JAMA Cardiology, 1(3):274-281, 2016. Sobel A, Camargo S, Debucquoy W, Deodatis G, Gerrard M, Hall T, Hallman R, Keenan J, Lall U, Levy M, Orlove B,
Rosenzweig C, Seager R, Shaman J, Tippet M. Extreme Weather and Climate: Workshop Report. Journal of Extreme Events, 3(1):167001, doi:10.1142/S2345737616710019, 2016. Seager R, Chiang J, Shaman J. Do the tropics rule? Assessing the state of tropical climate science. Bulletin of the American Meteorological Society, 96 ES211-ES214, doi:10.1175/BAMS-D-15-00043.1, 2015. Yang W, Zhang W, Kargbo D, Yang R, Chen Y, Chen Z, Kamara A, Kargbo B, Kandula S, Karspeck A, Liu C, Shaman J. Transmission network of the 2014-2015 Ebola epidemic in Sierra Leone. Journal of the Royal Society Interface, 12 20150536; doi:10.1098/rsif.2015.0536, 2015. Shaman J, Kandula S. Improved Discrimination of Influenza Forecast Accuracy Using Consecutive Predictions. PLOS Currents Outbreaks. 2015 Oct 5 . Edition 1. doi: 10.1371/currents.outbreaks.8a6a3df285af7ca973fab4b22e10911e, 2015. Tamerius JD, Viboud C, Shaman J, Chowell G. Regional variability of specific humidity and school vacation can explain multiple spatially-focused waves of 2009 pandemic influenza in Mexico. PLOS Computational Biology, 11(8): e1004337, doi:10.1371/journal.pcbi.1004337, 2015. Yang W, Cowling BJ, Lau EHY, Shaman J. Forecasting influenza epidemics in Hong Kong. PLOS Computational Biology, 11(7): e1004383, doi:10.1371/journal.pcbi.1004383, 2015. Alexander KA, Sanderson CE, Marathe M, Lewis BL, Rivers CM, Shaman J, Drake JM, Lofgren E, Dato VM, Eisenberg MC, Eubank S. What factors might have led to the emergence of Ebola in West Africa? PLOS Neglected Tropical Diseases, 9(6): e0003652, doi:10.1371/journal.pntd.0003652, 2015. Yang W, Lipsitch M, Shaman J. Inference of seasonal and pandemic influenza transmission dynamics. Proceedings of the National Academy of Sciences, 112(9):2723-2728, doi:10.1073/pnas.1415012112, 2015. Lofgren ET, Halloran ME, Rivers CM, Drake JM, Porco TC, Lewis BL, Yang W, Vespignani A, Shaman J, Eisenberg JNS, Eisenberg MC, Marathe MV, Scarpino SV, Alexander KA, Meza R, Ferrari MJ, Hyman JM, Meyers LA, Eubank SG. Opinion: Mathematical models: A key tool for outbreak response. Proceedings of the National Academy of Sciences, 111(51):18,095-18,096, doi:10.1073/pnas.1421551111, 2014. Shaman J, Yang W, Kandula S. Inference and Forecast of the Current West African Ebola Outbreak in Guinea, Sierra Leone and Liberia. PLOS Currents Outbreaks. 2014 Oct 28. Edition 1. doi: 10.1371/ currents.outbreaks.3408774290b1a0f2dd7cae877c8b8ff6, 2014 Shaman J. Letter to the Editor: Caution When Using Gridded Meteorological Data Products for Analyses in Africa. Eurosurveillance, 19(41):pii=20930, 2014. Yang W, Shaman J. Does Exposure to poultry and wild fowl confer immunity to H5N1? Chinese Medical Journal, 127(18): 3335-3343, 2014. Shaman J, The Seasonal Effects of ENSO on European Precipitation: Observational Analysis. Journal of Climate, 27(17): 6423-6438, 2014. Quinn A, Tamerius JD, Perzanowski M, Jacobson JS, Goldstein I, Acosta L, Shaman J. Predicting indoor heat index exposure within New York City residences. Science of the Total Environment, 490: 686-693, 2014. Gog JR, Ballesteros S, Viboud C, Simonsen L, Bjornstad ON, Shaman J, Chao DL, Khan F, Grenfell BT. Spatial transmission of 2009 pandemic influenza in the US. PLOS Computational Biology, 10(6): e1003635, doi:10.1371/ journal.pcbi.1003635, 2014. Yang W, Karspeck A, Shaman J. Comparison of filtering methods for the modeling and retrospective forecasting of influenza epidemics. PLOS Computational Biology, 10(4): e1003583, doi:10.1371/journal.pcbi.1003583, 2014. Chretien J-P, George D, Shaman J, Chitale RA, McKenzie FE. Influenza forecasting in human populations: a scoping review. PLOS ONE, 9(4): e94130. doi:10.1371/journal.pone.0094130, 2014. Yang W, Petkova E, Shaman J. Examination of mortality during the 1918 pandemic in New York City. Influenza and Other Respiratory Viruses, 8(2): 177-188, 2014. Huang KE, Lipsitch M, Shaman J, Goldstein E. Quantifying the impact of school openings on the reproductive number of the 2009 A/H1N1 influenza epidemic in the United States. Epidemiology, 25(2): 203-206, 2014. Shaman J, The Seasonal Effects of ENSO on Atmospheric Conditions Associated with European Precipitation: Model Simulations of Seasonal Teleconnections. Journal of Climate, 27(3): 1010-1028, 2014. Shaman J, Karspeck A, Yang W, Tamerius JD, Lipsitch M. Real-time influenza forecasts during the 2012-2013 season. Nature Communications, 4: Article Number 2837, doi:10.1038/ncomms3837, 2013. Kerr DCR, Shaman J, Washburn IJ, Vuchinich S, Neppl T, Capaldi D, Conger R. Two Longterm Studies of Seasonal Variation in Depressive Symptoms among Community Participants. Journal of Affective Disorders, 151(3): 837-842, 2013. Shaman J, Solomon S, Colwell RR, Field CB. Reply to Rice and Henderson-Sellers: Survival of the fittest is not always the best option. Proceedings of the National Academy of Science, 110(29): E2663, doi:10.1073/pnas.1307874110, 2013. Rydbeck A, Maloney ED, Xie S-P, Hafner J, Shaman J. Remote Forcing versus Local Feedback of East Pacific Intraseasonal Variability. Journal of Climate, 26(11): 3575-3596, 2013.

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Tamerius JD, Acosta LM, Jacobson JS, Goldstein IF, Quinn JW, Rundle AG, Perzanowski MS, Shaman J. Socioeconomic and Outdoor Meteorological Determinants of Indoor Temperature and Humidity in New York City Households. Weather, Climate and Society, 5(2): 168-179, doi:10.1175/WCAS-D-12-00030.1, 2013.
Gatton M, Chitnis N, Churcher T, Donnely M, Ghani A, Godfray C, Gould F, Hastings I, Marshall J, Ranson H, Rowland M, Shaman J, White L, Lindsay S. The Importance of Mosquito Behavioural Adaptations to Malaria Control in Africa. Evolution, 67(4): 1218-1230, 2013.
Tamerius JD, Shaman J, Alonso W, Bloom-Feshbach K, Uejio C, Comrie A, Viboud C. Environmental Predictors of Seasonal Influenza Epidemics Across Temperate and Tropical Climates. PLoS Pathogens, 9(3): e1003194. doi:10.1371/ journal.ppat.1003194, 2013.
Shaman J, Lipsitch M. The ENSO-Pandemic Influenza Connection: Coincident or Causal? Proceedings of the National Academy of Sciences, 110(Supplement 1):3689-3691, doi:10.1073/pnas.1107485109, 2013.
Shaman J, Solomon S, Colwell RR, Field CB. Fostering Advances in Interdisciplinary Climate Science. Proceedings of the National Academy of Sciences, 110(Supplement 1):3653-3656, doi:10.1073/pnas.1301104110, 2013.
Koep TH, Enders FT, Pierret C, Ekker SC, Krageschmidt D, Kevin NL, Lipsitch M, Shaman J, Huskins C. Predictors of Indoor Absolute Humidity and Estimated Effects on Influenza Virus Survival in Grade Schools. BMC Infectious Diseases 13:71, doi:10.1186/1471-2334-13-71, 2013.
Shaman J, Karspeck A. Forecasting Seasonal Outbreaks of Influenza. Proceedings of the National Academy of Sciences 109(50):20425-20430, doi:10.1073/pnas.1208772109, 2012.
Shaman J, Samelson RM, Tziperman E. Complex Wavenumber Rossby Wave Ray Tracing. Journal of the Atmospheric Sciences, 69(7):2112-2133, 2012.
Shaman J, Maloney E. Shortcomings in Climate Model Simulations of the ENSO-Atlantic Hurricane Teleconnection. Climate Dynamics, 38(9-10):1973-1988, doi:10.1007/s00382-011-1075-4, 2012.
Shaman J. Strategies for Controlling the Enzootic Amplification of Arboviruses. Journal of Medical Entomology, 48(6): 1189-1196, 2011.
Shaman J, Harding K, Campbell SR. Meteorological and Hydrological Influences on the Spatial and Temporal Prevalence of WNV in Culex Mosquitoes, Suffolk County New York. Journal of Medical Entomology, 48(4): 867:875, 2011.
Shaman J, Jeon CY, Giovannucci E, Lipsitch M. Shortcoming of Vitamin D-Based Model Simulations of Seasonal Influenza. PLoS ONE, 6(6): e20743, doi:10.1371/journal.pone.0020743, 2011.
Shaman J, Tziperman E, An Atmospheric Teleconnection Linking ENSO and Southwestern European Precipitation. Journal of Climate, 24(1):124-139, 2011.
Shaman J, Goldstein E, Lipsitch M. Absolute Humidity and Pandemic versus Epidemic Influenza. American Journal of Epidemiology, 173(2):127-135, doi:10.1093/aje/kwq347, 2011.
Simmerman JM, Suntarattiwong P, Levy J, Gibbons RV, Cruz C, Shaman J, Jarman RG, Chotpitayasunondh T. Influenza Virus Contamination of Common Household Surfaces during the 2009 Influenza A (H1N1) Pandemic in Bangkok, Thailand—Implications for Contact Transmission. Clinical Infectious Diseases, 51(9):1053-1061, 2010.
Shaman J, Samelson RM, Skyllingstad, E. Air-Sea Fluxes over the Gulf Stream Region: Atmospheric Controls and Trends. Journal of Climate, 23(10):2651-2670, 2010.
Shaman J, Pitzer VE, Viboud C, Grenfell BT, Lipsitch M. Absolute Humidity and the Seasonal Onset of Influenza in the Continental US. PLoS Biology 8(2):e1000316, doi:10.1371/journal.pbio.1000316, 2010.
Shaman J, Day JF, Komar, N, Hydrologic Conditions Describe West Nile Virus Risk in Colorado. International Journal of Environmental Research and Public Health 7(2):494-508, doi:10.3390/ijerph7020494, 2010.
Day JF, Shaman J. Severe Winter Freezes Enhance St. Louis Encephalitis Virus Amplification and Epidemic Transmission in Peninsular Florida. Journal of Medical Entomology 46(6):1498-1506, 2009.
Shakun JD, Shaman J. Tropical Origins of North and South Pacific Decadal Variability. Geophysical Research Letters, 36, L19711, doi:10.1029/2009GL040313, 2009.
Shaman J, Esbensen SK, Maloney ED, The Dynamics of the ENSO-Atlantic Hurricane Teleconnection: ENSO-related changes to the North African-Asian Jet affect Atlantic Basin Tropical Cyclogenesis. Journal of Climate 22(9):2458-2482, 2009.
Shaman J, Kohn, MA. Absolute Humidity Modulates Influenza Survival, Transmission and Seasonality. Proceedings of the National Academy of Sciences 106(9):3243-3248, doi:10.1073/pnas.0806852106, 2009.
Maloney ED, Shaman J. Intraseasonal Variability of the West African Monsoon and Atlantic ITCZ. Journal of Climate, 21(12):2898-2918, 2008.
Day JF, Shaman J. Using hydrologic conditions to track the risk of focal and epidemic arboviral transmission in peninsular Florida. Journal of Medical Entomology, 45(3):458:465, 2008.
Shaman J, Tziperman E. The summertime ENSO-North African-Asian jet teleconnection and implications for the Indian monsoons. Geophysical Research Letters, 34, L11702, doi:10.1029/2006GL02914, 2007.
Shaman J. Amplification due to Spatial Clustering in an Individual-Based Model of Mosquito-Avian Arbovirus Transmission. Transactions of The Royal Society of Tropical Medicine and Hygiene, 101(5):469-483, 2007.
Shaman J, Day, JF. Reproductive Phase Locking of Mosquito Populations in Response to Rainfall Frequency. PLoS ONE, 2(3):e331. doi:10.1371/journal.pone.0000331, 2007.
Shaman J, Day JF, Stieglitz M, Zebiak S, Cane M. An Ensemble Seasonal Forecast of Human Cases of St. Louis Encephalitis in Florida Based on Seasonal Hydrologic Forecasts. Climatic Change, 75(4):495-511, 2006.

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Warrach, K, Stieglitz M, Shaman J, Engel VC, Griffin, KL. Twentieth Century Climate in the New York Hudson Highlands and the Potential Impacts on Eco-Hydrological Processes. Climatic Change, 75(4):455-493, 2006.
Shaman J, Spiegelman M, Cane M, Stieglitz M. A Hydrologically Driven Model of Swamp Water Mosquito Population Dynamics. Ecological Modelling 194(4):395-404, 2006.
Shaman J, Cane M, Kaplan A. The Relationship between Tibetan Snow Depth, ENSO, River Discharge and the Monsoons of Bangladesh. International Journal of Remote Sensing 26 (17):3735-3748, 2005.
Shaman J, Day JF. Achieving Operational Hydrologic Monitoring of Mosquito-Borne Disease Transmission, Emerging Infectious Diseases 11 (9):1343-1350, 2005.
Shaman J, Tziperman, E. The Effect of ENSO on Tibetan Plateau Snow Depth: A Stationary Wave Teleconnection Mechanism and Implications for the South Asian Monsoons. Journal of Climate 18 (12):2067-2079, 2005.
Shaman J, Day JF, Stieglitz, M. Drought-induced amplification and epidemic transmission of West Nile virus in South Florida, Journal of Medical Entomology 42:134-141, 2005.
Shaman J, Stieglitz M, Burns D. Are Big Basins just the Sum of Small Catchments? Hydrological Processes 18:3195-3206, 2004.
Shaman J, Day J, Stieglitz M. The Association of Drought, Wetting and Human Cases of St. Louis Encephalitis Virus in South-Central Florida. American Journal of Tropical Medicine and Hygiene 71:251-261, 2004.
Shaman J, Day J, Stieglitz M, Zebiak S, Cane M. Seasonal Forecast of St. Louis Encephalitis Virus Transmission, Florida. Emerging Infectious Diseases 10 (5): 802-809, 2004.
Stieglitz M, Shaman J, McNamara J, Engel V, Shanley J, Kling G. An approach to understanding hydrologic connectivity on the hillslope and the implications for nutrient transport. Global Biogeochemical Cycles 17(4), 1105, doi:10.1029/2003GB002041, 2003
Shaman J, Day J, Stieglitz M. St. Louis Encephalitis Virus in Wild Birds During the 1990 South Florida Epidemic: The Importance of Drought, Wetting Conditions, and the Emergence of Culex nigripalpus to Arboviral Amplification and Transmission. Journal of Medical Entomology 40(4): 547-554, 2003.
Shaman J, Stieglitz M, Zebiak S, Cane, M. A Local Forecast of Land Surface Wetness Conditions Derived from Seasonal Climate Predictions. Journal of Hydrometeorology 4 (3): 611-626, 2003.
Shaman J, Stieglitz M, Engel V, Koster R, Stark C. Representation of Stormflow and a More Responsive Water Table in a TOPMODEL-Based Hydrology Model. Water Resources Research 38 (8), 1156, doi:10.1029/2001WR000636, 2002.
Shaman J, Day J, Stieglitz M. Drought-induced amplification of St. Louis encephalitis virus, Florida. Emerging Infectious Diseases 8 (6): 575-580, 2002.
Shaman J, Stieglitz M, Stark C, Le Blancq S, Cane M. Using a dynamic hydrology model to predict mosquito abundances in flood and swamp water. Emerging Infectious Diseases 8 (1): 6-13, 2002.
Shaman J, vonScheven E, Morris P, Chang MDY, Mellins E. Analysis of HLA-DMB mutants and –DMB genomic structure. Immunogenetics 41:117-124, 1995.
Morris P, Shaman J, Attaya M, Amaya M, Goodman S, Bergman C, Monaco JJ, Mellins E. An essential role for HLA-DM in antigen presentation by Class II major histocompatibility molecules. Nature 369:551-554, 1994.
ARXIV, BIORXIV, MEDRXIV POSTINGS
Galanti, M., S. Pei, T.K. Yamana, F.J. Angulo, A. Charos, D.L. Swerdlow and J. Shaman. The importance of continued nonpharmaceutical interventions during the upcoming SARS-CoV-2 vaccination campaign. medRxiv, 248784, doi:10.1101/2020.12.23.20248784, 2020.
Ma, Y. S. Pei, J. Shaman, R. Dubrow and K. Chen. Role of air temperature and humidity in the transmission of SARS-CoV-2 in the United States. medRxiv, 231471, doi:10.1101/2020.11.13.20231472, 2020.
Yang, W., J. Shaff and J. Shaman. COVID-19 transmission dynamics and effectiveness of public health interventions in New York City during the 2020 spring pandemic wave. medRxiv, 190710, doi:10.1101/2020.09.08.20190710, 2020.
Rader B, White LF, Burns MR, Chen J, Brilliant J, Cohen J, Shaman J, Brilliant L, Hawkins JB, Scarpino SV, Astley CM, Brownstein JS. Mask wearing and control of SARS-CoV-2 transmission in the United States. medRxiv, 78964, doi:10.1101/2020.08.23.20078964, 2020.
Pei S, Dahl K, Yamana TK, Licker R, Shaman J. Compound risks of hurricane evacuation amid the COVID-19 pandemic in the United States. medRxiv, 170555, doi:10.1101/2020.08.07.20170555, 2020.
Yang, W., S. Kandula, M. Huynh, S. K. Greene, G. Van Wye, W. Li, H T. Chan, E. McGibbon, A. Yeung, D. Olson, A. Fine and J. Shaman. Estimating the infection fatality risk of COVID-19 in New York City, March 1 – May 16, 2020. medRxiv, 141689, doi:10.1101/2020.06.27.20141689, 2020.
Lamb, M. R., S. Kandula and J. Shaman. Differential COVID-19 case positivity in New York City neighborhoods: socioeconomic factors and mobility. medRxiv, 144188, doi:10.1101/2020.06.27.20144188, 2020.
Pei S, Kandula S, Shaman J. Differential effects of intervention timing on COVID-19 spread in the United States. medRxiv: 103655, doi:10.1101/2020.05.15.20103655, 2020.
Yamana T, Pei S, Shaman J. Projection of COVID-19 Cases and Deaths in the US as Individual States Re-Open, May 4, 2020. medRxiv: 90670, doi:10.1101/2020.05.04.20090670, 2020.
Galanti M, Shaman J. Direct observations of repeated infections with endemic coronaviruses. medRxiv: 82032,

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doi:10.1101/2020.04.27.20082032, 2020. Branas CC, Rundle A, Pei S, Yang W, Carr BG, Sims S, Zebrowski A, Doorley R, Schluger N, Quinn JW, Shaman J.
Flattening the curve before it flattens us: hospital critical care capacity limits and mortality from novel coronavirus (SARS-CoV2) cases in US counties. medRxiv: 49759; doi:10.1101/2020.04.01.20049759, 2020. Pei S, Shaman J. Initial simulation of SARS-CoV2 spread and intervention effects in the continental US. medRxiv: 40303; doi:10.1101/2020.03.21.20040303, 2020. Ud-Dean M, Filip I, Galanti M, Birger R, Comito D, Freyer GA, Ibrahim S, Lane B, Ligon C, Matienzo N, Morita H Shittu A, Tagne E, Dayan P, Shaman J. Virome of New York Presbyterian Hospital pediatric emergency. medRxiv: 38166; doi:10.1101/2020.03.18.20038166, 2020. Li R, Pei S, Chen B, Song Y, Zhang T, Yang W, Shaman J. Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (COVID-19). medRxiv: 23127; doi:10.1101/2020.02.14.20023127, 2020. Shaman J, Galanti M. Direct measurement of rates of asymptomatic infection and clinical care-seeking for seasonal coronavirus. medRxiv: 19612; doi:10.1101/2020.01.30.20019612, 2020. Chattopadhyay I, Kiciman E, Elliott J, Shaman J, Rzhetsky AA. Conjunction of factors triggering waves of seasonal influenza. bioRxiv: 168476; doi: https://doi.org/10.1101/168476, 2017. Pei S, Teng X, Morone F, Shaman J, Makse HA. Efficient collective influence maximization in cascading processes with first-order transitions. ArXiv: 1606.02739 [physics.soc-ph], 2016. Yang W, Shaman J. A simple modification to improving inference for non-linear dynamical systems. ArXiv: 1403.6804 [stat.ME], 2014. Shaman J, Karspeck A, Lipsitch M. Week 1 Influenza Forecast for the 2012-2013 U.S. Season. ArXiv: 1301.3110 [q-bio.PE], 2013. Shaman J, Karspeck A, Lipsitch M. Week 52 Influenza Forecast for the 2012-2013 U.S. Season. ArXiv: 1301.1111 [qbio.PE], 2013. Shaman J, Karspeck A, Lipsitch M. Week 51 Influenza Forecast for the 2012-2013 U.S. Season. ArXiv: 1212.6678 [qbio.PE], 2012. Shaman J, Karspeck A, Lipsitch M. Week 50 Influenza Forecast for the 2012-2013 U.S. Season. ArXiv: 1212.5750 [qbio.PE], 2012. Shaman J, Karspeck A, Lipsitch M. Week 49 Influenza Forecast for the 2012-2013 U.S. Season. ArXiv: 1212.4678 [qbio.PE], 2012.
PUBLISHED ABSTRACTS AND CONFERENCE PROCEEDINGS
Zollner G, Shaman J, Sithiprasasna R, Vaughan JA, Coleman RE, 2005. Using a dynamic hydrology model to quantify seasonal changes in breeding habitat preferences of Anopheles larvae in western Thailand, American Journal of Tropical Medicine and Hygiene, 73(6):149-149, Supplement S.
Shaman J and E Tziperman, 2005. ENSO and South Asian Monsoons, Bulletin of the American Meteorological Society, 86:333-334.
Rutledge, RC, Day JF, Ross GK and J Shaman, 2004. Arbovirus surveillance in Florida: Getting closer to real time. 22nd International Congress of Entomology, Brisbane, Australia, 15-21 August.
Shaman J, Stieglitz M, Zebiak S, Cane M, Day J., 2003. A Local Forecast of Land Surface Wetness Conditions, Drought, and St. Louis Encephalitis Virus Transmission Derived from Seasonal Climate Predictions. Proceedings of the World Water and Environmental Resources Congress 2003. pp. 10.
Busch R, vonScheven E, Amaya M, Shaman J, Mellins ED. Biochemical analysis of a mutant HLA-DM molecule containing a Cys79 beta->Tyr mutation. Human Immunology 47: (1-2) O489-O489, 1996.
EXPOSITORY PUBLICATIONS
Shaman J, 2020. An estimation of undetected COVID cases. Nature, doi:10.1038/d41586-020-03513-9. George D, Taylor W, Shaman J, Rivers C, Paul B, O’Toole T, Johansson MA, Hirschman L, Biggerstaff M, Asher J, Reich N,
2019. Technology to advance infectious disease forecasting for outbreak management. Nature Communications 10: Article number 3932, doi:10.1038/s41467-019-11901-7. Shaman J, 2018. Pandemic Preparedness and Forecast. Nature Microbiology 3:265-267, doi:10.1038/s41564-018-0117-7. Rivers C, Alexander K, Bellan S, Del Valle S, Drake JM, Eisenberg JNS, Eubank S, Ferrari M, Halloran ME, Galvani A, Lewis BL, Lewnard J, Lofgren E, Macal C, Marathe M, Ndeffo Mbah ML, Meyer LA, Meza R, Park A, Porco T, Scarpino SV, Shaman J, Vespignani A, Yang W, 2014. Ebola: models do more than forecast. Nature 515(7528):492, doi:10.1038/515492a. Halloran ME, Vespignani A, Bharti N, Feldstein LR, Alexander KA, Ferrari M, Shaman J, Drake JM, Porco T, Eisenberg JNS, Del Valle SY, Lofgren E, Scarpino SV, Eisenberg MC, Gao D, Hyman JM, Eubank S, Longini IM, 2014. Ebola: Mobility data. Science 346(6208):443, doi: 10.1126/science.346.6208.433-a. Shaman J, 2005. Malaria Mapping and Prevention, Geotimes, 50:18-21.
BOOK CHAPTERS

