Bezio v. Dorsey

• Decision Date: 12 January 2012
• Court: New York Supreme Court — Appellate Division
• 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.

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.

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 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 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 to bring attention to his pleas to be relocated to another facility, the state did not have the right to force feed him. Because this issue (1) could easily recur, (2) will typically evade review even when the appeal is expedited, (3) is of public importance and (4) represents a substantial and novel issue not yet passed upon by this Court, the exception to the mootness doctrine applies and we will address it ( see Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 221 n. 1, 551 N.Y.S.2d 876, 551 N.E.2d 77 [1990]; Matter of Anthony H. [Karpati], 82 A.D.3d at 1241, 919 N.Y.S.2d 214).

In justifying its request for an order permitting it to force nutrition upon respondent, petitioner invokes the State's clear obligation to protect the health and welfare of its citizens ( see Matter of Fosmire v. Nicoleau, 75 N.Y.2d at 227, 551 N.Y.S.2d 876, 551 N.E.2d 77) and, more specifically, the Department's obligation to “protect the health and welfare of persons in its care and custody” ( Matter of Von Holden v. Chapman, 87 A.D.2d 66, 66–67, 450 N.Y.S.2d 623 [1982] ). Respondent contends that the State's interest does not outweigh his right to make his own decisions regarding medical treatment. In the context of this proceeding, we cannot agree.

New York recognizes and has repeatedly reaffirmed the right of a competent adult to make decisions regarding his or her medical treatment, including a decision to decline life-sustaining treatment or other necessary medical care ( see Matter of Fosmire v. Nicoleau, 75 N.Y.2d at 227–228, 551 N.Y.S.2d 876, 551 N.E.2d 77; Rivers v. Katz, 67 N.Y.2d 485, 492, 504 N.Y.S.2d 74, 495 N.E.2d 337 [1986] ). This principle has not, however, been extended to situations where a person voluntarily takes affirmative steps to create a life-threatening condition and then declines medical treatment necessary to counteract his or her impending demise. Indeed, “[t]he State will intervene to prevent suicide” ( Matter of Fosmire v. Nicoleau, 75 N.Y.2d at 227, 551 N.Y.S.2d 876, 551 N.E.2d 77, citing Penal Law § 35.10[4] ). In New York, it is a crime to assist another in committing suicide ( see Penal Law §§ 120.30, 125.15[3] ), and our courts have drawn a clear line between the right to decline medical treatment and the right to take one's life ( see Von Holden v. Chapman, 87 A.D.2d at 68, 70, 450 N.Y.S.2d 623; see also Vacco v. Quill, 521 U.S. 793, 807–808, 117 S.Ct. 2293, 138 L.Ed.2d 834 [1997] ).

Further, at issue here is not the privacy interest of a free citizen, but of an inmate confined to a correctional facility. Along with the liberty interests obviously forfeited upon incarceration, an inmate's privacy rights are “necessarily limited by the realities of confinement and by the legitimate goals and policies of the correctional system” ( Matter of Doe v. Coughlin, 71 N.Y.2d 48, 53, 523 N.Y.S.2d 782, 518 N.E.2d 536 [1987], cert. denied 488 U.S. 879, 109 S.Ct. 196, 102 L.Ed.2d 166 [1988]; see Turner v. Safley, 482 U.S. 78, 87, 107 S.Ct. 2254, 96 L.Ed.2d 64 [1987]; Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 [1974] ). A prison regulation that...