Bezio v. Dorsey, No. 65.

CourtNew York Court of Appeals
Writing for the CourtGRAFFEO
Citation989 N.E.2d 942,21 N.Y.3d 93,2013 N.Y. Slip Op. 03118,967 N.Y.S.2d 660
Docket NumberNo. 65.
Decision Date02 May 2013
PartiesIn the Matter of Norman BEZIO, as Superintendent of Great Meadow Correctional Facility, Respondent, v. Leroy DORSEY, Appellant.

21 N.Y.3d 93
989 N.E.2d 942
967 N.Y.S.2d 660
2013 N.Y. Slip Op. 03118

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

No. 65.

Court of Appeals of New York.

May 2, 2013.



[967 N.Y.S.2d 661]Sheila E. Shea, Mental Hygiene Legal Service, Albany (Shannon Stockwell of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Andrea Oser, Barbara D. Underwood and Martin A. Hotvet of counsel), for respondent.


[21 N.Y.3d 95]OPINION OF THE COURT

GRAFFEO, J.

[989 N.E.2d 943]

Respondent Leroy Dorsey, an inmate in the custody of the State Department of Corrections and Community Supervision (DOCCS), is a serial hunger striker. In 2010 he undertook a [21 N.Y.3d 96]month-long hunger strike, contending that he was not suicidal

[989 N.E.2d 944]

967 N.Y.S.2d 662]but had ceased eating in order to secure transfer to another DOCCS facility and bring attention to certain claims of mistreatment. The issue before us is whether Dorsey's rights were violated by a judicial order permitting the State to feed him by nasogastric tube after his health devolved to the point that his condition became life-threatening. We answer that question in the negative.

In January 2010, Leroy Dorsey first engaged in a hunger strike while incarcerated at Clinton Correctional Facility. At that time, he explained that his motive was to obtain a transfer to another facility, indicating he was not suicidal and would start eating again if transferred. DOCCS commenced a judicial proceeding seeking permission to feed Dorsey by nasogastric tube but the application was denied by Supreme Court. Dorsey apparently voluntarily resumed eating and was subsequently transferred to Great Meadow Correctional Facility where he commenced a second hunger strike in June 2010. This hunger strike ceased without DOCCS requesting judicial relief.

The incident relevant to this appeal began on October 22, 2010 when Dorsey again stopped eating solid food, asserting that his intent was to obtain another transfer to a different facility and to draw attention to alleged abusive treatment of him at Great Meadow. Dorsey's health was monitored by medical staff at the facility and he was ultimately moved to the infirmary for close observation. While housed there, Dorsey was repeatedly advised that his refusal to eat was causing potentially irreversible damage to his internal organs and, if uninterrupted, would lead to his death. He nonetheless refused to alter his behavior, ingesting only liquids in scant amounts insufficient to sustain his health. A month after this hunger strike began, when Dorsey had lost 11.6% of his body weight in only four weeks,1 DOCCS commenced this proceeding requesting a court order permitting medical personnel to insert a nasogastric tube and take other reasonable steps necessary to provide hydration and nutrition to Dorsey.2 In support of its application, DOCCS [21 N.Y.3d 97]relied on the analysis in Matter of Von Holden v. Chapman, 87 A.D.2d 66, 450 N.Y.S.2d 623 (4th Dept.1982), in which the Appellate Division upheld an order permitting forced feeding of a hunger striking inmate by nasogastric tube, rejecting the inmate's constitutional objections. At the ensuing hearing on the DOCCS petition, Dorsey's treating physician testified concerning the inmate's physical condition, stating that he was in imminent risk of starving to death or sustaining a fatal cardiac arrhythmia due to electrolyte and fluid imbalance unless DOCCS was permitted to intervene. 3

[989 N.E.2d 945

967 N.Y.S.2d 663]Represented by counsel, Dorsey opposed the application, claiming that he was not suicidal and the State had no authority to interfere with his hunger strike.

