United States of America v. Novikov

MOTION for Temporary Restraining Order

M.D. Ga.May 11, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION UNITED STATES OF AMERICA, * * Plaintiff, * CASE NO. 4:17-CV-100 * v. * * VITALY NOVIKOV, * * Defendant. * ____________________________________* EMERGENCY MOTION FOR ORDER OF AUTHORIZATION AND SUPPORTING MEMORANDUM Plaintiff United States of America, by and through the United States Attorney for the Middle District of Georgia, hereby respectfully moves this Honorable Court for an Order, pursuant to 28 U.S.C. § 1651, authorizing the United States Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), acting through the Stewart Detention Center (SDC) and contract medical personnel, to perform laboratory tests and physical evaluation to monitor and assess Defendant Vitaly Novikov’s clinical condition (i.e., drawing of blood and urinalysis for laboratory testing, physical examination, and administration of medications, as needed) and to involuntarily administer nutrients to Defendant, an ICE detainee at SDC in Lumpkin, Georgia. Restraints may be needed to accomplish this involuntary monitoring, treatment, and administration of nutrients. In support of this motion, Plaintiff shows as follows: Statement of the Case Defendant is a citizen of the Union of Soviet Socialist Republics (USSR), who is currently detained by DHS/ICE at SDC. Defendant was ordered removed from the United States Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 1 of 12 2 by the Immigration Court at SDC, and he reserved his right to appeal his removal order to the Board of Immigration Appeals (Board). Defendant has until May 18, 2017 to file an appeal with the Board. Defendant is currently engaged in a hunger strike and is refusing nutrients necessary to sustain his life. Defendant is also refusing to cooperate with the medical staff at SDC, to wit: he is refusing nutrients, medical tests, and medication necessary to sustain his life. See Declaration of Dr. Eugene G. Charbonneau, D.O., attached hereto as Exhibit A. Plaintiff has made reasonable efforts to persuade Defendant to discontinue his hunger strike, to no avail. See Declaration of Alejandro E. Hernandez, attached hereto as Exhibit B. As Supervisory Detention and Deportation Officer Alejandro E. Hernandez notes in his declaration: 1. Defendant is currently refusing nutrients, medical tests, and medications necessary to sustain his life. Defendant has refused to eat since April 20, 2017. Plaintiff has made reasonable efforts to persuade Defendant to comply with necessary medical treatment and to end his hunger strike to no avail. The medical staff at the SDC is closely monitoring his condition. 2. Since NOVIKOV began the hunger strike, both the medical staff at SDC and the detention and removal staff of ICE have tried to convince NOVIKOV to end his hunger strike and eat. It has been explained to him that if he continues to refuse necessary nutrients, laboratory tests, and medication, his health will be seriously jeopardized and he will eventually die. Despite repeated efforts to convince NOVIKOV to comply, he has failed to cooperate. 3. The medical staff at the SDC has informed me that if NOVIKOV continues to refuse necessary nutrients and medical treatment, it will be necessary to perform laboratory tests and physical evaluation to monitor and assess NOVIKOV’s clinical condition in order to save his life. In addition, the medical staff at the SDC has informed me that if NOVIKOV continues to refuse necessary nutrients and medical treatment, it will be necessary to administer nutrients by nasogastric tube and/or intravenous feeding because NOVIKOV’s life is in danger. 4. The death of NOVIKOV, as a result of this refusal to cooperate, would Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 2 of 12 3 seriously effect [sic] the operation of SDC and would adversely affect my ability and the Department’s efforts to maintain the security and good order of this detention facility in the following ways: a. Perceptions may be formed by the detained population that the detention and removal staff will simply let NOVIKOV die, without doing anything to save him, which could lead to acts of detainee violence and disruptions. The detained population, having formed such a perception, could act alone or in groups to disrupt the detention facility. I am concerned that food strikes or other disruptive or violent acts would be directed at staff or against government property, in order to express the detainees’ anger, resentment, and frustrations. b. If such disruptive acts were to occur, tensions between detainees and staff would be heightened and increased, making almost all aspects of the detention operation more difficult for staff to perform. c. For a detainee to cause his own death without staff intervention would totally thwart the Department’s obligation to render appropriate medical care and prevent detainee