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Home My WebLink About07-0984 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEAL TH OF PENNSYL VANIA, DEPARTMENT OF CORRECTIONS, Plaintiff, v. - 07.9~ &t)J No. Civil Action Equity THOMAS SMITH, Defendant NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PAl 70 13 717-240-6150 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEAL TH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, Plaintiff, v. 67-Cj-r1 : No. _ Civil Action Equity THOMAS SMITH, Defendant COMPLAINT AND NOW, comes the Plaintiff, Commonwealth of Pennsylvania, Department of Corrections, by and through its undersigned counsel avers the following in support of this Complaint: 1. This action is brought in the Court's original jurisdiction. 2. Plaintiff is the Commonwealth of Pennsylvania, Department of Corrections. 3. Plaintiff is an executive agency of the Commonwealth of Pennsylvania responsible for administering the state correctional system, including the State Correctional Institution at Camp Hill (hereinafter "SCI-Camp Hill"). 4. Thomas Smith, ("the Defendant") is an inmate presently incarcerated at SCI- Camp Hill. 5. Since January 19,2007, the Defendant has refused to eat his meals. 6. As of 12:00 p.m. February 19,2007, the Defendant has missed 88 meals. 7. The Defendant is refusing all testing including diagnostic testing of chemistry and hemotology. 8. On October 17, 2006, the Defendant weighed 132 pounds. Defendant's height is five feet, five inches. 9. As of February 19, 2007 his weight was 116 pounds. 10. Because of the refusal of diagnostic testing, it is impossible to determine the precise stage of starvation that the Defendant may have reached. 11. Since the Defendant has lost more than 13 percent of his body weight, it is the opinion of Dr. Barry Beaven, Assistant Medical Director at SCI-Camp, that the Defendant must be tested to determine the necessity of life sustaining medical treatment. 12. It is the opinion of Dr. Beaven, that the Defendant will be in imminent danger of the loss of life or other irreparable harm unless he eats. (See Affidavit of Dr. Barry Beaven attached hereto as Exhibit "A"). 13. As a result of the Defendant's refusal to take nourishment or medication, he risks irreversible malnutrition which would result in organ failure and possibly death. 14. It is impossible to predict the exact point at which the Defendant's condition may result in immediate, severe, and irreparable harm. 2 15. However, the Defendant will die or suffer immediate and severe irreparable harm if he continues to refuse medical testing, nutrition and medication. 16. Permitting the Defendant to engage in a suicidal act by refusing to eat will cause a significant disruption to the orderly administration of SCI-Camp Hill. The effects of his death would demoralize the staff and instill the belief in the inmate population that the prison administration caused and permitted the Defendant's death. This will lead to animosity toward the staff and undermine confidence in prison authority. WHEREFORE, based on the foregoing, the Commonwealth of Pennsylvania, Department of Corrections, requests this Court to enter an Order: (a) Authorizing the Plaintiff or Plaintiffs designee, through medical staff, to involuntarily examine Defendant and administer medical treatment to him, including performing invasive diagnostic tests (including blood and urine tests), providing medication, and by supplying nutrition and hydration intravenously or otherwise, as may be deemed necessary by Plaintiff, to preserve Defendant's health and life. (b) Providing such other relief as this Court deems proper. 3 Respectfully submitted, Office of General Counsel BY'~~ T eron Perez Assistant Counsel Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Attorney ID No. 200935 Date: February 21, 2007 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA COMMONWEAL TH OF PENNSYL VANIA, DEPARTMENT OF CORRECTIONS, Plaintiff, v. : No. _ Civil Action Equity THOMAS SMITH, Defendant PROOF OF SERVICE I hereby certify that a true and correct copy of the Complaint was served on the person and in the manner indicated below: Personal service by hand-delivery Thomas Smith, DW-3015 SCI -Camp Hill 2500 Lisburn Road Camp Hill, PA 17001-8837 ~~ Corrections Health Care Administrator SCI -Camp Hill Date: February 21,2007 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEAL TH OF PENNSYL VANIA, DEPARTMENT OF CORRECTIONS, Plaintiff, v. : No. _ Civil Action Equity THOMAS SMITH, Defendant UNSWORN AFFIDAVIT I, Barry Beaven, M.D., state the following: 1. I am a medical doctor licensed to practice medicine in the Commonwealth of Pennsylvania. I am currently the Assistant Medical Director at the State Correctional Institution at Camp Hill ("SCI-Camp Hill"). 2. I am familiar with Thomas Smith ("Mr. Smith"), who is an inmate at SCI-Camp Hill. 3. Since January 19,2007, Mr. Smith has refused to eat his meals. 4. As of 12:00 p.m. on February 19,2007, Mr. Smith missed 88 meals. 