] FI.LE.9 zt EP;%E3, ijj.7 STATE OF MAINE PENOBSCOT, SS. I i SUPi,-.10FgQ!jST i SUPERIORCOURT I I Docket No. CV-05-262 PlQV 3 3 2005 1 .
GLEN ROSS, Penobscot C o r / n ~ ~ Sheriff ., 1 Fi\'(?BSZOT ~ Q ~ H IIT Y I
Plaindf 1 1 1 ORDER ON MOTION TO DISOLVE v. ) TEMPORARY RESTRAINING ORDER 1 @ ,' ) p, JAMES EMERSON, 1 Defendant. 3d C The Defendant moves to dissolve the ex parte Temporary Restraining Order issued by t h s court on October 28, 2005. At the hearing held on the date noted below, the parties agree that the current record consists only of the affidavit submitted in support of the TRO. The parties also a g r e d to the following stipulation:
The Defendant was transported t o the hospital by Sheriff's Office personnel for the purpose of obtaining the forced nutrition as noted in the October 28, 2005, Order shortly after its issuance. However, the hosp~talrefused t o administer the forced nutrition because the Defendant did not meet, in the opinion o f the hospital officials, their criteria for such intervention. The Defendant was returned t o the Penobscot County Jail without LI eatrnent.
The Defendant attended the November 3,2005, hearing and did not speak, but was observed by the court to be notably pale and withdrawn. His affect was unremarkable.
The Defendant does not focus upon the merits of the underlying issues, but challenges the sufficiency of the affidavit to established the elements necessary for the issuance of a temporary restraining order. Indeed, both parties welcome the full inquiry into the facts of the matter which would be afforded by the hearing on preliminary injunction which ordinarily would occur next in these proceedings.
The prerequisites for the issuance of injunctive relief are well established. As provided in Rule 65(a) and annunciated in the case of Danish Health Club, Inc. v. Town of Kitter~,562 A. 2d 663 (Me. 1989), the proponent of ex parte injunctive relief has the burden of demonstrating: (1)that plaintdf wdl suffer irreparable injury if the injunction is not granted, (2) such injury outweighs any harm which granting the injunctive relief would inflict on the defendant, (3) plaintiff has exhibited a likelihood of success on the merits (at most, a probability; at least, a substantial possibility), and (4) the public interest wdl not be adversely affected by grantin,gthe injunction. The Defendant argues that one or more 3f these elements is notably missing from the affidavit whch the Plaintdf submitted in support of h s request. For example, the Defendant points out that the affiant never 13xpresslystates that the Plaintdf w d suffer irreparable harm if the injunction is not granted. Whde this statement is superficially correct, Defendant fads to acknowledge that the court may draw reasonable Inferences from the facts asserted in the affidavit when undertaking the Rule 65(a) analysis.
As an example, the affidavit states that th.e Defendant told the affiant that he was undertaking a hunger strike because he had not~hngto lose. See Affidavit of Alfred Cichon at paragraph 12. From the four corners of these facts, the court infers that the Defendant is refusing to take life-sustaining sustenance as a result of a sense of hopelessness. The court further infers that the inevitable end result of such a course of action would be the Defendant's death unless sc:bme intervention occurs.
The court addresses the Rule 65(a) criteria as follows:
1. Irreparable harm
The Defendant argues that the hunger strike, if carried to its ultimate conclusion, will result in the & death, not the Plainhff's. Upon this analysis, the Defendant argues, no harm befalls the Plaintdf.
His argument ignores the unique responsibilities whch the law imposes upon the Plainhff. As Sheriff, the Plainhff is charged with the obligation to take reasonable measures to maintain the wellbeing of individuals in h s custody. It matters not whether the individual is being held after being c&victec-! of a crime, before conviction, or upon some civil process - the duty applies across the board. While the law imposes no duty upon a private citizen to intervene in a suicide attempt by a person in h s or her presence, the Sheriff has no such luxury of inaction regarding h s inmates.