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Day JF, Shaman J, 2011, ‘Mosquito-Borne Arboviral Surveillance and the Prediction of Disease Outbreaks’, In Flavivirus Encephalitis, Daniel Růžek, Ed., ISBN: 978-953-307-669-0, InTech, Available from: http://www.intechopen.com/ articles/show/title/mosquito-borne-arboviral-surveillance-and-the-prediction-of-disease-outbreaks
FUNDING
NASA, Earth System Science Graduate Fellowship, Columbia University: ’Prediction of Mosquito Abundance with a Land Surface Hydrology Model and Landsat Thematic Mapper Imagery‘, September 2000-May 2003.
Lamont-Doherty Earth Observatory Climate Center Grant: ‘Prediction of Mosquito Abundance with a Land Surface Hydrology Model’, J. Shaman and M. Stieglitz, 2000.
Columbia Earth Institute, SMART Award: ‘Prediction of Mosquito Abundance with Land Surface Hydrology Model’, J. Shaman and M. Stieglitz, 2000.
International Research Institute for Climate Prediction Seed Funding Grant: ‘Catchment Based Modeling of Kenyan Hydrology Using Dynamically Downscaled Model Runs’, J. Shaman, M. Stieglitz, L. Sun, M. Cane, 2001.
Lamont-Doherty Earth Observatory Climate Center Grant: ‘Spatial Reconstructions of Land Surface Wetness with a TOPMODEL-based Dynamic Hydrology Model’, J. Shaman and M. Stieglitz, 2001.
Black Rock Forest Consortium Grant Award: ‘Proposal to Purchase Telemetry Equipment for Installation at the Tower Sites in Glycerine Hollow’, J. Shaman, V. Engel and M. Stieglitz, 2002.
NOAA, Post-Doctoral Fellowship in Climate and Global Change, Harvard University, September 2003-August 2005. Harvard University Center for the Environment Faculty Research Project Award: ‘Population Dynamics of Culiseta melanura
and their Relationship with Environmental Conditions’, T. Kiszewski, R. Pollack, J. Shaman, A. Spielman, E. Tziperman, 2003. NIH Models of Infectious Disease Agent Study (MIDAS); Subaward through the Harvard School of Public Health: ‘Modeling the Seasonality of Influenza using Absolute Humidity’. Key investigtor; subaward PI. September 15, 2009August 31, 2014. NSF, Climate and Large-Scale Dynamics Grant: ‘Collaborative Research: The ENSO-Mediterranean Teleconnection: Observations and Dynamics. PI. August 1, 2009-July 31, 2012. (Extended through July 31, 2014 via no-cost extension.) Medical Research Foundation (Oregon Health Sciences University): ‘Weather and psychosocial influences on seasonal depression in at-risk males from adolescence to young adulthood‘, Co-I, December 2010-November 2011. NIH/NSF, Division of Mathematical Sciences/National Institute of General Medical Sciences, Joint Initiative to Support Research at the Interface of the Biological and Mathematical Sciences: ‘Influenza Outbreak Prediction: Applying Data Assimilation Methodologies to Make Skillful Forecasts of an Inherently Chaotic, Nonlinear System’, PI. August 1, 2011July 31, 2017. Columbia Earth Institute Cross-Cutting Initiative: ‘Impact of climate variability and urbanization on water storage practices and vector-borne disease incidence: Developing an understanding for risk prediction and response using Delhi, India as context’, Co-PI, September 2011-August 2012. Columbia University Center for Environmental Health in Northern Manhattan: ‘Exploring Environmental Controls on Airborne Respiratory Pathogens in Public Spaces in Northern Manhattan’, PI, December 2011. Columbia University Center for Environmental Health in Northern Manhattan, Junior Faculty Career Development Award: ‘The Mechanisms of Influenza Survival and Transmission’, PI, April 2012-March 2014. Columbia Earth Institute Junior Faculty Research Award: ‘The Staphylococcal Cloud -- Its Role in Household Transmission’, PI, July 2013 - June 2014. NIH Models of Infectious Disease Agent Study (MIDAS)/ Health and Human Services Biomedical Advanced Research and Development Authority (BARDA); Supplemental award dispensed through the Harvard School of Public Health NIH MIDAS center grant: ‘Real-Time Prediction of Influenza’, PI, September 2013 - August 2014. NSF, Climate and Large-Scale Dynamics Grant: ‘Collaborative Research: Combined Influence of Snow Cover and El Nino/ Southern Oscillation (ENSO) on North African/Mediterranean Temperature and Precipitation’. PI. December 1, 2013November 30, 2016. NSF, Climate and Large-Scale Dynamics Grant: ‘Support for a Symposium Honoring Mark Cane's Contribution to Climate Science; Palisades, NY; October 20-21, 2014’, Co-I. June 1, 2014 - May 31, 2015. NIH, National Institute of Environmental Health Sciences (NIEHS) Ruth Kirchstein T32 Training Grant: ‘Interdisciplinary Training in Climate and Health’, Co-PI. July 2014 - June 2019. NIH, National Institute of General Medical Sciences (NIGMS) Models of Infectious Disease Agent Study (MIDAS): ‘Development and Dissemination of Operational Real-Time Respiratory Virus Forecast’, PI. September 1, 2014 - June 30, 2019. DOD, Defense Threat Reduction Agency (DTRA): ‘Developing Real-Time Forecasts of Infectious Diseases’, PI. January 23, 2015 - January 22, 2019. DOD, Defense Advanced Research Projects Agency (DARPA): ’The Virome of Manhattan: A Testbed for Radically Advancing Understanding and Forecast of Viral Respiratory Infections’, PI. March 1, 2016 - December 31, 2020.

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NSF, Division of Information and Intelligent Systems: ‘EAGER: Collaborative Research: Combining Community and Clinical Data for Augmenting Influenza Modeling’, PI. September 1, 2016 - August 31, 2018.
Rockefeller Foundation: ‘Global Consortium on Climate and Health Education’, PI. January 1, 2017 - December 31, 2017. Research Initiatives in Science and Engineering, Columbia University: ’Evolution in the Arctic: Genomic reconstruction of
microbial, plant and animal communities during the Holocene’, PI. July 1, 2018 - June 30, 2020. NIH, National Institute of Allergy and Infectious Disease: ‘Disease Persistence and Population Dynamics: Modeling Measles
under Mass Vaccination’, Co-I. July 1, 2019 - June 30 2024. CDC, Centers for Disease Control and Prevention: ‘Multifaceted Control Strategies for Seasonal and Pandemic Influenza’,
PI, August 1, 2019 - January 31, 2021. NIH, National Institute of Mental Health: ‘Suicide as a contagion: modeling and forecasting emergent outbreaks’, MPI,
January 24, 2020 - November 30, 2024. NSF, Division of Mathematical Sciences: ‘RAPID: Inference, Forecasting, and Intervention Modeling of COVID-19’, PI,
April 15, 2020 - March 31, 2021. Morris-Singer Foundation; ‘Columbia Prediction of Infectious Diseases’, PI, June 1, 2020 - May 31, 2022. Regeneron: ‘Projections of COVID-19’, PI, June 1, 2020 - December 31, 2020. NIH, National Institute of Environmental Health Sciences: ‘Advanced training in environmental health and data science:
molecules to populations’, MPI, July 1, 2020 - June 30, 2025. CDC, Centers for Disease Control and Prevention: ‘Inference, forecasting and optimal control of healthcare-associated
infections’, MPI, August 1, 2020 - July 31, 2025. CDC, Centers for Disease Control and Prevention: ‘Supplement: Inference, forecasting and optimal control of healthcare-
associated infections’, MPI, August 1, 2020 - July 31, 2021. Pfizer: ‘Projecting future adult symptomatic attack rates in counties with potential vaccine efficacy trial sites in the United
States’, PI, July 1, 2020 - October 31, 2020. CSTE, Council of State and Territorial Epidemiologists: ‘Heterogeneous forecast and nowcast of COVID-19 at county scale’,
PI, September 1, 2020 - August 31, 2021. Pfizer: ‘Evaluating the direct and indirect effects of the Pfizer COVID-19 vaccine under different distribution schema’, PI,
October 1, 2020 - March 31, 2021.
INVITED UNIVERSITY, INSTITUTE, AND GOVERNMENT TALKS
University of Miami, Rosenstiel School of Marine and Atmospheric Science, Division of Meteorology and Physical Oceanography, ‘Monitoring and Forecasting St. Louis Encepqhalitis Transmission in Florida’, November 19, 2002.
Harvard University, School of Public Health, Department of Epidemiology, ‘Monitoring and Forecasting St. Louis Encephalitis Transmission in Florida’, February 20, 2003.
Massachusetts Institute of Technology, Department of Civil and Environmental Engineering, ‘The Effect of ENSO on the South Asian monsoons’, April 8, 2004.
Lamont-Doherty Earth Observatory of Columbia University, Division of Ocean and Climate Physics, ‘The Effect of ENSO on the South Asian monsoons’, October 11, 2004.
Georgia Institute of Technology, School of Earth and Atmospheric Sciences, ‘From Mosquitoes to Monsoons’, October 22, 2004.
Oregon State University, College of Oceanic and Atmospheric Sciences, ‘Some Effects of ENSO on the South Asian monsoons’, March 31, 2005.
Oregon State University, College of Oceanic and Atmospheric Sciences, ‘Monitoring and Forecasting Mosquito-Borne Disease Transmission, April 1, 2005.
Massachusetts Institute of Technology, Department of Earth and Atmospheric Sciences, ‘Some Effects of ENSO on the South Asian monsoons’, April 27, 2005.
Oregon State University, Department of Statistics, ‘Monitoring and Forecasting Mosquito-Borne Disease Transmission, April 17, 2006.
University of Washington, Department of Atmospheric Sciences, ‘Dynamics of the ENSO-Indian Monsoon Teleconnection', April 27, 2007.
Hatfield Marine Science Center, ‘Hydrologic and Meteorological Determinants of Mosquito-Borne Disease Transmission’, May 3, 2007.
Harvard University, Department of Earth and Planetary Sciences, ‘Dynamics of the ENSO-Indian Monsoon Teleconnection', August 14, 2007.
Princeton University, Program in Science, Technology and Environmental Policy, Woodrow Wilson School, ‘Operational Hydrologic Monitoring of Mosquito-Borne Disease Transmission: The Science and Policy’, February 4, 2008.
University of California, Los Angeles, Institute for Geophysics and Planetary Physics, ‘Operational Hydrologic Monitoring of Mosquito-Borne Disease’, April 1, 2008.
Stanford University, Department of Earth Environmental System Science, ‘The ENSO-North African-Asian Jet Teleconnection: Dynamics and Implications’, November 5, 2008.
Harvard University, School of Public Health, Department of Epidemiology, ‘Influenza and Humidity’, February 9, 2009. Harvard University, Department of Earth and Planetary Sciences, ‘Influenza and Humidity’, February 10, 2009.

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Colorado State University, Department of Atmospheric Sciences, ‘The ENSO-North African-Asian Jet Teleconnection: Dynamics and Implications’, April 16, 2009.
Columbia University, Department of Environmental Health Science, ‘Absolute Humidity and the Transmission and Seasonality of Influenza’, November 2, 2009.
International Research Institute for Climate and Society, ‘Absolute Humidity and the Transmission and Seasonality of Influenza’, November 4, 2009.
University of California, Berkeley, Department of Geography, ‘Absolute Humidity and the Transmission and Seasonality of Influenza’, September 29, 2010.
National Center for Atmospheric Research, Climate and Global Dynamics Division, ‘Complex Wavenumber Rossby Wave Ray Tracing’, August 18, 2011.
National Center for Atmospheric Research, Climate and Global Dynamics Division and Research Applications Laboratory, ‘Absolute Humidity and the Survival, Transmission and Seasonality of Influenza’, August 24, 2011.
Harvard University, Department of Earth and Planetary Sciences, ‘Complex Wavenumber Rossby Wave Ray Tracing’, April 19, 2012.
Stony Brook University, School of Marine and Atmospheric Sciences, ‘The ENSO-Pandemic Influenza Connection: Coincident or Causal?’, August 29, 2012.
Virginia Polytechnic Institute and State University, Department of Civil and Environmental Engineering, ‘Hydrologic Variability and the Dynamics of West Nile Virus Transmission’, September 28, 2012.
Yale University, Yale Climate and Energy Institute, ‘Local Hydrological and Meteorological Constraints on Infectious Disease Transmission’, January 25, 2013.
University of Michigan, Robert Wood Johnson Foundation, Health and Society Scholars Program Seminar Series, The Center for Social Epidemiology and Population Health, ‘Forecasting Seasonal Outbreaks of Influenza’, February 5, 2013.
Yale University, Global Health Leadership Institute, Yale Schools of Medicine and Public Health, ‘Absolute Humidity and the Transmission and Seasonality of Influenza, February 18, 2013.
Columbia University, College of Physicians and Surgeons, Pulmonary, Allergy and Critical Care Conference, ‘Forecasting Seasonal Outbreaks of Influenza’, February 27, 2013.
U.S. Department of Health and Human Services, Biomedical Advanced Research and Development Authority, Analytic Decision Support Division, ‘Forecasting Seasonal Outbreaks of Influenza’, March 1, 2013.
Columbia University, College of Physicians and Surgeons, Infectious Disease Fellows Conference, ‘Forecasting Seasonal Outbreaks of Influenza’, May 29, 2013.
University of Miami, Abess Center for Ecosystem Science and Policy, ‘Forecasting Seasonal Outbreaks of Influenza’, September 30, 2013.
U.S. Department of Health and Human Services, Biomedical Advanced Research and Development Authority, Analytic Decision Support Division, ‘Forecasting Seasonal Outbreaks of Influenza’, February 7, 2014.
Columbia University, School of International and Public Affairs, Sustainable Development Program, ‘Forecasting Seasonal Outbreaks of Influenza’, February 24, 2014.
Columbia University, Lamont-Doherty Earth Observatory Colloquium, ‘Simulation and Forecast of Infectious Disease: Environmental Determinants and Transmission Dynamics’, October 7, 2016.
Colorado University, Climate Summit Keynote Lecture, ‘Climate-Disease Connections: Associations, Processes and Incorporation in Infectious Disease Forecast’, October 16, 2018.
Yale University, Climate Change Leader in Residence, Yale School of Public Health, ‘Infectious Disease Forecast and the Incorporation of Climate Drivers’, January 14, 2019.
Yale University, Climate Change Leader in Residence, Yale School of Public Health, ‘Climate-Disease Connections: Associations and Processes Affecting Infectious Disease Dynamics’, January 15, 2019.
University of Notre Dame, Center for Informatics and Computational Biology, ‘Forecasting the Growth and Spread of Infectious Diseases’, March 20, 2019.
Carnegie Mellon University, Department of Statistics, ‘Process-Based Forecasting of Infectious Disease Outbreaks’, April 15, 2019.
Cary Institute, ‘Forecasting Outbreaks of Infectious Disease’, May 9, 2019. University at Albany, Department of Atmospheric and Environmental Sciences and the Wadsworth Center, ‘Modeling and
Forecasting West Nile Virus’, May 16, 2019. Johns Hopkins University, Bloomberg School of Public Health, Department of Environmental Health and Engineering, Grand
Rounds, ‘Forecasting Outbreaks of Infectious Disease’, October 11, 2019. California Institute of Technology, Department of Environmental Science and Engineering, ‘Transmission Dynamics of
Influenza and SARS-CoV-2: Environmental Determinants, Inference and Forecast’, April 29, 2020. National Center for Atmospheric Research, ’Transmission Dynamics of Influenza and SARS-CoV-2: Environmental
Determinants, Inference and Forecast’, May 18, 2020. University of Minnesota, The Institute of Mathematics and its Applications, School of Mathematics, ‘Transmission Dynamics
of Influenza and SARS-CoV-2: Environmental Determinants, Inference and Forecast’, May 19, 2020. National Academies’ Board of Atmospheric Sciences and Climate, ‘Short-term climate variability and virus seasonality’, May
28, 2020.

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McGill University, McGill Genome Centre, ‘Transmission Dynamics of Influenza and SARS-CoV-2: Inference and Forecast’, July 9, 2020.
Keck Graduate Institute, ‘Modeling Influenza and SARS-CoV-2: Environmental Determinants, Inference and Forecast’, July 13, 2020.
University of California, Berkeley, Berkeley Atmospheric Sciences Center, ‘Modeling Influenza and SARS-CoV-2: Environmental Determinants, Inference and Forecast’, September 9, 2020.
Weill Cornell Medicine, Global Health Education, ‘The Implications of Climate Change on Health and Well-being in the Age of COVID-19’, October 7, 2020.
Massachusetts Institute of Technology, Program in Atmospheres, Oceans, and Climate, Department of Earth, Atmospheric, and Planetary Sciences, ‘Transmission Dynamics of Influenza and SARS-CoV-2: Meteorological Drivers, Inference and Forecast’, October 14, 2020.
University of Minnesota, Webinar in Epidemiology and Community Health, ‘Transmission Dynamics of SARS-CoV-2: Meteorological Drivers, Model Inference and Projection’, October 23, 2020.
CONFERENCE PRESENTATIONS
Prediction of Mosquito Abundance with Modeled Land-Surface Hydrology, Poster Presentation at New Challenges in Tropical Medicine and Parasitology, Oxford, United Kingdom, 18-22 September, 2000
Prediction of Floodwater Mosquito Abundance with Modeled Land-Surface Hydrology, Oral Presentation at the Annual Meeting of the American Society of Tropical Medicine and Hygiene, Houston, Texas, 29 October – 2 November, 2000
Prediction of Floodwater Mosquito Abundance with Modeled Land-Surface Hydrology, Oral Presentation at the 2000 Joint Annual Meeting of the Entomological Societies of Quebec, Canada, and America, Montreal, Quebec, 3-6 December, 2000
Representation of Stormflow and a More Responsive Water Table in a TOPMODEL-Based Hydrology Model, Poster Presentation at the Chapman Conference of the American Geophysical Union on State-of-the-Art in Hillslope Hydrology, Sun River, Oregon, 8-12 October, 2001
Representation of Stormflow and a More Responsive Water Table in a TOPMODEL-Based Hydrology Model, Oral Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 10-14 December, 2001
Seasonal Forecast of St. Louis Encephalitis Virus Transmission in Forecast, Oral Presentation at the Annual Meeting of the American Society of Tropical Medicine and Hygiene, Denver, Colorado, 10-14 November 2002
Seasonal Forecast of St. Louis Encephalitis Virus Transmission in Forecast, Oral Presentation at the Annual Meeting of the Entomological Society of America, Ft. Lauderdale, Florida, 18--22 November 2002
A Local Forecast of Land Surface Wetness Conditions, Drought, and St. Louis Encephalitis Virus Transmission Derived from Seasonal Climate Predictions, Poster Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 6-10 December 2003
A Local Forecast of Land Surface Wetness Conditions, Drought, and St. Louis Encephalitis Virus Transmission Derived from Seasonal Climate Predictions, Oral Presentation at the World Water and Environmental Resources Congress of the American Society of Civil Engineers, Philadelphia, Pennsylvania, 23-26 June 2003
The Effect of ENSO on Tibetan Plateau Snow Depth and the South Asian Monsoons: A Stationary Wave Teleconnection Mechanism. Oral Presentation at the Spring Meeting of the American Geophysical Union, Montreal, Quebec, 17-21 May (Joint Assembly of AGU, CGU, SEG and EEGS) 2004
The direct effect of summertime ENSO conditions on the South Asian monsoons: barotropic and baroclinic teleconnection mechanisms. Poster Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 13-17 December 2004
The direct effect of summertime ENSO conditions on the South Asian monsoons: barotropic and baroclinic teleconnection mechanisms. Oral Presentation at the Annual Meeting of the American Meteorological Society, 16th Conference on Climate Variability and Change, San Diego, California, 9-13 January 2005
Modeling and Forecasting Local Arbovirus Transmission. EPA workshop-conference to address the practical consequences of Levins’ philosophy of modeling ecological systems, H. J. Andrews Experimental Forest Station, Oregon, 12-15 January 2005.
Modeling and Forecasting Mosquito-Borne Disease Transmission. NOAA Climate and Global Change Conference Celebrating the 100th Postdoctoral Apppointment, NOAA Headquarters, Silver Springs, Maryland, 20-21 April 2005, INVITED.
Are Big Basins just the Sum Small Catchments? Oral Presentation at the Spring Meeting of the American Geophysical Union, New Orleans, Louisiana, 22-27 May 2005, INVITED.
An atmospheric teleconnection linking ENSO to the North African-Asian jet. Oral Presentation at the European Geosciences Union General Assembly, Vienna, Austria, 2-7 April 2006.
Preserving Health in a Changing Global Environment. Oral Presentation at the 12th Annual German-American Frontiers of Science Symposium of the Alexander von Humboldt Foundation and the U.S. National Academy of Sciences, Potsdam, Germany, 22-24, June 2006, INVITED.