5. Mr. Smith is refusing all testing including diagnostic testing of chemistry and hemotology. 6. On October 17, 2006, Mr. Smith weighed 132 pounds. Mr. Smith's height is five feet, five inches. 7. As of February 19,2007, Mr. Smith weighed 116 pounds. 8. Because of the refusal of diagnostic testing, it is impossible to determine the precise stage of starvation that Mr. Smith may have reached. 9. Since Mr. Smith has lost more than 13 percent of his body weight, it is my opinion that he be tested to determine the necessity of medical treatment. 10. It is my opinion that Mr. Smith will be in imminent danger of the loss of life or other irreparable harm unless he eats. 11. As a result of Mr. Smith's refusal to take nourishment or medication, he risks irreversible malnutrition which would result in organ failure and the possibility of death. 12. It is impossible to predict the exact point at which Mr. Smith's condition may result in immediate, severe, and irreparable harm. 13. However, Mr. Smith will die or suffer immediate and severe irreparable harm if he continues to refuse medical testing, nutrition and medication. 2 I understand that this statement is made subject to the penalties of 18 Pa. C.S. 9 4904, relating to unsworn falsification to authorities. Dated: ~ ~I ( c:lJ I ~~~'->--.. ~ , Barry Beaven, M.D. Assistant Medical Director SCI -Camp Hill 3 LEXSEE 580 a.2d 887 COMMONWEAL TH of Pennsylvania, DEPARTMENT OF PUBLIC WELFARE, FARVIEW STATE HOSPITAL, Petitioner, v. Joseph KALLINGER, Respondent No. 239 Misc. Dkt. 1990 Commonwealth Court of Pennsylvania 134 Pa. Commw. 415; 580 A.2d 887; 1990 Pa. Commw. LEXIS 501 July 18, 1990, Heard August 14, 1990, Decided SUBSEQUENT HISTORY: [***1] Publication Ordered September 10, 1990. CASE SUMMARY PROCEDURAL POSTURE: Petitioner commonwealth filed a request seeking a declaratory judgment authorizing the involuntary administration of necessary nutrition and medical treatment to preserve the health and safety of respondent prisoner, who sought to starve himself to death. OVERVIEW: Petitioner commonwealth, through its department of public welfare, filed a request seeking a declaratory judgment to force respondent prisoner to involuntarily receive food through a nasogastric tube and other medical treatment. The trial court determined that the prisoner was competent and could reject nutrition and hydration. Petitioner appealed, offering evidence that if respondent was allowed to starve to death, major negative repercussions on the prison and mental health systems would result. Recognizing that prisoners' rights were extremely limited because of the unique nature of prison custody, the court granted petitioners' request, and authorized involuntary administration of necessary medical treatment. The court concluded that petitioner had an overwhelming interest in maintaining prison security, order, and discipline, as well as preserving life and preventing suicide. OUTCOME: The court granted petitioner commonwealth's request for declaratory relief, and authorized the involuntary administration of nutrition and medical treatment to preserve the health of respondent prisoner; petitioner had an overwhelming interest in the orderly administration of its prison system. CORE TERMS: prisoner, nutrition, medical treatment, prison, suicide, patient, starve, staff, nasogastric tube, right to privacy, die, prison system, human life, preserving, inmate, medical care, psychiatric, discipline, hydration, sentence, custody, right of privacy, preservation, prison security, involuntary, feeding, suffering, convict, orderly, duty CORE CONCEPTS Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the detained constitutional rights of convicted prisoners. Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights Prison officials are given a wide range of discretion in the promulgation and enforcement of rules to govern the prison community in order to maintain security, order and discipline. Individual freedoms may be curtailed whenever prison officials, in exercise of their informed discretion, reasonably conclude that their exercise possesses the likelihood of disrupting prison order or stability or otherwise interfering with the legitimate penological objectives of the prison environment. Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights Compelled nutrition and medical treatment is proper because of the strong state interest in orderly prison administration outweighs any convict's residual rights. Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights The obligation of the commonwealth to provide for the health and safety of the inmates in their custody is derived from two very important interests: the preservation of human life and the prevention of suicide. The preservation of human life is of great interest to the state. Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights The commonwealth has a duty under the Eighth Amendment to protect the health and welfare of those persons in its custody, and may be cast in civil damages for its failure to observe such duty. Furthermore, the commonwealth has a duty to provide appropriate medical treatment to reduce the danger that an inmate suffering from a serious mental disorder represents to himself or others. Constitutional Law: Substantive Due Process: Privacy American law has always accorded the state the power to prevent, by force if necessary, suicide -- including suicide by refusing to take appropriate measures necessary to preserve one's life. COUNSEL: Thomas Blazusiak, with him, Howard Ulan, Asst. Counsel, and John A. Kane, Chief Counsel, for petitioner. Jeffrey J. Wander, Honesdale, for respondent. David Ferleger, Philadelphia, Guardian Ad Litem, for Joseph Kallinger. JUDGES: Pellegrini, Judge. OPINIONBY: PELLEGRINI OPINION: ORIGINAL JURISDICTION [*416) [**888) The Commonwealth of Pennsylvania, Department of Public Welfare, (Department), Farview State Hospital (Farview), files this Request for Special Emergency Relief asking this Court for a Declaratory Judgment authorizing the involuntary administration of necessary nutrition and medical [*417) treatment in order to preserve the safety, health and life of Joseph Kallinger (Kallinger). We are called upon to decide a sensitive matter which is without precedent in this Commonwealth. Joseph Kallinger wants to starve himself to death. nl The Department, who has custody, wants to force him to involuntarily receive food through a nasogastric tube and other medical treatment. We must decide if the Department has such right. nl Kallinger, a convicted murderer, is currently serving two consecutive life sentences consecutively with a thirty to eighty year sentence in Pennsylvania. He also must serve a life sentence and a forty-two to fifty-two year sentence in New Jersey. He also must serve other sentences which are too numerous to mention. Needless to say, Joseph Kallinger will spend the rest of his natural life behind bars. [***2) The current dilemma developed after Kallinger was recently readmitted to Farview on May 17, 1990, from the State Correctional Institution at Huntingdon (Huntingdon). n2 On June 22, 1990, he stated, as a result of his vision of Christ in a toilet bowl telling him to join him, that he would refuse to eat or drink, and that he desires to "meet his maker." He has also refused treatment for an abscess on his foot. On June 30, 1990, Kallinger agreed to be transferred to Wayne Memorial Hospital in Wayne County, Pennsylvania, in order to have intravenous fluids, including antibiotics, administered to him. However, he continued in his refusal to accept nutrition and other medical treatment. n2 Kallinger began serving his Pennsylvania sentences at Huntingdon following his convictions in 1976. However, in 1977, he was committed to Farview where he stayed for over ten years, until 1988. Since 1988, he was recommitted once for a short period of time and then returned to Huntingdon. This recent recommittment was his second since returning to Huntingdon. His current recommittment is scheduled to expire on August 17, 1990. [***3] On July 3, 1990, the Department filed an action for Declaratory Relief in the Court [**889] of Common Pleas of Wayne County, seeking authority to provide necessary treatment, nutrition and hydration to Kallinger. On that day, the trial court entered a preliminary order permitting the Department to do so. However, on July 10, 1990, after holding a hearing on the matter, the trial court dissolved its preliminary order and determined that Kallinger was competent [*418] and could reject nutrition and hydration necessary to preserve his health, safety and life. The Department filed a Petition For Review seeking Special Emergency Relief pursuant to the original jurisdiction of this Court, and seeking review of the trial court's Order pursuant to our appellate jurisdiction. Sections 761 and 762 of the Judicial Code, 42 Pa.c.s. 99 761, 762. n3 n3 By order dated July 13, 1990, this Court directed that the Petition For Review shall be regarded as a Complaint In Equity directed to our original jurisdiction, and that the appeal from the trial court's Order shall be dismissed without prejudice. [***4] On July 13, 1990, this Court granted the Department's request for a preliminary injunction, ordering that Kallinger may be involuntarily administered medical treatment, nutrition and hydration, pending further adjudication. On July 18, 1990, following a hearing, a second Order was issued continuing the involuntary medication and feeding of Kallinger pending final adjudication of this matter. The Department offered testimony and evidence that if Kallinger is allowed to starve to death, this would have major negative repercussions on the prison and mental health systems; that Kallinger's death would have adverse effects on other patients, their families and the staff of the mental hospital; and other patients may also "copy-cat" Kallinger's actions. Kallinger contends that despite such adverse repercussions to the Commonwealth, he should be allowed to die if he so