HomeMy WebLinkAbout14-4789 Supreme Court of Pennsylvania
Coulr ili Cpmlrlaon Pleas
e.4- .l Q , Beet For Prothonotary Use Only:
CLAbeiralleis0 County Docket No:
-'7.'=.1S--.7:glars,.. N-iii'S Y
The information collected on this form is used solely for court administration purposes. This form does not
supplement or replace the filing and service of pleadings or other papers as required by law or rules of court.
Commencement of Action:
's El Complaint 0 Writ of Summons ❑ Petition ❑ Notice of Appeal
s:.: 0 Transfer from Another Jurisdiction 0 Declaration of Taking
E.
Lead Plaintiff's Name: Lead Defendant's Name:
_T PA Dept. of Corrections/SCI-Camp Hill Mario L. Banegas
::' 0 Check here if you are a Self-Represented (Pro Se)Litigant
0 Name of Plaintiff/Appellant's Attorney: Elizabeth L. Pettis
N .
Are money damages requested? : ❑Yes 0 No Dollar Amount Requested: ❑ within arbitration limits 1
(Check one) 0 outside arbitration limits 7
A.
Is this a Class Action Suit? ❑ Yes 0 No
Nature of the Case:' Place an"X"to the Ieft of the ONE case category that mostaccurately describes your - - ..
.. PRIMARY.CASE: If you are making more than one type of claim;check the one that •
you consider most important
TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS
- ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies
- .. ❑ Malicious Prosecution ❑ Debt Collection:Credit Card ❑Board of Assessment
D Motor Vehicle ❑ Debt Collection:Other _ 0 Board of Elections
' ❑ Nuisance 0 Dept.of Transportation
0 Premises Liability 0 Zoning Board
S : ❑ Product Liability(does not include 0 Statutory Appeal:.Other
mass tort) ❑ Employment Dispute:
0 Slander/Libel/Defamation
Discrimination
C: 0 Other: 0 Employment Dispute: Other
T: Judicial Appeals
0 mix-Landlord/Tenant
I: 0 Other: 0 MDJ-Money Judgment
Q MASS TORT
Other:
. 0 Asbestos
. Tobacco
Toxic Tort-DES
...::.:: 0 Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS
❑ Toxic Waste U E]
❑ � ID Common Law/Stat ory Arbitration
Oth
:B 0 EminentDomain/Condemnation ❑Ground Rent ❑ JudgmentManaamus
❑ Landloadrfenaut Dispute D Non-Domestic Relations
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PROFESSIONAL LIABLITY 0 Partition 0 Quo arramoo
. 0 Dental 0 Quid Title 0 Replevin
0 Legal
.- :: ❑ Medical ❑ Other: ® Other.
0 Other Professional: Civ Action Equity
Pa.R.C.P.205.5 2./2010
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, •
DEPARTMENT OF CORRECTIONS, •
Plaintiff, ly_A/189
v. : No. Civil Action Equity
MARIO L. BANEGAS, •
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.
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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 to
supply 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:
ElizaLA/..jt.\\,,zik-\ VPAZI=.
th L. Pettis
Assistant Counsel
Department of Corrections
1920 Technology Parkway
Mechanicsburg, PA 17050
(717) 728-7763
Attorney ID No. 91968
Date: ?//3/20/
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA •
COMMONWEALTH OF PENNSYLVANIA, •
DEPARTMENT OF CORRECTIONS, •
Plaintiff,
v. : No. Civil Action Equity
MARIO L. BANEGAS, •
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
Mario L. Banegas, GZ-7200
SCI-Camp Hill
P.O. Box 8837—2500 Lisburn Road
Camp Hill, PA 17001-8837
diwz,)a,c-6) 4V
Lenora Astore, RI-IIT
Medical Records Supervisor
l� SCI-Camp Hill
Dated: ,Y/>3/i,
THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF CORRECTIONS,
Plaintiff, :
v. : No.
MARIO L. BANEGAS, :
Defendant : Civil Action Equity
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.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
717-249-3166
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF CORRECTIONS,
Plaintiff, :
v. : No.
MARIO L. BANEGAS, •
Defendant : Civil Action Equity
COMPLAINT
AND NOW, comes the Plaintiff, Commonwealth of Pennsylvania,
Department of Corrections, by and through its undersigned counsel and 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 administrative department of the Commonwealth of
Pennsylvania responsible for administering the state correctional system,
including the State Correctional Institution at Camp Hill ("SCI-Camp Hill").
4. Defendant, Mario L. Banegas, is a twenty-nine (29) year-old inmate who is
presently incarcerated at SCI-Camp Hill.
5. Since July 29, 2014, the Defendant has refused to eat his meals.
6. As of noon on August 12, 2014, the Defendant has refused approximately 44
meals. These refusals have been documented in his records.
7. Defendant's physical exam shows signs of dehydration including sunken
orbits, skin dryness and poor turgor of skin on upper extremities and refuses
the administration of IV fluids.