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Hydrologic Monitoring and Modeling of Mosquito-Borne Disease Transmission. Oral presentation at the Center for Discrete Mathematics and Theoretical Computer Science (DIMACS) and Center for Dynamic Data Analysis (DyDAn) Workshop of Climate and Disease, Rutgers University, Piscataway, New Jersey, 7-8 April 2008, INVITED.
The Dynamics of the ENSO-Atlantic Hurricane Teleconnection: ENSO-related changes to the North African-Asian Jet affect Atlantic Basin Tropical Cyclogenesis. Poster Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 14-18 December 2008.
Episodic Mode Water Formation: Atmospheric Controls and Trends. Poster Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 14-18 December 2008.
Southern Hemisphere PDO?: Interhemispheric symmetry suggests tropical forcing of Pacific decadal variability. Poster Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 14-18 December 2008.
Episodic Mode Water Formation: Atmospheric Controls and Trends. Oral Presentation at the CLIVAR CLIMODE/KESS Western Boundary Current Workshop, Phoenix Arizona, 15-17 January 2009.
Climate Change and Arbovirus Disease Transmission. Oral presentation at the Centers for Disease Control and Prevention and the American Mosquito Control Association 2009 National Conference on West Nile Virus. Savannah, Georgia, 19-20 February 2009, INVITED.
Climate Change and Vector-Borne Infections. Oral presentation at the Infectious Diseases Society of America Annual Meeting, 29 October-1 November 2009, INVITED.
Absolute Humidity and the Seasonal Onset of Influenza in the Continental US. Oral Presentation at the Annual Meeting of the American Meteorological Society, First Environment and Health Symposium, Atlanta, Georgia, 17-21 January 2010.
Shortcomings in Simulating the ENSO-Atlantic Hurricane Teleconnection in Climate Models. Poster presentation at the Western Pacific Geophysics Meeting of the American Geophysical Union, Taipei Taiwan, 22-25 June 2010.
Meteorological Determinants of Influenza Survival, Transmission and Seasonality. Oral Presentation at Centers for Disease Control and Prevention Workshop for Understanding the Modes of Influenza Transmission, 3-4 November 2010, INVITED.
An Atmospheric Teleconnection Linking ENSO and Southwestern European Precipitation. Poster Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 13-17 December 2010.
Absolute Humidity and the Seasonality of Influenza. Oral Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 13-17 December 2010, INVITED.
Meteorological Determinants of Epidemic and Pandemic Influenza Transmission. Oral Presentation at the NIH Models of Infectious Disease Agents Study (MIDAS) Meeting, Atlanta, Georgia, 8-10 June 2011.
Hydrologic Variability and the Dynamics of West Nile Virus Transmission. Oral Presentation at the conference Water and Health: Where Science Meets Policy, Chapel Hill, North Carolina, 3-7 October 2011.
Absolute Humidity and Transmission and Seasonality of Influenza. Oral Presentation at the annual meeting of the Geological Society of America, Minneapolis, Minnesota, 9-12 October 2011, INVITED.
Hydrologic Variability and the Dynamics of West Nile Virus Transmission. Poster Presentation at Epidemics3, Boston, Massachusetts, 30 November-2 December 2011.
The ENSO-Pandemic Influenza Connection: Coincident or Causal? Poster Presentation at Epidemics3, Boston, Massachusetts, 30 November-2 December 2011.
Hydrologic Variability and the Dynamics of West Nile Virus Transmission. Oral Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 5-9 December 2011, INVITED.
The ENSO-Pandemic Influenza Connection: Coincident or Causal? Union Oral Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 5-9 December 2011.
The Seasonality of Influenza and Other Respiratory Pathogens: Host-Mediated, Behavioral and Environmental Determinants. Oral Presentation at the Seminaire de Recherche sur la Transmission (Seminar on the Seasonality of Transmission) sponsored by Inserm, Institut Pasteur and the Institut Thematique Multi Organisme Microbiologie et Maladies Infectieuses (IMMI) d’Aviesan, Abbayes des Vaux de Cernay, France, 22-23 March 2012, INVITED.
Forecasting Seasonal Outbreaks of Influenza. Oral Presentation at the NIH Models of Infectious Disease Agents Study (MIDAS) Meeting, Atlanta, Georgia, 6-8 June, 2012.
Forecasting Seasonal Outbreaks of Influenza. Oral Presentation at the NOAA Climate and Global Change Postdoctoral Fellowship Program Summer Institute, Steamboat Springs, Colorado, 8-12 July 2012.
Forecasting Seasonal Outbreaks of Influenza. Poster Presentation at the Asia Oceania Geosciences Society-American Geophysical Union Joint Assembly, Singapore, 13-17 August 2012.
The Seasonal Effects of ENSO on Western European Precipitation: Observational Analyses and Model Simulations. Oral Presentation at the European Geosciences Union General Assembly, Vienna, Austria, 7-12 April 2013.
Real-Time Influenza Forecasts during the 2012-2013 Season. Oral Presentation at the NIH Models of Infectious Disease Agents Study (MIDAS) Meeting, Austin, Texas, 6-8 May 2013.
The Seasonal Effects of ENSO on Western European Precipitation: Observational Analyses and Model Simulations. Oral Presentation at the American Meteorological Society 19th Conference on Atmospheric and Oceanic Fluid Dynamics, Newport, Rhode Island, 17-21 June 2013.
Forecasting Seasonal Outbreaks of Influenza. Oral Presentation at the NIH Models of Infectious Disease Agents Study (MIDAS) 10th Anniversary Meeting, Bethesda, Maryland, 23 September 2013, INVITED

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Forecasting Seasonal Outbreaks of Influenza. Oral Presentation at the American Society of Microbiology, Region 1 Meeting, University of Connecticut, Storrs, Connecticut, 26 October 2013, INVITED
The Effect of Hydrologic Variability on the Ecology of West Nile Virus. Oral Presentation at the American Society of Tropical Medicine and Hygiene, Annual Meeting, Washington DC, 13-17 November 2013, INVITED
Real-Time Influenza Forecasts during the 2012-2013 Season. Oral Presentation at Epidemics4, Amsterdam, Netherlands, 19-22 November 2013.
Forecasting Seasonal Outbreaks of Influenza. Oral Presentation at the Annual Meeting of the International Society for Disease Surveillance, New Orleans, Louisiana, 11-13 December 2013, INVITED
Forecasting Seasonal Outbreaks of Influenza. Oral Presentation at the Preparedness Summit, Atlanta, Georgia, 1-4 April 2014, INVITED
Integration of Influenza Forecasts into Public Health Decision Making. Oral Presentation at the Preparedness Summit, Atlanta, Georgia, 14-17 April 2015.
Forecasting Infectious Disease Outbreaks. Oral Presentation at the conference on Human Health in the Face of Climate Change: Science, Medicine and Adaptation, Sponsored by the Caixa Foundation and the New York Academy of Sciences, 14-15 May 2015, INVITED
Climate and Tropical Infectious Disease. Oral Presentation at the American Society of Tropical Medicine and Hygiene, Annual Meeting, Philadelphia PA, 26-29 October 2015, INVITED
Forecasting Infectious Disease Outbreaks. Oral Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 13-17 December 2015, INVITED
The superposition of eastward and westward Rossby waves in response to localized forcing. Poster Presentation at the Fall Meeting of the American Geophysical Union, San Francisco, California, 13-17 December 2015.
Launch of a Global Consortium on Climate and Health Education (GCCHE). Oral presentation at the annual meeting of the American Public Health Association, Atlanta, Georgia, 5-8 November 2017.
Simulation and Forecast of Infectious Disease: Environmental Determinants and Transmission. Oral keynote presentation at the Symposium on Atmospheric Chemistry, Climate and Health, Sigma Xi, Raleigh, North Carolina, 10 November 2017, INVITED
The Use of Ambient Humidity Conditions to Improve Influenza Forecast. Oral Presentation at the Fall Meeting of the American Geophysical Union, New Orleans, Louisiana, 11-15 December 2017, INVITED
Real-time West Nile Virus Forecasts with Temperature Forcing. Oral Presentation at the Fall Meeting of the American Geophysical Union, New Orleans, Louisiana, 11-15 December 2017.
Using weather to improve infectious disease forecasts. Oral Presentation at the Consortium of Universities of Global Health Annual Meeting, New York, New York 15-17 March 2018, INVITED
Forecasting the growth and spread of infectious disease outbreaks. Oral Presentation at the Future of Health, the annual symposium of the Institute for Systems Biology, Seattle, Washington, 26-27 March 2018 INVITED.
Absolute humidity modulates influenza transmission. Oral Presentation at the Gordon Research Conference The Microbiology of the Built Environment, Biddeford, Maine, 15-19 July 2018, INVITED.
Climate and health. Oral Presentation at workshop on climate, health and bioethics, Hastings Center, Garrison, New York, 3-4 June 2019 INVITED.
Climate and influenza: associations, processes, and implications. Oral Presentation at the annual Ecology and Evolution of Infectious Diseases meeting, Princeton, New Jersey, 10-13 June 2019 INVITED.
Inference and control of the nosocomial transmission of methicillin-resistant Staphylococcus aureus. Oral Presentation at SPHINx19 - Spread of Pathogens in Healthcare Institutions and Networks: a modeling conference, Paris, France, 24-25 June 2019, INVITED.
Utilizing big data to track outbreaks of antimicrobial resistant pathogens. Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria (PACCARB), McLean, Virginia 10-11 July 2019, INVITED.
Forecasting seasonal influenza activity. Oral Presentation at Options X for the Control of Influenza, Singapore, 28 August September 1, 2019, INVITED.
Forecasting Infectious Diseases Both with and without Climate Forcing. Oral Presentation at the 100th Annual Meeting of the American Meteorological Society, Boston, Massachusetts, 12-16 January, 2020, INVITED.
Process-based Infectious Disease Forecasting. Oral Presentation at the Annual Meeting of the American Association for the Advancement of Science, Seattle, Washington, 13-17 February, 2020, INVITED.
Modeling the Transmission Dynamics of SARS-CoV-2 and the Effects of Intervention Timing on COVID-19 Incidence. Oral Presentation at the 38th International Conference of the System Dynamics Society, Bergen, Norway (Virtual), 19-21 July, 2020, INVITED.
Transmission Dynamics of SARS-CoV-2: Inference and Projection. Oral Presentation at Cold Spring Harbor Laboratory COVID/SARS CoV2 Rapid Research Reports #2, Cold Spring Harbor, NY (Virtual), 21-22 July, 2020, INVITED.
Symposium panel on forecasting and projecting meteorological and environmental links to COVID-19, American Geophysical Union, 4 August 2020. INVITED.
Meteorological determinants of influenza and SARS-CoV-2 survival and transmission, 32nd Annual Conference of the International Society for Environmental Epidemiology, (Virtual) 24-27 August 2020. INVITED (keynote).
Transmission Dynamics of Influenza and SARS-CoV-2: Meteorological Determinants, Inference and Forecast. AGU Webinar, 14 September 2020. INVITED.

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The Health Impacts of Climate Change, 36th Annual Conference of the International Society for Pharmacoepidemiology, (Virtual) 15-17 September, 2020. INVITED.
Transmission Dynamics of SARS-CoV-2: Modeling, Inference and Projection, 1st ACM SIGSPATIAL International Workshop on Modeling and Understanding the Spread of COVID-19, (Virtual), Keynote, 3 November, 2020 INVITED.
GRADUATE COURSES: Introduction to Atmospheric Science, Climatic Change, Global Assessment and Monitoring using Remote Sensing, Nonlinear Dynamics in the Earth Sciences, Introduction to Atmospheric Chemistry, OceanAtmosphere Interactions, Water and Infectious Diseases, Advanced General Geology, Quantitative Methods of Data Analysis, Myths and Methods in Modeling, Dynamics of Climate, Wave Motions in the Atmosphere and Ocean, Geophysical Fluid Dynamics Seminar—Tracers, Ocean Dynamics, Tropical Oceanography, Tropical Meteorology, Physics of Fluids
TEACHING EXPERIENCE
Environmental Science for Decision Makers, Teaching Assistant (2 Semesters), School for International and Public Affairs, Columbia University.
Introduction to Atmospheric Sciences, ATS 210, undergraduate course, Oregon State University, Fall 2006. Principles of Atmospheric Sciences, ATS 420/520 graduate course, Oregon State University, Fall 2007. Special Topics, El Niño-Southern Oscillation climate variability in the past, present and future, OC669/ATS690 graduate
course, Oregon State University, Spring 2008. Principles of Climate, ATS 420/520 graduate course (new version of Principles of Atmospheric Sciences) Oregon State
University, Fall 2008. Climate Dynamics, ATS 630, graduate course, Oregon State University, Spring 2010. The Fluid Earth, OEAS 430/530 graduate course (new core curriculum course for COAS), Oregon State University, Fall
2010. Journal Club in Environmental Health: Climate and Health, EHSC 9370, graduate seminar course, Columbia University, Fall
2011. Climate and Atmospheric Science for Public Health, P8301, graduate course, Columbia University, Fall 2012, Fall 2013, Fall
2014, Fall 2015, Fall 2016, Fall 2017, Fall 2018, Fall 2019, Fall 2020. Water, Sanitation and Human Health, P8329, graduate course, Columbia University, Spring 2014, Spring 2015, Spring 2016,
Spring 2017, Spring 2018. Environmental Science, Senior Seminar, X3801, undergraduate course, Columbia University, Spring 2014, Fall 2014, Spring
2015. Public Health Impacts of Climate Change, P8304, graduate course, Columbia University, Spring 2017, Spring 2018. Seminar in Climate and Health, P8324, graduate seminar course, Columbia University, Spring 2017, Spring 2018, Spring
2019, Spring 2020.
PROFESSIONAL ACTIVITIES Professional Organizations American Geophysical Union American Meteorological Society International Society for Infectious Diseases International Society for Disease Surveillance Center and Institute Memberships Center for Communicable Disease Dynamics, Harvard University, 2009-present Columbia Center for Environmental Health in Northern Manhattan, 2011-present Columbia Institute for Social and Environmental Research and Policy, 2011-present International Research Institute for Climate and Society, 2011-present Columbia Earth Institute, 2012-present Conference Session Chair, Workshop Convener, Meeting Organizer 36th Annual Meeting of the Society of Vector Ecology, ‘Fact or Fiction: Using Technology to Monitor and Forecast Vector-Borne Disease’, Session Chair, Boston, MA, September 2004 National Research Council Ad Hoc Committee to plan and conduct workshop in San Francisco on the Potential Impacts of Climate Change on Human Health. Sponsored jointly by the Roundtable on Environmental Health Sciences, Research and Medicine and the NRC Climate Research Committee, March-September, 2007. National Academy of Science, Sackler Colloquium, Fostering Interdisciplinary Advances in Climate Science. Co-Organizer. Washington DC, March 31-April 2, 2011. Asia Oceania Geosciences Society-American Geophysical Union Joint Assembly, Session Convener and Chair, ‘Geophysical Drivers of Infectious Disease Transmission’, Singapore, 13-17 August 2012. NIH RAPIDD Workshop, Next Generation Modeling: Climate, Weather and Infectious Disease, Co-Organizer. Princeton NJ, January 15-17, 2014.

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NIH/Columbia Workshop, Preparing for and Responding to Influenza Outbreaks: Public Health Decision Making and a Role for Influenza Forecast, Organizer, New York NY, May 1-2, 2014.
NSF/Columbia Workshop, The Tropics Rule: a symposium honoring Mark Cane’s contributions to climate science, Co-Organizer, Palisades NY, October 20-21, 2014.
Preparedness Summit, Learning Session, Using Forecasts to Guide Decision Making during Influenza Seasons and Pandemics, Co-Organizer, Atlanta GA, April 17, 2015.
NIH/Columbia Workshop, Preparing for and Responding to Influenza Outbreaks: Healthcare Preparedness and a Role for Influenza Forecast, Organizer, New York NY, April 21-22, 2016.
Annual Meeting the NIGMS MIDAS Program, Organizer, Atlanta GA, May 22-24, 2017. Workshop Participation
EPA workshop-conference to address the practical consequences of Levins’ philosophy of modeling ecological systems, H. J. Andrews Experimental Forest Station, Oregon, 12-15 January 2005.
CLIVAR CLIMODE/KESS Western Boundary Current Workshop, Phoenix, Arizona, 15-17 January 2009. Hydrosynthesis, water and human interactions workshop, Chapel Hill, North Carolina, 21-22 October 2010. Centers for Disease Control and Prevention Workshop, Understanding the Modes of Influenza Transmission,
Atlanta, Georgia, 4-5 November 2010. RAPIDD 2011 Convocation, National Institutes of Health, Washington DC, 26-27 January 2011. RAPIDD Workshop, Modelling Interventions and Malaria Resistance, London, England, 19-20 May 2011. RAPIDD 2012 Convocation, National Institutes of Health, Washington DC, 2-3 February 2012. RAPIDD Workshop, Modelling Interventions and Malaria Resistance, Durham, England, 11-12 April 2012. National Oceanic and Atmospheric Administration Climate and Global Change Postdoctoral Fellowship Program
Summer Institute, Steamboat Springs, Colorado, 8-12 July 2012. Yale Climate and Energy Institute, Forum on the Integration of Climate Science and Infectious Disease Research,
New Haven, Connecticut, 25-26 January 2013. RAPIDD 2013 Convocation, National Institutes of Health, Bethesda, MD, 13-14 June 2013. RAPIDD 2014 Convocation, National Institutes of Health, Bethesda, MD, 4-5 September 2014. Dengue Forecasting Workshop, Office of Science and Technology Policy, The White House, Washington DC, 15
September 2014. Ebola Forecasting Workshop, Biomedical Advanced Research and Development Authority, Washington DC, 15
December 2014. RAPIDD Workshop, Ebola Modeling, Bethesda MD, 23-25 March 2015. WHO Second Global Conference on Health and Climate, Paris France, 7-8 July 2016. ASPPH Webinar on Environmental Health Programming that Inspires and Excites, 7 October 2019. National Academies of Science, Engineering and Medicine, Harnessing data to strengthen community health in a
changing climate: a virtual scoping meeting, 25 August 2020. National Committees, Panels, Reviews
Peer Review Panel for EPA STAR Grant ‘An Interdisciplinary Approach to Examining Links Between Social Stressors, Biodiversity and Human Health’, July 17-18, 2007.
External Reviewer, National Academy of Science, Institute of Medicine, Workshop Summary, ‘Global Climate change and Extreme Weather Events: Understanding the Contributions to the Emergence, Reemergence, and Spread of Infectious Disease', 2008.
National Academy of Science, Climate, Energy and National Security, Topical Panel Meeting, San Francisco, CA, 24-25 June 2009 (Continued activity through 2010).
Peer Review Panel for NIH NIAID Centers of Excellence for Influenza Research and Surveillance, 3-5 June, 2013. Review Panel for NIH NIAID K awards, Microbiology and Infectious Disease Research Committee, 20 February,
2015. MIDAS Steering Committee, 2014-2018 MIDAS Executive Committee, 2016-2018 MIDAS Executive Committee, Vice Chair, 2016-2018 IRAP, NIH Study Section, 2019-present State, Local and University Committees Organizer, Division of Climate and Physical Oceanography Seminar Series, Lamont-Doherty Earth Observatory,
2001 Committee Member, Women in Science: Evaluation of Observatory Policies and Practices, Lamont-Doherty Earth
Observatory, 2001-2002. Student Representative, Curriculum Reform Committee, Department of Earth and Environmental Sciences,
Columbia University, 2001-2003. Convener, Symposium: ‘Fact or Fiction: Using Technology to Monitor and Forecast Vector-Borne Disease’, 36th
Annual Meeting of the Society of Vector Ecology, Boston, September 2004. Faculty Advisory Committee, COAS, OSU, 2005-2006. Dean’s Advisory Committee, COAS, OSU 2006-2009. Frontiers Seminar Committee, COAS, OSU 2006-2009.