chooses. He argues that his right to privacy overrides any interests of the Commonwealth because the use of a nasogastric tube to feed him is an overly intrusive procedure which could last a number of years. We note at the outset that Kallinger is committed to Farview, a mental hospital for the criminally insane. He suffers [***5] from a serious mental illness, diagnosed by Mokarram Jafri, M.D., as a Borderline Personality Disorder. (Notes of Testimony (N.T.), July 10, 1990, p. 35; July 18, 1990, pp. 27-29). However, he is competent in the sense that he fully understands his decision and realizes that [*419] death will result if he continues to refuse nutrition and medical treatment. (N.T. July 10, 1990, pp. 36, 70-71). We also recognize that Kallinger, through this action, may be attempting to manipulate the system in order to stay at Farview rather than return to Huntingdon. His authorization of his attorneys to enter appearances on his behalf -- one to say that he has the right to die, the other to say the state had an obligation to make him stay alive -- is certainly part of that manipulation. Although Kallinger has in the past and is now manipulating the system in which he finds himself, if the Department is not allowed to involuntarily provide him with nutrition and medical care, we assume that Kallinger will indeed starve himself to death. While Kallinger is sufficiently competent to make a decision to starve himself to death, this is not a "right to die" case in the usual sense. There has been [***6] much public debate and court activity over whether such a right exists and in what circumstances it exists, and these cases involve decisions made by enfranchised citizens or someone acting on their behalf, that their substantial rights of privacy allows them to make that decision. See e.g., Cruzan v. Director, Missouri Department of Health, US , 110 SCt. 2841, 111 L.Ed2d 224 (1990). Kallinger is a convict and any rights that he may have are extremely limited and severely restricted because of the unique nature and requirements of prison custody. Bell v. Wolfish, 441 US 520, 99 SCt. 1861, 60 L.Ed2d 447 (1979); Jones v. North Carolina Prisoners' Union, 433 US. 119, 97 SCt. 2532, 53 L.Ed2d 629 (1977); Price v. Johnston, 334 US 266, [**890] 68 SCt. 1049, 92 L.Ed 1356 (1948). What this case concerns is whether the Commonwealth's interest in an orderly administration of the prison system is paramount over any residual right of privacy that Kallinger has which would make it an invasion of privacy on the part of [***7] the Commonwealth to force feed him. The narrow issue then presented to us is whether the Commonwealth has a right to force a competent prisoner within the Commonwealth's penal system to receive involuntary [*420] medical treatment and nutrition and hydration through a nasogastric feeding tube. To decide this issue, a balancing test is employed, balancing the Commonwealth's interests against the prisoner's remaining right to privacy. Matthews v. Eldridge, 424 US 319, 96 SCt. 893, 47 L.Ed2d 18 (1976). Kallinger argues that his right to privacy is superior to the interests of the Commonwealth, no matter what effect it may have on the prison system. He argues that as a prisoner, he did not give up his right to starve himself, citing the Supreme Court of Georgia decision in Zant v. Prevatte, 248 Ga. 832, 286 SE.2d 715 (1982). In that case, the Georgia COlJrt held that a competent prisoner had a right to starve himself to death. The court, in ruling that the state does not have the right to force medical treatment and food on a competent prisoner, stated: A prisoner does not relinquish his constitutional [***8] right to privacy because of his status as a prisoner. The state has no power to monitor this man's physical condition against his will; neither does it have the right to feed him to prevent his death from starvation if that is his wish.... The state can incarcerate one who has violated the law and, in certain circumstances, even take his life. But it has no right to destroy a person's will by frustrating his attempt to die if necessary to make a point. Zant, 248 Ga. at 833-834,286 SE.2d at 716-717. Kallinger further argues that the procedure for forcing nutrition and hydration into him is overly intrusive. The procedure which the Department has been and wishes to continue using is a nasogastric tube which is inserted through the nose into the stomach. This tube will remain in his body and will have to be frequently removed and replaced. Kallinger correctly points out that there are several risks involved in this procedure, including internal bleeding and possibly even death. (N.T. July 10, 1990, pp. 42-43, 56- 57; July 18, 1990, p. 23). [*421J While admitting that there are risks to Kallinger as a result of his forced feeding, the Commonwealth [***9J argues that its interest in prison security and discipline, the morale of medical and custodial staff, as well as the law of this Commonwealth, far outweigh any right of privacy that Kallinger