In the Matter of Norman Bezio,, Respondent,v.Leroy Dorsey, Appellant.

Brief

N.Y.Mar 19, 2013

To be argued by: ANDREA OSER Time Requested: 10 minutes Mo. No. 2012-257; A.D. # 511234; Washington Co. Index No. 18061 Court of Appeals of the State of New York IN THE MATTER OF NORMAN BEZIO, AS SUPERINTENDENT OF GREAT MEADOW CORRECTIONAL FACILITY, Petitioner-Respondent, V. LEROY DORSEY, Respondent-Appellant. BRIEF FOR RESPONDENT BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General MARTIN A. HOTVET Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent The Capitol Albany, New York 12224 (518) 474-8352 (telephone) (518) 473-8963 (facsimile) Dated: November 16, 2012 Reproduced on Recycled Paper i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ............................................................................... iii PRELIMINARY STATEMENT........................................................................... 1 ISSUES PRESENTED ........................................................................................ 3 STATEMENT OF THE CASE ............................................................................ 4 Regulatory Framework.............................................................................. 4 The Underlying Petition............................................................................ 5 The Resulting Hearing .............................................................................. 7 Supreme Court's Conditional Force-Feeding Order .............................. 12 Subsequent Circumstances ..................................................................... 14 Appellate Division Decision .................................................................... 14 Leave to Appeal........................................................................................ 17 ARGUMENT POINT I THIS COURT SHOULD DISMISS THE APPEAL...................... 18 A. Mr. Dorsey Failed To Preserve In Supreme Court His Claim That The Order Implicated A Privacy Right To Make His Own Medical Decisions ....................... 18 B. Mr. Dorsey Also Asserts A Claim Of Trial Error, But That Issue Is Moot And Does Not Warrant Consideration Under the Mootness Exception................... 21 ii TABLE OF CONTENTS (cont'd) PAGE POINT II IF THE COURT RETAINS THE APPEAL, IT SHOULD AFFIRM ........................................................................ 22 A. Any Right Mr. Dorsey Had To Refuse Forced Feeding Was Outweighed By The State's Prison- Related Interests.................................................................. 22 B. An Inmate's Retained Right To Free Speech Does Not Include A Right To Use A Hunger Strike To Communicate Grievances.................................................... 31 CONCLUSION ............................................................................................... 33 iii TABLE OF AUTHORITIES CASES PAGE Abdur-Raheem, Matter of v. Mann, 85 N.Y.2d 113 (1995) ............................................................................... 29 Brophy v. New England Sinai Hospital, Inc., 398 Mass. 419, 497 N.E.2d 626 (1986).................................................. 26n Brown v. City of New York, 60 N.Y.2d 893 (1983) ............................................................................... 19 Caulk, In re, 125 N.H. 226, 480 A.2d 93 (1983) ................................................. 27,28,30 Commissioner of Corrections v. Coleman, 303 Conn. 800, 38 A.2d 84 (2011) ...................................................... 30,32 Cruzan v. Director Missouri Dep't of Health, 497 U.S. 261 (1990)................................................................................ 23n Doe, Matter of v. Coughlin, 71 N.Y.2d 48 (1987) ............................................................................ 16,25 Feinberg v. Saks & Co., 56 N.Y.2d 206 (1982) ............................................................................... 19 Fosmire, Matter of v. Nicoleau, 75 N.Y.2d 218 (1990) .......................................................................... 16,23 Freeman v. Berge, 441 F.3d 543 (7th Cir. 2006)........................................................... 27,28,29 Garner, Matter of v. New York State Department of Correctional Services, 10 N.Y.3d 358 (2008) ............................................................................... 20 Glenbriar Co. v. Lipsman, 5 N.Y.3d 388 (2005) ................................................................................. 26 iv TABLE OF AUTHORITIES CASES (cont'd) PAGE Grand Jury Subpoena of John Doe, In re v. United States, 150 F.3d 170 (2d Cir. 1998) ..................................................................... 29 Hapletah, Matter of v. Assessor of the Town of Fallsburg, 79 N.Y.2d 244 (1992) ............................................................................... 19 Hearst Corp. v Clyne, 50 N.Y.2d 707 (1980) ............................................................................... 21 Hewitt v. Helms, 459 U.S. 460 (1983).................................................................................. 28 Hill v. Dep't of Corrections, 992 A.2d 933 (Pa. 2010)........................................................................... 26 Lucas, Matter of v. Scully, 71 N.Y.2d 399 (1988) ..................................................................... 23,24,25 Martinez v. Turner, 977 F.2d 421 (8th Cir. 1992)..................................................................... 29 McMillan v. State, 72 N.Y.2d 871 (1988) ............................................................................... 18 McNabb v. Dep't of Corrections, 163 Wash.2d 393, 180 P.3d 1257 (2008) ................................................. 30 Pabon v. Wright, 459 F.3d 241 (2d Cir. 2006) ..................................................................... 24 People v. O'Hara, 96 N.Y.2d 378 (2001) .......................................................................... 18-19 People v. Spears, 64 N.Y.2d 698 (1984) ............................................................................... 21 v TABLE OF AUTHORITIES CASES (cont'd) PAGE Rivera, Matter of v. Smith, 63 N.Y.2d 501 (1984) .......................................................................... 23,25 Rivers v. Katz, 67 N.Y.2d 485 (1986) .......................................................................... 16,23 Sanchez, In re, 577 F. Supp. 7 (S.D.N.Y. 1983) ............................................................... 27 Singletary v. Costello, 665 So. 2d 1099 (Fla. App. 1996)............................................................. 