United States v. Glushchenko

          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 ...