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Discovery and Research Panel, The Future of Ocean and Coastal Studies at OSU, March 13 2007. Climate Change Ecosystem Preparation Strategy Meeting, Oregon Department of Energy, June 11, 2007. Earth System Science, Structure and Governance Committee, OSU, 2007. Earth System Science, Research Committee, OSU, 2007-2008. Atmospheric Science Hire Search Committee, COAS, OSU, 2007-2008. Promotion and Tenure Committee, COAS, OSU, non-voting, 2008-2009. Core Curriculum Planning Group, COAS, OSU, 2008-2009. Core Curriculum Development Group, COAS, OSU, 2009-2010. Peer Review of Teaching Committee, COAS, OSU, 2010-2011. Atmospheric Science Hire Search Committee, COAS, OSU, 2010-2011. COAS-Geosciences Merger Committee, COAS, OSU, 2010-2011. MPH Admissions Committee, Mailman School, Columbia University, 2011-present Earth Institute Postdoctoral Fellows Admissions Committee, Columbia University, 2011-2018 Earth Institute Director Search Committee, Columbia University, 2016-2018 Columbia University Capital Campaign Climate Task Force, 2017 Earth Institute Executive Committee, Columbia University, 2017-present Earth Institute Leadership Committee, Columbia University, 2018-present Columbia University Task Force on Climate, 2019 Columbia Climate School, Major Programs Director, 2020-present
EDITORIAL ACTIVITIES
Manuscripts Reviewed for: International Journal of Climatology, Climatic Change, Global Change Biology, Journal of Medical Entomology, Ecological Modelling, Journal of Climate, International Journal of Remote Sensing, Hydrological Processes, Geophysical Research Letters, Journal of Geophysical Research, PLoS ONE, Vector-Borne and Zoonotic Diseases, Quarterly Journal of the Royal Meteorological Society, Water Resources Research, Atmospheric Research, PLoS Medicine, PNAS, PLoS Neglected Tropical Diseases, Journal of Vector Ecology, Journal of the Atmospheric Sciences, American Journal of Epidemiology, Environmental Health Perspectives, Entomologia Experimentalis et Applicata, Malaria Journal, Acta Tropica, Proceedings of the Royal Society B, Transactions of the Royal Society of Tropical Medicine and Hygiene, Environmental Health, Journal of the Royal Society Interface, International Journal for Environmental Research and Public Health, BioMed Central Infectious Diseases, American Journal of Tropical Medicine and Hygiene, Journal of Theoretical Biology, Journal of the Meteorological Society of Japan, Epidemiology and Infection, Ecology Letters, WIREs Climate Change, Climate Dynamics, PLoS Computational Biology, International Journal of Biometeorology, Influenza and Other Respiratory Viruses, PLOS Currents Influenza, Disaster Medicine and Public Health Preparedness, Scientific Reports, PLOS Currents Outbreaks, Nature Climate Change, BMC Infectious Diseases, Epidemics, eLife, PLOS Biology, Nature Communications, Nature, Science, Science Translational Medicine, Nature Human Behavior, Emerging Infectious Diseases
Proposals Reviewed for: NSF Climate and Large-Scale Dynamics; NOAA Climate Prediction Program for the Americas; Wellcome Trust; Ministry of Earth Sciences Monsoon Mission II, India; Swiss NSF
Review Panels: EPA Biodiversity and Human Health, NIH Centers of Excellence for Influenza Research and Surveillance, NIAID Microbiology and Infectious Disease Research Committee K Awards, NIH IRAP Study Section (2019, 2020)
Guest Editor: PNAS, International Journal for Environmental Research and Public Health, PLOS Computational Biology, PLOS Medicine, PLOS Biology
Academic Editor: PLOS ONE, 2014-present
Editor: PLOS Currents Outbreaks, 2015-2018
OUTREACH
Interview on topic of Climate and Health, Geotimes. Printed in January 2006 article entitled ‘Warming Linked to Disease Outbreaks’
Interview and OSU Press Release: New Strategy Developed to Combat West Nile Virus, Published online on www.medicalnewstoday.com, www.medilexicon.com, www hospitalwworldwide.com. Picked up by the Associated Press, printed online on many other news sites, including www medindia net. Published in print May 15, 2006 Oregonian.
Lecturer, Climate Impacts, Oregon State University Academy for Lifelong Learning, May 2006. Lecturer, Climate and Health, Oregon Teachers Climate Change Workshop, September 2006

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Radio interview discussion of climate, pollution and health on Oregon Territory of Oregon Public Broadcasting. Broadcast December 1, 2006. Available online at http://www.opb.org/programs/oregonterritory/episodes/2006/1201/.
Interview on climate science consensus, Houston Chronicle, Printed in January 22, 2007 entitled ‘Climate Scientists Feeling the Heat’.
Lecturer, Climate Change and IPCC 4th Assessment, OSU Sustainability Group, February 20, 2007. Lecturer, Climate Change, Human Health and Local Ecology, Earth Day Celebration, Hatfield Marine Science Center, April
21, 2007. Lecturer, Climate Change and IPCC 4th Assessment, Isaac Walton League, Corvallis, June 11, 2007. Lecturer, Climate Change and IPCC 4th Assessment, League of Conservation Voters, Newport, June 15, 2007. Lecturer, Climate Change and IPCC 4th Assessment, The Seminar Group, Global Warming and the Effects on Environmental
Law, Portland, OR, September 26, 2007. Lecturer, Climate Change, Human Health and Local Ecology, Marys Peak Chapter, Oregon Sierra Club, Corvallis, OR,
October 2, 2007. Lecturer, Climate Change and IPCC 4th Assessment, 63rd Annual Conference of the Oregon Public Health Association,
Corvallis, OR, October 3, 2007. Speaker, Operational Hydrologic Monitoring of Mosquito-Borne Disease Transmission, Oregon Department of Health,
Portland, OR, December 12, 2007. Developer, with individuals at the Florida Medical Entomology Laboratory, of the arboviral transmission risk model: http://
mosquito.ifas.ufl.edu/MWTD_Risk_Model htm Lecture and Debate, Climate Change, Philomath High School, Earth Awareness Day, Philomath, OR, February 29, 2008. Testimony on Climate Change and IPCC 4th Assessment before the Oregon State Legislature Committee on Energy and
Environment, April 4, 2008. Speaker, Operational Hydrologic Monitoring of Mosquito-Borne Disease Transmission, Epidemiologists’ Forum, Oregon
Public Health Association, Oregon Public Health Division, Oregon Health Sciences University Department of Public Health and Preventive Medicine, Portland, OR, April 16, 2008. Lecturer, Climate Change Science, Meadow Park Middle School Science and Robotics Teams, October 10, 2008 Interview, Adult Education Instructor, Ocean Science and Math Collaborative Program of the Oregon Office of Community College and Workforce Development, October 16, 2008. Radio interview discussion of climate change on Sunday at Noon of KLCC Public Radio, Eugene, OR. Broadcast November 16, 2008. Available online at www klcc.org/audio/S@N 11-16 mp3 Multiple interviews regarding February 9, 2009 release of influenza and humidity article in PNAS. Over 300 radio, print, television and online news sources covered the findings including Science, National Geographic, Scientific American, New York Times, Discover Magazine, U.S. News and World Report, MSNBC, CNN, The Today Show, Wall Street Journal and International Herald Tribune. Consultation with officials at the Centers for Disease Control and Prevention and Mexican ministries regarding the fate and spread of swine flu, April 26-29, 2009. Interview for National Geographic, April 29, 2009, regarding the emergence and spread of swine flu. Published online April 30, 2009, Summer to Kill Swine Flu in U.S. and Mexico? Additional interviews regarding swine flu with the Atlanta Journal-Constitution and Bay Area News. Speaker, OSU Global Environmental Change Organization, Climate Change Seminar Series, April 29, 2009. Speaker, Climate, Weather and Influenza, Military Officers Club of Corvallis, September 16, 2009. Speaker, Climate, Weather and Health, Oregon Health Sciences University School of Nursing Faculty and Staff, October 14, 2009. Lecturer, Humidity and the Seasonality of Influenza, Oregon State University Extension Service Climate Change Series, Hillsboro, OR, November 17, 2009. Multiple interviews regarding February 23, 2010 release of influenza article in PLoS Biology. Interviews with Oregon Public Radio, KGW Channel 8 Portland, KEZI Channel 9 Eugene, Voice of America, Discovery Channel (online), NIH Research Matters and an NIH podcast. Additional coverage in L.A. Times, U.S. News and World Report, USA Today, Business Week, Times of India, MSNBC, and other news sources. KGW broadcast picked up by local affiliates around the country. Interview for Religion Dispatches, March 17, 2010, on global warming. Article entitled ‘Creationism and Global Warming Denial: Anti-Science’s Kissing Cousins?’ by Lauri Lebo. Interview for Science News, September 8, 2010 on influenza. Article entitled ‘Dry air might boost flu transmission’, published September 10, 2010, by Janet Raloff. Multiple interviews regarding January 17, 2012 release of influenza article in PNAS. Interviews with BBC, Huffington Post, Climate Wire, Voice of America, Australian Broadcasting Corporation Radio, Toronto Globe and Mail, Toronto Star, Canadian Press, Earth Magazine (American Geosciences Institute). Additional coverage with UPI, CBC, Houston Chronicle, Guardian, Oregon Public Radio, Scientific American and other news sources. Consultation with officials at the Centers for Disease Control and Prevention on the emerging H3N2v swine variant at state fairs, the risk of a larger outbreak, and the merits of developing a vaccine against this variant., September 4-7, 2012. Multiple interviews regarding November 26, 2012 release of influenza prediction article in PNAS. Interviews with NBC Nightly News, ABC World New Tonight, CBS Early Show, CBS Up to the Minute, CBS Radio, the Associated Press,

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Reuters-Thomson, CTV, and local radio and print outlets. AP and Reuters coverage in both print and television appeared on hundreds of outlets. Several interviews regarding August 2013 online release of weather and depression article in J. Affective Disorders. Press coverage appeared in multiple print outlets around the globe. Multiple interviews regarding December 3, 2013 release of influenza prediction article in Nature Communications. Interviews with Time, Bloomberg News. Coverage on Salon, Huffington, Fox News, VOA. Multiple interviews regarding January 2014 launch of influenza prediction website. Interviews with NY1, New York Times. Multiple interviews regarding 2014 West African Ebola outbreak and forecasts of the epidemic. Interviews with the New York Times, NBC Nightly News, NPR, ABC, CBS Affiliates, Bloomberg News. Multiple interviews regarding 2014-2015 influenza season and its forecast. Interviews with the New York Times, Time magazine, NY1, Village Voice, CNN. Interview October 2015 on Science Friday regarding influenza prediction Interviews with NBC news (online) and Radio Times (WHYY) regarding the Zika outbreak, 2016 Organized and moderated an Earth Institute Sustainable Development seminar, open to the public, on the ongoing Zika outbreak, 2016. Co-organized and participated in an event revealing preliminary results from summer 2016 respiratory virus and microbiome sampling among visiter to the American Museum of Natural History. The event was held at the museum July 14, 2016. Podcast with Scientific American regarding the PLOS Computational Biology publication on flu prediction within New York City, December 6, 2016. Webinar for New York Academy of Science Junior Academy on the Ebola Outbreak and infectious disease forecasting. January 19, 2017. Public Lecture, Taste of Science, Ryan’s Daughter, 350 E. 85th St., January 24, 2017. Interviewed and participated in the WNYC Only Human podcast Flu-dunnit?, March 22, 2017. Interviewed for Stat News on climate and health, April 11, 2017 (released April 24, 2017). Interviewed by ABC news (online) regarding climate and health, June , 2017. Interviewed by Metro, Australian Financial Times and other regarding PNAS publication on spatial forecast of influenza, February 2018. Letter to the Editor in New York Times, ‘One more thing you can do’, regarding climate and health, (https:// www.nytimes.com/2018/10/08/opinion/letters/science-health-climate-environmental-protection-agency.html) October 8, 2018. 2019: Interviews with Columbia Magazine, Columbia Public Health Magazine, the Montgomery Advertiser Podcast with US Green Building Council, Built for Health: Climate, released October 21, 2019. Interview with NPR regarding the Wuhan novel coronavirus, aired on All Things Considered February 5, 2020 Interview with PRI World on climate and infectious disease, February 5, 2020. Interview with BBC Science in Action on COVID-19, February 15, 2020; aired February 20, 2020 Interviews with Washington Post, New York Times, CNBC, The Hill, China Global TV, CBS News, Axios, China Daily USA, Wall Street Journal, Buzzfeed News (AM2DM), Bloomberg News, Vice News, Al Jazeera English, NBC News, Weather Underground, New Yorker, ProPublica, BBC World, Morning Joe, Chicago Tribune, NPR All Things Considered, NPR Here and Now, National Geographic, NOVA, BBC Horizons, CNN Situation Room, Science Friday, BBC Panorama, NHK Japan, NBC Meet the Press, CNN with Don Lemon, PBS News Hour, The Rachel Maddow Show, CTV, The Takeaway among others regarding COVID-19 outbreak, February-December, 2020 Interview with The Weather Channel regarding influenza and respiratory forecasting, aired February 26, 2020 Podcast interview with The Environmental Breakdown on climate change and infectious disease and COVID-19, released March 13, 2020. Advised governors of Washington and Ohio, congresspeople, state department, NY, VT, ME, CA and HI State officials, NYC mayor’s office, NYC Economic Development Council, MD State Assembly, Directors Guild of America, NYC Campaign Finance Board on COVID-19 response, March-December 2020.

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EXHIBIT 15

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Associates, Inc. (LETRA), a criminal justice training and consulting organization that has had offices in the San Francisco Bay Area since its incorporation in June 1972. I have worked fulltime with law enforcement and correctional agencies across the United States and Canada for over 35 years, both as LETRA’s president and as a private consultant. The largest proportion of my work for the last 20 years has been working with prisons and jails and assisting them in applying national corrections standards to their operations.
3. I have worked with more than 40 of the 50 state Departments of Corrections, with small, medium and large jails, and with local Departments of Corrections. During my career I have toured literally hundreds of prisons and jails. I believe that I have done more work on major emergencies in jails and prisons than anyone else in the United States. I have co-authored three book-length monographs on preparing for and managing major emergencies in jails and prisons, and all three of those volumes have been published by the National Institute of Corrections (NIC), a branch of the U.S. Department of Justice. I have conducted Critical Incident Reviews (also called “After-Action Reports”) following some of the most high-profile emergencies and disasters in jails and prisons in the United States in the last 40 years, including the riots in Camp Hill, Pennsylvania; the effects of Hurricanes Rita and Katrina on the Louisiana Department of Corrections; the riot and hostage-taking in Deer Lodge, Montana; the hostagetaking and rape of a Correctional Counselor at the Delaware Correctional Center; the riot at the prison in Lucasville, Ohio; and others. I have also conducted detailed audits of emergency preparedness at a number of prisons and jails across the United States and Canada and codeveloped a unique system of emergency preparation and response that has been used in some form by over two thirds of the state Departments of Corrections in the country. I have provided training on emergency preparedness and response to thousands of jail and prison staff, either by
2

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personally conducting that training or by training and certifying emergency preparedness instructors for various correctional agencies.
4. I was appointed as the Federal Court’s security expert in the U.S. Virgin Islands and reviewed security in two correctional facilities there and then testified in a long-running class action and consent decree case. I also testified in a decades-long consent decree about conditions in the Shelby County, Tennessee Jail and then, at the request of the Federal Judge, conducted an evaluation of progress, leading to the discharge of that consent decree.
5. I am currently a Federal Court Monitor for the Los Angeles, California, jails in a matter that resulted in a consent decree arising out of a class action use of force lawsuit against those jails. I served as the corrections expert for the Southern Poverty Law Center in reviewing inmate violence and staff use of force in the Orleans Parish jails and testified in Federal Court resulting in a consent decree there. I similarly completed work as an expert for the U.S. Attorney’s Office in the Southern District of New York (Manhattan) resulting in a consent decree that centers on inmate-on-inmate violence and use of force issues at Rikers Island. I evaluated use of force issues in the San Bernardino County, California jails, worked with the Court and the Prison Law Office to develop a new use of force policy for that jail/system, and I currently serve as a Federal Court Monitor reviewing progress on a use of force consent decree there.
6. My expert witness work and my consulting and training work have included a major emphasis on staff use of force and inmate-on-inmate violence issues. I have written and/or drafted use of force policies for state Departments of Corrections as well as county correctional facilities. I have developed and presented training on use of force to correctional staff in a number of state Departments of Corrections, county jails, and adolescent facilities. I have also
3

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reviewed use of force investigative and review procedures in many police and correctional agencies and the largest proportion of cases in which I have served as an expert is use of force cases. I have published six articles on use of force.1
7. Some nine months ago I recognized that the COVID-19 virus was spreading fast but that there was no guidance for prison and jail managers and administrators, although those facilities are the only housing in the United States that is higher density than nursing homes. In response, I co-authored a monograph, which Dr. Venters and I self-published for free to get it into circulation as quickly as possible.2 We made minor updates and the Correctional Law Reporter then published that second edition of the monograph in its entirety.3
8. I was retained in this case by Plaintiffs’ attorneys Relman Colfax PLLC and the Legal Aid Society in November of 2020.
9. My C.V. is attached as Exhibit A. 10. I am not a medical expert and I have not been asked nor have I attempted to form opinions about medical treatment issues in this case. 11. I am familiar with data showing that one in five inmates in state and federal prisons across the United States has tested positive for COVID-19.4 That rate is four times higher than the rate in the general population, and according to Homer Venters, formally the Chief
1 A Note on “Verbal and Non-Verbal Indicators to Assaults”; Corrections.com; May 2009; Reducing Exposure in Use of Force Litigation; Corrections Today; June 2009; The Force Continuum: Is It Worth Keeping? Part I; Phil Collins, Jeffrey A. Schwartz, and Donald Leach; Correctional Law Reporter; December/January 2011; The Force Continuum: Is It Worth Keeping? Part II; Phil Collins, Jeffrey A. Schwartz, and Donald Leach; Correctional Law Reporter; April/May 2011; “Come and Get Me! The Best and Worst in Cell Extractions”; American Jails; July/August 2009; “Fixing Use of Force Problems”; American Jails; January/February 2010. 2 JEFFREY A. SCHWARTZ, PH.D. & HOMER VENTERS, M.D., JAILS, PRISONS, AND THE COVID-19 VIRUS: A MONOGRAPH (2020). 3 Jeffrey A. Schwartz, Ph.D. & Homer Venters, M.D., Jails, Prisons, and the Covid-19 Virus: A Monograph, 32 Corr. Law Rep. 17-23 (2020). 4 Ben Schwartzapfel, Katie Park & Andrew Demillo, 1 in 5 prisoners in the US has had COVID-19, 1,700 have died, ASSOCIATED PRESS, Dec. 18, 2020, https://apnews.com/article/pandemics-race-and-ethnicity-prisons-unitedstates-coronavirus-pandemic-0bef0673013aa579551db5ad61b885e0.
4