30 State ex rel. White v. Narick, 107 W. Va. 195, 292 S.E.2d 54 (1982)..................................................... 30 Thor v. Superior Court, 5 Cal. 4th 725, 855 P.2d 375, 21 Cal. Rptr. 357 (1993).................... 26n,30 Turner v. Safley, 482 U.S. 78 (1987)............................................................................... 16,23 United States v. Johnson, 616 F.3d 85 (2d Cir. 2010) ....................................................................... 28 Van Holden v. Chapman, 87 A.D.2d 66 (4th Dep't 1982) .................................................................. 32 Walker v. Horn, 385 F.3d 321 (3d Cir. 2004) ..................................................................... 29 Walton, Matter of v. N.Y.S. Dep't of Correctional Servs., 13 N.Y.3d 475 (2009) ..................................................................... 23,24,31 Washington v. Harper, 494 U.S. 210 (1990)............................................................................. 23,24 vi TABLE OF AUTHORITIES CASES (cont'd) PAGE White v. Narick, 170 W. Va. 195, 292 S.E.2d 54 (1982)..................................................... 27 Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 (1982) ........................................................ 30 STATE STATUTES Correction Law § 70(2) ......................................................................................................... 4 § 70(2)(d)................................................................................................... 26 UNITED STATES CONSTITUTION Fourteenth Amendment .................................................................................. 23n MISCELLANEOUS Cohen and Karger, Powers of the New York Court of Appeals, §§ 7.4, 14.1 (3d ed. 2005) ......................................................................... 19 Michael Mushlin, 1 Rights of Prisoners, § 3:47 (4th ed. 2009)......................... 29 PRELIMINARY STATEMENT Respondent-appellant Leroy Dorsey is an inmate in the custody of the Department of Corrections and Community Supervision (“DOCCS”). At issue here is whether the lower courts properly granted DOCCS authority for a one-year period to force feed Mr. Dorsey through a nasogastric tube if he would not voluntarily consume food or a recommended nutritional supplement. Mr. Dorsey had been on a hunger strike for a full month and had lost over 11% of his body weight from a weight already reduced by earlier hunger strikes. As a result, his treating physician opined that he was at imminent risk of cardiac arrhythmia, heart attack or death. Mr. Dorsey had been candid about the reason for his hunger strike. He knew that his hunger strike would eventually require DOCCS to bring him to court for a force- feeding order, and he wished to use the judicial forum to air his prison grievances. He also wished to obtain a transfer to a different correctional facility. While he claimed he was not trying to commit suicide, he stated that he intended to continue the strike until he had achieved his stated goals. DOCCS applied to Supreme Court for an order authorizing it to force feed Mr. Dorsey by medically appropriate means, and after a hearing, Supreme Court granted the order requested. 2 Although Mr. Dorsey thereafter accepted the nutritional supplement, and the force-feeding measure authorized by Supreme Court’s order was never implemented, Mr. Dorsey appealed to the Appellate Division. There he argued for the first time that the order violated a common-law and/or state constitutional right to make personal choices about his own medical care. He also argued that the court had erred by denying a requested continuance. While the appeal remained pending, Mr. Dorsey was transferred to a different correctional facility and Supreme Court’s order expired. The Appellate Division reasoned that the subsequent events mooted Mr. Dorsey’s claim of trial error, but that it should consider the scope of Mr. Dorsey’s right to make decisions about his medical care under the mootness exception. On that issue, it concluded that any right Mr. Dorsey otherwise had was outweighed by the legitimate goals and policies of the State’s correctional system. The Court should dismiss the appeal because the issues Mr. Dorsey presents are not properly before the Court. Mr. Dorsey never asserted in Supreme Court a right to make personal choices about his own medical care, and his claim of trial error based on Supreme Court’s refusal to grant a continuance does not warrant consideration under the mootness exception, as the Appellate Division properly found. If the Court retains the appeal, it 3 should affirm. Either Mr. Dorsey had no right to make personal choices about his own medical care once his hunger strike posed an imminent risk of serious harm or any right he had to make personal choices about his own medical care was readily outweighed by the State’s legitimate penological objectives in the circumstances presented. ISSUES PRESENTED 1. Whether the Court should dismiss the appeal on the grounds that (a) Mr. Dorsey failed to assert a right to make personal choices about his own medical care in Supreme Court, and (b) his claim of trial error is moot and does not meet the requirements of the mootness exception. 2. Alternatively, whether the Court should affirm, either because Mr. Dorsey had no right to make personal choices about his own medical care once his hunger strike posed an imminent risk of serious harm, or because any right Mr. Dorsey otherwise had to make such personal choices about his medical care was readily outweighed by the State’s legitimate penological objectives in the circumstances presented. 