8. Defendant's documented weight on July 9, 2014 was 139 pounds.
Currently, his documented weight is down to 121 pounds.
9. Defendant has no known medical conditions.
10. Defendant indicates his reason for refusing to eat is his belief that his food is
being poisoned by SCI-Camp Hill staff.
11. It is the professional medical opinion of his treating physician that the
Defendant is in imminent danger of the loss of life or other irreparable
physical harm unless he begins to take regular nutrition immediately. His
treating physician is also of the opinion that the Defendant is at risk of
sudden onset of organ failure or death if medical personnel is not permitted
to engage in immediate and regular diagnostic testing, including, but not
limited to, blood and urine tests.
12. As a result of the Defendant's refusal to take nourishment, he risks
irreversible malnutrition which would result in organ failure and,
possibly, death.
13. It is impossible to predict the exact point at which Defendant's condition
may result in immediate, severe, and irreparable harm.
14. However, Defendant will suffer severe, irreparable harm and possible death
if he continues to refuse nutrition.
15. Permitting Defendant to engage in a suicidal act by refusing to eat or drink
will cause a significant disruption to the orderly administration of SCI-Camp
Hill. The effects of his death or irreparable harm would demoralize the staff
and instill the belief in the inmate population that the prison administration
caused and permitted Defendant's death or injury. 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) Awarding costs;
(c) Providing such other relief as this Court deems proper.
Respectfully submitted,
Office of General Counsel
BY: .,.-
Eliza th L. Pettis
Assistant Counsel
Department of Corrections
1920 Technology Parkway
Mechanicsburg, PA 17050
(717) 728-7763
Attorney ID No. 91968
Date: S1i31,2u! y
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, •
DEPARTMENT OF CORRECTIONS, •
Plaintiff, •
v. : No. Civil Action Equity
MARIO L. BANEGAS, •
Defendant :
UNSWORN AFFIDAVIT
I, Jose Boggio, M.D., state the following:
1. I am a medical doctor licensed to practice medicine in the
Commonwealth of Pennsylvania. I am currently a doctor at the State
Correctional Institution at Camp Hill ("SCI-Camp Hill").
2. I am familiar with the Defendant, Mario L. Banegas - Inmate No. GZ-7200,
who has been under my care.
3. Defendant is a twenty-nine (29) year-old male who is presently incarcerated
at SCI-Camp Hill.
4. Since July 29, 2014, the Defendant has refused to eat his meals.
5. As of noon on August 12, 2014, the Defendant has refused approximately 44
meals. These refusals have been documented in his records.
6. Defendant's physical exam shows signs of dehydration including sunken
orbits, skin dryness and poor turgor of skin on upper extremities and refuses
the administration of IV fluids.
7. Defendant's documented weight on July 9, 2014 was 139 pounds.
Currently, his documented weight is down to 121 pounds.
8. Defendant has no known medical conditions.
9. The Defendant indicates his reason for refusing to eat is his belief that his
food is being poisoned by SCI-Camp Hill staff.
10. It is my professional medical opinion that the Defendant is in imminent
danger of the loss of life or other irreparable physical harm unless he begins
to take regular nutrition. It is also my medical opinion that he is further at
risk of sudden onset of organ failure or death if medical personnel is not
permitted to engage in immediate and regular diagnostic testing, including,
but not limited to, blood and urine tests.
11. As a result of the Defendant's refusal to take nourishment, he risks
irreversible malnutrition which would result in organ failure and, possibly,
death.
12. It is impossible to predict the exact point at which Defendant's condition
may result in immediate, severe, and irreparable harm.
13. However, Defendant will suffer severe, irreparable harm and possible death
if he continues to refuse nutrition.
I understand that this statement is made subject to the penalties of 18
Pa. C.S. § 4904, relating to unsworn falsification to authorities.
Dated:
/ / Jose •__ o, M.D.
SCI-Camp Hill
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, •
DEPARTMENT OF CORRECTIONS, •
Plaintiff, •
v. : No. Civil Action Equity
MARIO L. BANEGAS, •
Defendant :
VERIFICATION
I, Lenora Astore, Medical Records Director, 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
Mario L. Banegas.
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. § 4904 relating to unsworn
falsification to authorities.
Dated: 3'/3/1 Y 6hs
Lenora Astore, RHIT
Medical Records Director
SCI-Camp Hill
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF CORRECTIONS,
Plaintiff, :
v. : No. Civil Action Equity
MARIO L. BANEGAS, •
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
Mario L. Banegas, GZ-7200
SCI-Camp Hill
P.O. Box 8837 — 2500 Lisburn Road
Camp Hill, PA 17001-8837
�o /r; �4
Lenora Astore, RHIT
Medical Records Director
SCI-Camp Hill
Date: 5//3/Y
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF CORRECTIONS,
Plaintiff, :
v. : No. Civil Action Equity
MARIO L. BANEGAS, :
Defendant :
MOTION FOR PRELIMINARY INJUNCTION
1. Plaintiffs Complaint, Unsworn Affidavit, and Application for Ex Parte
Preliminary Injunction in this matter are incorporated by reference as if fully
set forth herein.