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Medical Officer for Rikers Island, it still may be a vast undercount.5 The data reflect that in some state prison systems, over half the inmates have been or are currently infected with the virus. The same two sources, The Associated Press and The Marshall Project, also report the infection rate for prison staff as one in five.
12. As bad as this pandemic is for the general population of the United States, it is clear that it is a significantly more extreme crisis for correctional facilities. Being sentenced to prison should not mean that you are getting a death sentence from COVID-19. While prison inmates are at far higher risk from COVID-19 than the general population, that risk is exacerbated for older inmates and inmates with pre-existing medical conditions. The inmates at Adirondack are all older and all have pre-existing medical conditions.
13. This declaration is specific to the Adirondack Correctional Facility (“Adirondack”) in upstate New York, near Lake Placid. Adirondack was a juvenile correctional facility, but as of spring, 2020, the remaining small number of juveniles were moved out. The facility was re-purposed as a medium security adult prison and adult inmates began populating the facility in the summer. Adirondack houses a specific and special population. All of its inmates are at least sixty years old and all have serious pre-existing medical conditions, with diabetes and heart problems being the most common. None of the inmates are classified as higher than medium security. The facility has 500 beds but is currently far under that capacity at approximately 100 inmates.
14. I recognize there are serious, perhaps life-and-death, issues at Adirondack with the lack of medical services for the inmate population there and the lack of available community resources. It is not necessary to be a medical professional to recognize those issues and their
5 Id.
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importance. However, those issues are outside my expertise and I will leave them to others to address. They are not considered in this declaration.
15. This declaration primarily concerns two general issues: the transfer of additional inmates into Adirondack; and the conditions at Adirondack related to COVID-19.
16. The picture of what is going on at Adirondack is shocking, not because the prison management is doing one thing that is wrong, or dangerous. It is shocking because they are doing so many things wrong that together create such a dangerous situation: they are not adequately providing masks, PPE, safe housing, sanitation, meals, testing, screening, quarantining, or recreation.
17. At the outset, it is crucial to underscore two facts. First, there is no question that state prisons have an obligation to protect inmates from known threats of harm. In general, when individuals are incarcerated, there are a number of ways in which they cannot protect themselves. That protection becomes the responsibility of the incarcerating authority. The classic analogy is that in a fire, inmates locked in their cells are as helpless to protect themselves as horses locked in a barn during a fire. Likewise, the duty of prisons and of prison staff to protect inmates from harm is long-standing, basic, and consensually accepted throughout U.S. corrections. That duty is enshrined in case and statutory federal law, state law and Department policy. This general duty to protect inmates includes the specific duty to protect them from illness and disease. Indeed, in other litigation challenging conditions in prison facilities run by Defendants, Defendants have not disputed that fundamental duty.
18. The second fact is that the U.S. Centers for Disease Control and Prevention (CDC) has issued guidance for prisons and jails to combat COVID-19. The CDC issued interim guidance in March of 2020 and by July 14, 2020 had published comprehensive procedures
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specific to correctional facilities. The CDC guidelines are not theoretical, and they are not controversial; they are specific and they are the product of some of the most renowned scientists and epidemiologists in the world. There is no indication that Defendants challenge the science in the CDC guidelines and, to the contrary, the extensive DOCCS publication “DOCCS COVID-19 Report,” online and updated daily, promises the Department is adhering to those guidelines in ways that they are not.6
19. If Defendants acknowledge their duty to protect inmate lives, and if they do not dispute the validity of the CDC guidelines, why are they not following those guidelines to the greatest extent possible? The CDC guidelines are not intended to be an aspirational “gold standard”; they are intended to provide guidance that prisons can reasonably adhere to. If Defendants find specific provisions impossible, Defendants should say so and state why. Otherwise, the provisions of the CDC guidelines are the best ways to prevent loss of life from the pandemic in jails and prisons, and to do less will predictably result in inmate deaths and a clear breach of Defendants’ duty to protect inmates.
20. The CDC guidelines for transfer provide, in relevant part, that prisons are to:  “Limit transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, release, or to prevent overcrowding.”  “If a transfer is absolutely necessary: Perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for suspected COVID-19 infection – including giving the individual a cloth face mask (unless contraindicated), if not already wearing one, immediately placing them under medical isolation, and evaluating them for SARS-CoV-2.”
6 N.Y. STATE DEP’T OF CORRS. AND CMTY. SUPERVISION, DOCCS COVID-19 REPORT, https://doccs ny.gov/doccscovid-19-report (last visited Jan. 6, 2021).
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 “If a transfer is absolutely necessary: Ensure that the receiving facility has capacity to properly quarantine or isolate the individual upon arrival.”7
21. It is my understanding that no inmates have been transferred into Adirondack since September 2020, but that Defendants have provided no assurances they will not resume such transfers, and as there is still capacity for additional people at Adirondack, Defendants could readily continue these transfers. When inmates were transferred into the facility, it was done without observing standard, well-recognized preventative procedures against COVID-19. Based on declarations I have reviewed, inmates were transferred into Adirondack from other New York State prisons without being testing before transfer and without quarantine on arrival. That was true for all six of the inmate Declarations I reviewed in preparation for this, my own Declaration. The inmate Declarations also emphasized that it was not possible to maintain six feet of distance from other inmates during the long bus ride to Adirondack.
22. The relationship between COVID-19 infections and inmate transfers could not be illustrated more graphically than by what happened this summer at San Quentin State Prison in California. Importantly, while most of California’s more than thirty state prisons are located in isolated or rural areas and away from metropolitan communities, San Quentin is in the midst of Marin County, just north of San Francisco and surrounded by suburbs. San Quentin’s 3,500 inmates had zero cases of COVID-19 until the state Department of Corrections transferred 121 inmates into San Quentin from the California Institution for Men in Southern California, which was having a COVID-19 outbreak. The virus spread through San Quentin like wildfire,
7 CTRS. FOR DISEASE CONTROL & PREVENTION, INTERIM GUIDANCE ON MANAGEMENT OF CORONAVIRUS DISEASE 2019 (COVID-19) IN CORRECTIONAL AND DETENTION FACILITIES (Dec. 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention html.
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eventually infecting more than 2,200 inmates there and killing 28 inmates in the largest single outbreak of the virus in the United States.
23. If COVID-19 were to gain a foothold at Adirondack and start spreading, it would likely be even more devastating than at San Quentin because of the age of the Adirondack inmates and their pre-existing medical conditions. That is a proposition that no one needs or wants to be tested.
24. The relief which Plaintiffs are asking for with regard to transfer of inmates should not be difficult for Defendants. Plaintiffs are asking that Defendants agree: a. that no more inmates be transferred into Adirondack; or, b. agree that no additional inmates be transferred to Adirondack until the prison can show that it is conducting transfers in compliance with the 8th Amendment and the Americans with Disabilities Act, for example, by ensuring that any inmate transferred is tested for the virus prior to transfer, that only those inmates who test negative shall be transferred, and that any inmate transferred into Adirondack shall, upon arrival, be quarantined for fourteen days from other inmates at the facility and from staff working at the facility. In my opinion, the guarantees that Plaintiffs are asking from Defendants are little more than common sense. None of those conditions would present unusual or particularly substantial operational challenges to the running of the facility. The Adirondack population has remained at approximately 100 for several months, indicating there has been no urgent need to continue to transfer inmates to the facility. If the need to increase the population arose, a population increase would not present a problem as long as the appropriate safety protocols were followed with regard to transfers.
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25. The remainder of my Declaration has to do with day-to-day operations at Adirondack and the operational measures being used to prevent infections and transmission of the virus, or the lack of such measures.
26. The CDC guidelines for isolation and quarantine provide, in relevant part:  “ As soon as an individual develops symptoms of COVID-19 or tests positive for SARS-CoV-2 they should be given a mask . . ., immediately placed under medical isolation in a separate environment from other individuals, and medically evaluated.”  “Incarcerated/detained persons who are close contacts of someone with confirmed or suspected COVID-19 . . . should be placed under quarantine for 14 days.”8
27. In order to identify who has COVID-19, inmates should be tested for COVID-19 regularly, preferably every two weeks but no less than once a month. Inmates should be screened with a digital thermometer as often as practical but at least every week. Staff should be screened daily with a thermometer when they report to work but at the perimeter of the facility. Staff should be tested weekly.
28. If an inmate tests positive, that inmate should be isolated, if hospital care is not necessary, and all of that inmate’s contacts, both staff and other inmates, should be quarantined for fourteen days. That is not being done. The inmate declarants described that when an inmate tested positive, the staff in contact with that individual were sent home to quarantine, but other inmates in contact were not identified and no inmates were put in quarantine or tested after a waiting period to ensure they were not infected. Here again, it is not that there is controversy about safe practices. The facility is concerned about staff safety, so staff are quarantined after a contact. Why then would Defendants not similarly follow this procedure for inmates? In both of the jails I am most familiar with, in Los Angeles and in San Bernardino County, isolation and
8 Id.
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quarantine procedures for inmates after someone tests positive are standard and have been for some time. That is also true in other jails and prisons I know about across the country from Hawaii to Virginia. The Virginia Department of Corrections is a good example. I know that they follow the CDC guidelines explicitly and in detail, from masks to transfers to isolation and quarantine. Obviously, it is not the case that a state correctional agency cannot comply with CDC guidance if they choose to.
29. With 100 inmates in a 500-bed facility, there is no reason for any inmates to be double celled or to be housed in rooms without doors. However, the inmate declarations describe housing units with 12 to 16 rooms with doors and 6 to 8 rooms without doors. Some of the inmates submitting declarations are assigned to rooms with no doors. That creates an unnecessary risk of transmission.
30. Adirondack is a 500-bed facility with only 100 beds in use. It is my understanding that many parts of the facility are not in use. There is no reason Defendants cannot open additional areas so that there is an isolation unit, a quarantine unit, and enough general population units such that each inmate can have a single room with a door.
31. The CDC guidelines concerning mask use provide, in relevant part, that prisons should:
 “Provide masks at no cost to incarcerated/detained individuals and launder them routinely.”
 Provide “[c]loth face masks for source control”9 32. It appears that the situation with masks for inmates is improved from the summer but is still grossly inadequate. Of the six inmate declarations I reviewed, five said they have paper masks which they must wash in the sink with soap and water because they are not replaced
9 Id.
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or replaced often. The sixth inmate uses a bandana as a face covering, something he fashioned himself. All inmates should be issued cloth masks. Paper masks are not acceptable unless they are provided in sufficient numbers to allow them not to require cleaning; providing so few paper masks that inmates must wash them is unacceptable, as it degrades the masks’ quality. Inmates should be issued a new cloth mask no less frequently than every two weeks. CDC guidelines specify cloth masks of at least two layers of material. Their publications do not mention or acknowledge paper masks.
33. None of this should be surprising for Defendants; indeed, they purport to be taking these steps right now, though they are not doing so at Adirondack. The website with most current DOCCS public report on Covid-19 (Dec. 31, 2020) prominently features this notice above the title of the Report: “COVID-19 is still spreading, even as the vaccine is here. Wear a mask, social distance and stay up to date on New York State’s vaccination program.”. Yet neither of those things are being done at Adirondack. In the section of the report “What DOCCS is Doing”, the report lists a number of steps. The first two listed are: “Mandating all staff to wear face masks while on duty” and “Supplying all incarcerated individuals with surgical-type masks.”10 Neither of these publicly heralded measures are true at Adirondack, or they are not conducted and enforced in a meaningful way.
34. Inmate declarations are consistent in stating that although staff have been issued masks, many staff either do not wear them or do not wear them consistently. Adirondack must mandate that all staff wear masks throughout their workday and must discipline those staff who do not comply. Prison staff work in a highly regulated environment. There are hundreds of pages of policy and procedure and the penalty for violating established policy may be days of
10 New York State Department of Corrections and Community Supervision, supra note 6.
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suspension without pay or even termination. Staff quickly learn, however, which policies are enforced and which are only paper requirements. Based on the inmate declarations, no mask policy is being enforced. That is relatively easy to correct. If the facility management emphasizes to all officers, supervisors, and managers that masks, properly worn, are mandatory at all times while on duty and that all violations will be met with formal discipline, the situation will change. As soon as an officer is given days off for a second mask violation, the word will spread and masks will be worn.
35. The CDC guidelines concerning movement within prisons provide, in relevant part, that prisons should:
 “Make every possible effort to modify staff assignments to minimize movement across housing units and other areas of the facility. For example, ensure that the same staff are assigned to the same housing unit across shifts to prevent cross-contamination from units where infected individuals have been identified to units with no infections.”
 “Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity.”11
36. Activities such as recreation, showers, feeding and the like should be designed so that all inmates can maintain social distance from other inmates and from staff. That is not the case at Adirondack. For meals, inmates go to the dining hall (“mess hall”) 45 to 50 at a time. They line up to receive food very close to each other and then sit at tables and eat without masks with people on either side and directly across. Because of the policy of requiring people to eat in the dining hall together, it is not possible to maintain six feet of distance there. The prison could either serve inmates their meals in their rooms, as is done at many correctional facilities, or spread out meal time and feed in smaller groups, maintaining social distance in food lines and at dining tables. Similarly, the dayrooms where inmates pass time watching television have several
11 Centers for Disease Control and Prevention, supra note 7.
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benches and the declarations make it clear that inmates sit next to each other because the only alternative would be to stand for hours. There is a simple solution. Portable or folding chairs could be added to each dayroom in sufficient numbers such that every inmate could watch television while maintaining adequate distance from others. That would not work at a maximum security facility because the chairs are potential weapons but at Adirondack, with medium security inmates who are also elderly, the risk is not high.
37. The fact that the prison feeds people three times a day in crowded, unsafe conditions reflects indifference to and refusal to implement the most obvious and common-sense measures that would decrease the chance that these men will get COVID-19. That conclusion is not difficult. The prison officials knew about COVID-19 many months ago – one would have to live on Mars not to have heard a great deal about it, and I suspect that even on Mars they were receiving Governor Cuomo’s daily press conferences. Yet, some of the obvious preventative measures have not been taken. Perhaps extra cleaning supplies and cloth masks were a budget issue or a matter of availability, but compliance with a mask policy for staff costs nothing and presents no additional operational challenges or complexities. Enforcing social distancing in lines in the dining hall when waiting for food costs nothing and might actually decrease inmate tension. It is what those same prison officials must do after work when in line at a grocery store, so why have they not done it for inmates? Arranging feeding differently, perhaps in smaller groups so that inmates from different living units do not mix, would not be rocket science. There are many other examples of steps that could have been taken and have not been.
38. With respect to soap, the CDC guidelines provide, in relevant part, that prisons should:
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 “Provide a no-cost supply of soap to incarcerated/detained persons. . . Provide liquid or foam soap where possible.”12
39. The inmate declarations are also consistent in complaining that cleaning supplies and hand sanitizers are not readily available. Inmates receive only two bars of soap for every two weeks, to be used for all of their soap needs, including regular hand-washing, as no hand soap is provided in the bathrooms. In many instances, if inmates run out of this soap they are required to buy more. Inmates should be given enough soap and other disinfectants that are effective against the virus to allow every inmate to clean their cell or sleeping area at least once a day and to wash their hands with soap eight times per day.
40. As was true with the question of transferring additional inmates into Adirondack, these issues that Plaintiffs are specifying should not present insurmountable problems operationally or from the perspective of facility management.
41. In other litigation and in many other places, the New York State Department of Corrections and Community Supervision readily acknowledges that it has a long-standing, wellestablished and incontrovertible duty to protect inmates, including the duty to protect them from illness. The Department goes to great lengths and great expense in some cases to comply with that duty. Here, without extraordinary resources and without major disruption of operations, the facility could take a number of steps to better protect the health of the inmate population.
42. New York’s Governor, Andrew Cuomo, was one of the first in the United States to take strong preventive measures to protect the state’s residents. It is not unreasonable to ask that a branch of his state government take fundamental measures to protect individuals who are at far higher risk and far more inherently vulnerable than most New York State residents.
12 Id.
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EXHIBIT A

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1610 La Pradera Drive Campbell, CA 95008

Jeffrey A. Schwartz, Ph.D.
jasletra@aol.com

(408) 379-9400 Office (408) 379-9410 Fax

SUMMARY
Thirty years experience in criminal justice management coupled with a psychology Ph.D. in research methodology. Detailed, hands-on experience with police, prisons, jails, community corrections; adult and juvenile; local, state, federal and foreign correction agencies. Development of innovative training programs and new approaches to training methodology. Planning for “turnaround management” and culture change in troubled institutions and agencies.
PROFESSIONAL EXPERIENCE
LETRA, Inc., Campbell, CA (1972 - present), A non-profit training and research organization, serving criminal justice and other governmental agencies, business and industry.
Founder and Chief Executive Officer: All phases of corporate and fiscal management, supervision of professional staff, consultants. Policy development and procedures for emergency preparedness, use of force and conflict resolution. Design of new training programs and training of trainers.
RICHMOND POLICE DEPARTMENT, Richmond, CA (1968-1976)
Administrative Consultant to the Chief of Police: Organizational development, research, program evaluation, new training programs and grants. Developed first generalist police crisis intervention training program in the U.S.. Planned and organized innovative department-wide juvenile diversion project, used as state model. National research on female and minority employment in policing.
PALO ALTO VETERAN'S HOSPITAL, Palo Alto, CA (1969-1971)
Chief of Program Evaluation Unit: Founded, organized and managed new applied research unit in large medical/psychiatric teaching hospital. Developed research and statistical strategies for evaluating effectiveness of clinical programs. Served on Hospital Director's Executive staff.

1960-1964 1964-1965 1965-1968
1968-1969

EDUCATION

Western Reserve University

B.A. Chemistry and English Literature.

Toledo University

Graduate work: Psychology

Denver University

M.A. & Ph.D. Experimental Psychology (Research Methods, Learning, Statistics)

Palo Alto Veteran's Hospital

Internship: Clinical and Community Psychology

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Resume: Jeffrey A. Schwartz, Ph.D.

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CORRECTIONS EXPERIENCE (representative sample)

National Institute of Corrections: Thirty years experience working with NIC. Conducted two large national management training programs over three years. Developed original curriculum, innovative training methodology, trained 500 managers from all areas of corrections from all 50 states in a residential 7-day, intense corrections-specific management skills training program. Administrated all aspects of these projects. Project Director for more than 10 major NIC grants / cooperative agreements; technical expert on more than 25 NIC technical assistance projects from all four NIC operating Divisions; authored 3 book length NIC publications. Helped plan new NIC courses and evaluated NIC operating procedures.

Shelby County, TN (Memphis) Jail: Comprehensive operational review of deeply troubled large jail system after Federal Court found the county in contempt of all five major elements of consent decree (2000). Developed plan to cure contempt findings, drafted response to Civil Rights Division of US DOJ to avoid second1983 suit, worked on transformation of jail to direct supervision and on population management, use of force, inmate grievance system, management training and practices. Achieved discharge from Federal Court supervision in 2005 and from DOJ supervision in 2009.

California Youth Authority (CYA): The development of Conflict Management and Crisis Intervention procedures in all Youth Authority institutions; training and procedures for the management of hostage situations; training of trainers. LETRA's Crisis Intervention training program has been required by policy of all CYA institutional staff and in use for over 15 years, and LETRA's Emergency Preparedness course was in use state-wide for over ten years.

Montana Department of Corrections (DOC): After the maximum security unit riot and hostage situation at the Montana State Prison in Deer Lodge, in 1991, selected by NIC to head the seven person Administrative Inquiry Team commissioned to investigate the events leading to and surrounding the riot. Coordinated the writing of the Inquiry Team Final Report ("Riot at Max") and managed extensive media contacts for the Inquiry Team.

Michigan DOC, Hawaii DOC, Alaska DOC: Initiated state-wide training programs in each state on institutional crisis intervention. All three State DOC’s continued to provide this training to all or almost all institution staff for many years.

Pennsylvania DOC: After Camp Hill riots, conducted assessment of Department's emergency response capacity, developed plan to increase preparedness including recommendations for specialized equipment, staff, etc. Conducted administrative policy seminar, tailored emergency training curriculum to department's needs, trained cadre of mid-managers to deliver emergency preparedness training at all 16 institutions to both management and line/supervisory staff and developed format for new institutional emergency plans.

Nebraska, Iowa, Wyoming, Oregon, Kentucky, North Carolina, Missouri, Kansas, Florida, Delaware, North Dakota, Hawaii, Nevada, Arkansas, Vermont and New Hampshire DOC’s, the Omaha, Jacksonville, Greenville and Boise jail systems: Emergency Preparedness. Typically began with security analysis and evaluation of existing emergency plans and procedures, review of emergency policies, leading to adaptation of LETRA’s detailed, comprehensive and generic (“all risk”) emergency system. Provided Emergency Preparedness training for all staff at all institutions on new emergency system by training and certifying department instructors.

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Resume: Jeffrey A. Schwartz, Ph.D.

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Hawaii DOC: Created new Use of Force policy, then developed curriculum to train all staff to new policy. Prepared Department staff as instructors so Department would be self-sufficient. Achieved substantial reduction in allegations of improper use of force. Similarly adapted LETRA’s model use of force policy and training for state DOC’s in Oregon, New Mexico, Shelby Co. Jail.

Correctional Services of Canada: Crisis Intervention and Conflict Resolution work at Stony Mountain Penitentiary following riot and murder of two staff members. Developed Conflict Resolution program (in English and French) for all Regions of Penitentiary Service. Revised and expanded emergency policies governing crisis management at all Federal institutions in Canada.

POLICE CONSULTATION EXPERIENCE (representative sample)
FBI National Academy, Quantico, Virginia: Presented two seminars on Domestic Crisis Intervention to police executives from largest 50 police departments in U.S. LETRA was the first outside group (non-FBI) to be invited to present an entire course at the FBI Academy.

Richmond, California, Police Department: Developed new 40-hour training program for generalist patrol officers on child and juvenile issues. Course ranged from gangs to drug abuse to battered and neglected children. All uniformed officers and detective trained within one calendar year.

Sacramento, California, Police Department and Sheriff's Office: Long-term project to train trainers in Crisis Intervention. Over 1500 patrol officers trained in LETRA's Domestic Crisis Intervention during an 18 month period. Evaluation showed 40% reduction of officer injuries, reduction in time spent on disputes. Similar projects in Rochester, NY; San Jose, CA; and other police agencies.
COLLEGE/UNIVERSITY TEACHING EXPERIENCE
Denver University, San Francisco State University, San Jose City College, University of California at Santa Cruz, Guest Lecturer at Stanford Law School. Psychology courses taught: Learning, Theory of Measurement, Educational Psychology, Introductory Statistics. Criminal justice courses: Correctional Management, Police Supervisory Training, Training for Trainers, etc.
EXPERT WITNESS (Plaintiff and defense-side experience)
Use of Force (Police and Corrections); Operation of Correctional Facilities; Failure to Protect (Staff Sexual Misconduct with Offenders; Suicide; etc.); Emergency Preparedness and Emergency Response (Prisons and Jails); Crisis Intervention (Police, Probation, Parole, Jails and Prisons)

Currently a Federal Court Monitor On a Los Angeles Jails class action consent decree on use of force; Also Federal Court Monitor, use of force consent decree, San Bernardino County Jails. Class Action and related cases: Corrections expert in class action by Southern Poverty Law Center and Special Litigation Section of DOJ resulting in 2013 Consent Decree against New Orleans Jails; Corrections expert for Manhattan U.S. Attorney’s Office in CRIPA investigation of adolescent conditions, Rikers Island; Invited testimony before Citizens’ Commission on Jail Violence (CCJV), Los Angeles Jails; Federal Court security expert, consent decree on conditions, Virgin Islands Jails;
CRITICAL INCIDENT REVIEWS (“after-action reports”)
Camp Hill (PA) riots; Hurricanes Katrina and Rita and the LA DOC; Hostage taking at Delaware Correctional Center; “Riot at Max” at Montana State Prism; Wyoming Penitentiary carbon monoxide poisonings; Southern Ohio Correctional Facility (Lucasville) riot.

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Resume: Jeffrey A. Schwartz, Ph.D.

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AWARDS, PUBLICATIONS AND INVITED ADDRESSES
NDEA Fellow in Graduate Psychology. Presented invited addresses at ACA, APPA, AJA, CPPCA, IACP meetings, State Correctional Associations. Published numerous articles and chapters on corrections, research methodology, police science and psychology. Authored or co-authored more than 15 training texts, three book length NIC publications early NIC programmed learning course.
PROFESSIONAL ORGANIZATIONS (current and former)
American Correctional Association; American Probation and Parole Association; American Jail Association; California Probation, Parole and Corrections Association; American Psychological Association; International Association of Chiefs of Police
COMMUNITY INVOLVEMENT
Elected Trustee, West Valley-Mission Community College District, three terms. Served as President of Governing Board 1984-85 and 2005-2006. The District serves over 25,000 students, with more than 1000 employees and a budget of over $100 million dollars per year.
Member, Bd. of Directors, former President of large homeowners' association in Saratoga, CA.
Vice Chair, Board of Directors (1988 - 1995), Women's Housing Connection, which was the only homeless shelter in Santa Clara County exclusively for women and women with young children.
Co-founder and Director (1986-2009), Visa Technologies (later Momar Industries), a computer supply and flexible packaging company with over $10M in sales, annually.
Volunteer Mediator, Child Find, Inc., A national organization that attempts to locate missing children, reconcile run-away children and juveniles with their families, and prevent child abduction.
ADDITIONAL SKILLS AND EXPERIENCE
Budget and Personnel Management: As President of a College Board of Trustees, oversaw a budget in excess of $100M/year with approximately 1000 professional and support staff. Oversaw private corporate budget (Visa Technologies) in excess of $10M/year with 65 employees. Extensive experience teaching leadership development, personnel administration, budget and fiscal control and other management topics to criminal justice managers.
Media Relations and Public Speaking: Extensive media experience in community activities as well as with criminal justice work. Frequent public speaking in a wide variety of contexts.
Legislative Liaison and Policy Analysis: Substantial experience working with local legislative delegations, testifying before legislation bodies, analyzing and drafting policy and regulations.
Special Consultant to the California Assembly: (1) Investigation and hearings leading to resignation of Insurance Commissioner Charles Quackenbush. (2) Investigation and hearings on the state of California contract for Oracle software.