suicides. Other detainees may decide to commit suicide by starving themselves to death. d. Other detainees may decide that they have lost confidence in the skills, ability, or willingness of medical staff at SDC to administer their medical care. They may be reluctant to seek treatment from the medical staff, reluctant to accept the treatments recommended, and may decide there is a need to “second guess” the judgments of the medical staff, leading to emergency situations that could have been avoided had the detainee sought medical help at an earlier time. e. Detainees who participate in hunger strikes may severely and permanently damage their state of health, requiring the Department to unnecessarily expend large sums of money for their immediate and long-term medical care. f. Other detainees will actually participate in hunger strikes in attempts to manipulate the staff in efforts to gain various benefits and privileges. For example, detainees may initiate hunger strikes in an attempt to pressure staff to transfer them away from SDC, or to gain their release from detention. Without the ability to intervene when medically necessary, the detention facility will be forced to allow the detainee to die – in contravention of the Department’s legal and ethical obligations.. g. Some detainees will merely voice threats to go on a hunger strike, gaining additional staff attention, drawing their attention away from other detainees, and making staff apprehensive in their approach to such detainees. Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 3 of 12 4 h. Under the law as I understand it, I have an obligation to uphold the Detention Standards set forth in the Detention Operations Manual, which include an obligation to ensure appropriate medical care to detainees and to act to preserve and protect detainees’ lives while they are detained in the custody of the Department. If detainees are not force fed when medically necessary, the failure to provide such medical care could expose the United States Government and its employees to various claims of liability and lawsuits from family members of deceased detainees who assert that the Department, through Immigration and Customs Enforcement, should have acted to prevent the detainee’s death by force-feeding the detainee, but did not. Whether or not the family members would ultimately win the claims and cases, the burdens of responding to claims and litigation would result in a drain of staff time and resources and distract staff from their regular duties of ensuring the safety and orderly operation of the detention facility. 5. For the reasons stated above, the adverse effects resulting from not being able to perform the necessary laboratory tests and physical evaluation to monitor and assess NOVIKOV’s clinical condition would harm the Department’s ability to operate in a safe and orderly manner. Further, after his laboratory tests have been completed and it is determined that his clinical condition has deteriorated to a level that is adverse to his health, to not force-feed him could potentially result in severe disruption to the detention facility. 6. In my judgment, to save this detainee and to protect facility security and good order it is necessary to perform laboratory tests, physical evaluations to monitor and assess NOVIKOV’s clinical condition and if deemed necessary, to involuntarily administer nutrients to NOVIKOV. Without the necessary laboratory tests and physical evaluation to monitor and assess Defendant’s clinical condition, Defendant’s life is in danger. Furthermore, without the involuntary administration of nutrients, by nasogastric tube and/or intravenous feeding, Defendant’s life is in danger. As noted in the declaration of Dr. Eugene G. Charbonneau, D.O., Defendant has missed 60 meals since April 21, 2017, and has not consumed any water since May 9, 2017. Dr. Charbonneau has declared that it is necessary to perform laboratory tests and physical evaluation to monitor and assess Defendant’s clinical condition. See Exhibit A. Furthermore, Dr. Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 4 of 12 5 Charbonneau has declared that should Defendant continue his hunger strike, he will reach a point where he will require immediate involuntary medical intervention to prevent further deterioration and serious medical complications, and if involuntary feeding and/or hydration is required, it will be necessary to feed Defendant a nutritional supplement through a nasogastric tube and/or intravenous line. Law and Analysis A competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment. Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990); Sullivan v. Bornemann, 384 F.3d 372 (7th Cir.2004). However, the plaintiff’s interest in refusing medication must be balanced against the state’s legitimate and necessary interest in prison safety and security. To determine whether a prisoner’s substantive due process rights have been met, the court must assess: 1) whether there exists a “valid, rational connection” between the state’s legitimate interests and its act of forcibly medicating the plaintiff; 2) how and to what extent prison resources, prison staff, and other inmates will be adversely affected if the plaintiff is permitted to refuse his prescribed medication; and 3) whether the interests of the state and others reasonably could be protected by means other than forced administration of antipsychotic medications. Washington v. Harper, 494 U.S. 210, 221-22 (1990) (citing Vitek v. Jones, 445 U.S. 480, 491-94 (1980); Youngberg v. Romeo, 457 U.S. 307, 316 (1982); Parham v. J. R., 442 U.S. 584, 600-01 (1979)). The state has a substantial interest in combating the danger posed by a person to both himself and others in “a prison environment, which, ‘by definition,’ is made up of persons with ‘a demonstrated proclivity for antisocial criminal, and often violent, conduct.’” Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 5 of 12 6 Harper, 494 U.S. at 225 (quoting Hudson v. Palmer, 468 U.S. 517, 526 (1990)). The state also has an interest and is required to provide necessary medical care for inmates housed within its facilities. The majority of courts have considered similar issues relating to the force-feeding of a person in custody. Those courts have upheld the constitutionality of doing so, pointing out numerous governmental interests that are advanced by the force-feeding and the thwarting of hunger strikes. Contrary decisions are fact-dependent on the particular circumstances and are not pertinent here. See In re Grand Jury Subpoena John Doe v. United States, 150 F.3d 170 (2d Cir. 1998) (a force feeding order did not violate constitutional rights when weighed against the state’s interests in preserving life, prevention of suicide, and enforcement of prison security, order, and discipline); Garza v. Carlson, 877 F.2d 14 (8th Cir. 1989) (affirming the right of prison officials after a court hearing to force feed prisoner on a hunger strike); In re Sanchez, 577 F. Supp. 7 (S.D.N.Y. 1983) (extra attention required to deal with hunger striker creates administrative burden); Laurie v. Senecal, 666 A.2d 806 (R.I. 1995) (prisoner has no right to commit suicide through starvation); State v. Vogel, 537 N.W.2d 358 (N.D. 1995) (courts cannot condone manipulation of medical circumstances to detriment of state’s interests, and force- feeding is reasonably related to legitimate interests in order, security, and discipline). There are no federal cases which hold that a prison inmate or detainee has a right to die, that is, to commit suicide by starvation. Rather, the United States Supreme Court has specifically held that there is no right to commit suicide. Washington v. Glucksburg, 521 U.S. 702, 728 (1997). The Effects on the Institution ICE Supervisory Detention and Deportation Officer Alejandro E. Hernandez’s concerns Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 6 of 12 7 about the adverse effects on SDC are very real. Cleavenger v. Saxner, 474 U.S. 193, 194-96 (1985) provides a real life example where, after an inmate’s death at the institution hospital, inmates engaged in a work stoppage to protest his death because of their perceptions of the institutions’ medical care. In addition, there are very real concerns about such events fostering litigation, win or lose. In Geter v. Wille, 846 F.2d 1352 (11th Cir. 1998), the mother of a prisoner who starved himself to death sued for damages. The named defendants were found liable in a jury trial and compensatory and punitive damages totaling $150,000 were awarded. The Eleventh Circuit ultimately reversed the verdict for lack of personal involvement, but the defendants had to undergo a trial where their time and attentions were drawn away from their regular duties. They also had to suffer under the personal stresses created by an improper verdict and award. As explained by the Eleventh Circuit, “[t]he jury, apparently consumed by this misfortune, wanted to make someone pay for what happened to Geter.” Geter, 846 F.2d at 1355. It is perhaps only natural that an inmate’s loved ones will feel that medical care has been improper and that there was something the medical staff could have done to save the inmate’s life. There have been a number of cases where inmate suicides were at issue. The Fourth Circuit has made clear that “‘prison officials have a duty to protect prisoners from self-destruction.’” Gordon v. Kidd, 971 F.2d 1087, 1094 (4th Cir. 1992) (quoting Lee v. Downs, 641 F.2d 1117, 1121 (4th Cir. 1981)). Prison officials violate the civil rights of inmates when they display “deliberate indifference to serious medical needs.” Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992). Prison officials also have an obligation to prevent prisoner’s suicides when they are aware an inmate is suicidal. Prison officials risk a finding that they have been Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 7 of 12 8 “deliberately indifferent when they have knowledge and do not act.” See Edwards v. Gilbert, 867 F.2d 1271, 1275 (11th Cir. 1989) (citing examples where defendants were aware of decedents’ suicidal tendencies); Popham v. City of Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990) (no liability where no knowledge inmate was suicidal). When an inmate dies after a hunger strike, it is predictable that lawsuits against both the United States and against individuals for failure to prevent suicide, as well as claims under the Federal Tort Claims Act, will ensue. ICE Supervisory Detention and Deportation Officer Alejandro E. Hernandez’s other concerns have validity as well, and his judgment is entitled to deference from the Court. The Supreme Court has repeatedly held that prison officials have broad administrative and discretionary authority over the institutions that they manage and that lawfully incarcerated (or, in this case, lawfully detained) persons retain only a very narrow range of protected liberty interests. Hewitt v. Helms, 459 U.S. 460, 467 (1983). Broad discretionary authority is necessary because the administration of a detention center is an extraordinary difficult undertaking. Courts should not be too ready to exercise oversight and put aside the judgment of administrators. Wolff v. McDonnell, 418 U.S. 539 (1974). A warden or administrator has a responsibility to maintain order and safety. Accordingly, discretion is granted in the implementation of policies that further these goals. Bell v. Wolfish, 441 U.S. 520, 546 (1979). Wardens and administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that, in their judgment, are needed to maintain institution security. Id. at 547. When the action taken appears to be a rational response to a security problem and there is no evidence that the response is exaggerated, a court will not second-guess a prison official. Id.; see also, Turner v. Safely, 482 U.S. 78 (1987) Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 8 of 12 9 (regulation is valid if it is rationally related to legitimate penological interests). Staff must act and react to situations occurring in correctional and detention institutions on the basis of imperfect information, making judgments about how various events will affect their institutions and inmates and staff within them. As the Supreme Court explained in Hewitt v. Helms: In assessing the seriousness of a threat to institutional security, prison administrators draw on more than specific facts surrounding a particular incident; instead they must consider the character of inmates confined in the institution, recent and longstanding relations between prisoners and guards, prisoners inter se, and the like. In the volatile atmosphere of a prison, an inmate easily may constitute an unacceptable threat to the safety of other prisoners and guards even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potentially disastrous incidents. The judgment of prison officials in this context, like that of those making parole decisions, turns largely on “purely subjective evaluations and on predictions of future behavior,” [citation omitted]; indeed, the administrators must predict not just one inmate’s future actions, as in parole, but those of an entire institution. Hewitt, 459 U.S. at 474. Although prisoners and detainees retain some of their constitutional rights, restrictions may be made based upon legitimate goals and policies of correctional institutions. “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnson, 334 U.S. 266, 285 (1948). A restriction that infringes on constitutional rights is thus valid if imposed for reasons of security. Bell v. Wolfish, 441 U.S. 520, 546 (1979). Central to all other correctional goals is the security of the institution itself. Pell v. Procunier, 417 U.S. 817, 823 (1974). Maintaining institution security and preserving internal order and discipline justifies the limitation or retraction of the retained constitution rights of both convicted prisoners and pretrial detainees. Bell, 441 U.S. 546. Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 9 of 12 10 Finally, the fact of confinement and the needs of the institution impose limitations on constitutional rights of inmates, including those derived from the First Amendment. Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 125 (1977). The Supreme Court has “repeatedly recognized the need for major restrictions on prisoner’s rights.” Id. at 129. Prison and jail officials must be permitted to take steps to forestall threats of institution disruptions. “[T]hey must be permitted to act before the time when they can compile a dossier on the eve of a riot.” Id. at 132-33; see also id. at 133 n.9. Thus, ICE Supervisory Detention and Deportation Officer Alejandro E. Hernandez’s concerns for the Department’s ability to maintain the safety of detainees transferred to SDC, including his concerns for potential security problems if Defendant is not involuntarily administered nutrients and provided with necessary medical treatment, should prevail. The Court should grant the motion in these circumstances, where the right for a prisoner to commit suicide by starvation or by refusing life-sustaining medical treatment has been rejected by the courts which reviewed such a claim and where the Supreme Court has not found such a right to exist. Conclusion For all of the above-stated reasons, the United States of America prays for an order under 28 U.S.C. § 1651 authorizing the Department at the SDC, through competent medical authority, to perform laboratory tests and physical evaluations to monitor and assess Defendant Vitaly Novikov’s clinical condition (i.e., drawing of blood and urinalysis for laboratory testing, physical examination, and administration of medications, as needed), and, if necessary, to restrain Defendant to accomplish the same until such time as Defendant discontinues his hunger strike or until the Court orders otherwise. Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 10 of 12 11 Further, the United States of America prays for an order under 28 U.S.C. § 1651 authorizing the Department at the SDC, through competent medical authority, to involuntarily administer nutrients to Defendant Vitaly Novikov by nasogastric tube and/or intravenously to sustain the life of Defendant, and, if necessary, to restrain Defendant to accomplish the same until such time as Defendant discontinues his hunger strike or until the Court orders otherwise. For the convenience of the Court, the United States has attached a proposed order should the Court find this motion meritorious. Respectfully submitted this 11th day of May, 2017. G. F. PETERMAN, III UNITED STATES ATTORNEY By: /s/ W. Taylor McNeill W. Taylor McNeill Assistant United States Attorney Georgia Bar No. 239540 United States Attorney’s Office Middle District of Georgia P.O. Box 1702 Macon, GA 31202 Tel.: 478.621.2729 Fax: 478.621.2737 Email: taylor.mcneill@usdoj.gov Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 11 of 12 12 CERTIFICATE OF SERVICE I hereby certify that on May 11, 2017, I electronically transmitted the United States’ Emergency Motion for Order of Authorization and Supporting Memorandum to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: N/A I further certify that on May 11, 2017, I served this document by in-person delivery or first-class mail on the following non-CM/ECF participant: Vitaly Novikov A070 226 146 c/o Stewart Detention Center 146 CCA Road P.O. Box 248 Lumpkin, GA 31815 This 11th day of May, 2017. G. F. PETERMAN, III UNITED STATES ATTORNEY By: /s/ W. Taylor McNeill W. Taylor McNeill Assistant United States Attorney Case 4:17-cv-00100-LJA Document 3 Filed 05/11/17 Page 12 of 12 Case 4:17-cv-00100-LJA Document 3-1 Filed 05/11/17 Page 1 of 4 Case 4:17-cv-00100-LJA Document 3-1 Filed 05/11/17 Page 2 of 4 Case 4:17-cv-00100-LJA Document 3-1 Filed 05/11/17 Page 3 of 4 Case 4:17-cv-00100-LJA Document 3-1 Filed 05/11/17 Page 4 of 4 Case 4:17-cv-00100-LJA Document 3-2 Filed 05/11/17 Page 1 of 5 Case 4:17-cv-00100-LJA Document 3-2 Filed 05/11/17 Page 2 of 5 Case 4:17-cv-00100-LJA Document 3-2 Filed 05/11/17 Page 3 of 5 Case 4:17-cv-00100-LJA Document 3-2 Filed 05/11/17 Page 4 of 5 Case 4:17-cv-00100-LJA Document 3-2 Filed 05/11/17 Page 5 of 5 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION UNITED STATES OF AMERICA, * * Plaintiff, * CASE NO. * v. * * VITALY NOVIKOV, * * Defendant. * ____________________________________* ORDER The Court, having fully considered the Complaint, Emergency Motion for Authorization, Motion for Temporary Restraining Order, and the Declarations submitted therewith, and all matters of record herein, IT IS HEREBY ORDERED that the United States Department of Homeland Security (DHS.), Immigration and Customs Enforcement (ICE), through competent medical authority, may perform laboratory tests and physical evaluations to monitor and assess Defendant Vitaly Novikov’s clinical condition (i.e., drawing of blood and urinalysis for laboratory testing, physical examination, and administration of medications, as needed), and may restrain Defendant to accomplish the same until such time as Defendant discontinues his hunger strike or until the Court orders otherwise. IT IS HEREBY FURTHER ORDERED that the DHS and ICE, through competent medical authority, may involuntarily administer nutrients to Defendant by nasogastric tube and/or intravenously to sustain the life of Defendant, and may restrain Defendant to accomplish the same until such time as Defendant discontinues his hunger strike or until the Court orders otherwise. Case 4:17-cv-00100-LJA Document 3-3 Filed 05/11/17 Page 1 of 2 SO ORDERED, this ________ day of May, 2017. ____________________________________ United States District Judge Case 4:17-cv-00100-LJA Document 3-3 Filed 05/11/17 Page 2 of 2