In re Kumar
| Decision Date | 12 September 2019 |
| Docket Number | EP-19-MC-00205-FM |
| Citation | 402 F.Supp.3d 377 |
| Parties | IN RE: Ajay KUMAR |
| Court | U.S. District Court — Western District of Texas |
Christopher Benoit, Lynn A. Coyle, The Law Office of Lynn Coyle, PLLC, El Paso, TX, Thomas Paul Buser-Clancy, ACLU of Texas, Houston, TX, for Ajay Kumar.
Manuel Romero, Western District of Texas, Angelica Astrid Saenz, United States Attorney's Office, El Paso, TX, for Petitioners.
Before the court is "Supplemental Emergency Motion for Order of Authorization" ("Motion") [ECF No. 12 ], filed August 14, 2019 by the United States of America ("Government");1 "Respondent's Response to the Government's Supplemental Motion for Order of Authorization and Request to Stay Court's Order" [ECF No. 18 ], filed August 19, 2019 by Ajay Kumar ("Respondent");2 "Reply in Support of the United States' Supplemental Emergency Motion for Order of Authorization and Response in Opposition to Request to Stay Court's Order" [ECF No. 21 ], filed August 22, 2019;3 "Respondent's Supplemental Brief in Opposition to the Government's Supplemental Emergency Motion for Order of Authorization" [ECF No. 25 ], filed August 27, 2019;4 and "Sur-Reply in Support of the United States' Supplemental Emergency Motion for Order of Authorization" [ECF No. 28 ], filed September 3, 2019.5
In the Motion, the Government seeks authorization to provide non-consensual medical examination, non-consensual hydration in the form of IV fluids, and nasogastric tube
placement with necessary enteral feedings.6
Respondent is a citizen of India.7 Respondent entered the United States near Otay Mesa, California.8 On March 27, 2019, an immigration judge ordered Respondent removed to India.9 Respondent filed an appeal with the Board of Immigration Appeals ("BIA") on April 29, 2019.10 His appeal is still pending.11
Respondent is currently detained in a detention facility operated by Immigration and Customs Enforcement ("ICE") and is engaged in a hunger strike.12 Respondent stated his refusal to eat and hydrate is "because I want my freedom."13 Respondent's first documented missed meal was breakfast on July 9, 2019.14 ICE placed Respondent on hunger strike protocol after his ninth missed meal on July 11, 2019.15
On July 24, 2019, the Government filed an ex parte motion to obtain authorization for the United States Department of Homeland Security and ICE to perform non-consensual medical examination and non-consensual hydration in the form of IV fluids to Respondent after he missed 46 meals.16 In a declaration submitted to the court, a doctor under contract with ICE ("ICE Doctor") noted medical intervention was necessary to combat serious medical complications arising from the hunger strike and dehydration.17
On July 24, 2019, the court granted the ex parte motion and issued an order authorizing medical providers under contract with ICE to perform non-consensual medical examination and non-consensual hydration in the form of IV fluids.18
On August 5, 2019, the American Civil Liberties Union of Texas filed a motion on Respondent's behalf for the appointment of counsel.24 The court held the appointment of counsel was in the interest of justice, reasoning that Respondent had "not had the opportunity to meaningfully respond as to whether non-consensual medical examination and non-consensual hydration are necessary and appropriate."25
On August 14, 2019, the Government filed the Motion seeking further authorization to perform non-consensual medical examination in addition to non-consensual hydration in the form of IV fluids, and nasogastric tube
placement with necessary enteral feedings.26 Prior to seeking force feeding authorization, ICE Doctor attempted to persuade Respondent to get nutrition from protein shakes.27 Respondent declined.28 The court granted the Motion29 and set a hearing to determine whether the authorization should remain in place.30
At this hearing, ICE Doctor testified that the nasogastric tube insertion
procedure was performed three times.31 On the first two attempts, the nasogastric tube "coiled"—resulting in the tube failing to enter the stomach.32 This caused Respondent's nose to swell, and ICE Doctor to become concerned about whether the procedure could be successfully completed.33 Respondent testified his nose began bleeding and he "was finding it difficult to breathe."34 ICE successfully inserted the tube on the third attempt and Respondent began receiving nutrition from it.35
As of September 9, 2019, Respondent's hunger strike has lasted 61 days, and he has missed 188 meals.36 ICE removed the nasogastric tube