may have. We agree. The Commonwealth has an overwhelming interest in maintaining prison security, order and discipline. The Supreme Court has stated that "maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the detained constitutional rights of ... convicted prisoners." Bell v. Wolfish, 441 US at 546, 99 SCt. at 1878. This lack of a reasonable expectation of privacy deprives the convicts of Fourth Amendment rights in their prison cells. Hudson v. Palmer, 468 US 517, 104 SCt. 3194, 82 L.Ed2d 393 (1984). Prison officials are given a wide range of discretion in the promulgation and enforcement of rules to govern the prison community in order to maintain security, order and discipline. Bell v. Wolfish; Jones v. North Carolina Prisoners' Union; Pell v. Procunier, 417 US 817, 94 SCt. 2800, 41 L.Ed2d 495 (1974). [***10] US ex reI. Silverman v. Commonwealth of Pennsylvania, 527 FSupp. 742 (W.D.Pa.1981), affd Appeal of Silverman, 707 F2d 1395 (3rd Cir.1983). Individual freedoms may be curtailed whenever prison officials, in exercise of their informed discretion, reasonably conclude that their exercise possesses the likelihood of disrupting prison order or stability or otherwise interfering [**891J with the legitimate penological objectives of the prison environment. St. Clair v. Cuyler, 634 F2d 109 (3rd Cir.1980), rehearing denied 643 F2d 103 (3rd Cir.1980); See also Bell v. Wolfish; Jones v. North Carolina Prisoners Union; Wilson v. Prasse, 325 FSupp. 9 (W.D.Pa.1971), affd 463 F2d 109 (3rd Cir.1972). Other jurisdictions confronted with the same situation have held that compelled nutrition and medical treatment is proper because of the strong state interest in orderly prison [*422J administration outweighs any convict's residual rights. In Von Holden v. Chapman, 87 A.D.2d 66, 450 N.Y.S2d 623 (1982), Mark David Chapman, serving a twenty year [***l1J to life term for the murder of former Beatie John Lennon, attempted to starve himself to death while in a mental institution. The Supreme Court of New York, Appellate Division, in allowing involuntary feeding through a nasogastric tube, found that the legitimate interest in prison security and administration clearly included the right to prevent a prisoner's suicide. In Commissioner of Correction v. Myers, 379 Mass. 255, 399 NE.2d 452 (1979), the Massachusetts Supreme Court allowed forced hemadialysis to a prisoner suffering a kidney condition on the basis of maintaining prison order. The court stated that imprisonment imposed severe limitations on the prisoner's right to privacy and bodily integrity. In the present case, the uncontradicted testimony shows that if Kallinger would be permitted to die, other patients at Farview would almost certainly copy the same tactic, manipulating the system to get a change of conditions, possibly resulting in their death. (N.T. July 10, 1990, pp. 13-14,25-26,49; July 18, 1990, pp. 16-17,31). Allowing a prisoner to die will cause other patients to become angry and lose faith in the system and make treatment [***12] more difficult; it may even spawn rioting at Farview or from prisoners at Huntingdon or other state institutions. (N.T. July 10, 1990, pp. 13-14, 20, 26; July 18, 1990, pp. 17-20, 36). It is clear that allowing a prisoner to starve to death while in state custody would have an unpredictable negative effect on the security and order within the prison system. Besides preserving order with the prison system, the Commonwealth has a strong interest in maintaining the health of prisoners in its custody. The obligation of the Commonwealth to provide for the health and safety of the inmates in their custody is derived from two very important interests: the preservation of human life and the prevention of suicide. The preservation of human life is of great interest to the state. John F Kennedy Memorial Hospital [*423] v. Heston, 58 NJ 576, 279 A.2d 670 (1971). In Commonwealth v. Root, 191 Pa.Super. 238, 244, 156 A.2d 895, 900 (1959), revd. on other grds. 403 Pa. 571, 170A.2d 310 (1961), the Pennsylvania Superior Court stated that "[t]he policy of the law is to protect human life, even [***13] the life of a person who wishes to destroy his own." The Commonwealth has a duty under the Eighth Amendment to protect the health and welfare of those persons in its custody, Youngberg v. Romeo, 457 US 307, 102 SCt. 2452, 73 L.Ed.2d 28 (1982); Estelle v. Gamble, 429 US 97, 103, 97 SCt. 285, 290, 50 L.Ed.2d 251 (1976), and may be cast in civil damages for its failure to observe such duty, Simmons v. City of Philadelphia, 728 FSupp. 