The Sheriff cannot - by law - turn a blind eye to circumstances withn h s knowledge which threaten the wellbeing of individuals in h s custody. This applies equally to circumstances which such individuals bring on themselves. If an overt threat of suicide is brought to his attention, the Sheriff ~ n u stake t reasonable measures to prevent the inmate from following through on I-usthreat. In the instant matter, the Sheriff has concluded, and the court agrees, that the Defendant's stated intention to discontinue life-sustaining sustenance constitute:: a suicide threat.
If the Sheriff fails to take reasonable steps to intervene after he is aware that a suicide attempt is being undertaken, he fails to d .scharge h s constitutional duties. Among a host of repercussions is the fact that he (and the county) would be immediately liable in a civil wrongful death action.' As death is undeniably final, the harm is irreparable. The first of the Rule 65(a) criteria is clearly m e t by this circ~mstance.~
2. Injury outweighs harm.
None of the parties minimize the invasive nature of a n intravenous needle and a naso- gastric tube. Both involve painful and unp1easa:~tintrusions into the body. Although n o long term adverse effects of these intervention:; are suggested b y either party, the court is satisfied that they constitute "harm" in the legal context.3
However, when the court weighs the injury to the Plaintiff (a presumptively valid wrongful death claim and the ramificatio tls of a failure to discharge constitutional duties) against the h a r m to the Defendant (unpleasant medical procedures), the court resolves t h e issue in favor of the Plaintdf - the injury to the Plaintiff outweighs the harm to the Defendant.
3. Likelihood of success.
Although this appears to be a case of firs,t impression i n the State of Maine, it has been well explored in other jurisdictions a n d a f 2irly sigruficant body of law exists o n the subject. After reviewing the law (particularl.'i a n extremely simdar matter decided by the N e w H a m p s h r e Supreme Court i n 1984 1,4the court is quite persuaded by the reasoning of the decisions w h c h consistently hc ~ l dthat forced nutrition is appropriate relief. The Plainbff will presumably succeed upon the Complaint.
4. Public interest.
The public interest is not adversely affected - indeed it is well served - by a public official undertaking a course of action to 1)revent self-harming behaviors undertaken by a person i n his custody. O n a mere practical level, the public interest is not adversely affected - again it is well served - by a public official taking steps to
1 Although the court does not reach this issue, some I1:gal scholars may argue that a Sheriff could be criminally liable for a homicide crime if he is considered to be complicit in an inmate's suicide efforts. Courts which have reviewed similar situations have concluded that the extraordinary steps which jails and prisons must take when confronted b;, hunger strikes also constitute harm. Also, if one prisoner is able to subvert the legal or institutic~nalprocess, there is a significant possibility that the practice will be duplicated by other prisoners to the point where the orderly operation of the facility is impossible. This prospect constitutes ar~othertype of prospective harm which cannot be ignored.
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] FI.LE.9 zt EP;%E3, ijj.7 STATE OF MAINE PENOBSCOT, SS. I i SUPi,-.10FgQ!jST i SUPERIORCOURT I I Docket No. CV-05-262 PlQV 3 3 2005 1 .
GLEN ROSS, Penobscot C o r / n ~ ~ Sheriff ., 1 Fi\'(?BSZOT ~ Q ~ H IIT Y I
Plaindf 1 1 1 ORDER ON MOTION TO DISOLVE v. ) TEMPORARY RESTRAINING ORDER 1 @ ,' ) p, JAMES EMERSON, 1 Defendant. 3d C The Defendant moves to dissolve the ex parte Temporary Restraining Order issued by t h s court on October 28, 2005. At the hearing held on the date noted below, the parties agree that the current record consists only of the affidavit submitted in support of the TRO. The parties also a g r e d to the following stipulation:
The Defendant was transported t o the hospital by Sheriff's Office personnel for the purpose of obtaining the forced nutrition as noted in the October 28, 2005, Order shortly after its issuance. However, the hosp~talrefused t o administer the forced nutrition because the Defendant did not meet, in the opinion o f the hospital officials, their criteria for such intervention. The Defendant was returned t o the Penobscot County Jail without LI eatrnent.
The Defendant attended the November 3,2005, hearing and did not speak, but was observed by the court to be notably pale and withdrawn. His affect was unremarkable.
The Defendant does not focus upon the merits of the underlying issues, but challenges the sufficiency of the affidavit to established the elements necessary for the issuance of a temporary restraining order. Indeed, both parties welcome the full inquiry into the facts of the matter which would be afforded by the hearing on preliminary injunction which ordinarily would occur next in these proceedings.
