Hill v. Department of Corrections

fact, offered, accepted, she was what Dwayne HILL, Appellant

appears to have been reasonable accom- However, modation: a retest. there is no actually Petitioner evidence record that DEPARTMENT OF CORRECTIONS. agreed upon BTA returned to for her rea- Pennsylvania. Commonwealth Court sonable accommodation. Conclusion 15, Jan. Submitted Briefs 2010. Decided 2010. April

It is the view of Court that Petition- er pleading requirement failed to meet the filing “specificity” Appeal SCSC

Request required by Form as Section

105.12(c) Rules, of the Civil Service in that merely proclaimed

she race disability general through

discrimination and conclu-

sory are allegations which insufficient as a not,

matter of law. She did and could

“identify that would indicate acts/facts”

disparate race, treatment because of her not “identify did that would acts/facts” provide

indicate a failure to a reasonable (a known disability

accommodation for a

disability still, yet which is to be identified determined). all

For of the reasons set out in this

Opinion, the Order of the af- SCSC is

firmed.

ORDER NOW, day

AND of April, this 7th August 2009 Order of the State

Civil Service Commission affirmed. Hill, pro

Dwayne appellant, se. MacIntyre, Robert B. Asst. Counsel Hueston, Counsel, Camp N. Suzanne Chief Hill, appellee. LEADBETTER,

BEFORE: President tion necessary pre- SIMPSON, Judge, Judge, and serve Hill’s health and life. The complaint McCullough, Judge. alleged Hill history had recent of engag- ing strikes, in hunger during and his most Judge OPINION BY SIMPSON. hunger recent strike he 24 missed consecu- (Hill), appeal, Dwayne

In this Hill an tive meals. a engaged inmate who has series of early-June, In granted the trial court strikes, hunger asks whether the Court of DOC’s application parte for ex preliminary (tri- Huntingdon County Pleas Common injunction hearing and scheduled a a few court) in issuing preliminary al erred days later. injunction authorizing testified, hearing, At the Hill and DOC (DOC): (1) involuntarily Corrections ex- confirmed, Hill Hill eating. resumed perform diagnostic amine and invasive also assured the trial court he would con- blood including tests and urine tests on result, tinue to eat. As a the trial court him, (2) administer and medical treat- denied request DOC’s for a preliminary ment nutrition including and as injunction, it but hearing directed a be may in opinion of the staff medical be scheduled Hill response after filed a necessary preserve his and health life. DOC’s complaint. himself, Representing Hill argues trial issuing court erred in the injunction be- thereafter, Shortly Hill filed preliminary cause DOC lacked standing to seek the objections to DOC’s complaint. In addi- requested relief and because DOC had an tion, requested DOC reconsideration of the adequate at remedy law. trial court’s preliminary injunc- denial of tion. Another hearing ensued before the

Upon review, reject Hill’s conten- trial court at which presented DOC However, tions. we conclude DOC did not Everhart, testimony of Patricia an SCI present support sufficient evidence to registered (Nurse supervisor nurse Super- determination that Hill’s health was at visor) Shoaf, and Phillip Dr. medical di- such imminent risk so justify as to SCI-Huntingdon (Physician). rector at involuntary administration nutrition hydration. further We conclude the evi- that, Nurse Supervisor testified as of the presented dence was sufficient to allow testimony, time of her Hill missed 42 con- to involuntarily DOC Hill examine and secutive meals refused offers of water tests, diagnostic including invasive as well requests to monitor his vital Thus, blood and urine tests. we affirm as signs weight. Physician testified he modified. Hill daily, visits Hill routinely refuses re- examinations, for quests physical

Hill currently is and Hill serving a life sentence had eaten in days. at SCI-Houtzdale. Since Hill has engaged in a number of hunger strikes. Hill the hearing attended engaged