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EXHIBIT 16

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2. I am a physician duly licensed to practice medicine in the State of New York. I have over 10 years of experience working as a full-time attending emergency medicine physician in the Bronx, New York.
3. I received my medical degree from the Sackler School of Medicine in 2007 and completed my Emergency Medicine residency training at Emory University School of Medicine in 2010. After completing my specialty training I served as a full time attending physician in Montefiore Medical Center’s Department of Emergency Medicine – Weiler Division from August 2010 until August 2012. I was then a full time attending physician for NYC-HHC Lincoln Medical and Mental Health Center from August 2012 until August 2017. I then returned to the Montefiore Medical Center’s Weiler Division where I resumed my full-time duties as an attending physician and where I am presently employed.
4. I have also held academic appointments at both Weill Cornell Medical School and the Albert Einstein College of Medicine. I am an Assistant Professor of Emergency Medicine at the Albert Einstein College of Medicine (November 2010 – 2014 and again from August 2017 – present). I was a clinical Instructor of Emergency Medicine at Weill Cornell Medical College (November 2012 – August 2017).
5. I am a Diplomate of the American Board of Emergency Medicine (certification valid from June 2011 to December 2021). I was a Fellow of the American Academy of Emergency Medicine (FAAEM 2012 – 2016), and a Fellow of the American College of Emergency Physicians (FACEP 2007 – 2012; 2017).
6. As an emergency medicine physician in the Bronx, New York, a region that was particularly hard hit with severe COVID-19 infection, I have treated and continue to treat many patients infected with COVID-19.
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7. As part of my clinical work, it is my responsibility to remain current on much of the relevant COVID-19 scientific literature in order to educate patients about their individual risk factors for severe COVID-19 illness and to educate patients about methods of infection prevention.
8. My C.V. is attached as Exhibit A. 9. At the request of Relman Colfax PLLC and the Legal Aid Society, I have reviewed the following documents: Centers for Disease Control (CDC) Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities; Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities; Centers for Disease Control (CDC) Certain Medical Conditions and Risk for Severe COVID-19 Illness; DOCCS COVID-19 Report - COVID-19 Safety Measures; New York State Department of Public Health COVID-19 Recommendations; the declarations of the following men incarcerated at Adirondack Correctional Facility: Allen Harper (“Plaintiff Harper”), Jose Leon (“Plaintiff Leon”), Gregory Jenkins (“Witness Jenkins”), Ranfis Perez (“Plaintiff Perez”), John Spadaro (“Witness Spadaro”), Juan Cangiano (“Witness Cangiano”), Gregory Jenkins (“Witness Jenkins”), Bradford Applegate (“Witness Applegate”), and Francisco Salinas (“Witness Salinas”); and the supplemental declarations of Plaintiff Perez, Plaintiff Harper, Plaintiff Leon, and Witness Spadaro.
10. SARS-CoV-2 is a virus that causes the COVID-19 disease.1 To date, there is no curative medical treatment. Multiple vaccines have been developed, but it will take at least
1 Unless otherwise specified, “SARS-CoV-2” and “COVID-19” will be used interchangeably throughout this declaration.
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months before there will be sufficient herd immunity from mass vaccination to effectively arrest the spreading pandemic.
11. The CDC has promulgated guidelines to prevent or mitigate the spread of SARSCoV-2, including specific guidelines for slowing the spread of the virus in jail and prison settings. While these guidelines are not laws, they represent common sense public health measures that are based on science and directed to prevent the spread of COVID-19. Specifically, they recommend: (1) social distancing, (2) temperature and symptom screening of everyone who enters or leaves a facility, (3) isolation of individuals with symptoms of COVID19, (4) quarantining close contacts of COVID-19 cases, (5) testing all symptomatic and quarantined individuals for the SARS-CoV-2 virus, (6) asymptomatic routine testing for new incarcerated or detained persons (“IDPs”) before joining general population or quarantine for fourteen days before assimilation along with testing prior to transferring to a new facility, (7) frequent cleaning and disinfecting of surfaces and objects that are repeatedly touched, (8) providing sufficient and proper hygiene supplies at no cost to facilitate frequent handwashing, and (9) mandatory mask wearing by all individuals who have the potential for direct or indirect exposure to COVID-19 cases.
12. Adirondack Correctional Facility (“Adirondack”) is a congregate environment where inmates spend a significant portion of each day in close proximity to each other. As such, the risk for COVID-19 exposure, infection, and transmission is increased. Inmates are therefore at especially high risk of infection without protective measures in place. These measures include physical distancing, mask wearing, screening and testing protocols, non-punitive quarantining and isolation, and rigorous cleaning and hygiene practices.
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13. Based on my review of the aforementioned declarations, it is clear to me that the
following protective health measures have not been consistently operationalized or practiced in
Adirondack Correctional Facility:
I. Physical Distancing
14. While jails and prisons do present challenges for the enactment of social
distancing measures, social distancing in prisons is possible and recommended, as the CDC
guidance reflects. Still, all six witnesses who were interviewed declared that physical distancing
was inconsistently enforced at best and ignored at worst.
15. The CDC has stated that high risk airborne droplet transmission of SARS-CoV-2
occurs in enclosed spaces, during prolonged exposure to respiratory particles, and in settings with inadequate ventilation or air handling.2 Other studies have demonstrated that SARS-CoV-2 is spread through non-contact transmission3 (such as droplets or airborne particles) and is particularly dangerous in indoor environments that are crowded and poorly ventilated.4,5 The
CDC brief specifies that airborne transmission of SARS-CoV-2 occurs in “enclosed spaces
within which an infectious person either exposed susceptible people at the same time or to which susceptible people were exposed shortly after the infectious person had left the space.”6 This
accurately describes the environment at Adirondack Correctional Facility, where inmates are
2 CENTERS FOR DISEASE CONTROL AND PREVENTION, SCIENTIFIC BRIEF: SARS-COV-2 AND POTENTIAL AIRBORNE TRANSMISSION (OCT. 5, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-sarscov-2.html. 3 Jasper Fuk-Woo Chan et al., Surgical Mask Partition Reduces the Risk of Noncontact Transmission in a Golden Syrian Hamster Model for Coronavirus Disease 2019 (COVID-19), 71 CLINICAL INFECTIOUS DISEASES 16, 2139 (2020), available at https://academic.oup.com/cid/article/71/16/2139/5848814. 4 Lidia Morawska & Donald K. Milton, It Is Time to Address Airborne Transmission of Coronavirus Disease 2019 (COVID-19), 71 CLINICAL INFECTIOUS DISEASES 9, 2311 (2020), available at https://academic.oup.com/cid/article/71/9/2311/5867798. 5 Keun-Sang Kwon et al., Evidence of Long-Distance Droplet Transmission of SARS-CoV-2 by Direct Air Flow in a Restaurant in Korea, 35 J. KOREN MED. SCI. 46, 415 (2020), available at https://jkms.org/DOIx.php?id=10.3346/jkms.2020.35.e415. 6 CENTERS FOR DISEASE CONTROL AND PREVENTION, supra.
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particularly susceptible to infection due to advanced age and their enclosed living environment without adequate physical distancing. Social distancing measures should therefore be adopted at Adirondack, as the CDC specifically states that “existing interventions to prevent the spread of SARS-CoV-2 appear sufficient to address transmission both through close contact and under the special circumstances favorable to potential airborne transmission.”7
A. Day Rooms 16. Common areas include, but are not limited to, housing unit day rooms where there are benches for communal seated gathering and televisions; areas where inmates are expected to line up, such as the food or medication line; and the mess hall where inmates dine. 17. All six witnesses consistently expressed a lack of critical social distancing in different areas of Adirondack prison. Plaintiff Harper, Plaintiff Leon, Plaintiff Perez, and Witness Spadaro described the day room as a communal space where Adirondack has made no effort to facilitate physical distancing. The benches that exist as the only seating options do not afford sufficient seating space between inmates. Plaintiff Leon declared that, “There are two day rooms… The rooms are small and there are regularly 15-20 people in the rooms at one time.” Declaration of Jose Leon (“Leon Decl.”). Similarly, Plaintiff Harper declared that, “There is a room where we watch television in my house. The room is extremely small and people sit immediately next to each other when they are in there - there is no way to socially distance.” Declaration of Allen Harper (“Harper Decl.”). Plaintiff Perez confirmed the same concern during a telephonic interview I conducted with him. Supplemental Declaration of Ranfis Perez (“Perez Supp. Decl.”). Witness Spadaro echoed the same concern in his declaration and added that he is prohibited from introducing a chair into the dayroom. Declaration of John Spadaro (“Spadaro
7
Id.
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Decl.”). Adirondack’s policies prevent physical distancing in Adirondack Correctional Facility’s day rooms.
B. Bathrooms 18. Similar to day rooms, Adirondack’s bathrooms can become crowded, creating an environment that precludes physical distancing. Both Witness Spadaro and Witness Cangiano declared that they are required to use the bathroom with multiple other people at once – for example, when shaving – and disclosed to counsel that there is frequently less than six feet of distance between people in the bathroom. Additionally, Witness Salinas states that during the time for shaving, multiple inmates stand shoulder to shoulder in front of the bathroom mirror, without masks. Declaration of Francisco Salinas (“Salinas Decl.”). Close contact without masks, above all else, encourages the spread of SARS-CoV-2 virus. C. Dining Hall 19. The most concerning deviation from the physical distancing guidelines as outlined by the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities8 and NYSDOH guidelines9 to prevent the spread of COVID-19 is in the dining halls. Inmates do not wear masks as they eat. Obviously, physical distancing becomes especially critical when inmates are exposed to other inmates who are not wearing masks. Plaintiff Harper, Plaintiff Leon, Witness Jenkins, Plaintiff Perez and Witness Cangiano all reported that there is insufficient physical distancing during meal times in the dining areas. Plaintiff Harper states, “There are often 45-50 other individuals eating at the same
8CENTERS FOR DISEASE CONTROL AND PREVENTION, INTERIM GUIDANCE ON MANAGEMENT OF CORONAVIRUS DISEASE 2019 (COVID-19) IN CORRECTIONAL AND DETENTION FACILITIES (DEC. 31, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html. 9 NEW YORK STATE DEPT. OF HEALTH, PROTECT YOURSELF AND YOUR FAMILY FROM CORONAVIRUS (COVID-19) (last accessed Jan. 7, 2021), available at https://coronavirus.health.ny.gov/protect-yourself-and-your-familycoronavirus-covid-19.
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time,” and because of this arrangement, “it is not possible to maintain six feet of distance during

meal times. People are closer than six feet from each other when getting food and sitting and

eating. Previously people only sat on one side of the table… now they have implemented a rule

where people sit across from each other… We are not allowed to bring food from the mess hall

to eat in our rooms.” Harper Decl..

20. Studies have shown that spread of SARS-CoV-2 is more likely in crowded, poorly ventilated indoor environments.10,11,12 Eating, which necessitates that the individual

remove their mask, becomes a particularly perilous activity, as there is no barrier to mitigate the viral spread.13 Thrice daily, inmates at Adirondack Correctional Facility are faced with the

following choice: having access to a meal or avoid the most dangerous exposure to COVID-19.

D. Physical Distancing when Assembling in Lines

21.

Lines are frequent points of assembly in prison environments. Plaintiff Harper

noted that there was no physical distancing when lining up in the mess hall for food.. Witness

Jenkins also documents that only 2 feet of physical distancing exists while waiting for

medications in the med line. Declaration of Gregory Jenkins (“Jenkins Decl.”).

E. Physical Distancing Between Housing Units

22. Mitigating the potential spread of COVID-19 in congregate living situations such

as prisons is best achieved when cohorts of inmates are siloed, such as in housing units. If an

infectious outbreak occurs, close contact exposure of different housing units to each other would

allow COVID-19 to infect a much larger number of inmates and staff. Thus, the CDC

10 Lidia Morawska & Donald K. Milton, supra. 11 Keun-Sang Kwon et al., supra. 12 CENTERS FOR DISEASE CONTROL AND PREVENTION, supra. 13 Jasper Fuk-Woo Chan et al., supra.
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recommends that when possible, prisons reduce interactions between housing units, such as during meals and group or work detail activities.14
23. Plaintiff Harper, Plaintiff Leon, Plaintiff Perez and Witness Jenkins all state that housing units are not staggered during meal times; rather, different housing units eat at the same time in the same mess hall. Supplemental Declaration of Allen Harper (“Harper Supp. Decl.”); Supplemental Declaration of Jose Leon (“Leon Supp. Decl.”); Perez Supp. Decl.; Jenkins Decl.. As mentioned above, mealtime at Adirondack Correctional Facility is especially fraught with risk of contracting COVID-19 because of insufficient physical distancing between inmates without masks over extended periods of time.
24. Plaintiff Perez disclosed to me during a telephonic interview that during his work detail as an orderly he is required to work alongside inmates from other housing units without physical distancing and that his work detail group cleans in many different housing units. In other words, inmates are unnecessarily exposed to members of other housing units during their work detail, and different housing units are also exposed to the work group’s collective COVID19 exposure.
25. The migration of inmates from multiple prisons to Adirondack also involved mixing prisons populations in confined spaces even before arrival to Adirondack. Witness Spadaro states “People from Green Haven Correctional Facility and Otisville Correctional Facility were transported to Fishkill, where we were all placed on the bus to Adirondack.” Spadaro Decl. at ¶ 4.
14 CENTERS FOR DISEASE CONTROL AND PREVENTION, supra.
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26. Adirondack Correctional Facility’s refusal to safely keep inmate cohorts separated undermines the ability to contain a potential outbreak, therefore placing these clients as well as all inmates and staff at risk of infection.
F. Physical Distancing During a Transfer 27. The CDC recognizes that migrating cohorts of inmates poses a risk of exposing a COVID-19-free cohort to another cohort that may be infected with COVID-19. Therefore, the common-sense guidelines that the CDC recommends include symptom screening and temperature checks prior to an inmate’s transfer. The CDC also recommends bus operators open bus windows to increase airflow while transporting passengers.15 Spacing inmates apart from each other, consistent with both the CDC and NYDOH guidelines should also be enforced so as to limit viral spread in this confined environment. Research has shown that respiratory droplets in confined spaces are much more likely to linger and infect others than when in larger or outdoor environments.16 28. All six declarants were transferred to Adirondack Correctional Facility from other prisons. At least one, Plaintiff Harper, was transferred during a COVID-19 outbreak at his previous facility. Harper Decl.. The mass mixing and assimilation of multiple prison cohorts as reflected in the Plaintiffs’ and Witness’ declarations include Plaintiff Harper’s transfer from Woodbourne Correctional Facility, Plaintiff Leon’s transfer from Otisville Correctional Facility, Plaintiff Perez’s transfer from Eastern Correctional Facility, and Witness Jenkins’, Witness Spadaro’s and Witness Cangiano’s transfer from Fishkill Correctional Facility.
15 CENTERS FOR DISEASE CONTROL AND PREVENTION, COVID-19 EMPLOYER INFORMATION FOR BUS TRANSIT OPERATORS (DEC. 31, 2020), available at https://www.cdc.gov/coronavirus/2019ncov/community/organizations/bus-transit-operator html. 16 Lidia Morawska & Donald K. Milton, supra.
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29. Plaintiff Harper, Plaintiff Leon, Witness Jenkins, Witness Spadaro and Witness Cangiano all attested to a lack of physical distancing during the bus ride. These inmates describe sitting immediately in front and behind one another. No option for distancing existed during the transport of these clients. This disregarded the DOCCS Reopening Plans, which states, “DOCCS will slowly resume the internal movement and transfer of incarcerated individuals, on or about June 1, 2020, while instituting social distancing on transportation vehicles, with both staff and the incarcerated population required to wear masks.”17 In addition, one study found that on a bus with one COVID-19-positive passenger and no mask-wearing or open windows, more than a third of the passengers subsequently developed COVID-19 after just 100 minutes of exposure.18 This study illustrates how unsafe these bus trips were for the clients and all inmates involved. Therefore, the DOCCS Adirondack inmate migration presented a dangerous situation since it unnecessarily exposed them to SARS-CoV-2 viral transmission during their bus transport.
II. Quarantine 30. Inmate quarantine is when an inmate is separated from their cohort after the inmate has had a possible COVID-19 exposure. A close contact exposure is one in which an individual was less than six feet from a person with COVID-19, for more than fifteen minutes. Longer exposures or exposures in closer proximity present a higher risk of contracting COVID19. All close contacts are considered exposed if they had close contact with the infected person beginning two days prior to onset of the infected person’s symptoms or two days prior to the
17 NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, DOCCS RE-OPENING PLAN FACT SHEET (LAST ACCESSED JAN. 7, 2021), available at https://doccs.ny.gov/system/files/documents/2020/07/webpage-doccs-re-opening-fact-sheet.pdf. 18 Ye Shen et al., Community Outbreak Investigation of SARS-CoV-2 Transmission Among Bus Riders in Eastern China, 180 JAMA INTERN. MED. 12, 1665 (2021), available at https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2770172.
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infected person’s positive COVID-19 test. The CDC recommends that quarantined inmates be separated from their housing units for fourteen days if they have had close contact exposure with a person suspected or confirmed to have COVID-19.
31. If it is impractical to contact trace individual exposures, such as in congregate living environments where all inmates in a larger cohort share common spaces, then an entire housing unit may be quarantined. This is called quarantining-in-place. The CDC outlines recommended conditions when this larger cohort quarantine may end.
32. During both individual quarantine or a larger cohort quarantine-in-place, inmates should be frequently screened for COVID-19 signs and symptoms and routinely tested for COVID-19. Inmates who screen positive or test positive must be removed from the cohort and placed into a COVID-19-positive isolation. Failure to implement immediate quarantine measures will invite opportunity for accelerated spread of COVID-19 throughout the prison.
A. Quarantine Prior to Assimilating into a New Prison Population 33. Public health recommendations include the protective measure to quarantine inmates before assimilating them into a new facility.19 This provides protection to the destination facility inmates by preventing their exposure to asymptomatic carriers of COVID-19 from other incoming facilities. None of the declarants who were transferred to Adirondack during the COVID-19 pandemic was quarantined on arrival. Since arriving, inmates immediately engaged in congregate living without consistent physical distancing. For example, Witness Spadaro described his transfer to, and assimilation into Adirondack Correctional Facility as follows: I was transferred to Adirondack by bus. Approximately 20 people from 3 different correctional facilities were placed on a bus together. People from Greenhaven Correctional Facility and Otisville Correctional Facility were transported to Fishkill where we were all placed on a bus to Adirondack… [i]t was not possible to maintain 6 feet of distance between people during the bus ride. People were coughing during the bus
19CENTERS FOR DISEASE CONTROL AND PREVENTION, supra.
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ride and no one wore masks…[a]t the time of transfer from Fishkill to Adirondack in June 2020, about 12 people had died at Fishkill. I was not tested or quarantined when I arrived at Adirondack. We all went into regular housing units. Spadaro Decl.. 34. Ignoring this public health protective measure placed both the existing and incoming inmates at significant risk of COVID-19 infection. B. Quarantine of Individuals Exposed to COVID-19 35. One person I spoke to and whose declarations I reviewed, Mr. Perez, had a close contact exposure to Witness Applegate, an inmate from a neighboring cell. Perez Supp. Decl. Applegate was subsequently removed from the congregate living unit due to his confirmed COVID-19. Declaration of Bradford Applegate (“Applegate Decl.”). Plaintiff Perez reports that he was never contacted regarding this close contact exposure, nor was he tested for COVID-19 or screened for symptoms. Perez Supp. Decl.. Plaintiff Perez and his housing unit were never quarantined. Applegate Decl. Plaintiff Perez resumed regular acts of daily living in his congregate housing unit and also continued his work detail in multiple housing units and alongside inmates from different housing units. Perez Supp. Decl. 36. Failing to screen, test, or separate Plaintiff Perez from other unexposed inmates after his close contact exposure to a person who had tested positive for COVID-19 threatened the health and lives of both Plaintiff Perez’s housing unit as well as the rest of the inmates and staff at Adirondack Correctional Facility.
III. Testing/Screening 37. Screening for COVID-19 is an effective way to quickly identify inmates who may be infected with COVID-19. Screening can take the form of questions about symptoms or looking for signs of infection such as elevated body temperatures. Since inmates may have COVID-19 infection without showing any signs or symptoms, the CDC also describes the
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benefit of testing for infection as an effective screening tool. Specifically, the CDC notes the usefulness of this approach in prison settings.20
38. None of the declarants interviewed described regular screening checks for COVID-19, including questions regarding symptoms and temperature checks. CDC guidelines recommend avoiding transfers between facilities if at all possible, and states: “If a transfer is absolutely necessary…[p]erform verbal screening and a temperature check...before the individual leaves the facility.”21 All declarants whose statements I reviewed were transferred to Adirondack Correctional Facility during the COVID-19 pandemic. None commented on screenings and temperature checks prior to transfer or upon arrival to the new facility. Plaintiff Harper and Plaintiff Leon were tested approximately four weeks prior to being transferred. These tests become increasingly irrelevant as time elapses between testing and transferring. For this reason, the CDC guidelines for travel recommend testing within 72 hours of departure.22
39. Routine testing of asymptomatic individuals is an important strategy to detect COVID-19 outbreaks early and minimize the number of exposed and affected individuals. The CDC recommends a triaged approach to screening inmates with COVID-19 tests based on positive cases that exist in their facilities and surrounding communities.23 The following table illustrates these recommendations: 24
20 CENTERS FOR DISEASE CONTROL AND PREVENTION, CDC GUIDANCE FOR EXPANDED SCREENING TESTING TO REDUCE SILENT SPREAD OF SARS-COV-2 (DEC. 3, 2020), available at https://www.cdc.gov/coronavirus/2019ncov/php/open-america/expanded-screening-testing html. 21 CENTERS FOR DISEASE CONTROL AND PREVENTION, supra. 22 CENTERS FOR DISEASE CONTROL AND PREVENTION, DOMESTIC TRAVEL DURING THE COVID-19 PANDEMIC (DEC. 2, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-during-covid19 html. 23 CENTERS FOR DISEASE CONTROL AND PREVENTION, supra.
24
Id.
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40. All declarants reported no routine testing at their facilities. They report sporadic testing. Witness Jenkins and Plaintiff Perez were tested approximately one month after arrival to Adirondack. Witness Cangiano has been tested twice.
41. The CDC recommends that individuals in close contact with another individual who may have been exposed to COVID-19 should quarantine for ten to fourteen days. While daily temperature checks are part of the recommended health monitoring, a single temperature recording is not a substitute for a fourteen-day quarantine from the time of exposure.
IV. Mask wearing 42. CDC guidelines recommend that all individuals wear masks as a way to mitigate virus transmission by reducing the spread of the wearer’s respiratory droplets. COVID-19 is
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known to spread through asymptomatic carriers which necessitates universal masking; one can spread infectious droplets before showing any signs or symptoms of the disease. Mask-wearing has been shown to decrease incidence of COVID-19 infection.25,26
43. The protective efficacy of masks is higher when masks are worn by the virus spreader, and there is a synergistic effect when masks are worn by all.27 While wearing one’s mask provides some protection against virus particles, individuals are reliant on those around them to also wear masks to minimize virus spread. In settings where social distancing is limited or impossible, such as the congregate living settings at Adirondack Correctional Facility, the full effectiveness of masks relies on every person, both inmates and staff, complying with masking policies.
44. Every declarant disclosed inconsistent mask use by the prison guards, describing that guards were not always wearing masks while with the inmates and when around other guards. Witness Cangiano testified that “I have seen guards either not wearing masks or wearing masks around their chins so that they are not covering their noses or mouths.” Cangiano Decl.. This is particularly concerning for several reasons. First, the prison staff have daily contact with the outside community, making it possible for staff to introduce a new infection into the inmate community. This risk would be decreased by consistent mask use while in the prison, but as disclosed in our Plaintiffs’ and Witnesses’ declarations, mask use by the staff is inconsistent at best. Second, there is an inherent power differential between the correctional officers and the inmates that makes it uncomfortable if not dangerous for inmates to request staff to comply with
25 Jasper Fuk-Woo Chan et al., supra. 26 Kevin Zhang et al., The impact of mask-wearing and shelter-in-place on COVID-19 outbreaks in the United States, 101 INT. J. INFECT. DIS. 334 (2020), available at https://www ncbi nlm nih.gov/pmc/articles/PMC7544634/. 27 Hiroshi Ueki et al., Effectiveness of Face Masks in Preventing Airborne Transmission of SARS-CoV-2, AM. SOCIETY FOR MICROBIOLOGY E00637 (2020), available at https://www.ncbi nlm nih.gov/pmc/articles/PMC7580955/.
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mask use. Finally, the DOCCS website shows that as of December 19, 2020, 2,506 DOCCS staff have tested positive for COVID-19, and six have died.28 Infection with COVID-19 is a significant concern among prison staff, and the failure of prison staff to properly and consistently wear masks while at the Adirondack Correctional Facility jeopardizes the health and safety of the inmates.
45. Mask availability has been another limitation described by the Plaintiffs and Witnesses. The CDC recommends that correctional facilities should “provide masks at no cost to incarcerated/detained individuals and launder them routinely.”29 All clients reported they have received several masks, with a mix of cloth and surgical-style masks. None have had masks laundered for them; each describes washing even the surgical-style masks by hand in the sink. Surgical masks are designed to be single use; our clients report reusing surgical masks for months on end. Adirondack Correctional Facility has failed in its responsibility to provide an adequate number of clean masks to our clients, and to ensure universal masking of staff to minimize viral spread between inmates and staff. This failure has placed these inmates at an increased risk of COVID-19 exposure and infection.
V. Cleaning/Hygiene 46. Fomites are objects that can carry infectious bacteria or viruses and have potential to transfer disease. Transfer is more likely from fomites that are hard and lustrous, such as tabletops, door knobs, or telephones. These are also examples of frequently touched objects and therefore pose a particularly high risk for transferring infection.
28 NEW YORK STATE DEPARTMENT OF HEALTH, DOCCS COVID-19 REPORT (LAST ACCESSED DEC. 19, 2020), available at https://doccs.ny.gov/doccs-covid-19-report. 29 CENTERS FOR DISEASE CONTROL AND PREVENTION, supra.
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47. A recent study analyzing the lifespan of SARS-CoV-2 on common surfaces revealed that infectious SARS-CoV-2 was isolated from all analyzed surfaces, except cotton, for up to 28 days at 68°F.30
48. Because of the infectious exposure to fomites, both the CDC and the New York Department of Public Health recommend frequent hand washing as well as frequent disinfection of surfaces that are handled often. Hand washing for 20 seconds with soap and water is the best way to prevent autoinoculation (infecting oneself, e.g. after touching a telephone receiver covered in infectious virus then touching one’s own eyes or mouth) and spreading infectious virus to other surfaces (e.g. after touching a telephone receiver covered in infectious virus and then touching a counter surface).
49. Typically, inmates have limited access to soap. They are often required to purchase additional bars of soap from the prison commissary. Because the CDC recognized this practice would encourage soap-rationing behavior, they make the common-sense recommendation to suspend this barrier to soap acquisition, and suggest that during the pandemic inmates be given sufficient soap free of charge. “Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing...and ensure that individuals do not share bars of soap.”31 This intervention would limit transmission of infection to other fomites, inmates or officers.
50. Inmates at Adirondack Correctional Facility are unable to consistently wash their hands with soap and water for 20 seconds because soap is still being rationed in this prison.
30 Shane Riddell et al., The effect of temperature on persistence of SARS-CoV-2 on common surfaces, 17 VIROLOGY JOURNAL 145 (2020), available at https://virologyj.biomedcentral.com/articles/10.1186/s12985-020-01418-7#citeas. 31 CENTERS FOR DISEASE CONTROL AND PREVENTION, supra.
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51. Witness Salinas noted that bars of soap were only given out once every two weeks and that this was insufficient. When Witness Salinas ran out of soap, he was forced to buy more at his own expense. Salinas Decl.
52. Frequent cleaning of commonly touched surfaces and the barrier to soap access are examples of easily achievable interventions that would limit the transmission potential of SARS-CoV-2 at Adirondack Correctional Facility.
VI. Risk factors predisposing clients to a severe form of COVID-19 infection 53. The disease course of COVID-19 is varied. While most infected individuals have mild or no symptoms, hundreds of thousands of people infected with SARS-CoV-2 virus suffered a moderate to severe disease course that often resulted in death. Much of the damage wrought during the disease process is pulmonary, and manifests as a viral pneumonia. Patients who suffer from COVID-19 pneumonia often need supplemental oxygen in a hospital setting to assist their breathing. In severe cases of the disease, this supplemental oxygen must be supplied by some form of mechanical ventilation. Some patients progress to even more severe forms of the disease when their responding immune systems begin to ‘inadvertently’ damage their own organs. Frequently, patients, many whom I have personally cared for, progressed to this severe form of disease. Their kidneys often fail and they develop shock states requiring different forms of life support medications. Unfortunately, despite aggressive measures with all available treatments, COVID-19 proves fatal in many patients who suffer this severe form of disease.
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54. It is now well documented that certain pre-existing diseases predispose patients to a more severe course of COVID-19 disease.32 These pre-existing conditions include, but are not limited to, obesity, diabetes, cardiac disease, hypertension, and reactive airway disease. Advanced age, while not a disease, has also been identified as a major determinant for risk of a severe form of COVID-19.
55. All Individual Plaintiffs have chronic medical conditions that put them at higher risk for the severe form of COVID-19 disease. Specific conditions as they relate to these clients are outlined below:
A. Age as a risk factor for severe COVID-19 disease 56. Advanced age, perhaps above all other risk factors, is a characteristic that has received the greatest amount of attention. This is likely due to the devastating toll SARS-CoV-2 had on elderly congregate living environments such as aged care homes. DOCCS moved older inmates to Adirondack Correctional Facility and transferred younger inmates out of Adirondack Correctional Facility to other prisons.33 Everyone imprisoned at Adirondack Correctional Facility is 60 years old and above. Since the migration of older inmates to Adirondack Correctional Facility, the prison, not unlike aged care homes, has become a high-risk congregate living environment. 57. The following table illustrates the increasing case fatality rate as ages incrementally rise:34
32 CENTERS FOR DISEASE CONTROL AND PREVENTION, EVIDENCE USED TO UPDATE THE LIST OF UNDERLYING MEDICAL CONDITIONS THAT INCREASE A PERSON’S RISK OF SEVERE ILLNESS FROM COVID-19 (NOV. 2, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/evidence-table.html. 33 NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, supra. 34 CENTERS FOR DISEASE CONTROL AND PREVENTION, COVID-19 HOSPITALIZATION AND DEATH BY AGE (AUG. 18, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalizationdeath-by-age html.
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58. After 50 years of age, the risk of dying from COVID-19 begins to rise rapidly. There are several declarants in this high risk group, including Plaintiff Leon, Witness Jenkins, and Plaintiff Perez, aged 62, 62, and 60, respectively. The risk of death for an infected person over the age of 65 jumps exponentially. Witnesses Spadaro and Cangiano have an alarming 90fold risk of death compared to an inmate who is 29 years old. Plaintiff Harper is 75 years old. Not only is he living in a congregate environment with insufficient pandemic protective measures, but if he were to contract COVID-19, his risk of dying is 220-fold the risk of a 29year-old inmate.
59. Eight out of ten deaths reported in the United States have been among people over the age of 65. It behooves the reader to recognize these clients specifically, and Adirondack
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Correctional Facility more broadly, as cohorts at especially high risk for severe disease, hospitalization, respiratory distress, and death.35
B. Obesity as a risk factor for severe COVID-19 disease
60. In addition to the heightened risk of advanced age, two clients suffer from
obesity. Overweight is defined as BMI 25 to 29.9; obesity is a BMI of 30 or greater. Clients 2
and 6, with body mass indexes of 30 and 37 respectively, have a 4-fold increased chance of
severe disease requiring hospitalization compared to normal or overweight individuals. If these clients contract COVID-19 they are at increased risk for severe course of infection and death.36
C. Hypertension as a risk factor for severe COVID-19 disease
61. All Individual Plaintiffs have hypertension, or elevated blood pressure.
Hypertension causes chronic changes in the heart that may cause patients to be more susceptible to infection with SARS-CoV-2.37 One multicenter trial found the patients with hypertension who
were infected with COVID-19 had a higher proportion of severe cases (64.6% vs 38.1%), and had a higher proportion of intensive care admission (21.5% vs 11.3%).38 A large meta-analysis
that looked at comorbid conditions and outcomes of COVID-19 illness found that out of chronic
conditions such as chronic obstructive pulmonary disease (COPD), diabetes and malignancy, those with hypertension had the highest percentage of the deaths.39 In addition to COVID-19,
35 CENTERS FOR DISEASE CONTROL AND PREVENTION, OLDER ADULTS: AT GREATER RISK OF REQUIRING HOSPITALIZATION OR DYING IF DIAGNOSED WITH COVID-19 (DEC. 13, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html. 36 Christopher M. Petrilli, MD et al., Factors associated with hospitalization and critical illness among 4,103 patients with Covid-19 disease in New York City (2020), available at https://www.medrxiv.org/content/10.1101/2020.04.08.20057794v1.full.pdf. 37 Spoorthy Kulkarni et al., COVID-19 and hypertension, J. OF THE RENIN-ANGIOTENSIN ALDOSTERONE SYSTEM 1 (2020), available at https://journals.sagepub.com/doi/10.1177/1470320320927851. 38 Songjiang Huang et al., COVID-19 patients with hypertension have more severe disease: a multicenter retrospective observational study, 43 HYPERTENSION RESEARCH 824 (2020), available at https://www.nature.com/articles/s41440-020-0485-2. 39 Ruchong Chen, MD et al., Risk Factors of Fatal Outcome in Hospitalized Subjects With Coronavirus Disease 2019 From a Nationwide Analysis in China, 158 CHEST 97 (2020), available at https://www.ncbi nlm nih.gov/pmc/articles/PMC7158802/.
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high blood pressure also causes damage to multiple organs including the heart, kidneys, and brain. This compounded attack on the body's organs lead to an increased risk of severe COVID19 course of disease.40 If Plaintiffs Harper, Perez, and Leon, or Witnesses Jenkins and Cangiano, contract COVID-19, they are more likely to have a severe infection and die due to their hypertension.
D. Diabetes as a risk factor for severe COVID-19 disease 62. Plaintiff Perez and Witnesses Spadaro and Cangiano suffer from type 2 diabetes. Plaintiff Perez has poorly controlled diabetes. Witness Spadaro reports taking multiple medications to control his diabetes and has neuropathy in his feet requiring that he wears medical boots. Spadaro Decl. This level of end-organ damage to the nerves and microvasculature in Witness Spadaro’s feet is indicative of poorly controlled diabetic disease. In patients with COVID-19, those with type 2 diabetes required more medical interventions and had a significantly higher mortality (7.8% vs 2.7%) and multiple-organ injury than non-diabetic individuals.41 Another study found that the mortality rate among patients with diabetes was 28.8%, compared to 6.2% in patients without diabetes or hyperglycemia.42 Both Plaintiff Perez and Witness Spadaro are at a significantly increased risk of death should they contract COVID19.
40 Tadesse Melaku Abegaz et al., Target Organ Damage and the Long Term Effect of Nonadherence to Clinical Practice Guidelines in Patients with Hypertension: A Retrospective Cohort Study, 2017 INT J HYPERTENS 1 (2017), available at https://pubmed ncbi.nlm.nih.gov/28695006/. 41 Lihua Zhu et al., Association of Blood Glucose Control and Outcomes in Patients with COVID-19 and Preexisting Type 2 Diabetes, 31 CELL METABOLISM 1068 (2020), available at https://www.ncbi nlm nih.gov/pmc/articles/PMC7252168/. 42 Bruce Bode, MD et al., Glycemic Characteristics and Clinical Outcomes of COVID-19 Patients Hospitalized in the United States, 14 J. OF DIABETES SCIENCE AND TECHNOLOGY 813 (2020), available at https://doi.org/10.1177/1932296820924469.
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E. Chronic Kidney Disease as a risk factor for severe COVID-19 disease
63. Chronic kidney disease (CKD) is the presence of kidney damage or impaired
function for more than three months. While often clinically silent in its early stages, it can lead to
multiple health complications and eventually result in renal failure requiring hemodialysis. Both
Plaintiff Harper and Witness Jenkins suffer from CKD stage III (on a scale from I to V, with
patients with CKD V often requiring hemodialysis). Patients who become critically ill with
COVID-19 and have renal impairment such as CKD have high mortality rates, and patients with severe CDK have a very high risk of mortality if infected with COVID-19.4344 CKD places
Plaintiff Harper and Witness Jenkins at an increased risk of death should they be infected with
COVID-19.
F. Asthma as a risk factor for severe COVID-19 disease 64. Asthma leads to increased severity and mortality in patients with COVID-19.45
Plaintiff Perez has a history of bronchial asthma. Older patients and male patients with asthma were even more susceptible to death due to COVID; Plaintiff Perez has all three risk factors.46
Asthma is also linked to more days on a mechanical ventilator and longer hospitalization times for patients aged 50-64 years old who contract COVID-19; Plaintiff Perez is 60 years old.47 His
history of asthma puts him at an increased risk of death or severe disease should he get COVID-
19, with a prolonged hospital stay.
43 Williamson, E.J., Walker, A.J., Bhaskaran, K. et al., Factors associated with COVID-19-related death using OpenSAFELY. 584 NATURE 430 (2020), available at https://www.nature.com/articles/s41586-020-2521-4. 44 M. Gasparini et al., Renal impairment and its impact on clinical outcomes inpatients who are critically ill with COVID-19: a multicentreobservational study, 2020 ANAESTHESIA 1 (2020), available at 0https://associationofanaesthetists-publications.onlinelibrary.wiley.com/doi/10.1111/anae.15293. 45 Singh, Awadhesh Kumar, and Anoop Misra. Impact of COVID-19 and comorbidities on health and economics: Focus on developing countries and India, 14 DIABETES & METABOLIC SYNDROME 1625 (2020), available at https://www.ncbi nlm nih.gov/pmc/articles/PMC7451213/. 46 Lee, S.C., Son, K.J., Han, C.H. et al., Impact of comorbid asthma on severity of coronavirus disease (COVID-19), 10 SCI REP 21805 (2020), available at https://www nature.com/articles/s41598-020-77791-8. 47 Mahdavinia M, Foster KJ, Jauregui E, et al., Asthma prolongs intubation in COVID-19, 8 J ALLERGY CLIN. IMMUNOL. PRACT. 2388 (2020), available at https://www ncbi nlm nih.gov/pmc/articles/PMC7224651/.
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Case 9:21-cv-00019-LEK-ML Document 8-19 Filed 01/11/21 Page 28 of 31
EXHIBIT A