on September 5, 2019 as Respondent's health was improving.37 However, ICE Doctor reiterates that Respondent still refuses to eat, which raises the potential for "further deterioration and serious medical complications."38 Therefore, the Government still requests the authorization to force feed remain in place.39
The Government contends the authorization of non-consensual medical treatment and nasogastric tube
placement with necessary enteral feedings ("force feeding") is necessary to ensure Respondent's condition resulting from hunger strike "does not decompensate to a critical juncture."40 The Government argues the force feeding of immigration detainees is permissible, as courts have regularly found prison officials "may compel a prisoner to accept treatment when, in the exercise of professional judgment, they deem it necessary to carry out valid medical and penological objectives."41
The Government argues the appropriate standard to decide whether ICE has authority to perform force feedings is contained in Turner v. Safley.42 In defense of Turner , the Government cites to some district courts that used the Turner test in determining whether immigration detainees could be force fed.43
Finally, the Government, argues "detainee officials have broad administrative and discretionary authority over the institutions they manage" and points to potential security concerns related to hunger strikes.44
Respondent contends he has a constitutional right to engage in a hunger strike under the First Amendment and a substantive due process right to refuse medical treatment.45 Respondent argues the court should apply the standard in Youngberg v. Romeo ,46 which the Supreme Court used to evaluate the due process rights of a mentally disabled individual involuntarily committed to a state institution.47 Respondent notes he is a civil detainee awaiting his BIA appeal—not a criminal prisoner.48 Therefore, Respondent reasons the Turner test does not apply to his circumstances, as it is specifically aimed towards penological regulations.49 Respondent also asserts ICE Doctor's medical testimony does not deserve deference under Youngberg , as it substantially departs from accepted medical professional standard in recommending force feeding.50
In the alternative, Respondent asserts that even if the Turner test were to apply to immigration detainees, the request for authorization for force feeding lacks a basis.51 Respondent argues there are alternatives to force feedings: (1) transferring him to a community hospital; or (2) releasing him on bond pending the completion of his immigration proceedings.52 In support of an alternative medical option, Respondent attaches an affidavit from Dr. Parveen Parmar ("Dr. Parmar"), an Associate Professor of Clinical Emergency Medicine at the University of Southern California, Keck School of Medicine.53 Dr. Parmar reviewed Respondent's records and determined "the care Mr. Kumar is receiving in ICE custody is markedly below standard of care, and putting his life at risk."54 Finally, Respondent claims the Government's security interests are not credible, lack a foundation, and are insubstantial.55
The parties first contest which standard is proper to evaluate the Motion: Youngberg or Turner .
Youngberg involved the question of whether a mentally disabled individual involuntarily committed to a state institution had substantive rights under the Due Process clause of the Fourteenth Amendment to (1) safe conditions of confinement; (2) freedom from bodily restraints; and (3) training or "habilitation."56 The Supreme Court acknowledged that although Romeo retained liberty interests protected by the Constitution, these rights were not without limitations by the state's interests.57 The Court explained that "[i]n determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance ‘the liberty of the individual’ and the ‘demands of an organized society.’ "58
In Turner , the Supreme Court analyzed a prison regulation's reasonableness. To reach a determination, the Court employed a four-factor test: (1) there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether alternative means of exercising the asserted constitutional right remain open to the detainee; (3) the extent to which accommodation of the asserted right will have an impact on prison staff, inmates, and the allocation of resources; and (4) whether the presence of ready alternatives undermines the reasonableness of the regulations,...
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In re Bahadur
...applicable to civil immigration detainees. Soliman , 134 F. Supp. 2d at 1253–54. On the other side of the spectrum, In re Kumar , 402 F. Supp. 3d 377 (W.D. Tex. 2019), is the only reported case rejecting Turner and applying Youngberg instead. See also In re Karan Pal Singh , EP-19-MC-343-KC......