2. Defendant will suffer immediate, severe, and irreparable harm possibly
resulting in death if necessary, 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,
580 A.2d 887 (Pa. Cmwlth. 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 to supply nutrition and hydration intravenously or
otherwise, as may be deemed necessary, to preserve Defendant's health and life.
Respectfully submitted,
Office of General Counsel
614.4(16:9(\
Elizabth L. Pettis
Assistant Counsel
Department of Corrections
1920 Technology Parkway
Mechanicsburg, PA 17050
(717) 728-7763
Attorney ID No. 91968
Date: $' 3'ato
Page 1
134 Pa.Commw.415, *;580 A.2d 887,**;
1990 Pa.Commw.LEXIS 501,***
LEXSEE 580 a.2d 887
COMMONWEALTH 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. Comnnw. 415;580 A.2d 887;1990 Pa. Commw. LEXIS 501
July 18,1990,Heard
August 14,1990,Decided
SUBSEQUENT HISTORY: respondent prisoner; petitioner had an overwhelming
F***1J interest in the orderly administration of its prison system.
Publication Ordered September 10, 1990. CORE TERMS: prisoner, nutrition,medical treatment,
prison, suicide, patient, starve, staff, nasogastric tube,
CASE SUMMARY right to privacy, die, prison system, human life,
preserving, inmate, medical care, psychiatric, discipline,
PROCEDURAL POSTURE: Petitioner commonwealth hydration, sentence, custody, right of privacy,
filed a request seeking a declaratory judgment preservation, prison security, involuntary, feeding,
authorizing the involuntary administration of necessary suffering,convict,orderly,duty
nutrition and medical treatment to preserve the health
and safety of respondent prisoner, who sought to starve CORE CONCEPTS
himself to death.
Criminal Law & Procedure . Postconviction
OVERVIEW: Petitioner commonwealth, through its Proceedings; Imprisonment&Prisoner Rights
department of public welfare, filed a request seeking a Maintaining institutional security and preserving internal
declaratory judgment to force respondent prisoner to order and discipline are essential goals that may require
involuntarily receive food through a nasogastric tube and limitation or retraction of the detained constitutional
other medical treatment. The trial court determined that rights of convicted prisoners.
the prisoner was competent and could reject nutrition and
hydration. Petitioner appealed, offering evidence that if Criminal Law & Procedure : Postconviction
respondent was allowed to starve to death, major Proceedings: Imprisonment&Prisoner Rights
negative repercussions on the prison and mental health Prison officials are given a wide range of discretion in
systems would result. Recognizing that prisoners' rights the promulgation and enforcement of rules to govern the
were extremely limited because of the unique nature of prison community in order to maintain security, order
prison custody,the court granted petitioners'request,and and discipline. Individual freedoms may be curtailed
authorized involuntary administration of necessary whenever prison officials, in exercise of their informed
medical treatment. The court concluded that petitioner discretion, reasonably conclude that their exercise
had an overwhelming interest in maintaining prison possesses the likelihood of disrupting prison order or
security, order, and discipline, as well as preserving life stability or otherwise interfering with the legitimate
and preventing suicide. penological objectives of the prison environment.
OUTCOME: The court granted petitioner Criminal Law & Procedure : Postconviction
commonwealth's request for declaratory relief, and Proceedings: Imprisonment&Prisoner Rights
authorized the involuntary administration of nutrition
and medical treatment to preserve the health of
Page 2
134 Pa.Commw.415,*;580 A.2d 887, **;
1990 Pa.Commw. LEXIS 501, ***
Compelled nutrition and medical treatment is proper medical [*4171 treatment in order to preserve the safety,
because of the strong state interest in orderly prison health and life of Joseph Kallinger(Kallinger).
administration outweighs any convict's residual rights.
We are called upon to decide a sensitive matter
Criminal Law & Procedure : Postconviction which is without precedent in this Commonwealth.
Proceedings: Imprisonment&Prisoner Rights Joseph Kallinger wants to starve himself to death.n1 The
The obligation of the commonwealth to provide for the Department, who has custody, wants to force him to
health and safety of the inmates in their custody is involuntarily receive food through a nasogastric tube and
derived from two very important interests: the other medical treatment. We must decide if the
preservation of human life and the prevention of suicide. Department has such right.