The prerequisites for the issuance of injunctive relief are well established. As provided in Rule 65(a) and annunciated in the case of Danish Health Club, Inc. v. Town of Kitter~,562 A. 2d 663 (Me. 1989), the proponent of ex parte injunctive relief has the burden of demonstrating: (1)that plaintdf wdl suffer irreparable injury if the injunction is not granted, (2) such injury outweighs any harm which granting the injunctive relief would inflict on the defendant, (3) plaintiff has exhibited a likelihood of success on the merits (at most, a probability; at least, a substantial possibility), and (4) the public interest wdl not be adversely affected by grantin,gthe injunction. The Defendant argues that one or more 3f these elements is notably missing from the affidavit whch the Plaintdf submitted in support of h s request. For example, the Defendant points out that the affiant never 13xpresslystates that the Plaintdf w d suffer irreparable harm if the injunction is not granted. Whde this statement is superficially correct, Defendant fads to acknowledge that the court may draw reasonable Inferences from the facts asserted in the affidavit when undertaking the Rule 65(a) analysis.
As an example, the affidavit states that th.e Defendant told the affiant that he was undertaking a hunger strike because he had not~hngto lose. See Affidavit of Alfred Cichon at paragraph 12. From the four corners of these facts, the court infers that the Defendant is refusing to take life-sustaining sustenance as a result of a sense of hopelessness. The court further infers that the inevitable end result of such a course of action would be the Defendant's death unless sc:bme intervention occurs.
The court addresses the Rule 65(a) criteria as follows:
1. Irreparable harm
The Defendant argues that the hunger strike, if carried to its ultimate conclusion, will result in the & death, not the Plainhff's. Upon this analysis, the Defendant argues, no harm befalls the Plaintdf.
His argument ignores the unique responsibilities whch the law imposes upon the Plainhff. As Sheriff, the Plainhff is charged with the obligation to take reasonable measures to maintain the wellbeing of individuals in h s custody. It matters not whether the individual is being held after being c&victec-! of a crime, before conviction, or upon some civil process - the duty applies across the board. While the law imposes no duty upon a private citizen to intervene in a suicide attempt by a person in h s or her presence, the Sheriff has no such luxury of inaction regarding h s inmates.
The Sheriff cannot - by law - turn a blind eye to circumstances withn h s knowledge which threaten the wellbeing of individuals in h s custody. This applies equally to circumstances which such individuals bring on themselves. If an overt threat of suicide is brought to his attention, the Sheriff ~ n u stake t reasonable measures to prevent the inmate from following through on I-usthreat. In the instant matter, the Sheriff has concluded, and the court agrees, that the Defendant's stated intention to discontinue life-sustaining sustenance constitute:: a suicide threat.
If the Sheriff fails to take reasonable steps to intervene after he is aware that a suicide attempt is being undertaken, he fails to d .scharge h s constitutional duties. Among a host of repercussions is the fact that he (and the county) would be immediately liable in a civil wrongful death action.' As death is undeniably final, the harm is irreparable. The first of the Rule 65(a) criteria is clearly m e t by this circ~mstance.~
2. Injury outweighs harm.
None of the parties minimize the invasive nature of a n intravenous needle and a naso- gastric tube. Both involve painful and unp1easa:~tintrusions into the body. Although n o long term adverse effects of these intervention:; are suggested b y either party, the court is satisfied that they constitute "harm" in the legal context.3
However, when the court weighs the injury to the Plaintiff (a presumptively valid wrongful death claim and the ramificatio tls of a failure to discharge constitutional duties) against the h a r m to the Defendant (unpleasant medical procedures), the court resolves t h e issue in favor of the Plaintdf - the injury to the Plaintiff outweighs the harm to the Defendant.
3. Likelihood of success.
Although this appears to be a case of firs,t impression i n the State of Maine, it has been well explored in other jurisdictions a n d a f 2irly sigruficant body of law exists o n the subject. After reviewing the law (particularl.'i a n extremely simdar matter decided by the N e w H a m p s h r e Supreme Court i n 1984 1,4the court is quite persuaded by the reasoning of the decisions w h c h consistently hc ~ l dthat forced nutrition is appropriate relief. The Plainbff will presumably succeed upon the Complaint.