4 STATEMENT OF THE CASE Regulatory Framework Correction Law § 70(2) provides that DOCCS must operate “with due regard to: (a) The safety and security of the community; (b) The right of every person in the custody of the department to receive humane treatment; and (c) The health and safety of every person in the custody of the department.” DOCCS Directive 4309 and DOCCS Health Services Policy Manual (“HSPM”) § 1.30 address the treatment of inmates who commence hunger strikes. The Directive states: The State has a legitimate interest in preventing offender self-harm caused by a refusal to eat. Offenders have no constitutional right to starve themselves to death. Therefore, the State is authorized to force feed an offender on a hunger strike in order to protect the health and welfare of the offender and to maintain rational and orderly procedures in our facilities. These needs outweigh an offender’s right to privacy and free expression. The Department will seek a Court order requesting the ability to force feed any offender on a hunger strike by whatever means necessary, including tube feeding, for as long as necessary. Directive 4309, at I. The Directive requires medical personnel to monitor an inmate who has declared a hunger strike or refuses to eat. The Directive advises that inmates may be moved into the infirmary when warranted. And the 5 Directive requires medical personnel to seek a court order when they perceive that an inmate’s health is threatened. The Directive also requires prompt notification to various higher level officials, including the Superintendent and the Director of Mental Health. Health Policy Manual § 1.30 implements the Directive and specifies the medical procedures to be followed. Discussing “Treatment Over Objection,” the Policy notes that staff “will pursue an ‘Evaluation for Treatment Over Objection’ consistent with HSPM 7.01 ‘Rights of Patients’” (p. 3). The Underlying Petition By petition dated November 22, 2010, and through Great Meadow Correctional Facility Superintendent Norman Bezio, DOCCS sought an order authorizing involuntary feeding and medical treatment for Mr. Dorsey (Record on Appeal [“R”] 20-23). DOCCS stated that Mr. Dorsey was mentally competent, but was engaged in a hunger strike for manipulative purposes, namely to obtain a court appearance and a transfer to another correctional facility. DOCCS explained that since beginning the hunger strike a month earlier on October 22, 2010, Mr. Dorsey had refused all solid nourishment, drinking only juice, milk, and water, and that nasogastic tube feeding, gastrostomy tube feeding and/or intravenous feeding was now necessary to prevent significant clinical damage to his organs and death (R20-22). 6 DOCCS annexed an affirmation from Great Meadow’s medical director, Dr. David Karandy, who opined that a medical need existed to feed Mr. Dorsey by “any means necessary” (R26). Because Dr. Karandy was personally responsible for Mr. Dorsey’s medical care at the facility, he had personally examined Mr. Dorsey, interviewed him and assessed his physical condition. Dr. Karandy stated that Mr. Dorsey’s weight of 164 pounds was down to 145 pounds, a weight loss of over 11% (R25 [¶ 11]). (In fact, Mr. Dorsey’s weight of 164 pounds reflected the weight loss from earlier hunger strikes that had reduced his weight from as much as 251 pounds [R45].) Mr. Dorsey had been placed in the facility infirmary where he had been allowing medical staff to evaluate and monitor his vital signs and clinical status on an ongoing basis (R25 [¶¶ 8, 11, 12]). Dr. Karandy explained that Mr. Dorsey’s hunger strike was currently “causing significant clinical damage to his organs” (R26), and that if the situation did not end soon with feedings, clinical treatments and assessment, Mr. Dorsey would suffer “progressive damage, organ failure, injury, and death” (R26 [¶¶ 14- 15]). Dr. Karandy also assessed Mr. Dorsey’s mental condition. Upon his review of an Evaluation for Treatment Over Objection prepared by the facility’s mental health clinicians (R28-33) and a psychiatric assessment 7 prepared by Dr. Michael Sloane (R34-35), Dr. Karandy concluded that Mr. Dorsey was competent and able to care for himself, and that he was engaged in a hunger strike for manipulative purposes (R25). Indeed, Mr. Dorsey had been clear about his purpose; he had reported that his purposes were two-fold: he wished to force DOCCS to bring him to court for a force-feeding order because he wished to use the judicial forum to air his grievances about prison conditions, and he also wished to obtain a transfer to a different correctional facility (R25, 31, 35). Mr. Dorsey had stated that he had “[n]o [o]bjections” to the medical treatment DOCCS was proposing (R31). He understood that DOCCS would be seeking a court’s permission to administer treatment over his objection, and he indicated that if the court granted the relief, he would allow the treatment (R31). Dr. Sloan concluded that Mr. Dorsey is “not psychotic. He is not suicidal. He does not appear to need psychiatric medications. This writer believes that Mr. Dorsey’s hunger strike is totally volitional” (R35). The Resulting Hearing Supreme Court assigned Mr. Dorsey counsel and convened a hearing at which Dr. Karandy and Mr. Dorsey testified (R39-120). 1 1 The court assigned Barry Jones, a Washington County Public Defender, as counsel at the hearing. On appeal to the Appellate Division and in this Court, respondent is represented by Mental Health Legal Services. 8 Consistent with his intention to use the forum to air grievances, Mr. Dorsey proceeded to present those grievances. He claimed that guards had assaulted him, medical staff had covered up the resulting injuries, and his mail and breathing machine had been stolen. He admitted that the purpose of his hunger strike was to get him before a court where he could state his complaints and indicated that he wished to be transferred to another facility (R40-47, see also R99-102, 105: “Can you order me to be transferred?”). He stated that he was not trying to kill himself; he was “just trying to get some help from the courts” (R117). Indeed, he objected to a motion to seal Dr. Karandy’s affirmation to keep his personal information private, stating “Let them put it in the paper. I need that media attention” (R52). He also revealed that many or all of his complaints were already the subject of various state and federal court proceedings (R48-50). Mr. Dorsey’s counsel argued that Mr. Dorsey was not trying to commit suicide; he was attempting to call attention to the maltreatment he believed he was receiving in prison (R94-95). Counsel characterized Mr. Dorsey’s action as an attempt to assert “his rights to free speech” (R94) and urged the court to allow Mr. Dorsey to be heard on his assertions of maltreatment. Counsel never suggested that Mr. Dorsey was seeking to assert a right to 9 make his own decisions regarding his medical treatment, and Mr. Dorsey never affirmatively objected to the medical treatment DOCCS was proposing. Dr. Karandy testified that he had served as Mr. Dorsey’s treating physician since Mr. Dorsey’s arrival at Great Meadow in June 2010, and that he had ultimate responsibility for Mr. Dorsey’s care (R57, 83). He stated that he had personally checked on Mr. Dorsey’s condition everyday since Mr. Dorsey’s arrival at the infirmary (R82). Dr. Karandy explained that Mr. Dorsey had engaged in multiple hunger strikes since January 2010, and that he had commenced the current one on October 22, 2010 (R57, 83). Dr. Karandy understood Mr. Dorsey’s objective to be “to win his day in court” so that he could protest conditions in Great Meadow (R59). Dr. Karandy testified that respondent would have understood DOCCS’s policy on hunger strikes and thus would have known that his hunger strike would eventually induce DOCCS to “take him to court” for a force-feeding order (R59).2 Dr. Karandy also explained that Mr. Dorsey had been moved from general population to the facility infirmary when he began to lose weight so that he could be monitored on a daily basis (R75, 82). Dr. Karandy reported that, by the date of the hearing, Mr. Dorsey was not accepting any solid food; he was taking only liquids, juice, milk and water 2 Indeed, as Mr. Dorsey notes (Br. at 2 n.4), Mr. Dorsey had once before engaged in a hunger strike that induced DOCCS to bring him to court for a force-feeding order. 