The preservation of human life is of great interest to the
state.
n1 Kallinger, a convicted murderer, is
Criminal Law & Procedure : Postconviction currently serving two consecutive life sentences
Proceedings: Imprisonment&Prisoner Rights consecutively with a thirty to eighty year
The commonwealth has a duty under the Eighth sentence in Pennsylvania. He also must serve a
Amendment to protect the health and welfare of those life sentence and a forty-two to fifty-two year
persons in its custody, and may be cast in civil damages sentence in New Jersey. He also must serve other
for its failure to observe such duty. Furthermore, the sentences which are too numerous to mention.
commonwealth has a duty to provide appropriate medical Needless to say, Joseph Kallinger will spend the
treatment to reduce the danger that an inmate suffering rest of his natural life behind bars.
from a serious mental disorder represents to himself or
others. [***2]
Constitutional Law:Substantive Due Process:Privacy The current dilemma developed after Kallinger was
American law has always accorded the state the power to recently readmitted to Farview on May 17, 1990, from
prevent, by force if necessary, suicide -- including the State Correctional institution at Huntingdon •
suicide by refusing to take appropriate measures (Huntingdon).n2 On June 22, 1990,he stated, as a result
necessary to preserve one's life, 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
COUNSEL: desires to "meet his maker." He has also refused
treatment for an abscess on his foot. On June 30, 1990,
Thomas Blazusiak, with him, Howard Ulan, Asst.
Kallinger agreed to be transferred to Wayne Memorial
Counsel, and John A. Kane, Chief Counsel, for
petitioner. Hospital in Wayne County, Pennsylvania, in order to
have intravenous fluids, including antibiotics,
Jeffrey J. Wander,Honesdale,for respondent. administered to him. However, he continued in his
David Ferleger, Philadelphia, Guardian Ad Litem refusal to accept nutrition and other medical treatment.
for Joseph Kallinger.
n2 Kallinger began serving his Pennsylvania
JUDGES: sentences at Huntingdon following his
Pellegrini,Judge. convictions in 1976. However, in 1977, he was
committed to Farview where he stayed for over
OPINIONBY: ten years, until 1988. Since 1988, he was
PELLEGRINI recommitted once for a short period of time and
then returned to Huntingdon. This recent
OPINION: recommittment was his second since returning to
Huntingdon. His current recommittment is
ORIGINAL JURISDICTION scheduled to expire on August 17, 1990.
[*4161 [**888] The Commonwealth of
Pennsylvania, Department of Public Welfare, [***31
(Department), Farview State Hospital (Farview), files
this Request for Special Emergency Relief asking this On July 3, 1.990, the Department filed an action for
Court for a Declaratory Judgment authorizing the Declaratory Relief in the Court [**889] of Common
involuntary administration of necessary nutrition and Pleas of Wayne County, seeking authority to provide
necessary treatment,nutrition and hydration to Kallinger.
Page 3
134 Pa.Commw.415,*;580 A.2d 887,**;
1990 Pa.Commw.LEXIS 501, ***
On that day, the trial court entered a preliminary order realizes that [*419] death will result if he continues to
permitting the Department to do so. However, on July refuse nutrition and medical treatment. (N.T. July 10,
10, 1990, after holding a hearing on the matter,the trial 1990,pp.36,70-71).
court dissolved its preliminary order and determined that We also recognize that Kallinger, through this
Kallinger was competent [*418] and could reject action, may be attempting to manipulate the system in
nutrition and hydration necessary to preserve his health,
safety and life. order to stay at Farview rather than return to Huntingdon.
His authorization of his attorneys to enter appearances on
The Department filed a Petition For Review seeking his behalf— one to say that he has the right to die, the
Special Emergency Relief pursuant to the original other to say the state had an obligation to make him stay
jurisdiction of this Court, and seeking review of the trial alive -- is certainly part of that manipulation. Although
•
court's Order pursuant to our appellate jurisdiction. Kallinger has in the past and is now manipulating the
Sections 761 and 762 of the Judicial Code, 42 Pa.C.S. § system in which he finds himself, if the Department is
§ 761,762.n3 not allowed to involuntarily provide him with nutrition
and medical care, we assume that Kallinger will indeed
starve himself to death. •
n3 By order dated July 13, 1990, this Court While Kallinger is sufficiently competent to make a
directed that the Petition For Review shall be decision to starve himself to death,this is not a "right to •
regarded as a Complaint In Equity directed to our die" case in the usual sense. There has been [***6]
original jurisdiction, and that the appeal fromthe much public debate and court activity over whether such
trial court's Order shall be dismissed without a right exists and in what circumstances it exists, and
prejudice. these cases involve decisions made by enfranchised
citizens or someone acting on their behalf, that their
[***4] substantial rights of privacy allows them to make that
On July 13, 1990, this Court granted the decision. See e.g., Cruzan v. Director, Missouri
Department of Health, U.S. , 110 S.Ct. 2841, 111
Department's request for a preliminary injunction, L.Ed.2d 224(1990). Kallinger is a convict and any rights
ordering that Kallinger may be involuntarily that he may have are extremely limited and severely
administered medical treatment, nutrition and hydration, restricted because of the unique nature and requirements
pending further adjudication. On July 18, 1990, of prison custody.Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.
following a hearing, a second Order was issued 1861, 60 L..Ed.2d 447 (1979); Jones v. North Carolina
continuing the involuntary medication and feeding of
Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53
Kallinger pending final adjudication of this matter. L.Ed.2d 629 (1977); Price v, Johnston, 334 U.S. 266,
The Department offered testimony and evidence that [**890] 68 S.Ct. 1049, 92 L.Ed. 1356(1948). What this
if Kallinger is allowed to starve to death,this would have case concerns is whether the Commonwealth's interest in
major negative repercussions on the prison and mental an orderly administration of the prison system is
health systems; that Kallinger's death would have paramount over any residual right of privacy that
adverse effects on other patients, their families and the Kallinger has which would make it an invasion of
staff of the mental hospital; and other patients may also privacy on the part of [***7] the Commonwealth to
"copy-cat"Kallinger's actions. force feed him.