Case 9:21-cv-00019-LEK-ML Document 8-19 Filed 01/11/21 Page 29 of 31

MARK FENIG MD MPH
79 Boat Basin, Apt 20, New York, NY 10024; (C) 404.387.5528

Email: markfenig@gmail.com

EDUCATION
POST-GRADUATE TRAINING & EDUCATIONAL ACTIVITIES

McMaster University, Hamilton, On, Canada Bachelor of Arts (BA), November 2000 Concentration in Cultural Anthropology & Pre-Medical Sciences
Yale University – School of Epidemiology & Public Health, New Haven, CT Masters of Public Health (MPH), June 2003 Concentration in Epidemiology of Microbial Diseases & Global Health
Sackler School of Medicine – New York State Program, Tel Aviv, Israel Medical Doctor (MD), May 2007 Completed four-year American medical curriculum in Tel Aviv
Emory School of Medicine – Department of Emergency Medicine, Atlanta, GA Emergency Medicine Resident, Aug 2007 – Aug 2010 Providing care to over 250,000 patients annually in five metro Atlanta Emergency Departments, including the region's only Level 1 trauma center and the leading adult and pediatric referral centers.
Advanced Hazmat Life Support, Macon, GA, May 2009 Provider & Instructor Certified

PROFESSIONAL EMPLOYMENT
BOARD CERTIFICATION MEMBERSHIPS AWARDS & HONORS

Montefiore Medical Center, Weiler Division, Bronx, NY Attending Physician, Department of Emergency Medicine, 8/2010 – Present
Albert Einstein College of Medicine, Bronx, NY Assistant Professor of Emergency Medicine, 11/ 2010 – 4/2013, 8/2017 - Present
Lincoln Medical and Mental Health Center, Bronx NY Attending Physician, Department of Emergency Medicine, 10/2012 – 7/2017
Weill Cornell Medical College, New York, NY Clinical Instructor of Emergency Medicine, 11/2012 – 8/2017

Diplomate of the American Board of Emergency Medicine June 2011 – December 2021
Fellow of the American Academy of Emergency Medicine (FAAEM) 2012 - 2016 Fellow of the American College of Emergency Physicians (FACEP) 2007-2012, 2017

Weinerman Fellowship, Yale University

Summer 2002

Funds from this award were applied to research during a refugee health internship with the International Rescue

Committee in Azerbaijan.

Award of Excellence in Medical Toxicology, Emory University

June 2009

Georgia Poison Center in conjunction with the Department of Emergency Medicine recognizes the resident who

went above and beyond the requirements of the toxicology rotation.

1

Case 9:21-cv-00019-LEK-ML Document 8-19 Filed 01/11/21 Page 30 of 31

MARK FENIG MD MPH
79 Boat Basin, Apt 20, New York, NY 10024; (C) 404.387.5528

Email: markfenig@gmail.com

PROFESSIONAL ACTIVITIES

EM Student Education

August 2017 – Present

Weiler Division Preceptor of 4th year student elective rotations, Department of Emergency Medicine, Montefiore

Medical Center – Weiler Division

Supervise clinical shift for all 4th year medical students at the Weiler division during their month-long Montefiore

sub-internship rotation

EM Student Education

August 2016 – June 2017

Co-director of 4th year student elective rotations, Department of Emergency Medicine, Lincoln Medical and

Mental Health Center

Develop and supervise a curriculum for approximately 160 4th year medical students who annually complete a

clinical rotation in our adult and pediatric emergency departments. Evaluate the students’ performance based on

standardized clinical competencies and complete a Standard Letter of Evaluation (SLOE) for each student based

on faculty consensus scoring.

Clinical Competency Committee

June 2013 – June 2017

Chair of Committee, Department of Emergency Medicine, Lincoln Medical and Mental Health Center

Implementation and management of ACGME/RRC/EBEM/CORD new emergency medicine resident educational

milestones. These milestones will be used as outcome measures for continuous ACGME and departmental

monitoring of physician in training practices and competencies.

Hospital Incident Command Center

June 2013 – June 2017

Chemical Disaster Response Officer, Lincoln Medical and Mental Health Center

Member of the hospital emergency preparedness committee responsible for hospital-wide disaster drills as well as

vulnerability assessments and surge capacity preparation. Serve Incident Command in capacity of response

specialist in case of chemical disaster.

STEMI-Accelerator Project

May 2013 – June 2014

Co-Principal Investigator, Lincoln Medical and Mental Health Center

Co-PI for Lincoln’s participation in a multi-center project to establish regional STEMI systems of care by

implementing a plan for collaboration between EMS, regional hospitals, emergency departments and cardiology

specialists. Lincoln is one of the national STEMI Accelerator Non-PCI hospital sites for this project.

Sackler School of Medicine Admissions Committee,

October 2012 - Present

Committee Member, New York, NY

Member of a seven-person committee responsible to review medical school applications and make final

determination regarding matriculation.

International Earthquake Disaster Response, Jimani, Dominican Republic

January 2010

Emergency Medicine Volunteer Physician, BR2Haiti Organization

Member of a seven-person team sent on medical mission to Good Samaritan Hospital along the

Haitian border in the Dominican Republic. Directed the establishment of an urgent care center on the hospital

compound. Responsible for an inpatient ward of 70 victims.

American Red Cross, New Haven, Connecticut

January - May 2002

Intern, Yale School of Public Health: Community Health Program Planning and Evaluation

Worked in a consultancy capacity as a member of a research team for a joint Yale University-American Red Cross

Project. Conducted health care disaster volunteer availability analyses. Results of this study were used to design

the American Red Cross’s future disaster preparedness infrastructure.

Integrated Community-based Development Project (ICDP), Imishli, Azerbaijan

May-August 2002

Health Intern, International Rescue Committee (IRC)

Composed and edited country specific health education materials, analyzed primary health care survey results, and

provided a water installation project with public health direction.

Howard Hospital, Glendale, Zimbabwe

November-February 2000

Volunteer Consultant, “Veahavta” - a non-profit organization, Toronto Canada

Evaluated and reorganized patient admission process and patient hospital medical record management. Created a

dynamic patient information database to accommodate admission and administrative needs.

2

Case 9:21-cv-00019-LEK-ML Document 8-19 Filed 01/11/21 Page 31 of 31

MARK FENIG MD MPH
79 Boat Basin, Apt 20, New York, NY 10024; (C) 404.387.5528

Email: markfenig@gmail.com

RESEARCH & PUBLICATIONS
CERTIFICATIONS

Publication, Textbook Chapter Zummer J, Fenig M, “Pediatric Trauma” in Waseem et al (eds.), Prepare for the Pediatric Emergency Medicine Board Examination; Springer Nature Switzerland AG (2020); ISBN 978-3-030-28372-8

Publication, Academic Emergency Medicine Caputo, Azan, Dominguez, Donner, Fenig, et al. EmergeNcy Department Use of Apneic Oxygenation Versus Usual Care During Rapid Sequence Intubation: A Randomized Controlled Trial (The ENDAO Trial) Acad Emerg Med 24(11):1387-1394, 2017

Publication, Annals of Emergency Medicine Gold M, Fenig M, Images in Emergency Medicine: Man with Pain in his Neck (Traumatic Hypoglossal Nerve Paralysis) Ann Emerg Med 68:545,561, 2016

Publication, American Journal of Emergency Medicine Fenig M, et al, Laryngeal fracture after coughing, Am J Emerg Med 31:1421.e1-1421.e3, 2013

Publication, American Journal of Emergency Medicine Fenig M, Lowman R, Thompson B, Shayne P, Fatal Posterior Sternoclavicular Joint Dislocation Due to Occult Trauma. Am J Emerg Med 28:385.e5 - 385.e8, 2010

Publication, Prehospital Emergency Care Fenig M, Cone DC, Advancing Disaster Epidemiology and Response: Developing a National Disaster-Victim Database. Prehosp Emerg Care 9:457-467, 2005

Abstract Presentation, American Public Health Association, Philadelphia, PA

November 2002

Fenig M, Stockman L, Nguyen K, Rosenstein S, Lwanga E, Assessment of September 11th Spontaneous Health

Care Volunteers: Potential Impact on American Red Cross and Disaster Preparedness

Presented at the 130th Annual American Public Health Association Meeting. The Presentation has been included

in the Meeting’s Disaster Preparedness and Emergency Response session of the Injury Control and Emergency

Health Services Program. APHA, Abstract 44993, 2002

ACLS, ATLS, PALS, AHLS, HERT

3

 
 Case 9:21-cv-00019-LEK-ML Document 29 Filed 01/22/21 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Allen HARPER, José LEON, and Ranfis PEREZ on behalf of themselves and all others similarly situated; and the RELEASE AGING PEOPLE IN PRISON CAMPAIGN (“RAPP”),
Plaintiffs, v.
ANDREW CUOMO, in his official capacity as the Governor of the State of New York; NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; ANTHONY J. ANNUCCI, in his official capacity as the Acting Commissioner of the New York State Department of Corrections and Community Supervision; JOHN MORLEY, M.D., in his official capacity as the Deputy Commissioner and Chief Medical Officer of the New York State Department of Corrections and Community Supervision; and JEFFREY TEDFORD, in his official capacity as the Superintendent of Adirondack Correctional Facility
Defendants.