10 (R58) and his current condition was “[e]xtremely poor” (R61). Mr. Dorsey had experienced a “significant weight loss; his starting weight of 164 pounds was now down to 145 as of yesterday morning” (R61). Dr. Karandy had noticed “a lot of muscle wasting,” and his face is “alarmingly” thin in appearance (R62). It was Dr. Karandy’s “opinion within a reasonable degree of medical certainty” that if [Mr. Dorsey] continues on his current course of refusing to eat, in his determined chosen path, he’s going to seriously damage himself and his body, placing himself at risk of starving to death or even at the current time sustaining a fatal cardiac arrhythmia due to electrolyte and fluid imbalances from not eating. (R66; see also R62-63). Dr. Karandy opined that Mr. Dorsey’s health was “in serious jeopardy at this point in time” (R65). Without treatment, Mr. Dorsey’s prognosis was “death” (R67; see also R63 [“He will die.”]). Dr. Karandy proposed to “tube feed,” which entails “placing a small soft nasogastric tube . . . down the nose into the stomach” and feeding “with a high calorie liquid solution” (R63-64). This treatment would “correct his fluid and electrolyte abnormalities and reverse the starvation and the weight loss that have occurred” (R67). Although the proposed treatment presented some risks of complications, Mr. Dorsey would be carefully monitored for signs of complications and Dr. Karandy believed that the benefits of treatment 11 outweighed the risks (R64-66). He explained that there was no less intrusive form of treatment available and that the proposed treatment was narrowly tailored to achieve the desired results (R66). Dr. Karandy was also asked about the impact of Mr. Dorsey’s hunger strike on the State’s institutional interests, including the health and safety of other inmates, but he was not permitted to present any testimony on the issue. Mr. Dorsey’s counsel objected to the line of questioning, and Supreme Court sustained the objection (R72). While cross-examining Dr. Karandy, Mr. Dorsey revealed that he had requested the nutritional supplement Ensure, but that his request had been denied (R77-78; see R97-98). Dr. Karandy explained that Ensure would alleviate the problem presented by Mr. Dorsey’s hunger strike, but that DOCCS’s policy is to limit the provision of Ensure to those with medical conditions that require it and expressly to preclude its provision to a person who is deliberately manipulating his diet to achieve some goal (R77-78; see R87-90). He explained that providing Ensure would only serve to assist inmates in prolonging their hunger strikes (R78). And he explained that Ensure is “very expensive” (R88), and thus that DOCCS denies it just as it would deny lobster tails or filet mignon (R89-90). The doctor noted, however, that once an inmate’s condition deteriorates to the point that DOCCS seeks 12 and obtains a court order permitting forced feeding, the inmate would then “have the right to just drink the Ensure out of a cup” (R87-88). Before completing his cross-examination, Mr. Dorsey requested a continuance in order to review his complete medical file. Dr. Karandy had reviewed that file before testifying, but had not brought it to court, because he was so familiar with Mr. Dorsey’s care and condition (R82-83). Mr. Dorsey’s counsel argued that his ability to cross-examine the doctor was impeded without the file and thus a continuance was warranted (R78). The court took the matter under advisement and thereafter denied the request (R86-87, 102). Supreme Court’s Conditional Force-Feeding Order As the hearing transcript demonstrates, the court was compassionate and solicitous of Mr. Dorsey throughout the hearing. The court was ultimately persuaded, however, that Mr. Dorsey required prompt medical intervention to prevent irreversible damage and issued a conditional order authorizing the treatment DOCCS proposed “unless Respondent consumes Ensure and available food or other recommended nutritional supplement voluntarily” (R13) (emphasis added). The court also provided that its order would “stay in effect for 1 year unless extended on notice to [Mr. Dorsey] and he has an opportunity to be heard” (R14). 13 The court explained its reasoning from the bench. It recognized Mr. Dorsey’s stated reasons for the hunger strike, but found those reasons immaterial; what mattered instead was DOCCS’s showing that Mr. Dorsey was in fact “killing himself” and the need to “determine what should be done” (R95). On that issue, the court credited Dr. Karandy’s testimony that Mr. Dorsey’s condition was indeed grave: Dr. Karandy testified, and I find his testimony credible. He is an expert medical doctor who [has] been practicing for almost 20 years now. He’s been Medical Director at Great Meadow a number of years, and he has grave concerns. He finds that there is a substantial risk that Mr. Dorsey may have a cardiac arrhythmia, he may simply have a heart attack and die if he doesn’t starve himself to death beforehand. (R103). The court also found that DOCCS’s proposed treatment was in Mr. Dorsey’s best interests. In so finding, the court specifically noted that “there are no less restrictive alternatives available and the plan for Mr. Dorsey is narrowly tailored to protect him and his liberty interests” (R103-104). At the same time, the court acknowledged that, upon issuance of the force-feeding order, DOCCS would provide Mr. Dorsey with Ensure or its equivalent (R104-106). The court expressed its “hop[e]” that Mr. Dorsey 14 would avail himself of this opportunity and thereby obviate the need to resort to more drastic measures (R107). Subsequent Circumstances DOCCS thereafter offered Mr. Dorsey Ensure or its equivalent and, as Mr. Dorsey had promised (R106, see 110), Mr. Dorsey consumed that product while he remained at Great Meadow. Five months later, on May 