In late-May Hill began another the trial dialogues. court various Al- thereafter, Shortly strike. though he raised various objections, Hill a complaint, prelimi- filed a motion for did not raise a claim religious freedom nary injunction and an application liberty ex or of to privacy or of a inter- parte injunction through preliminary which support est to his decision not eat. sought fact, permit its staff express medical Hill did not a desire to die. Hill, involuntarily Instead, examine Hill expressed administer Hill dissatisfaction with treatment, medical supply nutri- his housing restricted unit placement and Township Appeal, 651 A.2d expeditiously more Britain DOC to the failure of (Pa.Cmwlth.1994). insti- of a object correctional The sole him to another transfer Testimony of June preliminary injunction preserve hearing and determined. Id. the DOC to: it is nei- upon preliminary injunction, a inva- examine and involuntarily the necessary proper ther to decide nor and including tests blood diagnostic sive Id., though hearing. case as on final on and administer [Hill] urine tests [to] citing Topito, Dist. v. Crestwood Sch. nutrition including treatment medical (1983). Pa.Cmwlth. A.2d 1247 in opinion the hydration and as injunction preliminary A cannot serve as pre- necessary staff be to the medical defi- a on the merits since judgment life. health and serve his remedy granted nition it is a temporary Order, 6/29/09, C.R., # Item 5. Tr. Ct. dispute the party’s until that time when to appealed this Court. Brit- completely can be resolved. Little issued an subsequently The trial court Township Appeal. ain support Citing of its opinion in order. Welfare, Farview Public Dist., Chipman v. Avon Sch. Grove Kallinger, 134 Pa. Hospital Cmwlth.2004). State (Pa. A.2d 1098 (1990) (single Cmwlth. 580 A.2d granting prelimi- We review order a J.), the trial judge Pellegrini, opinion nary to injunction determine whether injunction it issued the be- court stated grounds appear not for the reasonable duty a to cause the Commonwealth has preliminary injunction, the granting of prisoners welfare protect the health and dispute. the not to merits of the pass and to treat- provide appropriate medical To a preliminary injunction, Id. sustain pre- ment. The trial court stated DOC clear, right plaintiffs to relief must be compelling justify sented evidence to immediate, relief be need for must order entered. This matter is now before in- injury irreparable must be if the disposition. us for Additionally, junction granted. Id. is outset, note, At the trial court’s greater injury we often consider whether granting requested relief order DOC’s was refusing injunction will occur from request in for response entered DOC’s injunc- it granting than and whether the of the trial court’s denial of reconsideration parties quo tion returns the to the status injunction. for request preliminary DOC’s alleged wrongful existed before the Therefore, under is an order review conduct. Id. injunction. a granting preliminary order request regard With to the issuance of a On Hill contends the trial court appeal, preliminary injunction, for a this Court has failing in his preliminary erred sustain explained: objections in which he asserted: DOC relief; standing injunctive lacked seek injunction put

A is to preliminary constitutionally protected right he has keep position matters in the in which a and, therefore, engage strikes they improper were before the conduct legally complaint of the defendant commenced. Little DOC’s insufficient claim; and, adequate state a DOC had an prison system administration is remedy at law in the nature of an paramount action over right residual or an damages privacy action under Mental that Kallinger has which would (MHPA).1 privacy Health Procedures Act make it an invasion on the part the Commonwealth to force feed argues Hill first DOC lacked him. standing requested injunction. seek 'presented, narrow issue then to us argues In response, Kallinger2 whether Commonwealth has a held this Court the Commonwealth has right to a competent prisoner with- force prisoner to force within the Com- in the penal system Commonwealth’s penal system monwealth’s to receive invol- receive involuntary medical treatment untary medical treatment and nutrition hydration nutrition and through a through feeding tube. It nasogastric feeding tube. To decide this contends Hill does not assert Kallinger issue, a balancing is employed, test bal- and, therefore, improperly was decided ancing the Commonwealth’s interests ruling should reaffirm our in prior that against prisoner’s remaining right to case and affirm the trial court here. Upon privacy. review, persuaded we are Kallinger added) (citation Id. at 890 (emphasis decided, properly and we confirm its omitted). and footnote In holding the holding apply it here. Commonwealth had the right to compel Kallinger, of Public involuntary medical treatment and nutri- (DPW) sought declaratory Welfare judg- tion, Judge Pellegrini determined the authorizing involuntary ment adminis- Commonwealth: had an “overwhelming in- tration of necessary nutrition and medical in maintaining terest” prison security, or- Joseph treatment to Kallinger, inmate 890; der and discipline, id. at had a strong Hospital, housed at Fairview State who interest in maintaining the health and safe- accept refused to nutrition and medical ty prisoners of in custody its based on its decision, treatment. At the outset of his related interests in the preservation of hu- Judge Pellegrini explained: man life and the prevention suicide; upon We are called to decide a sensi- and, had an interest in maintaining the tive matter which precedent is without integrity psychiatric and medical in this Commonwealth.... Kallinger professions working penal sys- within the wants to starve himself to death. Thus, Judge Pellegrini tem. ordered the [DPW], custody, who has wants to force facility at issue could “and must continue him to involuntarily receive through food provide appropriate nutrition through a a nasogastric tube and other medical nasogastric tube and appropriate medical treatment. We if must decide [DPW] to ... Kallinger care long so as he contin- has such right. ues refuse nutrition and medical treat- 893;