Civil Action No. 9:21-cv-19 (LEK/ML)

PLAINTIFFS’ REPLY TO DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 9:21-cv-00019-LEK-ML Document 29 Filed 01/22/21 Page 2 of 16
TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................. iii, iv
I. INTRODUCTION........................................................................................................1 II. DEFENDANTS’ ARGUMENT THAT ADIRONDACK’S CASE NUMBERS
RENDER AN INJUNCTION PREMATURE IS BOTH FACTUALLY MISLEADING AND LEGALLY UNFOUNDED.....................................................1 III. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR ADA AND RA CLAIMS OF FAILURE TO MAKE REASONABLE MODIFICATIONS AND DISCRIMINATION ........................................................4 IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR EIGHTH AMENDMENT CLAIM ............................................................................6 A. DEFENDANTS’ FOCUS ON THE LACK OF CASES TO DATE IS LEGALLY BASELESS ....................................................................................................................6 B. DEFENDANTS’ CONDUCT TO DATE FALLS WELL SHORT OF THE EIGHTH AMENDMENT’S REQUIREMENTS ..........................................................................7 V. THE RISK OF A DEADLY OUTBREAK IS IMMINENT AND GRAVE, WARRANTING A FINDING OF IRREPARABLE HARM ..................................9 VI. THE BALANCE OF EQUITIES FALLS CLEARLY IN FAVOR OF GRANTING THE PRELIMINARY INJUNCTION..............................................10 VII. CONCLUSION ..........................................................................................................10
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TABLE OF AUTHORITIES

Cases

Pages

Alexander v. Nev. Dep’t of Corr., No. 3:15-cv-213, 2016 WL 11184185

(D. Nev. Sept. 7, 2016) ....................................................................................................................6

Bartlett v. N.Y. State Bd. of Law Exam’rs, 156 F.3d 321 (2d. Cir. 1998) .......................................6

Basank v. Decker, 449 F. Supp. 3d 205 (S.D.N.Y. 2020) .............................................................10

Cameron v. Bouchard, 815 Fed. App’x 978 (6th Cir. 2020) ..........................................................9

Duvall v. Cnty. of Kitsap, 260 F.3d 1124 (9th Cir. 2001)................................................................6

Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274 (1998) ....................................................6

Helling v. McKinney, 509 U.S. 25 (1993)........................................................................................8

Farmer v. Brennan, 511 U.S. 825 (1994) ................................................................................6, 7, 8

Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268 (2d Cir. 2009) ...............................................6

Martinez-Brooks v. Easter, 459 F. Supp. 3d 411 (D. Conn. 2020)........................................7, 9, 10

Mays v. Dart, 453 F. Supp. 3d 1074 (N.D. Ill. 2020) ..............................................................10, 11

Pennsylvania v. West Virginia, 262 U.S. 553 (1923) .....................................................................8

Schoolcraft v. City of New York, 955 F. Supp. 2d 192 (S.D.N.Y. 2013) ........................................7

Toure v. Hott, 458 F. Supp. 3d 387 (E.D. Va. 2020) ) ..................................................................11

Valentine v. Collier, 978 F.3d 154 (5th Cir. 2020) .........................................................................8

Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) ....................................................................9, 10

Statutes

Pages

42 U.S.C. § 12102, et seq....................................................................................................... passim

29 U.S.C. § 794, et seq........................................................................................................... passim

U.S. Const. amend. VIII......................................................................................................... passim

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Other Authorities

Pages

N.Y. State Dep’t of Corr. & Cmty. Supervision, DOCCS COVID-19 Report, https://doccs.ny.gov/doccs-covid-19-report ........................................................................4

Robert Harding, Auburn prison COVID-19 outbreak spreads to inmates, The Auburn Citizen (Dec. 13, 2020), https://auburnpub.com/news/local/auburn-prison-covid-19-outbreakspreads-to-inmates/article_dabb1624-9728-5048-9bbc-277c9adf3565.html ......................4

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I. Introduction Defendants contend that because there has been no large scale COVID-19 outbreak at
Adirondack, Plaintiffs’ Motion for a Preliminary Injunction must fail. Plaintiffs seek to enjoin dangerous conditions at Adirondack, however, to ensure no such outbreak occurs. Relying on factual assertions that Plaintiffs’ evidence belies, and that Plaintiffs will contest in the forthcoming evidentiary hearing, Defendants suggest that intervention is premature because no one has yet died at Adirondack. But the Constitution does not require the Court to wait for a highly predictable disaster to materialize in order to intervene, and for good reason: as examples in New York and around the country show, absent necessary precautions, COVID-19 spreads rapidly in prisons. Few cases balloon into hundreds in a matter of weeks, causing deaths and permanent injury. The Court need not wait until more people contract the virus and die in order to grant the narrow relief Plaintiffs seek to prevent an outbreak.
Below, Plaintiffs address Defendants’ specious argument that the COVID-19 prevalence rate at Adirondack reflects Defendants’ good conduct and renders intervention unnecessary. Plaintiffs then turn to Defendants’ arguments on the merits of Plaintiffs’ claims and the propriety of a preliminary injunction, including Defendants’ argument that the harm is too speculative to warrant relief. As explained in Plaintiffs’ Memorandum of Law and below, Plaintiffs have demonstrated the need for and propriety of the narrow Preliminary Injunction they seek.
II. Defendants’ Argument that Adirondack’s Case Numbers Render an Injunction Premature is Both Factually Misleading and Legally Unfounded.
Defendants claim that relief is not warranted “because ACF has successfully managed the COVID-19 pandemic for elderly inmates in such a way that only three of its inmates have tested positive for COVID-19 out of 198 tests that have been administered[,]” Defs.’ Mem. of Law in Opp. To Pls.’ Mot. For Prelim. Inj. at 2 (hereinafter the “Resp.”) (emphasis omitted). Case
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numbers do not prove the constitutional adequacy of Defendants’ conduct, however. Defendants’ argument is therefore legally unfounded, as described in Section IV, infra, addressing Defendants’ Eighth Amendment argument, as well as factually misleading, as described herein.
As a factual matter, case numbers alone are not evidence of good practices or constitutionally sound conditions at Adirondack. Here, low case numbers are simply a product of Defendants’ luck. Defendants have fortuitously avoided a COVID-19 outbreak at Adirondack despite their failure to implement constitutionally necessary precautions. This is clear from abundant evidence that under prison conditions like those at Adirondack, COVID-19 outbreaks take hold very quickly, even in prisons that had previously been unaffected.
Defendants’ recent experience with Woodbourne Correctional Facility, discussed in Plaintiffs’ Memorandum of Law, illustrates precisely this danger. As of December 1, 2020, Woodbourne—which has the second-highest concentration of elderly people in the New York State prison system, after Adirondack—had zero cases and zero deaths since the start of the pandemic.1 By December 22, 2020, three weeks later, the facility had reported 121 total positive cases and, by January 20, 2021, there had been 226 total positive cases at Woodbourne, along with two deaths.2 Auburn, Bare Hill, Coxsackie, Gouverneur, and Groveland Correctional Facilities also reported between zero to two total positive cases as of December 1, 2020; now, as of January 20, 2021 these facilities together report a total of 744 positive cases and five deaths.3 Similarly, Greene Correctional Facility had reported only two positive cases as of September 28, 2020, but approximately two weeks later, that number rose to over 90.4 Elmira Correctional
1 Ex. A, DOCCS COVID-19 Data Compilation at 5 (Dec. 1, 2020). 2 Id. at 7 (Dec. 22, 2020), 8 (Jan. 20, 2020). 3 Compare id. at 5 (Dec. 1, 2020), with id. at 8 (January 20, 2021). 4 Compare id. at 1 (Sep. 28, 2020), with id. at 3 (Oct. 14, 2020).
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Facility had only reported one positive case as of September 28, 2020 but, by October 28, 2020— just one month later—there had been a staggering 590 reported cases at the facility.5 The
low case numbers at Adirondack provide no assurance against an outbreak, imminently or in the
near future. It is current conditions, not retrospective statistics, that drive COVID-19 outbreaks.
As the record demonstrates, conditions at Adirondack are woefully inadequate.
Plaintiffs seek a narrow intervention before Adirondack experiences the same calamity as
other facilities in New York and around the country. The people incarcerated at Adirondack are
some of the most vulnerable people in the New York State prison system. They would be
devastated by a COVID-19 outbreak. Defendants reliance on case numbers is alarming and
shows that they are ignoring the severity of the risk: Defendants could have made a similar
argument about Woodbourne on November 30, 2020, or Greene and Elmira on September 27,
2020. Plaintiffs do not have to wait to suffer the same fate that those facilities suffered on
Defendants’ watch in order to get relief. Rather than looking at whether there has not yet been an
outbreak at the facility, this Court must determine whether Defendants are satisfying their
statutory and constitutional obligations to take necessary steps to respond to the risk COVID-19
5 Compare id. at 1 (Sep. 28, 2020), with id. at 4 (Oct. 28, 2020). These numbers all likely undersell the extent of the outbreaks, as they only account for infections among incarcerated people. As of January 20, 2021, there had been 4,543 confirmed cases of COVID-19 among the incarcerated population and 4,041 among staff, but the latter are not included in the statistics broken down by facility. N.Y. STATE DEP’T OF CORR. & CMTY. SUPERVISION, DOCCS COVID19 REPORT, https://doccs.ny.gov/doccs-covid-19-report (last accessed Jan. 22, 2021). To illustrate the point, on December 8, 2020, DOCCS had reported only two positive cases among people incarcerated at Auburn Correctional Facility, Ex. A, DOCCS COVID-19 Data Compilation at 6 (Dec. 8, 2020) but, that same day, representatives from the union representing corrections officers claimed that over 120 corrections officers at the facility had either tested positive or been quarantined as a result of contact with a person who had been confirmed positive. Robert Harding, Auburn prison COVID-19 outbreak spreads to inmates, THE AUBURN CITIZEN (Dec. 13, 2020), https://auburnpub.com/news/local/auburn-prison-covid-19-outbreakspreads-to-inmates/article_dabb1624-9728-5048-9bbc-277c9adf3565.html.
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poses to Plaintiffs. They are not. III. Plaintiffs Are Likely to Succeed on the Merits of their ADA and RA Claims of Failure to Make Reasonable Modifications and Discrimination. Plaintiffs raise two distinct Americans with Disabilities Act (“ADA”) and Rehabilitation
Act (“RA”) claims – (1) failure to provide reasonable modifications, and (2) disparate treatment. Defendants do not even address Plaintiffs’ reasonable modification claim, offering only the conclusory and unsupported assertion that no denial has taken place. Resp. at 13. This is flatly incorrect. As detailed in Plaintiffs’ Memorandum of Law, Plaintiffs in the Disability Subclass claim that Defendants have violated their rights under the ADA and RA by failing to provide reasonable modifications that would enable them to access Adirondack’s programs and services. Specifically, Disability Subclass members maintain that because of the particular risk COVID-19 poses, and Defendants’ failure to provide reasonable modifications that would mitigate that danger, Disability Subclass members cannot safely participate in Adirondack’s programs and services, including using the day rooms, eating in dining halls, and shaving in bathrooms. For the reasons stated in Plaintiffs’ Memorandum of Law, they are likely to succeed on the merits of their reasonable modification claim under the ADA and RA.
Plaintiffs raise a separate claim of disparate treatment under the ADA and RA, because Defendants discriminated against them by transferring them to Adirondack on the basis of their disability and then failed to provide protections to reduce the likelihood of a COVID-19 outbreak there and to mitigate the harms of an outbreak if one did occur.
Defendants’ arguments concerning Plaintiffs’ disparate treatment RA and ADA claims also fail, as Defendants identify the incorrect legal standard for those claims. Without citation, Defendants wrongly contend that the same deliberate indifference analysis governs Eighth Amendment and ADA and RA claims. Resp. at 15. The Second Circuit has been clear, however,
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that the standard for deliberate indifference under the ADA and RA is “deliberate indifference to the strong likelihood of a [statutory] violation,” Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009) (alterations omitted) (quoting Bartlett v. N.Y. State Bd. of Law Exam’rs, 156 F.3d 321, 331 (2d. Cir. 1998)), which requires only that an official have “actual knowledge of discrimination . . . , [and] authority to correct the discrimination, and fail[] to respond adequately.” Loeffler, 582 F.3d at 276 (quoting Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274, 290 (1998)). By contrast, the Eighth Amendment deliberate indifference standard requires that a defendant “know[] of and disregard[] an excessive risk to inmate health and safety[.]” Farmer v. Brennan, 511 U.S. 825, 837 (1994). See also, e.g., Alexander v. Nev. Dep’t of Corr., No. 3:15-cv-213, 2016 WL 11184185, at *3 (D. Nev. Sept. 7, 2016) (Eighth Amendment deliberate indifference standard differs from ADA and RA standard).6 For the reasons stated in Plaintiffs’ Complaint and Memorandum of Law, Defendants knew of the discrimination at issue here, had authority to correct it, and failed to respond adequately. Far from “bureaucratic inaction,” Loeffler, 582 F.3d at 276 (quotation marks omitted), Defendants made a deliberate choice to transfer people to Adirondack due to their disability, and knowingly failed to protect them. Although Plaintiffs do not need to succeed on their intentional discrimination claim to succeed on their ADA and RA claims, they have nevertheless shown a likelihood that they will prevail on both categories of their ADA and RA claims.
6 Indeed, courts identified deliberate indifference as the ADA and RA discrimination standard as a less onerous requirement than discriminatory animus in order to fulfill the remedial purposes of the ADA and RA. See, e.g., Loeffler, 582 F.3d at 275; Bartlett, 156 F.3d at 331, rev’d on other grounds by 527 U.S. 1031; Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138–39 (9th Cir. 2001).
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IV. Plaintiffs Are Likely to Succeed on the Merits of their Eighth Amendment Claim.
Defendants violate the Eighth Amendment when they incarcerate people under conditions that pose an objective risk of serious harm and, despite subjective knowledge of that harm, act with deliberate indifference to the risk the harm poses. See, e.g. Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 439 (D. Conn. 2020) (quoting Farmer, 511 U.S. at 832). Defendants argue that their actions do not constitute deliberate indifference because they claim (1) there has not been a large-scale COVID-19 outbreak at Adirondack so far, and (2) their efforts are consistent with efforts other courts have upheld as constitutionally adequate. See Resp. at 9.7 Both points are legally incorrect and factually misleading.
A. Defendants’ Focus on the Lack of Cases to Date is Legally Baseless. Defendants’ suggestion that the lack of COVID-19 cases at Adirondack to date
demonstrates that they have not violated the Constitution errs in two ways. First, Eighth Amendment jurisprudence makes clear that Defendants have an Eighth Amendment duty to respond reasonably to the risk of harm, not just to materialized harm. Second, the argument is legally baseless because the Eighth Amendment focuses on Defendants’ conduct, not on whatever outcomes have so far taken place because of that conduct.
7 By arguing only that their actions do not constitute deliberate indifference, Defendants have conceded the other elements: that the potential harm is objectively serious and that they were subjectively aware of it. See, e.g., Schoolcraft v. City of New York, 955 F. Supp. 2d 192, 199–200 (S.D.N.Y. 2013) (Defendants conceded likelihood of success on the merits by arguing only irreparable harm in their response). Moreover, as stated in Plaintiffs’ Memorandum of Law, Plaintiffs have made a clear showing that the risk of harm is serious and that Defendants knew of this risk, which Defendants’ response corroborates. As Defendants noted, they “transformed ACF . . . to a facility for elderly inmates . . . specifically to combat COVID-19 in the more vulnerable population of the elderly inmates.” Resp. at 4-5.
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Long-established jurisprudence makes clear that a risk of harm is sufficient to violate the Eighth Amendment. See Farmer, 511 U.S. at 845 (plaintiffs need not “await the consummation of threatened injury to obtain preventive relief.”) (quoting Pennsylvania v. West Virginia, 262 U.S. 553 (1923)); Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event.”). Indeed, Plaintiffs bring their claims now to avert a potential injury, to “prevent a substantial risk of serious injury from ripening into actual harm[.]” Farmer, 511 U.S. at 845. As described in Section II, supra, without adequate precautions, in the prison setting COVID-19 can rapidly escalate from a few cases to a catastrophic outbreak. Defendants know this; as described above, they have seen these spikes before and are seeing them now around the state. Yet despite this proven danger, Defendants would have the Court ignore the wave of COVID-19 infections that are at this moment ravaging prisons throughout New York. The Eighth Amendment does not require this Court to sit idly by and await the arrival of this foreseeable catastrophe.
Defendants’ reliance on the number of cases so far is also misplaced because the Eighth Amendment analysis focuses on Defendants’ conduct, rather than chance circumstances at the prison. See, e.g., Valentine v. Collier, 978 F.3d 154, 163 (5th Cir. 2020) (“[T]he Eighth Amendment inquiry concerns TDCJ’s state of mind, not the scope of the injury.”).
B. Defendants’ Conduct to Date Falls Well Short of the Eighth Amendment’s Requirements. Defendants cite numerous cases for the uncontroversial proposition that the Eighth
Amendment does not require courts to micromanage prisons or second guess officials’ reasonable responses. See, e.g. Resp. at 9-11. While courts defer to prison officials’ reasonable
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choices, the Constitution limits that deference: prisons are not free to ignore a serious threat to health and safety of incarcerated people or respond in an obviously deficient manner.
Instead, the Eighth Amendment requires prison officials to respond “reasonably” to serious threats to health and safety. As discussed in Plaintiffs’ Memorandum of Law, Defendants have not taken meaningful efforts to prevent COVID-19 from entering the facility and have not enacted adequate protocols to either identify its presence in the facility or stop it from spreading, should it enter. See Memo. of Law at 25-28. Defendants cite a portion of the decision in Cameron v. Bouchard, 815 Fed. App’x 978 (6th Cir. 2020) identifying the steps the court in Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) found sufficient to survive constitutional scrutiny, and they contend that they “are taking all of the same preventive measures mentioned above, which necessarily means that they are not being deliberately indifferent to the Plaintiffs at ACF.” Resp. at 16-17. This argument fails for two reasons. First, the reasonableness of a response depends on the particular risk of harm incarcerated people face —as a result, measures to mitigate the spread of COVID-19 that are adequate for one prison may amount to deliberate indifference in another, depending on, for example, the nature of the population and the risk of infection in the community. See, e.g., Martinez-Brooks, 459 F. Supp. 3d at 442–43 (analyzing warden’s Eighth Amendment duty in light of options available in that facility). For that reason, taking measures similar to those taken by a different prison with a different population in a different state at a different point in the COVID-19 outbreak cannot “necessarily” demonstrate compliance with the Eighth Amendment. Second, Defendants’ response falls far short of the actions described in Cameron. As explained in Plaintiffs’ Memorandum of Law and accompanying exhibits, Defendants are not adequately isolating and quarantining people who have contracted the virus, limiting group gatherings, providing incarcerated people continuous
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access to soap, or even testing people before transferring them in or when they have had close contact with infected people. Defendants’ response is comparable to responses courts have found constitutionally inadequate. See, e.g., Martinez-Brooks, 459 F. Supp. 3d at 442–43; Mays v. Dart, 974 F.3d 810, 823–24 (7th. Cir. 2020). Because Defendants have acted with deliberate indifference to the serious risk Plaintiffs face, Plaintiffs are likely to succeed on the merits of their Eighth Amendment claim.
V. The Risk of a Deadly Outbreak is Imminent and Grave, Warranting a Finding of Irreparable Harm.
Defendants contend that the risk of contracting COVID-19 and suffering death or serious complications does not constitute irreparable harm because it is too “speculative.” Resp. at 18. This contention not only contradicts the demonstrated spread of COVID-19 in other prisons in New York, see Section II, supra, but it also ignores the clear weight of authority on this point. Courts have had no trouble finding that the risk of contracting COVID-19 in a prison constitutes irreparable harm sufficient to warrant preliminary injunctive relief. Martinez-Brooks, 459 F. Supp. 3d at 447 (“Courts across the country have concluded that the risk of contracting COVID19 as a result of unsafe conditions of confinement constitutes irreparable harm.”); Basank v. Decker, 449 F. Supp. 3d 205, 213 (S.D.N.Y. 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”); Mays v. Dart, 453 F. Supp. 3d 1074, 1098 (N.D. Ill. 2020) (risk of COVID-19 constitutes irreparable harm, especially for plaintiffs who are “over the age of 65 or with preexisting health conditions” and so “risk severe health consequences, including death, if they contract coronavirus”); Wilson, 961 F.3d at 844 (“The district court correctly noted that
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inmates at Elkton face a risk of irreparable injury if they are infected by COVID-19.”).8 This Court must act now. Irreparable harm is thus not a “mere possibility,” Mays, 453 F.
Supp. 3d at 1098; under Defendants’ current practices, including the failure to test people before they enter the prison, the virus could easily enter the facility at any time, and by the time case numbers rise, it is too late to prevent deaths.
VI. The Balance of Equities Falls Clearly in Favor of Granting the Preliminary Injunction.
Defendants allege no reason why the requested, extremely limited relief would impose any hardship, burden, or cost on them or on the public, essentially conceding Plaintiffs’ point. Defendants merely assert that the balance of equities tips in their favor because they are “diligently serving the State’s public health interest[.]” Resp. at 19. Plaintiffs also seek to further the interest of public health, and Defendants’ conclusory assertion would provide a categorical exemption to Defendants from ever being subject to preliminary injunctive relief. Of course, no such exemption exists. For the reasons set forth in Plaintiffs’ Memorandum of Law, the balance of equities clearly falls in favor of granting the preliminary injunction in its entirety.
VII. Conclusion
For the foregoing reasons, Plaintiffs have demonstrated the urgent need for a Preliminary Injunction and ask that the Court grant that motion in its entirety.
8 Defendants’ reliance on Toure v. Hott, 458 F. Supp. 3d 387 (E.D. Va. 2020), Resp. at 18, is misplaced for several reasons. First, Toure was decided in April of 2020, before the nature of spread within correctional facilities was understood to the extent it is understood today. Moreover, the Toure Court relied on the undisputed fact that Defendants were isolating transferees. Here, Defendants have failed to isolate transferees. Likewise, the Toure Court found that Plaintiffs had failed to show the inadequacy of Defendants’ medical resources. Here, Defendants’ medical resources are inadequate. Finally, Toure did not include a concentration of high-risk individuals. In sum, Toure differs in crucial ways from the facts before this Court and is not instructive here.
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Dated: January 22, 2021

Respectfully Submitted,
/s/ Rebecca Livengood Sasha Samberg-Champion (Bar Roll #702397) Jia Cobb Pro Hac Vice (Bar Roll #520798) Gabriel Diaz Pro Hac Vice Rebecca Livengood (Bar Roll #702388) RELMAN COLFAX PLLC 1225 19th St. NW, Suite 600 Washington, D.C. 20036 T: (202) 728-1888 F: (202) 728-0848
/s/ Stefen R. Short Stefen R. Short (Bar Roll # 519275) Sophia Gebreselassie* David Billingsley (Bar Roll #702407) THE LEGAL AID SOCIETY PRISONERS’ RIGHTS PROJECT 199 Water Street, 6th Floor New York, N.Y. 10038 T: (212) 577-3530 F: (202) 728-0848
Attorneys for Plaintiffs
*Pro Hac Vice Application Pending

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CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of January, 2021, a copy of the foregoing Reply to Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion for a Preliminary Injunction was filed using the CM/ECF system for the Northern District of New York which will send notification to the following counsel of record:

Michael G. McCartin Assistant Attorney General, Of Counsel Bar Roll No. 511158 Tel.: (518) 776-2620 michael.mccartin@ag.ny.gov
Kostas D. Leris Assistant Attorney General, Of Counsel Bar Roll No. 519646 Tel.: (518) 776-6125 Kostas.Leris@ag.ny.gov

/s/ Rebecca Livengood Rebecca Livengood Attorney for Plaintiffs