Bezio v. Dorsey

• Court: New York Supreme Court Appellate Division
• Citation: 91 A.D.3d 1051,2012 N.Y. Slip Op. 00145,937 N.Y.S.2d 393
• Decision Date: 12 January 2012
• Parties: In the Matter of Norman BEZIO, as Superintendent of Great Meadow Correctional Facility, Respondent, v. Leroy DORSEY, Appellant.

2012 N.Y. Slip Op. 00145
91 A.D.3d 1051
937 N.Y.S.2d 393

In the Matter of Norman BEZIO, as Superintendent of Great Meadow Correctional Facility, Respondent,
v.
Leroy DORSEY, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 12, 2012.

[937 N.Y.S.2d 394]

Sheila E. Shea, Mental Hygiene Legal Service, Albany (Shannon Stockwell of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.

Before: SPAIN, J.P., LAHTINEN, MALONE JR. and KAVANAGH, JJ.

SPAIN, J.P.

[91 A.D.3d 1051] Appeal from an order of the Supreme Court (Hall Jr., J.), entered November 23, 2010 in Washington County, which granted petitioner's application, in a proceeding pursuant to CPLR article 4, to authorize the involuntary medical treatment and feeding of respondent.

Respondent is a mentally competent prison inmate in the custody of the Department of Corrections and Community Supervision. Since his incarceration, respondent has at least twice engaged in hunger strikes admittedly for the purpose, due to perceived injustices inflicted upon him, of inducing the Department to transfer him to a different facility. During his most recent hunger strike—commenced in October 2010 while he was incarcerated at Great Meadow Correctional Facility in Washington County—respondent refused to consume solid foods and drank only juice, milk and water. Respondent was thereafter transferred to a medical infirmary for close observation. By the end of November 2010, respondent had lost approximately 11.6% of his total body mass and petitioner commenced this proceeding seeking permission to force feed respondent via a nasogastric tube.

A hearing was held, during which Supreme Court heard the testimony of the medical director at Great Meadow who was responsible for respondent's treatment and who testified that respondent's self-imposed starvation was causing significant damage to his organs and that, absent intervention, he would suffer organ failure and death. Respondent testified that he had requested that the Department provide him with the nutritional [91 A.D.3d 1052] supplement Ensure, but the Department's policy is to not provide such supplements to inmates on hunger strikes because to do so would be to assist its prisoners in prolonging their hunger strike efforts. Instead, it is the Department's policy, where necessary to sustain an inmate's health, to seek judicial authorization to force feed a prisoner engaged in a hunger strike. Only after the Department obtains authorization to force feed is a prisoner allowed nutritional supplements, provided he or she also commences eating solid foods. Finding an immediate and substantial risk to respondent's health, Supreme Court denied his request for a continuance and ordered that, unless respondent voluntarily consumed a nutritional supplement and began to eat again, the Department was authorized to force feed him by any means it found to be in his best interests, including

[937 N.Y.S.2d 395]

by use of a nasogastric tube. On respondent's appeal, we affirm.

We turn first to the threshold issue of mootness. The order authorizing the force feeding of respondent expired by its own terms on November 23, 2011. Further, after the order was issued, respondent was transferred to another facility and has been voluntarily consuming solid foods. Accordingly, respondent's contentions on appeal that are specific to this particular proceeding—i.e., his assertion that he should have been granted a continuance and his argument that the record did not support the finding that his life was at risk—are moot and will not be addressed ( see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980]; Matter of Anthony H. [Karpati], 82 A.D.3d 1240, 1240, 919 N.Y.S.2d 214 [2011], lv. denied 17 N.Y.3d 708, 930 N.Y.S.2d 552, 954 N.E.2d 1178 [2011] ). However, respondent also argues that, because he did not intend to kill himself, but only wanted...