Opinion
No. 1468 C.D. 2011
04-09-2012
Commonwealth of Pennsylvania, Department of Corrections v. Abdel Fattah, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Abdel Fattah appeals from the final order of the Court of Common Pleas of Centre County (trial court), dated November 12, 2010, granting the Department of Corrections (Department) an indefinite injunction to involuntarily examine Fattah, to perform invasive diagnostic tests, including blood and urine tests, and to administer medical treatment, including nutrition and hydration, when the medical staff determines that such treatment is necessary to preserve Fattah's health and life. Fattah also appeals from the trial court's June 7, 2011, order denying his motion for post-trial relief. We affirm.
Fattah originally filed his appeal with our Superior Court. However, by order of the Superior Court dated August 8, 2011, the matter was transferred to this Court.
Since 2002, Fattah has been incarcerated at several different state correctional institutions. Fattah has an extensive history of refusing to eat, and the Department has obtained injunctions to involuntarily feed and treat Fattah from the Courts of Common Pleas of Greene, Wayne, and Cumberland Counties. Fattah has maintained that, rather than engaging in hunger strikes, he suffers from an eating disorder stemming from depression and a psychotic disorder involving delusions and paranoia. In 2008, Fattah was transferred to federal custody, at which time a feeding tube was surgically placed in his stomach. For a period of approximately one year, Fattah was treated at a private medical hospital and hooked up to a feeding pump 24 hours per day, which resulted in significant weight gain. Fattah returned to state custody in 2009 and was eventually transferred to the State Correctional Institution at Rockview (SCI-Rockview). At that time, Fattah weighed approximately 178 pounds.
While in federal custody, Fattah was examined by Drs. Richard Levine and Martha Peaslee and diagnosed as suffering from severe calorie protein malnutrition, depression with psychotic features, and an unspecified eating disorder. Fattah filed a complaint with the trial court on December 10, 2010, as well as an emergency motion for injunctive relief, alleging that the Department had violated his civil rights by denying him proper medical treatment with respect to his eating disorder. Fattah v. Moore Smeal, et. al., (Centre County, No. 2010-5566). Fattah later filed a motion for appointment of counsel. The trial court denied these motions and Fattah appealed to this Court. By order dated July 8, 2011, we vacated the trial court's orders, directed that Fattah's complaint be treated as a petition for review addressed to this Court's original jurisdiction, and directed the named defendants to file a responsive pleading. However, the matter, docketed at No. 339 M.D. 2011, was recently dismissed by order of this Court dated February 22, 2012.
Fattah repeatedly attempted to use his refusal to eat as a tool to negotiate with the Secretary of the Department regarding parole and with staff at SCI- Rockview regarding restricted housing, meetings with probation and parole, and cell changes. (Trial court op. at 2.) By August 6, 2010, Fattah had lost approximately 53 pounds, and the physician at SCI-Rockview, Dr. John Symons, determined that Fattah had essentially lost all of his body fat and showed significant signs of dehydration. On August 11, 2010, the Department filed a complaint, a motion for preliminary injunction, and an application for an ex parte preliminary injunction with the trial court naming Fattah as the defendant. The Department sought an injunction permitting it to administer medical treatment to Fattah. At a preliminary injunction hearing on August 16, 2010, Dr. Symons testified that Fattah's condition had improved but that he remained in imminent danger of entering a starvation state, which would cause irreparable damage to Fattah's organs and muscle tissue and/or death. By order of the same date, the trial court granted the Department a preliminary injunction. (Trial court op. at 2-3.)
Commonwealth v. Fattah, (Centre County, No. 2010-3634).