23, 2011, Mr. Dorsey was transferred to Elmira Correctional Facility. We are advised that Mr. Dorsey has engaged in short-term hunger strikes at Elmira, but that it was never necessary to implement the force-feeding measures authorized by the court’s order and that DOCCS has had no occasion to seek further force-feeding orders. Appellate Division Decision Mr. Dorsey nonetheless pursued his appeal to the Appellate Division, where he was represented by new counsel, Mental Hygiene Legal Services. Through this counsel, Mr. Dorsey argued for the first time that the lower court’s force-feeding order implicated a privacy right under common law and the State Constitution to make his own decisions about his medical treatment. Mr. Dorsey also asserted that the lower court had erred by denying the request for a continuance and by concluding based on the record that his life was in fact at risk. DOCCS countered that Mr. Dorsey’s interim 15 transfer to a different facility and the then-upcoming expiration of the force- feeding order effectively mooted the appeal,3 and that his arguments should be rejected in any event. By Memorandum and Order dated January 12, 2012, the Appellate Division declined to dismiss the appeal as moot and affirmed (R4-8). The Appellate Division recognized that the force-feeding order had expired by its own terms on November 23, 2011, and that in the interim, Mr. Dorsey had been transferred to another facility where he had been voluntarily consuming solid foods (R5). The Appellate Division agreed that these events rendered moot the claims of error that were specific to the proceedings below, including the claim that the court erred by denying a continuance (R5-6). But the Appellate Division concluded that it should reach Mr. Dorsey’s privacy claim under the exception to the mootness doctrine, reasoning that 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” (R6). Turning to the merits of the privacy claim, the court questioned whether Mr. Dorsey had a protected privacy right under the circumstances, 3 When DOCCS submitted its brief to the Appellate Division, the order was due to expire in another six weeks, and DOCCS represented that it would not rely upon the order in the time remaining. By the time the Appellate Division rendered its decision, the order had expired. 16 but concluded that any such right must necessarily give way to the State’s overriding legitimate interests. The Appellate Division explained that the principle that a competent adult may decline life-sustaining treatment “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” (R6 [quoting Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 227 (1990), and citing Rivers v. Katz, 67 N.Y.2d 485, 492 (1986)]). But even assuming Mr. Dorsey’s privacy rights were implicated, the court noted that “at issue here is not the privacy interest of a free citizen, but an inmate confined to a correctional facility [whose] privacy rights are ‘necessarily limited by the realities of confinement and by the legitimate goals and policies of the correctional system” (R7 [quoting Matter of Doe v. Coughlin, 71 N.Y.2d 48, 53 [1987], and citing Turner v. Safley, 482 U.S. 78 [1987]). The court held that “[w]here, as Supreme Court found here, an inmate’s refusal to eat has placed that inmate at risk of serious injury and death, we hold — along with the majority of courts that have considered the issue — that the State’s interest in protecting the health and welfare of persons in its custody outweighs an individual inmate’s right to make personal choices about what nourishment to accept” (R7). 17 The court expressly rejected Mr. Dorsey’s argument that, because he was not intending to cause his death, the State’s interest in preventing suicide was not implicated. After all, whatever Mr. Dorsey’s motives, he was in fact jeopardizing his health and risking death. The court explained, however, that Mr. Dorsey’s stated motives − to obtain a judicial forum and facility transfer − undermined his argument that he was in fact seeking to assert a right to privacy. Finally, the court acknowledged that Mr. Dorsey’s stated motives could be construed as seeking to assert a right to free speech, but that the order did not violate that right. It explained that, in the prison context, the right to free speech is subject to reasonable limitations and “must clearly give way to the State’s right to prevent [Dorsey] from deliberately causing his own death” (R8 n.1). Leave to Appeal This Court granted Mr. Dorsey’s motion for leave to appeal by order dated June 7, 2012 (R3). 18 ARGUMENT POINT I THIS COURT SHOULD DISMISS THE APPEAL The Court should dismiss the appeal because the issues Mr. Dorsey presents are not properly before the Court. Mr. Dorsey failed to preserve his privacy claim by failing to assert it in Supreme Court, and his claim of trial error based on Supreme Court’s refusal to grant a continuance does not warrant consideration under the mootness exception, as the Appellate Division properly found. A. Mr. Dorsey Failed to Preserve In Supreme Court His Claim That The Order Implicated A Privacy Right To Make His Own Medical Decisions. Mr. Dorsey never asserted in Supreme Court that the order DOCCS sought implicated a privacy right (rooted in common law or the State Constitution) to make his own medical decisions, and thus that the court was required to weigh that right against the State’s interests before granting a force-feeding order. That claim is therefore not properly before the Court. It is well settled that legal claims not asserted in the trial court are beyond the scope of this Court’s review. See, e.g., McMillan v. State, 72 N.Y.2d 871, 872 (1988) (legal argument raised for first time at Appellate Division not preserved); see also People v. O’Hara, 96 N.Y.2d 378, 383-84 19 (2001) (unpreserved constitutional claims beyond the Court’s review); Matter of Hapletah v. Assessor of the Town of Fallsburg, 79 N.Y.2d 244, 252 (1992) (same). See generally Karger, Powers of the New York Court of Appeals §§ 7.4, 14.1 (3d ed. 2005) (explaining these principles). Although the Appellate Division can reach an unpreserved legal claim in the interests of justice, this Court lacks discretion to do so. See Brown v. City of New York, 60 N.Y.2d 893, 894 (1983); Feinberg v. Saks & Co., 56 N.Y.2d 206, 210-11 (1982). In Supreme Court, Mr. Dorsey never suggested that the force-feeding order DOCCS sought implicated a privacy right to make his own medical decisions, let alone that the court should weigh that right against the State’s interests before rendering a decision. He raised no such claim at the hearing or