United States District Court, N.D. New York
TRACY CANNON, Administratrix of the Estate of Mark Cannon, Jr., Plaintiff,
CORRECTIONAL MEDICAL CARE, INC., et al., Defendants.
MEMORANDUM-DECISION AND ORDER
J. STEWART United States Magistrate Judge.
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. 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.
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
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.
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.
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.
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.
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.
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.
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 ...