Supreme Court granted DOCCS' application, permitting DOCCS to feed Dorsey by nasogastric tube unless Dorsey voluntarily consumed a nutritional supplement along with solid food. After the order was issued, Dorsey resumed eating solid food (rendering enforcement of the force-feeding directive unnecessary), but he pursued an appeal of Supreme Court's order. Because this particular hunger strike had ceased, the Appellate Division concluded that the case was moot (91 A.D.3d 1051, 937 N.Y.S.2d 393 [3d Dept.2012] ). It reasoned that two issues raised on appeal—whether DOCCS had sufficiently established that Dorsey's physical condition had degenerated to the point that he faced a substantial risk of death or permanent injury and whether the [21 N.Y.3d 98]hearing court erred in denying his attorney's request for a continuance in order to secure and review the inmate's complete medical records—were sui generis to this case and were not sufficiently novel to warrant review under the exception to the mootness doctrine.4 But the Appellate Division concluded that a core issue fell within the exception to the mootness doctrine: the inmate's claim that the State did not have the right to secure a force-feeding order because he did not intend to kill himself but only wanted to bring attention to his pleas of mistreatment and to obtain a transfer to another facility. On that question, the court ruled in favor of DOCCS on the merits, concluding that where “an inmate's refusal to eat has placed that inmate at risk of serious injury and death ... the State's interest in protecting the health and welfare of persons in its custody outweighs an individual inmate's

[989 N.E.2d 946

967 N.Y.S.2d 664]right to make personal choices about what nourishment to accept” (91 A.D.3d at 1053, 937 N.Y.S.2d 393). We granted the inmate leave to appeal to this Court (19 N.Y.3d 805, 948 N.Y.S.2d 579, 971 N.E.2d 861 [2012] ) and we now affirm.
I

The threshold issue here is a jurisdictional question—whether the inmate's claim that the force-feeding order violated his constitutional right to refuse medical treatment was preserved for review. This is the primary issue that divides us from the dissent, which concludes that the Appellate Division erred in applying the exception to the mootness doctrine to decide this [21 N.Y.3d 99]contention because the inmate failed to raise the issue in the hearing court. We begin with the observation that it was DOCCS—not the inmate—that initiated this proceeding. In support of its application, DOCCS relied on Matter of Von Holden v. Chapman, 87 A.D.2d 66, 450 N.Y.S.2d 623 (1982), supra, a case in which a hunger-striking inmate objected to a force-feeding order, arguing that it violated his constitutional right to refuse medical treatment (then characterized as a “right to privacy”) and to free speech. After analyzing both constitutional claims, the Appellate Division in that case upheld the order.

Prior to this litigation, Von Holden was the only appellate decision in this state involving an inmate hunger strike. In light of that precedent, DOCCS Directive No. 4309—which addresses the handling of inmate hunger strikes—recognized that a forced feeding order may implicate an “inmate's right of privacy and free expression.” Despite the potential constitutional issues, DOCCS maintained in its petition that such an order was nonetheless warranted in this case. It was in this context that Dorsey strenuously voiced his objections, at one point contending: “[b]y ... putting a tube in my nose, that's cruel and unusual punishment.”

To be sure, in the hearing court the inmate did not reference the Due Process Clause or articulate his constitutional objections with the specificity and clarity that he did in the Appellate Division or in this Court. This was a consequence of the fact that Dorsey addressed several arguments pro se, having been assigned counsel only shortly before the hearing, which was conducted expeditiously out of concern for preservation of his health. But it was clear from his posture—indeed, it is evident from the quote above—that he viewed the insertion of a nasogastric feeding tube as an unconstitutional invasion of his bodily integrity; such an argument seems almost inherent in an inmate's opposition to a force-feeding order.

Despite the inmate's reference to the Eighth Amendment, the hearing court undoubtedly understood, given DOCCS' reliance on Von Holden, that this aspect of the inmate's constitutional objection was predicated on the right to avoid unwanted medical intervention. The dissent implicitly acknowledges as much since it concludes—despite its mootness determination—that the hearing court misapplied the criteria in Rivers v. Katz, 67 N.Y.2d 485, 504 N.Y.S.2d 74, 495 N.E.2d 337 (1986) (dissenting op. at 111–112 n. 6, 967 N.Y.S.2d at 673 n. 6, 989 N.E.2d at 955 n. 6), a seminal right to refuse treatment case, when it resolved the “involuntary [21 N.Y.3d 100]treatment” issue (dissenting op. at 114 n. 7, 967 N.Y.S.2d at 675 n. 7, 989 N.E.2d at 957 n. 7). In light of the circumstances and issues raised in the hearing court, we conclude that the constitutional right to refuse medical treatment argument was presented sufficiently to satisfy the preservation rule. That being the case, we do not share the dissent's view that the Appellate

[989 N.E.2d 947

967 N.Y.S.2d 665]Division erred in applying the exception to the moot-ness doctrine due to a lack of preservation (assuming it would be error for the Appellate Division to rely on the mootness exception to reach an unpreserved issue in the exercise of its interest of justice jurisdiction, as the dissent apparently concludes).