On November 12, 2010, the trial court conducted a permanent injunction hearing. The Department presented the testimony of William Williams, health care administrator at SCI-Rockview. Williams testified that, subsequent to the preliminary injunction hearing on August 16, 2010, Fattah refused to eat on numerous occasions and attempted to use this refusal as a means of negotiating with the staff or manipulating them to provide him with items "he would like." (N.T. at 4.) As a result, Williams indicated that Fattah was force fed approximately 30 times over the past three months. (N.T. at 5.) On cross-examination, Williams indicated that Fattah's negotiation/manipulation attempts included his removal from the restricted housing unit, his removal from disciplinary custody, and his relocation from a psychiatric observation cell in the infirmary to the medical infirmary side so that he could watch television. (N.T. at 7-9.) Finally, Williams noted that Fattah was last force fed on November 9, 2010, only three days before the permanent injunction hearing, and that he began self-feeding the next day. (N.T. at 11.)
Dr. Symons testified on behalf of the Department that he has been treating Fattah since his arrival at SCI-Rockview in 2009. (N.T. at 15.) Dr. Symons similarly indicated that Fattah had been force fed on numerous occasions since August 2010, including as recently as November 8, 9, and 10, 2010, and that Fattah regularly managed to disconnect his feeding pump. (N.T. at 15-17.) Dr. Symons stated that Fattah has since agreed to self-feed four times a day and eat occasional snacks. (N.T. at 17-18.)
Finally, the Department presented the testimony of Dr. Kevin Burke, a psychiatrist at SCI-Rockview. (N.T. at 80.) Dr. Burke testified that the Department was quite capable of treating Fattah's psychological issues. (N.T. at 83.) Dr. Burke stated that a report by Richard Levine, M.D., did not support his diagnosis of Fattah's condition and relied extensively on Fattah's own recitation of events. (N.T. at 84-85.) Dr. Burke explained that Fattah did not exhibit a distorted body image, which is core to any eating disorder diagnosis. (N.T. at 86.)
Fattah presented the testimony of Dr. Levine, a physician at Penn State Hershey Medical Center who specializes in eating disorders and who examined Fattah in July 2008 when he was in federal custody. (N.T. at 26, 30, 32.) Dr. Levine testified that he diagnosed Fattah as suffering from depression and an eating disorder-not otherwise specified. (N.T. at 38.) Dr. Levine explained that there are a number of different types of eating disorders, including anorexia nervosa, and that a person such as Fattah meets some but not all of the criteria for that condition. (N.T. at 39.) While Dr. Levine indicated that Fattah did not exhibit a distorted body image, which is typical of that condition, he stated that Fattah did exhibit other significant eating disorder symptoms, including refusal to eat, being proud of his thin body, and being proud of his self-control. (N.T. at 39-40.) Dr. Levine opined that Fattah needed treatment for his eating disorder or the prognosis for his future would be poor. (N.T. at 43.)
On cross-examination, Dr. Levine testified that it was not unusual for traditional patients to disconnect their feeding pumps. (N.T. at 55.) Dr. Levine acknowledged that Fattah was responsible for his own recovery. (N.T. at 54.) Dr. Levine conceded that Fattah's eating disorder has a voluntary component, such as using his refusal to eat as a means of protest. (N.T. at 61.)
Fattah testified that his weight gain in 2009 resulted from the placement of a feeding tube in his stomach at a private medical facility while in federal custody in 2008 and the connection of this tube to a feeding pump which delivered "resource nutrition." (N.T. at 64.) Fattah indicated that, at that time, he received water intravenously to avoid increased fluids in his stomach, which would have resulted in vomiting. Id. Fattah stated that he immediately began losing weight upon his return to the custody of the Department. (N.T. at 65.) Fattah recounted a history of force feeding via a tube through his nose, which caused bleeding and other trauma to his nose and throat. (N.T. at 68.) Fattah denied that he wanted to die; rather, he testified that he simply wants treatment for his condition. (N.T. at 69-70.)
On cross-examination, Fattah denied ever self-feeding. (N.T. at 73-74.) However, Fattah then clarified that he had previously connected a feeding pump to the tube in his stomach and that he did occasionally eat cookies. (N.T. at 74.) Fattah acknowledged writing a letter in June of 2010 indicating that he was refusing to eat as a protest to the denial of his parole. (N.T. at 75.) Fattah also acknowledged that he used to stick pen caps up his nose to prevent his force feeding in that manner. (N.T. at 76.) On re-direct examination, Fattah stated that on one occasion, after he disconnected his feeding pump because he was receiving too much fluid for his stomach to handle, he was placed in a restraint chair, which was painful, and force fed. (N.T. at 77.) Fattah questioned whether the Department's medical staff understood the operation of the feeding pump. (N.T. at 78.)