Kallinger contends that despite such adverse The narrow issue then presented to us is whether the
repercussions to the Commonwealth, he should be Commonwealth has a right to force a competent prisoner
allowed to die if he so chooses. He argues that his right within the Commonwealth's penal system to receive
to privacy overrides any interests of the Commonwealth involuntary [*420] medical treatment and nutrition and
because the use of a nasogastric tube to feed him is an hydration through a nasogastric feeding tube. To decide
overly intrusive procedure which could last a number of this issue, a balancing test is employed, balancing the
years. Commonwealth's interests against the prisoner's
remaining right to privacy. Matthews v. Eldridge, 424
We note at the outset that Kallinger is committed to
US. 319, 96 S.Ct. 893, 47L.Ed2d 18(1976).
Farview, a mental hospital for the criminally insane. 1-le
suffers [***5] from a serious mental illness, diagnosed Kallinger argues that his right to privacy is superior
by Mokarram Jafri, M.D., as a Borderline Personality to the interests of the Commonwealth, no matter what
Disorder. (Notes of Testimony(N.T.), July 10, 1990,p. effect it may have on the prison system. He argues that
35;July 18, 1990,pp.27-29). However,he is competent as a prisoner, he did not give up his right to starve
in the sense that he fully understands his decision and himself,citing the Supreme Court of Georgia decision in
Page 4
134 Pa.Commw.415,*;580 A.2d 887,**;
1990 Pa.Commw.LEXIS 501, ***
Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715(1982). In 707 F.2d 1395 (3rd Cir.1983). Individual freedoms may
that case, the Georgia court held that a competent be curtailed whenever prison officials, in exercise of
prisoner had a right to starve himself to death. their informed discretion, reasonably conclude that their
exercise possesses the likelihood of disrupting prison
The court, in ruling that the state does not have the order or stability or otherwise interfering [**891] with
right to force medical treatment and food on a competent the legitimate penological objectives of the prison
prisoner,stated: environment. St. Clair v. Cuyler, 634 F.2d 109 (3rd
A prisoner does not relinquish his constitutional [***81 Cir.1980), rehearing denied 643 F.2d 103 (3rd
right to privacy because of his status as a prisoner. The Cir.1980); See also Bell v. Wolfish; Jones v. North
state has no power to monitor this man's physical Carolina Prisoners Union; Wilson v. Prasse, 325
condition against his will; neither does it have the right F.Supp. 9 (WD.Pa.1971), aff'd 463 F.2d 109 (3rd
to feed him to prevent his death from starvation if that is
Cir.1972).
his wish .... The state can incarcerate one who has
violated the law and, in certain circumstances, even take Other jurisdictions confronted with the same
his life. But it has no right to destroy a person's will by situation have held that compelled nutrition and medical
frustrating his attempt to die if necessary to make a point. treatment is proper because of the strong state interest in
Zant, 248 Ga. at 833-834,286 S.E.2d at 716-717. orderly prison [*422] administration outweighs any
convict's residual rights. In Von Holden v. Chapman, 87
Kallinger further argues that the procedure for
forcing nutrition and hydration into him is overly A.D.2d 66, 450 NY.S2d 623*(1982), Mark David
intrusive. The procedure which the Department has been Chapman,serving a twenty year [ 1]] to life term for
and wishes to continue using is a nasogastric tube which the murder of former Beatle John Lennon, attempted to
is inserted through the nose into the stomach. This tube starve himself to death while in a mental institution. The
will remain in his body and will have to be frequently Supreme Court of New York, Appellate Division, in
removed and replaced. Kallinger correctly points out allowing involuntary feeding through a nasogastric tube,
that there are several risks involved in this procedure, found that the legitimate interest in prison security and
including internal bleeding and possibly even death. administration clearly included the right to prevent a
(N.T. July 10, 1990,pp. 42-43, 56-57; July 18, 1990, p.
prisoner's suicide.
23). In Commissioner of Correction v. Myers, 379 Mass.
