United States District Court, D. Arizona
ORDER
HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE
On July
19, 2019, a hearing on preliminary injunction was
consolidated with the merits in this action and held pursuant
to Rule 65 of the Federal Rules of Civil Procedure. Based on
the entire record, testimony, and arguments presented, the
Court will enter a permanent injunction authorizing
Petitioner to involuntarily administer nutrition and
hydration to Respondent while he remains in custody pending
his removal from the United States.
I.
Background
Respondent
Eugenii Glushchenko is a native and citizen of Russia, who is
currently detained in the Eloy Detention Center in Eloy,
Arizona pursuant to a final order of removal. Respondent
commenced a hunger strike on June 19, 2019, and since that
date, has refused 63 meals, has lost 25% of his body weight,
has become nonambulatory, and, based on the amount of time
since his hunger strike began, could imminently develop
permanent damage to his internal organs with the potential of
death.
On July
10, 2019, the United States of America filed a Petition for
Emergency Order (Doc. 1) and Motion for Temporary Restraining
Order (Doc. 2) to involuntarily administer nutrition to
Respondent. In light of the seriousness of the allegations
and the risk of harm that could result by permitting
Respondent to respond to the request for a Temporary
Restraining Order, the Court entered a Temporary Restraining
Order the same day authorizing the United States to
involuntarily administer nutrition and hydration to
Respondent and perform involuntary medical examinations if
necessary to preserve his life. (Doc. 5.) The United States
filed a status report on July 15, 2019, indicating that at
times between July 10 and July 15 Respondent continued to
refuse nutrition, necessitating involuntary administration of
nutrients on two occasions. The United States requested that
the Court continue its injunction authorizing the continued
involuntary administration of nutrition and medical
monitoring.
The
Court extended the Temporary Restraining Order, ordered
further briefing, and set a preliminary injunction hearing to
determine whether a further injunction should issue and heard
oral argument and testimony on July 19, 2019. The parties
agreed to consolidate the preliminary injunction hearing with
the merits under Federal Rule of Civil Procedure 65(a)(2).
II.
Legal Standard
“A
preliminary injunction is ‘an extraordinary and drastic
remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of
persuasion.'” Lopez v. Brewer, 680 F.3d
1068, 1072 (9th Cir. 2012) (quoting Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (per curiam);
see also Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008) (citation omitted) (“[a]
preliminary injunction is an extraordinary remedy never
awarded as of right”). A plaintiff seeking a
preliminary injunction must show that (1) he is likely to
succeed on the merits, (2) he is likely to suffer irreparable
harm without an injunction, (3) the balance of equities tips
in his favor, and (4) an injunction is in the public
interest. Winter, 555 U.S. at 20.
The
parties do not agree on what standard should apply in this
context because Respondent is a civil immigration detainee
and not a prisoner. While there does not appear to be a Ninth
Circuit case addressing involuntarily feeding a civil
detainee in immigration custody, the weight of authority
applies the standard articulated in Turner v.
Safely, 482 U.S. 78 (1987). See Aamer v. Obama,
742 F.3d 1023, 1038-39 (D.C. Cir. 2014) (detainees at
Guantanamo Bay were not likely to succeed on their claims
that involuntary feeding violated their First Amendment
rights or their substantive due process right to refuse
unwanted medical treatment); Department of Homeland
Security v. Ayvazian, 2015 WL 5315206 (S.D. Fl. Sep. 11,
2015) (employing the Turner test and finding that
involuntarily feeding a detainee does not violate his
constitutionally protected rights or free speech or the right
to refuse unwanted medical treatment); In re
Soliman, 134 F.Supp.2d 1238, 1253-54 (N.D. Ala. 2001),
vacated as moot Soliman v. United States, 296 F.3d
1237 (11th Cir. 2002) (involuntarily feeding hunger-striking
INS detainee did not violate First Amendment or his right to
privacy); In re Fattah, No. 08-MC-164, 2008 WL
2704541, at *3-4 (M.D. Pa. July 8, 2008) (employing
Turner analysis and finding that involuntarily
feeding immigration detainee did not violate his
constitutional rights).
Respondent
argues that Turner is inapplicable because it is
irreconcilable with the general proposition that a person
“detained under civil-rather than criminal-process . .
. is entitled to ‘more considerate treatment' than
his criminally detained counterparts.” Jones v.
Blanas, 393 F.3d 918, 932 (9th Cir. 2004). See also
Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB,
2016 WL 8188563 (D. Ariz. Nov. 18, 2016), affirmed
by 878 F.3d 710 (9th Cir. 2017). Instead, Respondent
contends Youngberg v. Romeo, 457 U.S. 307 (1982),
provides the proper standard, where the Supreme Court held
that individuals have a constitutionally protected liberty
interest to reasonably safe conditions of confinement and
freedom from unreasonable bodily restraints. Although
Youngberg has been employed to evaluate conditions
of confinement in the civil detainee context, Respondent does
not cite a single case applying it in the context of the
United States's request to involuntarily feed a detainee.
Nor has Respondent offered any reasoning as to why the
specific constitutional considerations identified in
Turner are inadequate to evaluate and safeguard the
interests of a civil detainee. As a result, based on the
weight of authority, the Court will apply the Turner
standard to the United States's request.
III.
Discussion
A.
Likelihood of Success on the Merits
The
first question is whether there is a valid, rational
connection between the regulation and a legitimate
governmental interest put forward to justify it. The United
States offers two justifications: preserving the lives of
those in its custody and maintaining security and discipline
in the detention facility. There is a wealth of authority
concluding that such interests are legitimate and justify
involuntary feeding of hunger-striking inmates and detainees.
E.g., In re Grand Jury Subpoena John Doe v. United
States, 150 F.3d 170, 172 (2d Cir. 1998); Garza v.
Carlson, 877 F.2d 14, 17 (8th Cir. 1989);
The
second factor is whether there are alternative means of
exercising the asserted constitutional right that remain
available. Because Respondent is not intending to communicate
a particular message with his hunger strike, this factor does
not weigh in favor of either party. The Court must next
consider whether and the extent to which accommodation of the
asserted right will have an impact on detention staff,
detainees, and the allocation of resources generally. The
Court heard unrebutted testimony that caring for a
hunger-striking detainee in rapidly declining health creates
a burden on the United States' resources in the number of
staff required to assist Respondent and in transporting him
for further treatment because of his refusal to eat. There
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