in any other submission to the trial court, and Supreme Court did not consider the claim sua sponte. Indeed, Mr. Dorsey admits here that the issue “was not squarely presented to Supreme Court at trial” (Memorandum in Support of Motion for Leave, p. 3). Mr. Dorsey’s privacy claim is therefore beyond the scope of this Court’s review. Contrary to Mr. Dorsey (id. at 4; see Br. at 12), the record does not suggest that Mr. Dorsey raised this privacy claim implicitly. Mr. Dorsey relies on references in the record to his competence and rational thought 20 processes, but those references merely demonstrate that DOCCS considered not only Mr. Dorsey’s physical health but also his mental health before seeking a court order authorizing forced-feeding. If anything, the record suggests that Mr. Dorsey was not seeking to assert a right to make his own medical decisions. Mr. Dorsey had been candid as to his motive for the hunger strike: he sought a vehicle to obtain a court appearance so that he could air his prison grievances and he wished to be transferred to a different correctional facility. Arguably, Mr. Dorsey thereby asserted a right to free speech. Indeed, his trial counsel characterized his claim as a free speech claim. But Mr. Dorsey never asserted a right to make his own medical decisions; to the contrary, he indicated he had “no objections” to DOCCS’s proposed treatment if the court authorized it (R31). Mr. Dorsey’s privacy claim is therefore not properly before the Court. As to the free speech claim that Mr. Dorsey arguably did assert in Supreme Court, Mr. Dorsey does not pursue that claim in this Court. He has therefore abandoned it. See Matter of Garner v. New York State Department of Correctional Services, 10 N.Y.3d 358, 361 (2008) (the Court “need not consider” an issue abandoned in the briefing). 21 B. Mr. Dorsey Also Asserts A Claim of Trial Error, But That Issue Is Moot And Does Not Warrant Consideration Under The Mootness Exception. Mr. Dorsey’s remaining claim, while preserved in Supreme Court, is also not properly before the Court. Mr. Dorsey argues that Supreme Court erred by denying him a continuance so that he could inspect the medical record (Br., Pt. II). The Appellate Division properly ruled that Mr. Dorsey’s claim of trial error was inappropriate for review under the mootness exception, because it was “specific to this particular proceeding” (R5). There was, thus, no reason to think it was capable of repetition, yet evading review. It also involved a procedural issue that is neither novel nor a matter implicating significant policy concerns such as might warrant application of the exception. See Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-15 (1980) (explaining that the exception applies when “significant or important questions not previously passed on” are raised). To the contrary, it simply involved an exercise of the trial court’s discretion in deciding whether to grant a continuance. See People v. Spears, 64 N.Y.2d 698, 699 (1984) (The decision to grant an adjournment “is ordinarily committed to the sound discretion of the trial court.”). The issue therefore not only fails to qualify under the mootness exception, but it does not warrant this Court’s review. We therefore do not address it further. 22 POINT II IF THE COURT RETAINS THE APPEAL, IT SHOULD AFFIRM If the Court retains this appeal, it should affirm the Appellate Division’s order. The rights even of free citizens to decline life-sustaining treatment are not absolute, but Mr. Dorsey is a prisoner. He thus retains only those personal rights that are consistent with both his status as a prisoner and the State’s legitimate penological objectives. An inmate hunger strike undertaken for the express purpose of manipulating prison officials that poses an imminent threat of serious harm to the inmate’s health is directly contrary to those objectives. The lower courts therefore properly found that either an inmate retains no right to engage in such a hunger strike or any rights retained in this regard were outweighed by the State’s interests here. To the extent the Court reads Mr. Dorsey’s brief as also asserting a separate claim based on his right to free speech, that claim fails under the same analysis. A. Any Right Mr. Dorsey Had To Refuse Forced- Feeding Was Outweighed By The State’s Prison-Related Interests. A competent free citizen has a common-law and statutory right, as well as a co-extensive liberty interest protected by the due process clause of the State Constitution, to determine the course of his or her own medical 23 treatment. Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 226 (1990); Rivers v. Katz, 67 N.Y.2d 485, 492-93 (1986).4 As Mr. Dorsey states (Br. at 13-14), even these rights are not absolute, but rather must be weighed against the interests of the State in the particular case. Fosmire, 75 N.Y.2d at 226; Rivers, 67 N.Y.2d at 496. Mr. Dorsey is a prisoner, however. While a prisoner does not lose all rights during incarceration, he retains only “those rights that are not inconsistent with his status as an inmate or with the legitimate penological objectives of the prison system.” Matter of Rivera v. Smith. 63 N.Y.2d 501, 510 (1984); see also Matter of Walton v. N.Y.S. Dep’t of Correctional Servs., 13 N.Y.3d 475, 491 (2009) (reiterating this principle); Matter of Lucas v. Scully, 71 N.Y.2d 399, 404 (1988) (same). The United States Supreme Court announced this same principle as to federal constitutional rights in Turner v. Safley, 482 U.S. 78 (1987), and subsequently clarified that it applied not only to the First Amendment rights specifically at issue in Turner, but to all federal constitutional rights, including the due process right to refuse medical treatment. See Washington v. Harper, 494 U.S. 210, 222-24 (1990). 4 Although Mr. Dorsey only relies on these state rights (Br. at 10-14), there also is a comparable constitutional right to privacy and bodily self-determination under the Due Process Clause of the Fourteenth Amendment. See Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 278 (1990) (a “person has a constitutionally protected liberty interest in refusing unwanted medical treatment”). 