[*421] While admitting that there are risks to 255, 399 NE.2d 452 (1979), the Massachusetts Supreme
Kallinger as a result of his forced feeding, the Court allowed forced hemadialysis to a prisoner
Commonwealtha esu argues that its interest in prison suffering a kidney condition on the basis of maintaining
security and discipline, the morale of medical and prison order. The court stated that imprisonment
custodial staff, as well as the law of this Commonwealth, imposed severe limitations on the prisoners right to
far outweigh any right of privacy that Kallinger may privacy and bodily integrity.
have. We agree. In the present case, the uncontradicted testimony
The Commonwealth has an overwhelming interest in shows that if Kallinger would be permitted to die, other
patients at Farview would almost certainly copy the same
maintaining prison security, order and discipline. The
Supreme Court has stated that "maintaining institutional tactic, manipulating the system to get a change of
conditions, possibly resulting in their death. (N.T. July
security and preserving internal order and discipline are 10, 1990, 13-14,25-2649;July18, 1990, 16-17,
essential goals that may require limitation or retraction of pp. er
the detained constitutional rights of convicted 31). Allowing a prisoner to die will cause other patients
prisoners." Bell v. Wolfish, 441 U.S. at 546, 99 S.Ct, at to become angry and lose faith in the system and make
1878. This lack of a reasonable expectation of privacy treatment [***12] more difficult; it may even spawn
deprives the convicts of Fourth Amendment rights in rioting at Farview or from prisoners at Huntingdon or
their prison cells. Hudson v. Palmer, 468 U.S. 517, 104 other state institutions. (N.T. July 10, 1990, pp. 13-14,
S.Ct. 3194, 82 L.Ed.2d 393(1984). 20, 26; July 18, 1990, pp. 17-20, 36). It is clear that
allowing a prisoner to starve to death while in state
Prison officials are given a wide range of discretion custody would have an unpredictable negative effect on
in the promulgation and enforcement of rules to govern the security and order within the prison system.
the prison community in order to maintain security,order Besides preserving order with the prison system,the
and discipline. Bell v. Wolfish; Jones v. North Carolina Commonwealth has a strong interest in maintaining the
Prisoners' Union; Pell v. Procunier, 417 US 817, 94 health of prisoners in its custody. The obligation of the
S.Ct. 2800, 41 L.Ed.2d 495(1974). [***10] U.S. ex rel. Commonwealth to provide for the health and safety of
Silverman v. Commonwealth of Pennsylvania, 527 the inmates in their custody is derived from two very
F.Supp. 742 (W.D.Pa.198.1), affd Appeal of Silverman, •
Page 5
134 Pa.Commw.415,*;580 A.2d 887, **;
1990 Pa.Commw.LEXIS 501,***
important interests: the preservation of human life and The Court in Narick criticized the Georgia Supreme
the prevention of suicide.The preservation of human life Court's decision in Zant by stating:
is of great interest to the state. John F. Kennedy
Memorial Hospital [*423] v. Heston, 58 N.J. 576, 279 The Georgia court failed to consider compelling reasons
A.2d 670 (1971). In Commonwealth v. Root, 191 for preserving life, not the least being civility. What
Pa.Super. 238, 244, 156 A.2d 895, 900 (1959), revel on sense does it make for a state to allow a prisoner to kill
other gr ds. 403 Pa. 571, 170 A.2d 310 (1961), the himself, urging as its justification his right-of-privacy
Pennsylvania Superior Court stated that policy of right to refuse medical treatment for his voluntary
the law is to protect human life, even [ l3) the life of debilitation; and yet preserve unto itself the right to kill
a person who wishes to destroy his own." him, the ultimate violation of his privacy right. We
The Commonwealth has a duty under the Eighth doubt that Georgia would allow him to raise his right of
Amendment to protect the health and welfare of those privacy against being put to death, as a defense against
persons in its custody, Youngberg v. Romeo, 457 U.S. the death penalty!
307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Estelle v. Narick, W.Va. at ,292 S.E.2d at 57.
Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed2d The second related state interest is the
251 (1976), and may be cast in civil damages for its Commonwealth's duty to prevent suicide. "American law
failure to observe such duty, Simmons v. City of has always accorded the State the power to prevent, by
Philadelphia, 728 F.Supp. 352 (E.D.Pa.1990); Lee v. force if necessary, suicide -- including suicide by
Downs, 641 F.2d 1117 (4th Cir.1981). Furthermore, the
refusing to take appropriate measures necessary to
"provid[e]has a duty to appropriate preserve one's life." Cruzan v. Director, Missouri
medical treatment to reduce the danger that an inmate Department of Health, U.S. at , 110 S.Ct. at 2859, 11.1
suffering from a serious mental disorder represents to I Ed 2d 224(1990).. . (Scalia,J.concurring).