352 (E.D.Pa.1990); Lee v. Downs, 641 F2d 1117 (4th Cir.1981). Furthermore, the Commonwealth has a duty to "provid[e] appropriate medical treatment to reduce the danger that an inmate suffering from a serious mental disorder represents to himself or others." Washington v. Harper, 494 US , ,110 SCt. 1028, 1030, 108 L.Ed.2d 178 (1990). The United States Supreme Court in Washington v. Harper allowed the forced administration of antipsychotic drugs to a prisoner on the basis that the state's interest in providing appropriate medical treatment outweighed the inmate's liberty interest. [***14] The Supreme Court found that the state has not only an interest, but an "obligation to provide prisoners with medical treatment consistent not only with their own medical interests, but also with the [**892] needs of the institution." Washington v. Harper, 494 U.S. at , 110 S.Ct. at 1039. Other courts have also considered the state's interest in the preservation of human life. In State ex. rei. White v. Narick, W Va. , 292 S.E.2d 54 (1982), the West Virginia Supreme Court of Appeals allowed the force feeding of an inmate who had begun a hunger strike to protest conditions of his prison. The court found that " [ a] state must preserve human life, a concern at the very core of civilization.... West Virginia's interest in preserving life is superior to [the prisoner's] personal privacy (severely [*424] modified by his incarceration)." Narick, W.Va. at , 292 A.2d at 58. See also Commissioner of Correction v. Myers (forced hemadialysis treatment on prisoner suffering kidney condition based on preservation of life and maintaining prison order); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 NE.2d 417 (1977). [***15] The Court in Narick criticized the Georgia Supreme Court's decision in Zant by stating: The Georgia court failed to consider compelling reasons for preserving life, not the least being civility. What sense does it make for a state to allow a prisoner to kill himself, urging as its justification his right-of-privacy right to refuse medical treatment for his voluntary debilitation; and yet preserve unto itself the right to kill him, the ultimate violation of his privacy right. We doubt that Georgia would allow him to raise his right of privacy against being put to death, as a defense against the death penalty! Narick, W.Va. at ,292 S.E.2d at 57. The second related state interest is the Commonwealth's duty to prevent suicide. "American law has always accorded the State the power to prevent, by force if necessary, suicide -- including suicide by refusing to take appropriate measures necessary to preserve one's life." Cruzan v. Director, Missouri Department of Health, Us. at , 110 S. Ct. at 2859, 111 L.Ed2d 224 (1990). (Scalia, J. concurring). Pennsylvania public policy strongly opposes the commission of suicide. Commonwealth v. [***16] Root. Pennsylvania law makes it a crime to aid or solicit another person to commit suicide. Crimes Code, 18 Pa.c.s. ~ 2505. A police officer also has the right to use force to prevent a suicide from occurring. 18 P a. C. S. ~ 508(d)(1). By asking the Commonwealth to stand by and watch him die while it has custody and control over him, Kallinger is asking it to aid and abet his suicide. [*425] The leading case in support of a state's duty to prevent suicide is Von Holden v. Chapman. The Supreme Court of New York, Appellate Division, in rejecting Chapman's right to privacy claim, held that "it is self-evident that the right of privacy does not include the right to commit suicide .... To characterize a person's self- destructive acts as entitled to Constitutional protection would be ludicrous." Von Holden v. Chapman, 87 A.D.2d at 67, 450 N YS.2d at 625. Since Kallinger is a patient at Farview, the Commonwealth's interest in maintaining the integrity of the medical and psychiatric professions is also of great importance. Several courts have held that the integrity of the medical profession is an interest which should be balanced against [***17] a person's privacy right to refuse medical treatment or nutrition. Cruzan; Narick; Saikewicz. If Kallinger is allowed to starve himself to death, repercussions would be felt throughout the medical and psychiatric professions. (N.T. July 10, 1990, pp. 19-20,24- 25, 40; July 18, 1990, pp. 16-17). Dr. Jafri, Chief of Psychiatric Services at Farview, stated that Kallinger's death would "have a negative impact upon the staff [in] that we could not carry out a moral and ethical obligation of keeping a patient alive." (N.T. July 10, 1990, p. 41). Jack Wolford, M.D., Psychiatric Director for the Department, testified that "it would be devastating to the staff and the staff morale if they had to allow someone to cease living, virtually by their own hand, while under our care." (N.T. July 18, 1990, p. 10). [**893] Furthermore, if he is allowed to die, other patients and their families would have serious doubts about whether the psychiatric staff is providing their patients with proper psychiatric treatment and medical care. (N.T. July 18, 1990, pp. 26-27, 40; July 18, 1990, pp. 19,36). Dr. Jafri testified that his death "will not encourage the confidence of their patients in our ability to [***18] manage and take care their needs, as [well as] the moral confidence of the public." (N.T. July 10, 1990, p. 41). Dr. Wolford stated that the patients [*426] "would lose trust in the system of care." (N.T. July 18, 1990, p. 17). The Commonwealth of Pennsylvania