ment.” Id. at see also Lantz v. Cole- man, this case What concerns is whether the Conn.Supp. 978 A.2d 164 (2009) orderly Commonwealth’s interest in an (granting temporary injunction au- 9, 1976, amended, 414), July 1. Act of § P.L. as single-judge opinion, report- even if §§ ed, P.S. 7101-7503. value, shall persuasive be cited for its binding precedent. as (Common- § 2. Pursuant to 210 Pa.Code 67.55 Operating wealth Court Internal Procedure had to be as be proceedings further of corrections department thorizing state circumstances.”) (Empha- hunger just in under the engaged inmate force-feed added) in department’s may proceed on interests The trial court strike based sis maintaining prison stage a time preservation injunction of life permanent particularly where security discipline, regarding information additional when in strike engaging hunger in goal inmate’s available war- Hill’s condition becomes state); Wood, Peter manipulate towas such relief. rants Comment, Medical Right to Refuse argues Hill the trial Alternatively, Disparate Treatment Treatment: Courts’ failing in erred to dismiss DOC’s court Patients, 112 Penn. St. L. Incarcerated entirety pro in its on his complaint based (2008) (recognizing numerous Rev. right First Amendment to freedom tected denied inmates courts have matter expression. Hill asserts this treatment based unwanted medical refuse authority in abuse of stems from DOC’s preservation state interests such as as tool using solitary confinement discipline within a internal order and designed prisoner’s break repression the maintenance institutional prison and “sub-hu conditions that are will resist security). and, man, in illegal” pro degrading Here, Kallinger, the record reveals as test, strike, a hunger cogni he initiated a engaged strikes repeatedly Appellant’s Br. expression. zable form of and, hearing, he the trial court reject argument. at 6. We 2-3, at 42 consecutive meals. N.T. missed Kallinger, in we believe DOC’s 7-8. As Merely person because a is incar maintaining security, prison in or- interest him all of his deprive cerated does not of discipline, pre- and interest in and its der Thornburgh v. Ab rights. constitutional safety serving prisoners, health and of the 1874, bott, 109 S.Ct. U.S. equal outweigh any force and apply with (1989). However, “[individu L.Ed.2d 459 by Hill. Before the privacy right claimed may freedoms be curtailed whenever al however, court, present did not trial DOC officials, prison in of their in exercise Hill’s life was in imminent evidence that discretion, reasonably conclude formed hydra- and danger absent forced nutrition likelihood possesses that their exercise the Thus, decree fashioned the tion. the stability prison or or disrupting of order However, overly broad. trial court interfering legitimate with the otherwise that, evidence at the time present DOC did objectives envi prison of the penological hearing, opportunities Hill refused Kallinger, at 890-91. ronment.” 580 A.2d and refused to allow medical for water hearing At the before trial court signs weight. vital and staff monitor his here, that his act of Hill did not assert at we believe Consequently, N.T. 7-8. hunger represented in a strike engaging appropriate modify the trial court’s it is free constitutionally form of ex- protected only as to authorize order so event, In we pression. any believe involuntarily examine and invasive to freedom of curtailment Hill’s diagnostic including tests on Hill blood and against (autho- justified when viewed expression § urine tests. See Pa.C.S. maintaining orderly “affirm, DOC’s needs in an rizing court to modi- appellate an facility safety and and health vacate, prison set or reverse order fy, aside Indeed, review, Holden v. prisoners. in Von brought it for and re- its before 66, 450 N.Y.S.2d 623 entry Chapman, 87 A.D.2d mand the matter direct order, Judge Pellegri- (N.Y.App.Div.1982), appropriate require such such ni cited approval Kallinger, with in damages. Appellant’s Br. at 6. In addi- York, tion, Supreme of New Appellate argues Court complete DOC has a Division, rejected a similar adequate statutory “freedom of remedy under expression” argument raised Mark MHPA. Again, reject we Hill’s assertions. Chapman, serving an inmate a sentence First, as to Hill’s claim that an action for for the murder of former Beatle John Len- damages appropriate constitutes an reme- non attempting who was to starve himself dy, recognize that DOC averred Hill’s in death while a mental institution. The conduct in engaging in the strike in Chapman Court stated: orderly threatened the administration Chapman urges fasting that his was not threat, SCI-Huntingdon. This coupled an attempt suicide but rather symbol- with DOC’s interest in preserving Hill’s speech ic protection entitled life, could not be remedied through an regard, First Amendment. In that monetary action for damages. Hill does he attempting claims he was not explain how an action for monetary public draw attention to the starving damages significant would address these children of the world. Accepting that short, interests. DOC’s interests proposition discussion, for the sake of maintaining orderly correctional institu- only we need remark that Chapman’s tion preserving Hill’s life warrant prisoner status as a renders his First grant injunctive relief here. rights subject Amendment to the rea- Second, regarding Hill’s conten sonable necessary limitations for the tion that proper DOC’s remedy is an ac