By final order dated November 12, 2010, the trial court granted the Department an indefinite injunction permitting it to involuntarily examine Fattah, to perform invasive diagnostic tests, including blood and urine tests, and to administer medical treatment, including nutrition and hydration, when the medical staff concludes that such treatment is necessary to preserve Fattah's health and life. The trial court further indicated that its final order shall remain in effect as long as Fattah was committed to the custody of the Department. (Trial court op. at 1-2.)
Fattah thereafter filed a motion for post-trial relief alleging that the final order was overbroad in that it permitted the Department to circumvent the procedural safeguards of the Mental Health Procedures Act (MHPA). Fattah also alleged that the final order contravened this Court's decision in Hill v. Department of Corrections, 992 A.2d 933 (Pa. Cmwlth. 2010), because the Department did not establish that he was at imminent risk if involuntary feeding was not undertaken. Fattah sought a modification of the trial court's order only to permit the Department to examine him and perform invasive diagnostic tests. (Trial court op. at 4.)
Act of July 9, 1976, P.L. 817, as amended, 50 P.S. §§7101-7503.
However, by opinion and order dated June 7, 2011, the trial court denied Fattah's motion. The trial court indicated that Fattah had a history of refusing to eat and refusing nourishment to the extent of becoming so emaciated that he was in immediate danger of irreparable harm or death. Id. The trial court noted that Fattah was involuntarily fed on numerous occasions during the three-month period between the dates of the preliminary injunction and permanent injunction hearings. Id. The trial court found it "nearly certain" that Fattah will again refuse to eat to the extent that he might suffer irreparable injury or death if the Department is not able to involuntarily supply him with nutrition and hydration. Id. Thus, the trial court held that the Department established an urgent necessity to avoid injury which could not be compensated for by damages. (Trial court op. at 5.)
The trial court also held that the Department established that greater injury would result from refusing the requested relief than from granting it, including harm to Fattah's health, Fattah's possible loss of life, and harm to the Department's ability to maintain prison security, order, and discipline. Id. The trial court indicated that Fattah's psychological issues are being treated by Dr. Burke, who expressed confidence that the Department had the means of competently treating Fattah. Id. Finally, the trial court noted that its final order protected Fattah's interests by limiting involuntary treatment to situations where immediate relief was necessary to preserve his health and life and that the Department was capable of ascertaining of those situations. (Trial court op. at 5-6.)
On appeal, Fattah reiterates his arguments that the trial court's final order was overbroad in that it permitted the Department to circumvent the procedural safeguards of the MHPA and contravenes Hill by permitting the Department to force feed him without establishing that he is at imminent risk if the feeding is not undertaken. We disagree.
An appellate court's scope of review of the grant or denial of a permanent injunction is limited to determining whether the trial court committed an error of law. Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659 (2002). Ultimately, the grant or denial of a permanent injunction will turn on whether the lower court properly found that the party seeking the injunction established a clear right to relief as a matter of law, a legal determination by the court below. Id. Our standard of review for a question of law is de novo and our scope of review is plenary. Id.
We first address the requirements for a permanent injunction. To prevail on a claim for a permanent injunction, a party must establish a clear right to relief, that there is an urgent necessity to avoid an injury which cannot be compensated for by damages, and that greater injury will result from refusing rather than granting the relief requested. Big Bass Lake Community Association v. Warren, 950 A.2d 1137 (Pa. Cmwlth. 2008). Moreover, a party need not establish either irreparable harm or the need for immediate relief, as is necessary when seeking a preliminary injunction, and a court may issue a final injunction if such relief is necessary to prevent a legal wrong for which there is no adequate redress at law. Board of Revision of Taxes v. City of Philadelphia, 607 Pa. 104, 4 A.3d 610 (2010); Big Bass Lake Community Association.