has an overwhelming interest in the orderly administration of its prison system. The Commonwealth must maintain prison security, order and discipline. It must also fulfill its duty to provide proper medical care to the inmates, thus preserving life and preventing suicide. These vital interests, along with the need to preserve the integrity of the physicians and psychiatrists working within the penal system, clearly outweigh any diminished right to privacy held by Kallinger. Accordingly, we order that Farview can and must continue to provide appropriate nutrition through a nasogastric tube and appropriate medical care to Joseph Kallinger so long as he continues to refuse nutrition and medical treatment. Kallinger shall remain committed to Farview until such time as the medical and psychiatric staff feel it's appropriate for him to return to a State Correctional Institution. ORDER No. 239 Misc. Dkt. 1990 AND NOW, this [***19] 14th day of August, 1990, it is ordered that the Commonwealth of Pennsylvania, Department of Public Welfare, Farview State Hospital, must provide appropriate nutrition through a nasogastric tube and appropriate medical care to Joseph Kallinger as long as he continues to refuse either. Joseph Kallinger's commitment to Farview State Hospital is extended indefinitely until such time that the medical and psychiatric staff determines that such feeding can be carried out at an appropriate State Correctional Institution. ORDER AND NOW, this 10th day of September, 1990, it is ordered that the opinion filed August 14, 1990 shall be [*427] designated OPINION rather than MEMORANDUM OPINION and that it shall be reported. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEAL TH OF PENNSYL VANIA, DEPARTMENT OF CORRECTIONS, Plaintiff, v. No. Civil Action Equity THOMAS SMITH, Defendant VERIFICATION I, Teresa M. Law, am the Corrections Health Care Administrator at the State Correctional Institution at Camp Hill and am authorized to make this verification. I have reviewed the attached Complaint with respect to the involuntary treatment of Thomas Smith. I hereby verify that the allegations contained in the attached Complaint are true and correct to the best of my knowledge, information and belief. I make this verification subject to the penalties under 18 Pa. C.S. S 4904 relating to unsworn falsification to authorities. Teresa M. a Corrections Health Care Administrator SCI -Camp Hill Dated: .<..-t /..() 1 ,t ""'- ~ ~ ......... ~ (}oj ~ ~ ~ ~ ~~ lr. ~ .", ~ ,~ ~ ~ ~ .. ~ Q c ....... > -oC,', r\; \"j \ '-',~/ "',', f"~' L ~}./::: t:5 C~ --' -n ~ r..:> - ~:;: :-;.:. (-,I j;.'~; ~ ~ .." ~ ~:!.1 4jtn :;tJ (::.I ',J L ..__\(J :r: ::: \ 96 (jtrl -~ ~- ~ _.,,~ -'~ r:-? en ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA COMMONWEAL TH OF PENNSYL VANIA, DEPARTMENT OF CORRECTIONS, Plaintiff, v. } t)"7. 9~ tItJ : No. _ Civil Action Equity THOMAS SMITH, Defendant MOTION FOR PRELIMINARY INJUNCTION 1. Plaintiffs Complaint, Unsworn Affidavit, and Application for Ex Parte Preliminary Injunction in this matter is incorporated by reference as if fully set forth herein. 2. Defendant will suffer immediate, severe, and irreparable harm possibly resulting in death if ongoing, involuntary medical treatment, including nutrition and hydration, are not permitted. 3. Based upon the facts set forth in the Complaint and in Plaintiffs concurrently filed Application for Ex Parte Preliminary Injunction, Plaintiff has a clear right to administer ongoing involuntary medical treatment, including nutrition and hydration. Commonwealth of Pennsylvania, Department of Public Welfare, Farview State Hospital v. Joseph Kallinger, 134 Pa. Cmwlth. 415, 580 A.2d 887 (1990). WHEREFORE, Plaintiff requests this Court to enter a preliminary injunction permitting Plaintiff to involuntarily examine Defendant and to administer medical treatment to him, including performing invasive diagnostic tests, providing medication, and by supplying nutrition and hydration intravenously or otherwise, as may be deemed necessary, to preserve Defendant's health and life. Respectfully submitted, Office of General Counsel BY: ~ \>~ ron Perez \...l Assistant Counsel Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Attorney ID No. 200935 Date: February 21,2007 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA COMMONWEAL TH OF PENNSYL VANIA, DEPARTMENT OF CORRECTIONS, Plaintiff, v. : No. _ Civil Action Equity THOMAS SMITH, Defendant PROOF OF SERVICE I hereby certify that a true and correct copy of the Motion for Preliminary Injunction was served on the person and in the manner indicated below: Personal service by hand-delivery Thomas Smith, DW-3015 SCI -Camp Hill 2500 Lisbum Road Camp Hill, PA 17001-8837 ~ /!.fJi:- o,/(!4 Teresa M. a ' Corrections Health Care Administrator SCI -Camp Hill Da~e: February 21,2007 () c <;:: ut::D rnr'" ~:~ -..(~ < <\~ ~~l ....~r ~ ~'.... '" = <::::> -.I ..,., ,.." CD N ~ :r:n mr -om 7)9 ~o -'r tt ~L-.- -r1 cJo :2.rn 9 ~ =< -0 ::D: N .. U1 +- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA COMMONWEAL TH OF PENNSYL VANIA, DEPARTMENT OF CORRECTIONS, Plaintiff, v. .... \ 07< ~~ ~ : No. _ Civil Action Equity THOMAS SMITH, Defendant APPLICATION FOR EX PARTE PRELIMINARY INJUNCTION Pursuant to Pa. R.C.P. 1531, the Commonwealth of Pennsylvania, Department of Corrections, petitions this Honorable Court to issue an order ex parte granting the concurrently filed Motion for a Preliminary Injunction pending a hearing because of the following: 1. Plaintiffs Complaint and Motion for Preliminary Injunction in this matter are incorporated by reference as if fully set forth herein. 2. Defendant will suffer irreparable harm, possibly resulting in death, if the relief sought is not immediately granted. 3. Immediate relief, as requested, is necessary to sustain the life and health of the Defendant pending the adjudication of this matter. WHEREFORE, Plaintiff requests this Court to ex parte order a preliminary injunction permitting Plaintiff or Plaintiffs designee to involuntarily examine Defendant and administer medical treatment to him, including performing invasive diagnostic tests, including blood and urine tests, providing medication, and by supplying nutrition and hydration intravenously or otherwise, as may be deemed necessary by Plaintiff through its medical staff, to preserve Defendant's health and life pending the adjudication of this matter. Respectfully submitted, Office of General Counsel BY: ~ Q ./- Ttleron Per~~ Assistant Counsel Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Attorney ID No. 200935 Date: February 21,2007 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA COMMONWEAL TH OF PENNSYL VANIA, DEPARTMENT OF CORRECTIONS, Plaintiff, v. : No. _ Civil Action Equity THOMAS SMITH, Defendant PROOF OF SERVICE I hereby certify that a true and correct copy of the Application for Ex Parte Preliminary Injunction was served on the person and in the manner indicated below: Personal service by hand-delivery Thomas Smith, DW-3015 SCI -Camp Hill 2500 Lisburn Road Camp Hill, PA 17001-8837 '- ~ ~, Teresa M. a / Corrections Health Care Administrator SCI -Camp Hill Date: February 21,2007 (') c: < un:; q:r?: <#C~,_ ,,) &:)r- -< t::: ~F: );-~ ,-' c: z -.... -< /"'-.3 = <= --.J -r'1 ,.." co N o -n ~:D m, -om 7'19 86 i-T.: 41 ~o (3m ...... ~ -< "\:l :x N .. Ul U1 4.- '\ COMMONWEALTH OF PA DEPARTMENT OF CORRECTIONS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. THOMAS SMITH, DEFENDANT : 07-984 CIVIL TERM ORDER OF COURT AND NOW, this -v\ day of February, 2007, upon review of plaintiff's application for ex parte Preliminary Injunction and based upon the affidavit of the attesting physician, it appear that immediate relief is necessary pending the adjudication of this matter, therefore, IT IS HEREBY ORDERED THAT: 1. Pending the adjudication of this matter, plaintiff or plaintiffs designee, may involuntarily examine and perform invasive diagnostic tests, including blood and urine tests, on defendant. They may only administer medical treatment, including nutrition and hydration as may, in the opinion of medical staff, be immediately necessary to preserve defendant's health and life before the scheduled hearing. 2. In accordance with Pa.R.C.P. 1531(d), a hearing before this court on this matter shall be held on the 26th day of February, 2007, at 10:15 a.m. in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. This hearing shall be conducted via video conferencing. :sal ~}, ~ it ~." ~ u?lre If: ~ f:o'~. ~ ~ --PV Lrll/e/~ ~!INVt\l\Si\!N3d AlNn "" - ...,-,' rl' :'v'!"'i")Q ".1' ~ :..!~\""';~'i""~h~)I' ll",. \..' ....,., .' ..'._' '...:,. 1 t 80 :tl Wd I Z 83.:HGOl Atfv'10NOH108d 3H1 dO 301:l:l0-(J311.:i I ., COMMONWEALTH OF PA DEPARTMENT OF CORRECTIONS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. THOMAS SMITH, DEFENDANT : 07-984 CIVIL TERM ORDER OF COURT AND NOW, this ~b day of February, 2007, following a hearing and being in receipt of evidence that Thomas Smith has been on a hunger strike since January 18, and being satisfied from the medical testimony that the preservation of his health requires the entry of an injunction,1 IT IS ORDERED: (1) The temporary injunction entered on February 21, 2007, is vacated and replaced with this order. (2) Plaintiff or its designee may routinely involuntarily examine and perform invasive diagnostic tests, to include blood and urine, on Thomas Smith to monitor his health. (3) If in the opinion of the medical doctor in charge of his care, nutrition and hydration becomes immediately necessary to preserve the health of Thomas Smith, such nutrition and hydration may be medically, involuntarily administered until he I e mmonwealth of Pennsylvania, Department of Public Welfare, lew State Hospital v. Kallinger, 134 Pa. Commw. 415 (1990). ~ ., Theron Perez, Esquire For Department of Corrections Thomas Smith, DW-3015, Pro se SCI Camp Hill 2500 Lisburn Road Camp Hill, PA 17001-8837 :sal >- ~ 1-- I,J.J~"') 8~{ 6f,:i, wO- ::--dlU Ll..:r: l- ~ u'") I...'") . ;...c r-- N CO W u... ,..... = C;l ('o.,j