Strong v. Zucker

582 F.Supp.3d 65

Michael Corrin STRONG, Plaintiff,

v.Howard ZUCKER, MD, in his Official Capacity as Commissioner of the New York State Department of Health, Defendant.

21-CV-6532L

United States District Court, W.D. New York.

Signed January 27, 2022

Michael Corrin Strong, Geneseo, NY, for Plaintiff.

Michele Romance Crain, New York State Attorney General's Office Department of Law, Rochester, NY, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

Plaintiff Michael Corrin Strong, appearing pro se , commenced this action on August 10, 2021. He filed an amended complaint on October 14, 2021.

In the original complaint, plaintiff sued the Commissioner of the New York State Department of Health ("DOH"), challenging a regulation issued by DOH in response to the COVID-19 pandemic, 10 N.Y.C.R.R. 66-3. That regulation generally concerned the wearing of face masks in public. Plaintiff also challenged New York State's ("State") creation and promotion of the "Excelsior Pass," a means for individuals to maintain an electronic record and show proof of their vaccination histories. Plaintiff asserted that those measures violated the equal protection rights of unvaccinated individuals, particular those with "natural immunity" as a result of their having previously contracted and recovered from COVID. He also alleged that defendants’ actions violate the Nuremberg Code, a set of medical principles for ethical human experimentation laid out in an opinion issued by one of the military tribunals at the Nuremberg Trials of Nazi doctors convicted of war crimes and crimes against humanity for conducting medical experiments on persons against their will. See Abdullahi v. Pfizer, Inc. , 562 F.3d 163, 177-78 (2d Cir. 2009).

On August 27, 2021, DOH repealed the challenged face-mask regulation. Plaintiff then filed an amended complaint (Dkt. #7), which he states "completely replaces the original complaint," id. ¶ 9. In the amended complaint, plaintiff states that he "agrees to drop his objection" to the now-repealed "mask mandate," but he reasserts his claims concerning the Excelsior Pass. Plaintiff requests declaratory and injunctive relief requiring the State to end the Excelsior Pass program, and to recognize "natural immunity" as being at least as efficacious as vaccination in preventing the spread of COVID-19. Plaintiff also seeks to enjoin the State from enacting or enforcing any regulations or programs that draw a distinction, or that permit the Health Commissioner to draw a distinction, between vaccinated and unvaccinated persons.

On December 13, 2021, the Court granted defendants’ request for an extension of time to answer or otherwise respond to the complaint (to which plaintiff had consented), and directed defendants to answer or otherwise move against the complaint on or before January 12, 2022. (Dkt. #11.) On December 15, however, plaintiff filed a motion for a temporary restraining order ("TRO") and preliminary injunction (Dkt. #11) ("injunction motion"). In that motion, plaintiff challenges what he describes as "sweeping new regulations" issued by the State on December 10, 2021.

That appears to be a reference to the Health Commissioner's determination letter issued on that date, which states in part that "all persons, over age two and able to medically tolerate a face covering/mask, regardless of vaccination status, shall wear an appropriate face covering/mask while in any indoor public place," and that "[t]his requirement shall not apply to any indoor public area that requires proof of vaccination as a condition of entry." See Health Commissioner's December 10, 2021 Determination on Indoor Masking Pursuant to 10 NYCRR 2.60 (Def. Ex. I). On January 13, 2022, the Commissioner issued another determination letter (available at https://coronavirus.health.ny.gov ), extending those restrictions until February 1, 2022. It is not clear at this point whether the requirements will then be lifted, modified or extended again.

On January 5, 2022, this Court issued an Order (Dkt. #22) granting in part defendants’ request for an extension to respond both to plaintiff's injunction motion and the amended complaint. The Court directed defendants to respond to the injunction motion by January 17, 2022, and to answer or move against the amended complaint no later than February 14, 2022.

Defendants filed their response to the injunction motion on January 18, 2022. This Decision and Order constitutes the Court's decision with respect to the injunction motion.

DISCUSSION

I. Recent State Court Developments

On January 24, 2022, Justice Thomas Rademaker of the New York State Supreme Court, Nassau County, issued a decision and order ruling that " 10 NYCRR §§ 2.60; 2.60(a) is a law that was promulgated and entered unlawfully by an Executive branch state agency, and therefore void and unenforceable as a matter of law." Demetriou v. N.Y.S. Dep't of Health , No. 616124/2021.¹

Section 2.60(a), which the state court described as a "rule," gives the Health Commissioner the authority to issue findings and directives concerning when and under what circumstances persons may be required to wear face coverings in certain settings. The rule also provides that those requirements "may distinguish between individuals who are vaccinated against COVID-19 and those that are not vaccinated." The Commissioner's December 10 Determination Letter cited § 2.60 as authority for her determination on indoor masking.