maintenance of discipline order MHPA, tion under we note: “The penal prisoner’s institution. Whereas governs provision inpatient [MHPA] right of expression may not be circum- psychiatric treatment involuntary out scribed to an greater extent than that patient treatment.” Commonwealth required for the legitimate pris- ends of Sam, 523, 555, Pa. 565, 597 952 A.2d administration, security on le- those (2008) (quoting Zane v. Hosp., Friends gitimate clearly interests include the 236, 250, 25, (2003)). Pa. 836 A.2d The prevent need to a prisoner’s suicide even purpose the MHPA is “to assure the if in guise cloaked of First Amend- availability adequate per treatment to expression. ment ill, mentally sons who are and to establish 70-71, (citations Id. at 450 N.Y.S.2d 623 procedures to purpose.” effectuate this Id. omitted). agree We with the Court short, here, Chapman. present- In Before trial court DOC’s need to main- Hill tain ed no evidence to institutions, order in its establish he was correctional mental- ly ill subject or otherwise coupled with its to to the prevent need Hill’s MHPA. suicide, Further, brief, justifies the its DOC maintains is claimed restriction on without expression. Hill’s to freedom of evidence suggest applicable MHPA is Appellee’s to Hill. As a point, final Hill contends the such, Br. reject at 7. As we Hill’s argu- trial court erred in granting injunctive re ment provided that MHPA DOC with lief remedy where an adequate at ex law adequate remedy an at law here. end, To isted. Hill argues that “[t]he sum, sole basis for claim is that will [DOC’s] In [it] we conclude that DOC did not suffer financial feeding loss from force present sufficient evidence that Hill’s life and, therefore, [him]” had DOC an ade was in danger imminent absent involun- quate remedy in tary did, the form of an hydration. action nutrition and DOC hydration. How- that, nutrition and tration of at the time