24 Mr. Dorsey essentially argues here that his case should not be analyzed as a prison case, but he is mistaken. As the Washington Court explained, Turner’s reasonableness standard is appropriate for purposes of analyzing the propriety of alleged governmental infringements on any constitutional right because it ensures appropriate deference to the judgment of corrections professionals tasked with responsibility for maintaining order and security in the volatile prison environment. Id.; see also Matter of Lucas v. Scully, 71 N.Y.2d at 406 (“in reaching the appropriate balance of factors under either the Federal or State approach, a measure of judicial deference is to be accorded the judgment of corrections officials”); Pabon v. Wright, 459 F.3d 241, 252 (2d Cir. 2006) (“The importance of [the state’s interest in effective prison administration] is not open to debate.”). This Court should make similarly clear that the rule it laid out in Rivera applies to all personal rights enjoyed by prisoners. In deciding whether a prisoner retains a particular right, the Court sometimes defines the right in question narrowly, and then applies the reasonableness test to find that the right so defined is simply inconsistent with the prisoner’s status as a prisoner. For example, in Walton, the Court held that the right to telephone service is inconsistent with a prisoner's status as a prisoner after noting that prisoners maintain adequate 25 alternative means to communicate. Id. at 490-93; see also Matter of Doe v. Coughlin, 71 N.Y. 2d 48 (1987) (three of four-judge majority finding no constitutional right to participate in conjugal visitation program). Other times, the Court defines the right in question more broadly, and then explains that even assuming the prisoner retains the right in question, application of the reasonableness test shows that the right is outweighed by the State’s penological interests. See, e.g., Matter of Lucas v. Scully, 71 N.Y.2d at 404-05; Matter of Rivera v. Smith, 63 N.Y.2d at 504-05. Either way, a prisoner’s rights must cede to countervailing legitimate penological goals. Applying this standard here, the Appellate Division properly found that the underlying force-feeding order did not violate Mr. Dorsey’s common-law or state constitutional right to determine his own medical treatment. Either Mr. Dorsey retained no such right where the medical treatment at issue was necessitated by his own decision to maintain a prolonged hunger strike, or any right he retained was readily outweighed by the State’s legitimate penological objectives in the circumstances presented. This is so for three reasons. First, Mr. Dorsey was an otherwise healthy individual, whose physical situation had become dire as a result of his hunger strike. Correction Law 26 § 70(2)(d) expressly requires prison officials to operate with due regard to "[t]he health and safety of every person in the custody of the department." Compare Hill v. Dep’t of Corrections, 992 A.2d 933, 939 (Pa. 2010) (rejecting state’s request to force feed an inmate whose health was not yet in danger).5 On this point, Supreme Court specifically credited Dr. Karandy’s testimony that Mr. Dorsey had lost over 11% of his body weight from an already reduced weight and was now at serious risk of cardiac arrhythmia, heart attack or death (R102-104). The Appellate Division affirmed the finding (R7). Because this Court lacks jurisdiction to review affirmed findings of fact, Glenbriar Co. v. Lipsman, 5 N.Y.3d 388, 392 (2005), Mr. Dorsey should not be heard to argue (Br. 13) that he was not in fact facing such an emergency. Second, by his own admission, Mr. Dorsey was using his hunger strike for manipulative purposes. He freely admitted that his purpose was to gain access to another judicial forum to air prison grievances and a transfer to another correctional facility. He also sought to obtain the nutritional 5 Some courts have reasoned that a State’s interest in ending a hunger strike through force-feeding measures and thereby preserving an inmate’s life is less compelling when the inmate already suffers from a chronic condition that significantly diminishes the quality of life. See Thor v. Superior Court, 5 Cal. 4th 725, 855 P.2d 375, 21 Cal. Rptr. 2d 357 (1993) (adopting this view with respect to quadriplegic inmate); see also Brophy v. New England Sinai Hospital, Inc., 398 Mass. 419, 497 N.E.2d 626 (1986) (state interest in preservation of life by artificial means less compelling in case involving non-inmate hospital patient in persistent vegetative state). Even if this Court were to adopt that reasoning, however, no such diminished interest would be implicated here. 27 supplement Ensure, which would have enabled him to prolong his manipulative hunger strike. It is self-evident, however, that allowing inmates to maintain hunger strikes beyond the point at which they pose an imminent risk of serious harm would undermine DOCCS’s ability to administer its prison system. It is therefore not surprising that numerous courts have rejected common-law and constitutional challenges to force- feeding orders in cases involving similarly manipulative hunger strikes. See In re Caulk, 125 N.H. 226, 231, 480 A.2d 93, 96 (1984) (inmate's hunger strike that “manipulated the system” disrupted the order of the prison); State ex rel. White v. Narick, 170 W. Va. 195, 199, 292 S.E.2d 54 (1982) (“main aim” of most hunger strikes by inmates is “to manipulate the system,” but “prison officials must do their best to preserve White's life”); In re Sanchez, 577 F. Supp. 7, 9 (S.D.N.Y. 1983) (court “cannot condone” hunger strike intended “to bring maximum pressure to bear upon the judge”); cf. Freeman v. Berge, 441 F.3d 543, 546 (7th Cir. 2006) (prison officials “cannot be forced by such tactics to change an otherwise reasonable rule”). If prison guards could prevent hunger-striking inmates from seriously threatening their health or even committing suicide only by meeting discrete demands, they would be hard pressed to refuse those demands, at least the more innocuous of them. And the pressure to dole out privileges to end 28 hunger strikes, rather than reserve those privileges as a means to reward good behavior in prison, would undermine the safety and security of the prison environment in the long term.6 See In re Caulk, 125 N.H. at 231, 480 A.2d at 96 (“prison officials will lose much of their ability to enforce institutional order if any inmate can shield himself from the administration's control and authority by announcing that he is on a starvation diet.”). And third, Mr. Dorsey’s hunger strike required the diversion of significant resources to monitor his condition on a regular basis and threatened to cause disruption among the prison population more generally. As one jurist has observed, “[i]f prisoners were allowed to kill themselves, prisons would find it even more difficult than they do to maintain discipline because of the effect of a suicide in agitating the other prisoners.” Freeman v. Berge, 441 F.3d 547 (Posner, J.). Indeed, “prisons are like powder kegs where even the slightest disturbance can have explosive consequences.” United States v. Johnson, 616 F.3d 85, 94 (2d Cir. 2010); see also Hewitt v. Helms, 459 U.S. 460, 474 (1983) (same). 