Opinion

Ross v. Emerson

Court
Superior Court of Maine
Filed
Nov 3, 2005
Status
Unpublished
On the bench
Joyce A. Wheeler
Cited by
0 cases
Authority
More cited than 34.1%

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observed by the court to be notably pale and withdrawn.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

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

M=More, Space = E x i t : M

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