himself or others." Washington v. Har per, 494 U S. , , •
110 S.Ct. 1028, 1030, 108 L.Ed2d 178(1990). Pennsylvania public policy strongly opposes the
The United States Supreme Court in Washington v. commission of suicide. Commonwealth v. [***16]
Harper allowed the forced administration of Root. Pennsylvania law makes it a crime to aid or solicit
antipsychotic drugs to a prisoner on the basis that the another person to commit suicide. Crimes Code, 18
state's interest in providing appropriate medical treatment Pa.C.S. 2505. A police officer also has the right to use
force to prevent a suicide from occurring. 18 Pa.C.S. §
outweighed the inmate's liberty interest. [***141 The 508(d)(1). By asking the Commonwealth to stand by
Supreme Court found that the state has not only an
interest, but an "obligation to provide prisoners with and watch him die while it has custody and control over
medical treatment consistent not only with their own
him,Kallinger is asking it to aid and abet his suicide.
medical interests,but also with the [**892] needs of the [*425] The leading case in support of a state's duty .-
insti.tution." Washington v. Harper, 494 U.S. at , 110 to prevent suicide is Von Holden v. Chapman. The
S.Ct.at 1039. Supreme Court of New York, Appellate Division, in
Other courts have also considered the state's interest rejecting Chapman's right to privacy claim, held that "it
in the preservation of human life. In State ex. rel. White is self-evident that the right of privacy does not include
v. Narick, W.Va. 292 S.E.2d 54 (1982), the West the right to commit suicide .... To characterize a person's
self-destructive acts as entitled to Constitutional
Virginia Supreme Court of Appeals allowed the force protection would be ludicrous." Von Holden v. Chapman,
feeding of an inmate who had begun a hunger strike to
protest conditions of his prison. The court found that"[a] 87 A.D.2d at 67, 450 N.Y.S.2d at 625.
state must preserve human life,a concern at the very core Since Kallinger is a patient at Farview, the
of civilization .... West Virginia's interest in preserving Commonwealth's interest in maintaining the integrity of •
life is superior to [the prisoner's] personal privacy the medical and psychiatric professions is also of great
(severely [*4241 modified by his incarceration)." importance. Several courts have held that the integrity of
Narick, W.Va. at , 292 A.2d at 58. See also the medical profession is an interest which should be
Commissioner of Correction v. Myers (forced balanced against [***17] a person's privacy right to
hemadialysis treatment on prisoner suffering kidney refuse medical treatment or nutrition. Cruzan; Narick;
condition based on preservation of life and maintaining Saikewicz. •
prison order); Superintendent of Belchertown State If Kallinger is allowed to starve himself to death,
School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417
(1977). [***15] 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
Page 6
134 Pa.Commw.415, *;580 A.2d 887,**;
1990 Pa.Commw.LEXIS 501, ***
Psychiatric Services at Farview, stated that Kallinger's Accordingly, we order that Farview can and must
death would "have a negative impact upon the staff[in] continue to provide appropriate nutrition through a
that we could not carry out a moral and ethical obligation nasogastric tube and appropriate medical care to Joseph
of keeping a patient alive." (N.T. July 10, 1990, p. 41). Kallinger so long as he continues to refuse nutrition and
Jack Wolford, M.D., Psychiatric Director for the medical treatment. Kallinger shall remain committed to
Department,testified that"it would be devastating to the Farview until such time as the medical and psychiatric
staff and the staff morale if they had to allow someone to staff feel it's appropriate for him to return to a State
cease living,virtually by their own hand, while under our Correctional Institution.
care."(N.T.July 18, 1990,p. 10). ORDER
[**8931 Furthermore, if he is allowed to die, other No.239 Misc.Dkt. 1990
patients and their families would have serious doubts
about whether the psychiatric staff is providing their AND NOW, this [***19] 14th day of August,
patients with proper psychiatric treatment and medical 1990, it is ordered that the Commonwealth of
care. (N.T. July 18, 1990, pp. 26-27, 40; July 18, 1990, Pennsylvania, Department of Public Welfare, Farview
pp. 19, 36). Dr. Jafri testified that his death "will not State Hospital, must provide appropriate nutrition
encourage the confidence of their patients in our ability through a nasogastric tube and appropriate medical care
to 1***18] manage and take care their needs,as[well as] to Joseph Kallinger as long as he continues to refuse
the moral confidence of the public." (N.T.July 10, 1990, either. Joseph Kallinger's commitment to Farview State
p. 41). Dr. Wolford stated that the patients [*4261 Hospital is extended indefinitely until such time that the
"would lose trust in the system of care." (N.T. July 18, medical and psychiatric staff determines that such
1990,p. 17). feeding can be carried out at an appropriate State
The Commonwealth of Pennsylvania has an Correctional Institution.
overwhelming interest in the orderly administration of its ORDER
prison system.The Commonwealth must maintain prison AND NOW, this 10th day of September, 1990, it is
security, order and discipline. It must also fulfill its duty ordered that the opinion filed August 14, 1990 shall be
to provide proper medical care to the inmates, thus [*427] designated OPINION rather than
preserving life and preventing suicide. These vital MEMORANDUM OPINION and that it shall be
interests,along with the need to preserve the integrity of
the physicians and psychiatrists working within the penal reported.
system,clearly outweigh any diminished right to privacy
held by Kallinger.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, •
DEPARTMENT OF CORRECTIONS,
Plaintiff, •
.
v. : No. Civil Action Equity
MARIO L. BANEGAS, •
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
Mario L. Banegas, GZ-7200
SCI-Camp Hill
P.O. Box 8837—2500 Lisburn Road
Camp Hill, PA 17001-8837
O-xaL,2/e466'6Tetth-7
Lenora Astore,RHIT
Medical Records Director
SCI-Camp Hill
Dated: F/i 3 4.°1(11
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, •
DEPARTMENT OF CORRECTIONS, :
Plaintiff, :
v. : No. Civil Action Equity
MARIO L. BANEGAS,
Defendant .