however, present evidence ever, grave is a feeding an inmate opportunities force Hill refused hearing, ethi- legal, that raises substantial medical matter to allow refused for water and which are not cal, questions, and medical weight, signs vital monitor his staff to opinion or de- majority addressed health risk. significant created appeal. Be- in this veloped by parties Therefore, or- modify the trial court’s we involuntary feeding may issue of involuntarily cause the DOC so as authorize der stage injunction the permanent at diagnostic return invasive examine and paHe involving ex proceeding urine in a including blood and tests on 940), I (majority op. at special injunction may proceed The trial court tests. my concerns. separately address at a time when write injunction stage permanent Hill’s regarding information additional the medical with a discussion of begin I and warrants available becomes condition an inmate utilized to feed procedures here, Also, as occurred further relief. A meth his or her will.1 common against injunc- parte special an ex may seek per nasogastric feeding, which is od averring a medical affidavit tion based inserting through the a tube formed harm to irreversible risk “imminent nose, directly into esophagus, into Thus, C.R., Item # 1. body.” [Hill’s] Wood, Comment, The stomach. Peter affirm as modified. Medical Treatment: Right Refuse Incarcerat Disparate Treatment Courts ORDER Patients, L. 112 Penn. St. Rev. 1167 ed (2008). following examples demon As the NOW, day April, 7th AND this has, times, strate, been this method at Pleas of the order of the Court Common manner, in an inhumane caus performed County is AFFIRMED as Huntingdon prisoner. pain and harm the ing of Correc- MODIFIED. may involuntarily per- examine tions Caulk, 125 N.H. case of In re including diagnostic invasive tests form (1984), dissenting opinion 480 A.2d Hill, Dwayne urine tests on but blood and the procedure: this account of contains in- administer medical treatment naso- Mr. in his brief that states Caulk cluding nutrition began on tube-feeding June gastric time. 25, 1984, May the in accordance with relinquished. Jurisdiction is 1984, superior of the preliminary order during No court. novocaine was used Judge OPINION BY CONCURRING a of tube. He suffered the insertion the McCullough. as a pain deal of and discomfort great irritation of the majority the De- result of the constant I with the that agree (DOC) passages. throat and nasal may invol- tube on his of partment Corrections the swallow- Dwayne painful His efforts to resist test Hill and untarily examine and severe ing caused him to suffer sufficient evi- reflex present that failed to due headaches. The tube was removed justify involuntary adminis- dence to Application Ex Parle Pre- prelim- plaint at 3 and for application a complaint 1. The for seeking added). 2) inary injunction DOC was liminary Injunction (emphasis state that at hy- nutrition and authorization administer trial present not evidence in the DOC did otherwise,” may "intravenously or as dration pro- describing precise proceedings court DOC, necessary by preserve be deemed to feed Hill. cedure it intended use 1, (Record and life. item Com- Hill's health of danger procedure to the imminent ulceration vessel. While less harsh than passages. nasogastric feeding, throat and nasal and invasive in- his feeding travenous is difficult to J., In In (Douglas, dissenting). Id. at 99 an who inmate is not sedated and carries a (N.D.Ala. Soliman, F.Supp.2d 1238 re Wood, risk of loss blood and infection. 2001), moot, as vacated F.3d supra-, at 1181. (11th Cir.2002), the court recounted the feeding prisoner an Force creates ethi- following: cal dilemma for medical professionals. [Mjedical personnel initially inserted Association, Medical The World of which nose, his which large tube into did the American Medical Association is a personnel fit. then at- The medical member, has articulated a that policy pro- tempted to insert smaller and smaller feeding scribes the force strik- until bleed- began tubes Soliman’s nose McNabb, (Sanders, ing prisoners. J. dis- internally. The doctor ing ordered senting). The World Medical Association anesthetic, injected Solimán be with an specific guideline: issued this through and a tube his gastric inserted prisoner Where a refuses nourishment mouth. by physician is considered Id. at 1245. capable forming unimpaired A who prisoner undergoes nasogas- judgment rational concerning the conse- feeding procedure may tric be restrained quences voluntary of such a refusal of long periods for of time. Walker nourishment, he or she shall not be fed (3rd Horn, Cir.2004), 385 F.3d 321 a Penn- artificially. The decision as to the ca- case, sylvania prisoner he stated that pacity prisoner form such a placed was in restraints that immobilized judgment should by be confirmed wrists, ankles, head, his for a chest least one other independent physician. time, protracted period and that consequences refusal nour- feeding kept place tube was for two explained by ishment shall be the physi- days.2 A similar scenario was reported prisoner. cian to the Corrections, McNabb v. Association, World Paragraph Medical (2008), Wash.2d 180 P.3d 1257 where of Tokyo, May, Declaration revised 2006.3 prisoner continuously was strapped principle by This amplified the Decla- a chair twenty-eight force hours and Malta, provides ration of as follows: through fed a tube his During nose. benefit, Even if intended feeding ac- procedure prisoner was unable threats, coercion, companied force or sleep complications and suffered medical physical use of restraints is form of procedure from the such as from bleeding degrading inhuman and treatment. nose, pain, nausea. Association, Paragraph World Medical A feeding second method of involuntary Strikers, of Declaration Malta on Hunger October, course, is the use of a needle inserted a blood into revised 2006.4 Of these prisoner 2.The in Walker claimed the that him that his concession too late was and feeding merely procedure. with the liquefied regular continued force medical staff the prison potatoes— and meals—liver mashed http://www.wma.ne1/en/30publications/l0 3. placed feeding and them in the also tube. He policies/c 18/index.html. prison claimed that told while he officials being stop willing that he restrained http://www.wma.net/en/30publications/l 4. strike, hunger his but the officials informed policies/h31/index.html. procedure the rules, physician performs offer the who they do binding but are not to minimize steps the all concerns of take reasonable the ethical must into insight discomfort, subject. pain, on difficult and the this profession prisoner’s the medical (3) harm; prisoner if the and risk suggest- I am not foregoing, the Despite eat, procedure feeding the force agrees involuntary feeding and ing that immediately terminated. must be prisoner a be ordered or that never should to eat. to refuse an unfettered has this issue came It is unfortunate that there are demonstrates that case law The se pro appeal. If it way us before involving valid, state interests competing future, hope in the I that we have returns and the prison system integrity the deeper to delve into this opportunity the prisoner. life of protect need to issue. However, judicial facilitate review prisoner the interests of the balance Commonwealth, I believe that DOC (or any into incorporate develop

