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Cannon v. Correctional Medical Care, Inc.

United States District Court, N.D. New York

June 27, 2017

TRACY CANNON, Administratrix of the Estate of Mark Cannon, Jr., Plaintiff,


          DANIEL J. STEWART United States Magistrate Judge.

         The New York State Commission of Correction, by its General Counsel, moves to quash a deposition subpoena issued upon it by Counsel for the Plaintiff. Dkt. No. 93.[1] Plaintiff's Counsel opposes the Motion, and has submitted his Affidavit, as well as a Memorandum of Law. Dkt. Nos. 101 & 101-2. General Counsel for the Commission of Correction then submitted an Affirmation in Response. Dkt. No. 120. For the reasons that follow, the Commission of Correction's Motion is granted and the subpoena issued to it is hereby quashed.

         I. BACKGROUND

         The New York State Commission of Correction was established as part of the Constitution of the State of New York, and is charged, in part, with inspection of facilities used for detention of inmates. Aff. of Brian Callahan, Esq., at ¶ 3; New York State Constitution, Article XVII, Section 5. The Commission consists of three persons appointed by the Governor, with the advice and consent of the New York State Senate. New York Correct. Law § 41(1). As part of its responsibilities, the Commission of Correction reviews issues concerning the health and safety of inmates. Callahan Aff. at ¶ 4. The Commission also consists of a Medical Review Board that is required by statute to “investigate and review the cause and circumstances surrounding the death of any inmate at a correctional facility.” New York Correct. Law §§ 43(1) & 47(1)(a). The Medical Review Board consists statutorily of six uncompensated members who are appointed by the Governor of New York and confirmed by the Senate, and includes a licensed physician; a board certified forensic pathologist; and an attorney. Id. at § 43. The Medical Review Board prepares and submits a report to the Commission of Correction, which then issues a final report and, if appropriate, makes recommendations to the facility or other interested individuals. Id. at § 47.

         On August 30, 2014, Mark Cannon died while in the custody of the Albany County Sheriff. Callahan Aff. at ¶ 8, & Ex. A, Report of Inmate Death. That death was then reported to the New York State Commission of Correction. Upon the report of the death of Mark Cannon, the Commission's Medical Review Board began an investigation and the Commission ultimately issued a Final Report on June 28, 2016. Callahan Aff., Ex. B, Final Report of the New York State Commission of Correction. That Final Report, signed by Commissioner Phyllis Harrison-Ross, M.D., is comprehensive and its recommendations are stark. Id. It details Mr. Cannon's personal history and his arrest for possession of a weapon and resisting arrest on July 23, 2014, which brought him into the custody of the Albany County Jail. Id. at p. 2.[2] At that time, medical care at the Albany County Jail was provided, pursuant to contract, by Correctional Medical Care, Inc., which supplied various medical staff, including nurses. Id. at pp 2 & 7; see also Dkt. No. 52, Am. Compl. at ¶¶ 6, 10, & 11.

         On August 26, 2014, at 4:12 p.m., Mr. Cannon reported to his housing unit officer that he was dizzy. Callahan Aff., Ex. B, Final Report of the New York State Commission of Correction, at p. 3. Mr. Cannon was not seen by medical, but the correctional staff was told to advise Mr. Cannon to drink water and lie down. Id. At 5:10 p.m., Mr. Cannon reported that he was incapable of standing or walking. Id. He was then seen by the nursing staff on the housing unit. Id. Mr. Cannon was placed in a wheelchair and wheeled to medical. Id. He was provided Gatorade. Id. at p. 4. Mr. Cannon's condition progressively worsened and he was seen vomiting into the toilet. Id. The Report indicates that the nurse at that time (“C.G.”) failed to do a proper nursing assessment, and did not assess “his obvious neurological deficit.” Id. In addition, the nurse failed to notify the facility doctor that Mr. Cannon had been admitted into the infirmary observation room, and that such a failure to notify was a violation of the policies of Correctional Medical Care. Id.

         Mr. Cannon was returned to his housing unit 8:32 p.m., and was seen on video with an unsteady gait and holding onto the walls of the hallways. Id. He continued to voice complaints of dizziness, and requested to be seen by medical, but the nurses refused to do so and merely provided the instruction to Mr. Cannon to drink water. Id.

         According to the Final Report, at 3:10 a.m., on August 27, 2014, Mr. Cannon was found lying on the floor of the cell, he was not verbally responsive, and he was foaming at the mouth. Id. at p. 5. He was then wheeled to medical and placed in an infirmary room, where he was left half-on and half-off of a mattress located on the floor, with his arm tucked underneath him. Id. At that time, the attending nurse (“K.C.”) threw a blanket by Mr. Cannon's head, and left the room. Id. Once again the facility doctor was not notified, as required by Correctional Medical Care's policy. Id. In addition, the Commission specifically notes that nurse K.C “failed to conduct a basic nursing and neurological assessment on a patient with obvious signs and symptoms of a neurological crisis.” Id.

         Mr. Cannon was left in the same position until 4:30 a.m. Id. At that point he was attended to by nurse K.C., who then finally called the facility doctor; the doctor immediately ordered that the inmate be brought to the Albany Memorial Hospital via emergency squad. Id. At 4:57 a.m., Colonie EMS arrived at the Albany County Jail and Mr. Cannon was transported to Albany Memorial Hospital in critical condition. Id. at p. 6. As a result of suffering a brain stem stroke and cerebral strokes, Mr. Cannon was declared dead on August 30, 2014. Id.

         The Commission of Correction Final Report was highly critical of the care, or notably the lack of care, provided to Inmate Mark Cannon by the Albany County Jail's medical staff, and in particular two nurses employed by Correctional Medical Care, Inc. As the Commission noted:

For over a 12-hour period, Mark Cannon had a progressively deteriorating neurological situation that was completely disregarded by nursing staff despite dramatic signs and symptoms of an active neurological emergency and Cannon's repeated requests for medical care. In this matter, there was a total failure of the Registered Nurses to perform adequate nursing assessments and neurological nursing assessments on the patient, failure to recognize dramatic signs of a life threatening neurological emergency, failure to request physician assistance or emergency care, and a failure to follow the policies and procedures of the contracted medical provider Correctional Medical Care, Inc.

Id. at p. 2.

As summarized by the Commission:
The Medical Review Board has found the medical care provided to Cannon was so grossly inadequate demonstrating a callous disregard of a patient in a life threatening ...

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