ORDER
AND NOW, this day of August, 2014, after a hearing, it appearing to
the court that the Defendant, Mario L. Banegas, GZ-7200, was duly served with
the foregoing documents, the Court finds as a fact and as a matter of law that an
indefinite injunction is necessary to preserve the health and life of the Defendant.
The Plaintiff or Plaintiff's designee, through its medical staff, is permitted, when it
appears that immediate relief is necessary in order to preserve the health or life of
the.Defendant due to failure to take food or fluids, to:
1. Involuntarily examine and perform invasive diagnostic tests, including
blood and urine tests, on Defendant and administer medical treatment,
including nutrition and hydration as may, in the opinion of medical
staff, be necessary to preserve Defendant's health and life.
2. This ORDER shall remain in effect as long as Defendant is committed
to the custody of the Pennsylvania Department of Corrections.
BY THE COURT:
J.
•
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF CORRECTIONS,
Plaintiff,
v. : No. Civil Action Equity
MARIO L. BANEGAS,
Defendant
ORDER
AND NOW, this j day of August 2014, upon review of Plaintiffs
Application for Ex Parte Preliminary Injunction and based upon the affidavit of the
attesting physician, it appears that immediate relief is necessary in order to
preserve the life and/or health of the Defendant 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 and may administer medical treatment,
including nutrition and hydration that may, in the opinion of medical staff,
be necessary to preserve Defendant's health and life.
2. In accordance with Pa. R.C.P. 1531(d), a hearing before this Court on this
matter shall be held on the '-day of August, 2014 at i 0:3D o'clock
.M. in Courtroom No. of the Cumberland County Courthouse
at Carlisle, PA.
3. The Department of Corrections is ordered to make Inmate Mario L.
Banegas, GZ-7200 available for the hearing via video conferencing
equipment from SCI -Camp Hill.
e_.ry -Pe,,,,„„).(1,, '1>ru
63//i/iy,
BY THE COURT
COMMONWEALTH OF PA IN THE COURT OF COMMON PLEAS OF
DEPARTMENT OF CORRECTIONS CUMBERLAND COUNTY, PENNSYLVANIA
VS. 2014-4789 CIVIL TERM
MARIO L. BANEGAS
GZ-7200
AND NOW, this
ORDER OF COURT
day of August, 2014, it is ordered and directed that the above
captioned inmate is to appear in Cumberland County court via video conference on Monday, August
18, 2014 at 10:30 AM for a Preliminary Injunction hearing.
By the Court,
j
M. L. Ebert, Jr., Judge
CUMBERLAND COUNTY IP ADDRESS: 138.210.178.111##6200
CC: ✓Department of Corrections
)(ark) L. Banegas, GZ-7200
SCI Camp Hill (via facsimile)
THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
C)
COMMONWEALTH OF PENNSYLVANIA, -10a
DEPARTMENT OF CORRECTIONS, m
Plaintiff,
CcJ
v. : No. 14-4789
y�
MARIO L. BANEGAS,
Defendant : Civil Action Equity
PRAECIPE FOR DISCONTINUANCE
TO THE PROTHONOTARY:
Please mark this matter discontinued.
Respectfully submitted,
Office of General Counsel
By:
Dated: August 15, 2014
--i
gr,-,)
c
ca •
co,
320
.F -
Elizabeth L. Pettis
Assistant Counsel
Office of General Counsel
Attorney ID No 91968
Pennsylvania Department of Corrections
1920 Technology Parkway
Mechanicsburg, PA 17050
Telephone : (717) 728-7763
Fax No. (717) 728-0312
THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF CORRECTIONS,
Plaintiff,
v. : No. 14-4789
MARIO L. BANEGAS,
Defendant : Civil Action Equity
CERTIFICATE OF SERVICE
I hereby certify that I am depositing in the U.S. mail a true and correct copy
of the foregoing Praecipe for Discontinuance upon the person(s) in the manner
indicated below.
Service by first-class mail
addressed as follows:
Mario L. Banegas, GZ-7200
SCI -Camp Hill
P.O. Box 8837 — 2500 Lisburn Road
Camp Hill, PA 17001-8837
Amie Bomgardner
Legal Assistant
Pennsylvania Department of Corrections
1920 Technology Parkway
Mechanicsburg, PA 17050
(717) 728-7763
Dated: August 15, 2014