Moreover, because of the dearth of New York precedent concerning inmate hunger strikes, we agree with the Appellate Division that the central issue in the case falls within the exception to the mootness rule since it is novel, likely to recur and, given the exigencies involved in addressing a hunger strike, would typically evade review ( see Hearst, 50 N.Y.2d 707, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980],supra ), as occurred in this case. 5 Accordingly, the Appellate Division did not err in applying the mootness exception.

The dissent criticizes the Appellate...

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26 practice notes
  • Myers v. Schneiderman
    • United States
    • New York Court of Appeals
    • September 7, 2017
    ...adopted the well-established distinction between refusing life-sustaining treatment and assisted suicide (see Matter of Bezio v. Dorsey, 21 N.Y.3d 93, 103, 967 N.Y.S.2d 660, 989 N.E.2d 942 [2013] ; Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 227, 551 N.Y.S.2d 876, 551 N.E.2d 77 [1990] ; S......
  • Myers v. Schneiderman
    • United States
    • New York Court of Appeals
    • September 7, 2017
    ...adopted the well-established distinction between refusing life-sustaining treatment and assisted suicide (see Matter of Bezio v. Dorsey, 21 N.Y.3d 93, 103, 967 N.Y.S.2d 660, 989 N.E.2d 942 [2013] ; Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 227, 551 N.Y.S.2d 876, 551 N.E.2d 77 [1990] ; S......
  • Aamer ex rel. Aamer v. Obama, Nos. 13–5223
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 11, 2014
    ...John Doe v. United States, 150 F.3d 170, 172 (2d Cir.1998); Garza v. Carlson, 877 F.2d 14, 17 (8th Cir.1989); Matter of Bezio v. Dorsey, 21 N.Y.3d 93, 967 N.Y.S.2d 660, 989 N.E.2d 942, 950–51 (2013); Laurie v. Senecal, 666 A.2d 806, 809 (R.I.1995). The New York Court of Appeals recently exp......
  • Deveneau v. Wielt, No. 14–330.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 4, 2016
    ...tort-law principles” when the animal is negligently allowed to stray from the property on which it is kept. Id. , 967 N.Y.S.2d 658, 989 N.E.2d at 942. But the court did not 144 A.3d 328mention whether the landowner had any contractual responsibility to care for the cow or maintain the fence......
  • Request a trial to view additional results
26 cases
  • Myers v. Schneiderman
    • United States
    • New York Court of Appeals
    • September 7, 2017
    ...adopted the well-established distinction between refusing life-sustaining treatment and assisted suicide (see Matter of Bezio v. Dorsey, 21 N.Y.3d 93, 103, 967 N.Y.S.2d 660, 989 N.E.2d 942 [2013] ; Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 227, 551 N.Y.S.2d 876, 551 N.E.2d 77 [1990] ; S......
  • Myers v. Schneiderman
    • United States
    • New York Court of Appeals
    • September 7, 2017
    ...adopted the well-established distinction between refusing life-sustaining treatment and assisted suicide (see Matter of Bezio v. Dorsey, 21 N.Y.3d 93, 103, 967 N.Y.S.2d 660, 989 N.E.2d 942 [2013] ; Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 227, 551 N.Y.S.2d 876, 551 N.E.2d 77 [1990] ; S......
  • Aamer ex rel. Aamer v. Obama, Nos. 13–5223
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 11, 2014
    ...John Doe v. United States, 150 F.3d 170, 172 (2d Cir.1998); Garza v. Carlson, 877 F.2d 14, 17 (8th Cir.1989); Matter of Bezio v. Dorsey, 21 N.Y.3d 93, 967 N.Y.S.2d 660, 989 N.E.2d 942, 950–51 (2013); Laurie v. Senecal, 666 A.2d 806, 809 (R.I.1995). The New York Court of Appeals recently exp......
  • Deveneau v. Wielt, No. 14–330.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 4, 2016
    ...tort-law principles” when the animal is negligently allowed to stray from the property on which it is kept. Id. , 967 N.Y.S.2d 658, 989 N.E.2d at 942. But the court did not 144 A.3d 328mention whether the landowner had any contractual responsibility to care for the cow or maintain the fence......
  • Request a trial to view additional results

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