should hunger policy) policy a existing

such pris- involuntary feeding

strikes and ex- addresses the concerns

oners that opinion.5 Although such a

pressed in this NEWS, matter within policy is an administrative LEGAL Petitioner PRISON DOC, that suggest I purview v. (1) objec- following elements: include the RECORDS, OFFICE OF OPEN a prison- to determine when tive standards Respondent. harm er in imminent risk of irreversible is (2) body; requirement her his or Corrections, Department of Petitioner a factual record in each case develop prisoner’s refusal to eat explain how orderly on the administration

impacts Records, Open Respondent. Office (3) prison system; security of Pennsylvania. pris- time a restrictions on amount of Commonwealth Court procedure.6 oner be restrained for the Argued March 2010. be further possibility The abuse could April 2010. Decided guidelines, the addition of such reduced (1) feeding event force as: in the that

ordered, feeding performed must be if hospital by physician, a licensed (2) required; concludes that it is

physician only governing any policy policy or the 5. certified record does not contain current issues, policies pertaining strikes I DC-ADM these considered 13.01.01 feeding prisoners, there is force no drafting suggestions policy and/or when testimony transcript identifies in the http://www.cor.state.pa.us/portal/ opinion. Nevertheless, explains policies. of DOC's server.pt/community/department_of_ published my reveals that DOC research corrections/4604/doc_policies/612830. website, Policy DC-ADM policy on its 13.01.01, proce- detailed establishes prisoner when restrain a directed 6. DOC medical/psycho- for the observation and dures 91.6(4); § by a do so 37 Pa.Code doctor. refuse logical assessment of inmates who policy DC-ADM201. whether this is the eat. While clear Notes is to tution. 13-14, (N.T.) Record Certified condi- subject controversy in the (“I (C.R.), out the hole. # 10 want Item is tion in it when the order it.”). they do I don’t care how made, subvert, main- it is not to but to existing tain the until the merits status hearing, of the At the conclusion heard controversy fully can be authorizing an order trial court issued

Case Details

Case Name: Hill v. Department of Corrections

Court Name: Commonwealth Court of Pennsylvania

Date Published: Apr 7, 2010

Citation: 992 A.2d 933

Docket Number: 1331 C.D. 2009

Court Abbreviation: Pa. Commw. Ct.