6 Mr. Dorsey argues that the Court should not consider this factor because DOCCS failed to present evidence at the hearing to support it (Br. at 17). This argument is mistaken for two reasons. As Mr. Dorsey concedes (Br. at 20 n.8), it was Mr. Dorsey, through counsel’s objection at the hearing, that precluded DOCCS from submitting evidence to support the contention. But no such evidence was required on the issue in light of Mr. Dorsey’s admission here that he intended his strike for manipulative purposes. 29 Mr. Dorsey makes much of the fact that he did not intend to commit suicide (Br. at 15-16), and he argues as well that other inmates were unaware of his situation in any event because he had been moved to the infirmary (Br. at 17). These arguments are misplaced. Mr. Dorsey may not have set out to commit suicide, but he stated that he would continue his strike until he achieved his intended goals. As a result, he already had reached the point at which his health was in imminent danger of serious harm. And Mr. Dorsey’s placement in the infirmary did not prevent his situation from becoming known more generally. As this Court has recognized, the “efficiency of the prison grapevine is a factor that cannot safely and sensibly be ignored.” Matter of Abdur-Raheem v. Mann, 85 N.Y.2d 113, 122 (1995). For similar reasons, the vast majority of federal and state courts to have considered the issue have authorized force-feeding measures to end an inmate’s hunger strike that poses an imminent risk of serious harm. See generally Michael Mushlin, 1 Rights of Prisoners § 3:47 (4th ed. 2009) (collecting authorities). The federal courts of appeals have unanimously done so. See Walker v. Horn, 385 F.3d 321 (3d Cir. 2004); In re Grand Jury Subpoena of John Doe v. United States, 150 F.3d 170 (2d Cir. 1998); Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992); see also Freeman v. Berge, 441 30 F.3d 543 (analyzing issue in context of considering whether, on the other hand, prison officials may deprive an inmate of meals as a means to enforce reasonable conditions placed on the receipt of food). Among state courts, we are aware of only three courts that have ruled otherwise − two state high courts and one intermediate appellate court. See Thor v. Superior Court, 5 Cal. 4th 725, 855 P.2d 375, 21 Cal. Rptr 357, discussed supra, at 25 n. 5; see also Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 (1982); Singletary v. Costello, 665 So. 2d 1099 (Fla. App. 1996). In the vast majority of state cases, however, courts have upheld force- feeding orders, regardless of whether the inmates involved were using hunger strikes specifically for manipulative purposes, see, e.g., State ex rel. White v. Narick, 170 W. Va. 195, 199, 292 S.E.2d 54 (1982); as a means of protest, see, e.g., Commissioner of Corrections v. Coleman, 303 Conn. 800, 805, 38 A.3d 84, 90 (2012); or as a means to commit suicide, see, e.g., McNabb v. Dep’t of Corrections, 163 Wash. 2d 393, 398, 180 P.3d 1257, 1261 (2008); In re Caulk, 125 N.H. 226, 228-29, 480 A.2d 93 (1984). For all these reasons, the Court should hold that, where as here an inmate’s hunger strike poses an imminent risk of serious harm or death, the inmate either has no right to continue the hunger strike or the State’s 31 interests outweigh any right the inmate would otherwise have to make personal choices about his medical care. B. An Inmate’s Retained Right to Free Speech Does Not Include a Right to Use a Hunger Strike to Communicate Grievances. To the extent the Court reads Mr. Dorsey’s brief as also asserting a separate claim based on his right to free speech,7 that claim fails under the same reasonableness analysis. Either Mr. Dorsey has no right to speak by way of a hunger strike that poses an imminent threat of serious harm or any such right Mr. Dorsey would otherwise have in this regard is outweighed by the State’s legitimate penological objectives. In Walton, the Court analyzed the question whether a commission imposed on recipients of collect calls from inmates at correctional facilities unconstitutionally burdened the rights of inmates to speak to and associate with their friends and family while in prison.8 The Court acknowledged that inmates have a constitutional right to communicate with the outside world in 7 While counsel mentioned this idea in Supreme Court (R94-95) he did not pursue it there, nor was the point argued in the Appellate Division, nor, as noted above, does the argument appear in his brief in this Court. 8 While the plaintiffs in the case were the recipients of such collect calls who sought to assert their own constitutional rights to speak to and associate with their incarcerated loves ones or clients, the Court explained that their claims were assessed using the same reasonableness test as would apply to inmate claims, and thus went on to analyze the question as if the claims had been asserted by the inmates themselves. 13 N.Y. 3d at 492-93. 32 a manner and to an extent consistent with their incarcerative status. Given that inmates retain alternative means to communicate, however, for example, by way of mail offered at low or no cost, the Court ruled that inmates simply have no right to have telephone services at all, much less telephone services at a particular cost. 13 N.Y. 3d at 490-92. Similarly here, inmates retain any number of ways to exercise their free speech rights. Inmates have ample alternative means to communicate complaints and protests; they can write letters and file administrative grievances and lawsuits. But either the right to protest by way of a dangerous hunger strike is inconsistent with an inmate’s status or any rights an inmate retains in this regard are readily overridden by the State’s valid penological objectives for the same reasons set forth in Point II(A), supra. Accord Matter of Von Holden v. Chapman, 87 A.D.2d 66, 70-71 (4th Dep’t 1982); Comm’r of Correction v. Coleman, 303 Conn. at 831-38, 38 A.3d at 104- 108. 33 CONCLUSION The appeal should be dismissed as moot or, alternatively, the Appellate Division should be affirmed. Dated: Albany, New York November 16, 2012 Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent By: ____________________________ MARTIN A. HOTVET Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 (518) 474-8352 BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General MARTIN A. HOTVET Assistant Solicitor General of Counsel Reproduced on Recycled Paper