The opinion
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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observed by the court to be notably pale and withdrawn.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
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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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