Next, we address the MHPA. The purpose of the MHPA is to "assure the availability of adequate treatment to persons who are mentally ill, and...to establish procedures whereby this policy can be effected." Section 102 of the MHPA, 50 P.S. §7102. Additionally, the provisions of the MHPA "shall be interpreted in conformity with the principles of due process to make voluntary and involuntary treatment available where the need is great and its absence could result in serious harm to the mentally ill person or others." Id. Indeed, our Supreme Court has recognized that the MHPA governs the provision of inpatient psychiatric treatment or involuntary outpatient psychiatric treatment. Commonwealth v. Sam, 597 Pa. 523, 952 A.2d 565 (2008). Section 102 also provides that voluntary treatment is preferred to involuntary treatment, but that, in either case, "the least restrictions consistent with adequate treatment shall be employed." 50 P.S. §7102. The MHPA sets forth criteria for determining that a person is severely mentally disabled and provides procedural safeguards, namely notice and a hearing, prior to requiring such a person to undergo an emergency examination and involuntary emergency treatment. See Sections 301-304 of the MHPA, 50 P.S. §§7301-7304.
Fattah argues that he presented competent evidence that he suffers from a serious mental illness in the nature of an eating disorder-not otherwise specified and that the trial court's final order permits the Department to circumvent the procedural safeguards of the MHPA. The Department counters that the MHPA neither mentions nor expressly forbids force feeding and asserts that the MHPA does not apply because Fattah failed to establish that he suffers from a serious mental illness. We agree with the Department that the MHPA is not applicable in this case.
While the MHPA addresses both voluntary and involuntary treatment for mental illness, including treatment for those individuals who are currently incarcerated, the MHPA does not define the term "treatment," and no provision of the MHPA expressly forbids, or even references, force feeding. In addition, the trial court rejected the testimony of Dr. Levine that Fattah suffers from an eating disorder in favor of the testimony of the Department's witnesses, including Dr. Burke, who opined that Fattah does not suffer from such a disorder. Rather, the Department's witnesses credibly established that Fattah routinely engages in hunger strikes for purposes of negotiation/manipulation, that Fattah is capable of self-feeding, and that Fattah has in fact eaten snacks or otherwise fed himself on numerous occasions while at SCI-Rockview.
The law is well settled that determinations as to the credibility of witnesses and the weight assigned to their testimony is solely within the province of the fact finder, in this case, the trial court. Mateskovich v. Commonwealth, 755 A.2d 100 (Pa. Cmwlth. 2000). Additionally, when reviewing a decision of a lower court or an administrative agency, this Court may not reweigh the evidence presented or judge the credibility of witnesses. Id.
Finally, we address this Court's previous decision in Hill. In Hill, this Court affirmed as modified an order of a common pleas court granting the Department a preliminary injunction to involuntarily examine and perform invasive diagnostic tests on Dwayne Hill, an inmate who had engaged in a series of hunger strikes, and to administer medical treatment, including nutrition and hydration. This Court modified the same by striking that portion of the order permitting the Department to administer medical treatment. In modifying the common pleas court's order, we concluded that the order was overbroad because the Department had failed to present evidence that Hill's life was in imminent danger absent forced nutrition and hydration.
Fattah argues that the reasoning of Hill is equally applicable to this case and that the trial court's final order should be similarly modified. The Department contends that our decision in Hill is inapplicable because Hill involved a preliminary, not a permanent, injunction and the evidence required to obtain the injunctions differs. The Department contends that it met the necessary requirements for a permanent injunction. Further, the Department avers that requiring it to seek an ex parte preliminary injunction each time Fattah's life is in danger would strain its resources as well as the judicial resources of the trial court. We agree with the Department that Hill is inapplicable to the present case and that it met its burden for a permanent injunction.