Justice Rademaker's order goes on to enjoin the Governor and the Commissioner of Health from enforcing §§ 2.60 and 2.60(a), and from enforcing the Commissioner's December 10 directive. The state filed an appeal from Justice Rademaker's decision the same day it was issued. On January 25, 2022, Justice Robert J. Miller of the Appellate Division, Second Department, issued an order staying the Supreme Court's decision and order, pending a show-cause hearing on January 28.²

Regardless of the outcome of the appeal, obviously the last word has not been written on this matter in the New York state courts; proceedings will continue for at least the near future. In addition, plaintiff in the case at bar has presented claims (such as his challenge to the Excelsior Pass) that are apparently not at issue in the Demetriou case. I do not believe, then, that the Demetriou decision or appeal either renders this case moot or presents any other obstacle to this Court proceeding with the instant case. If further developments in Demetriou or elsewhere could have a material effect on the present litigation, it is incumbent on the parties to inform this Court of that fact.

II. Standard for Granting Preliminary Injunctive Relief

Plaintiff's motion is styled as one for both a temporary restraining order and a preliminary injunction. Although there are some differences between the two, see generally Fed. R. Civ. P. 65, the standards for granting either form of relief are generally the same. See Local 1814, Int'l Longshoremen's Ass'n AFL-CIO v. N.Y. Shipping Ass'n, Inc. , 965 F.2d 1224, 1228 (2d Cir. 1992) ; 1077 Madison St., LLC v. March , No. 14-CV-4253, 2017 WL 6387616, at *2 (E.D.N.Y. Aug. 22, 2017), aff'd sub nom. 1077 Madison St., LLC v. Daniels , 954 F.3d 460 (2d Cir. 2020). Since plaintiff seeks injunctive relief, and the motion has been made on notice to the opposing party, the Court will treat the motion as a motion for a preliminary injunction.

"To obtain a preliminary injunction the moving party must show, first, irreparable injury, and, second, either (a) likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships decidedly tipped in the movant's favor." Green Party of New York State v. New York State Bd. of Elections , 389 F.3d 411, 418 (2d Cir. 2004). The " ‘serious questions’ prong is also frequently termed the ‘fair ground for litigation’ standard." N.A.A.C.P., Inc. v. Town of East Haven , 70 F.3d 219, 223 (2d Cir. 1995). Where the challenged action or the proposed relief implicates the public interest, that aspect may also be considered. See Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; WPIX, Inc. v. ivi, Inc. , 691 F.3d 275, 287 (2d Cir. 2012). Whether to grant a preliminary injunction is committed to the discretion of the district court. Christian Louboutin S.A. v. Yves Saint Laurent America Holdings, Inc. , 696 F.3d 206, 215 (2d Cir. 2012).

The Court of Appeals for the Second Circuit has stated that "[t]he showing of irreparable harm is perhaps the single most important prerequisite for the issuance of a preliminary injunction, and the moving party must show that injury is likely before the other requirements for an injunction will be considered." Kamerling v. Massanari , 295 F.3d 206, 214 (2d Cir. 2002) (internal citations and quotations omitted). "To establish irreparable harm, a party seeking preliminary injunctive relief must show that there is a continuing harm which cannot be adequately redressed by final relief on the merits and for which money damages cannot provide adequate compensation. And, irreparable harm must be shown to be actual and imminent, not remote or speculative." Id. "Where a plaintiff does not establish irreparable harm, the court need not address the other factors necessary for the issuance of injunctive relief." Mrs. U.S. Nat'l Pageant, Inc. v. Williams , 353 F.Supp.3d 213, 217-28 (W.D.N.Y. 2019) (internal quotation marks omitted). See also Walters v. T & D Towing Corp. , No. 17-CV-681, 2017 WL 1184169, at *4 (E.D.N.Y. Mar. 29, 2017) ("Because [p]laintiff has not demonstrated that she will suffer irreparable harm absent injunctive relief, the [c]ourt need not consider whether there is a likelihood of success on the merits of her claims").

III. Application to this Case

A. Irreparable Harm

Regardless of the merits of plaintiff's claim, his motion for preliminary injunctive relief fails for the simple reason...