4. Public interest.
The public interest is not adversely affected - indeed it is well served - by a public official undertaking a course of action to 1)revent self-harming behaviors undertaken by a person i n his custody. O n a mere practical level, the public interest is not adversely affected - again it is well served - by a public official taking steps to
1 Although the court does not reach this issue, some I1:gal scholars may argue that a Sheriff could be criminally liable for a homicide crime if he is considered to be complicit in an inmate's suicide efforts. Courts which have reviewed similar situations have concluded that the extraordinary steps which jails and prisons must take when confronted b;, hunger strikes also constitute harm. Also, if one prisoner is able to subvert the legal or institutic~nalprocess, there is a significant possibility that the practice will be duplicated by other prisoners to the point where the orderly operation of the facility is impossible. This prospect constitutes ar~othertype of prospective harm which cannot be ignored. As these procedures would be taken over the Defen1:lant's objection, they would constitute assault as defined in the civil and criminal law absent any immunity authorized by the court. 4 See In re Joel Caulk, 480 A.2d 93 (N.H. 1984). discharge his constitutional duties and thus avc ,id financial liability for any failure to do SO.
The Defendant argues that the public has an interest in avoiding intrusive procedures undertaken by public officials. He offers the example of routine strip searches by law enforcement officers. However, strip searches are not analogous in any manner to the circumstances before the court. Courts whch have reviewed situations analogous to the case at bar find no violation of constitutionally guaranteed rights by imposing forced nutrition. As such no public ir~ terest is adversely affected by the injunctive relief sought in the instant matter.
As before, the court is satisfied that injutlctive relief is appropriate upon these circumstances. While it is difficult to precisely d 2termine the urgency of the necessity of forced nutrition,5 the court remains convinced :hat the standing order must continue: the Defendant is ordered to submit to the forcc d nutrition, the forced nutrition must be undertaken in the least intrusive manner available, and any party administering the nutrition is immune to civil or criminal responsibility for their efforts in such regard.
As noted by the parties, this Order does not require any medical provider to act in any particular manner (although their actions are subject to court imposed immunity). The court amplifies its earlier Orde! to provide that Defendant needs to submit only to forced nutrition which is administered at a recognized hospital or fully equipped medical facility by personnel who ro~.!tinely administer intravenous needles and naso-gastric tubes. The court's earlier Order otherwise remains in full force and effect.
The matter will be set for an evidentiary hearing on a preliminary injunction as soon as the parties can be ready for such a hearing. Presumably medical testimony w~ll be offered at such a hearing. The Clerk will con lmunicate with the parties to arrange a mutually convenient time and date for the hearing.
The Clerk mav incorvorate J 1 this Order uvon the docket bv reference.
Dated: November 3, 2005
~ n & e wM. Mead TUSTICE, MAINE SUPERIOR COURT
5 The earlier Order was issued upon an emergent ex 1)arte basis upon the perception of the court (drawn from inferences from allegations of the affid. .vit) that harm was imminent. The Defendant's attorney's assertions that harm is not irr~minentbecause the hospital declined to administer forced nutrition and the Defendant appea, ed to be functioning adequately in court are unavailing. In the absence of greater medical detail, the court continues to consider that harm is imminent. 11/03/2005 MAINE JllDICIAL 1NFORMAT:I:ON SYSTEM ksrni t h PENOBSCOT COUNTY SUPERICIR COURT rrlj x x i 048 CASE PARTY ADDRESS EiOOK GLENN ROSS VS JAMES EMERSON UTN:AOCSsr -2005-0110046 CASE #:BANSC-CV-2005-00262
GLENN ROSS PL ATTY MALLONEE, BRUCE T e l # (207) 947-4501 ATTY ADDR:84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401 ATTY BUDD, CHARLES F . T e l # (207) 947-4501 ATTY ADDR:84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401
JAMES EMERSON ATTY THISTLE, DALE F. T e l # (207) 368-7755 ATTY ADDR:PO BOX 160 NEWPORT ME 04953-0160
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