In a concurring opinion in Hill, the present author noted that force feeding an inmate was a grave matter that raises substantial legal, ethical, and medical questions. I specifically addressed two types of force feeding, nasogastric feeding and intravenous feeding, and the dangers associated with both. However, I indicated in that opinion that there are situations involving the integrity of the prison system and the protection of an inmate's life during which force feeding may be necessary. Such a situation is present in this case. Fattah has a chronic history of refusing to eat or drink for the purpose of attempting to manipulate prison authorities and the judicial system in general. While the Department has acted humanely in dealing with Fattah's hunger strikes, Fattah has repeatedly attempted to use these hunger strikes as leverage to improve his prison conditions. Moreover, I would reiterate that Fattah currently receives his nutrition through a feeding tube placed in his stomach by physicians while he was in federal custody.
As discussed in Hill, in order to obtain an ex parte preliminary injunction in these types of cases, the Department must show a need for immediate relief by establishing that the inmate's life is in imminent danger absent forced nutrition and hydration. However, as noted above, in seeking a permanent injunction, the Department was not required to establish such irreparable harm or the need for immediate relief. Board of Revision of Taxes; Big Bass Lake Community Association. Hence, the reasoning in Hill is not applicable here.
Rather, in order to obtain a permanent injunction, the Department was required to establish a clear right to relief, that there is an urgent necessity to avoid an injury which cannot be compensated for by damages, and that greater injury will result from refusing rather than granting the relief requested. Big Bass Lake Community Association. The credible testimony presented by the Department meets these criteria.
The Department's witnesses established that Fattah has an extensive history of refusing to eat, with Fattah having been force fed approximately 30 times in the three-month period between the preliminary and permanent injunction hearings, even as recently as two days before the latter hearing. These witnesses also established that Fattah lost approximately 53 pounds in the one-year period following his return to state custody and that Fattah's prior refusals to eat had placed him dangerously close to entering a starvation state, which could have caused irreparable damage to his organs and muscle tissue or even death. Further, we agree with the Department that requiring it to obtain an ex parte preliminary injunction each time Fattah's life was in danger would strain its resources as well as the judicial resources of the trial court, as evidenced by the fact that Fattah required nutrition and hydration approximately 30 times in a recent three-month period.
Moreover, we agree with the Department that our recent decision in Department of Public Welfare v. Kallinger, 580 A.2d 887 (Pa. Cmwlth. 1990), appeal dismissed, 532 Pa. 292, 615 A.2d 730 (1992), supports the outcome here. In Kallinger, Joseph Kallinger, an inmate at SCI-Huntingdon, was transferred to Farview State Hospital after refusing to eat or drink and expressing a desire to die. The Department filed an action for declaratory relief with the common pleas court seeking authority to provide necessary treatment, nutrition, and hydration to Kallinger. While the common pleas court initially granted a preliminary order permitting the same, it subsequently dissolved this order and issued a new order in which it concluded that Kallinger was competent and could reject nutrition and hydration. The Department sought special emergency relief via this Court's original jurisdiction as well as appellate review of the common pleas court's new order.
Kallinger was a single-judge opinion authored by current President Judge Dan Pellegrini. Pursuant to section 414 of the Commonwealth Court's Internal Operating Procedures, a single-judge opinion, even if reported, shall not be cited as binding precedent, but may be cited for its persuasive value. 210 Pa. Code §67.55. --------
This Court initially granted the Department a preliminary injunction permitting it to involuntarily administer medical treatment to Kallinger and later issued an order directing Farview State Hospital to continue to provide medical treatment and appropriate nutrition to Kallinger through a nasogastric tube so long as he continues to refuse nutrition and hydration. In rendering this order, we applied a balancing test, balancing the Commonwealth's interests against the inmate's right to privacy. Upon review of United States Supreme Court cases and cases from other jurisdictions, we concluded that the Commonwealth's overwhelming interest in maintaining prison security, order, and discipline, as well as its obligation to provide for the health and safety of inmates in its custody, outweigh any diminished right to privacy held by Kallinger. The application of this balancing test in the present case likewise supports the trial court's orders.
Accordingly, the orders of the trial court are affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 9th day of April, 2012, the orders of the Court of Common Pleas of Centre County, dated November 12, 2010, and June 7, 2011, respectively, are hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge