NO. 4-03-0661

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

Defendant, Hosea Fort, appeals the trial court's May 2003permanent injunction, permitting the Department of Corrections (DOC)to force-feed defendant to prevent his death. Defendant argues theState failed to prove a legitimate penological interest was affectedby defendant's hunger strike. We affirm.

I. BACKGROUND

On April 18, 2003, the State filed a complaint for injunctive relief and motion for preliminary injunction, seeking an orderallowing DOC to use necessary force (1) to monitor defendant's vitalsigns, blood chemistries, and heart function, and (2) to force-feeddefendant if necessary to preserve his life. The State attached tothe motion an affidavit from Dr. Arthur Funk, the medical director atPontiac Correctional Center (Pontiac), which opined there was asubstantial possibility that defendant could experience cardiacarrest, liver and neurological complications, or renal failure if hishunger strike continued. Therefore, Dr. Funk recommended defendantbe force-fed. Following a hearing, the trial court granted the Statea temporary restraining order, permitting DOC to monitor defendantand to force-feed defendant if necessary to prevent defendant'sdeath.

On April 28, 2003, the trial court held a hearing on thepreliminary injunction. Dr. Funk is board certified in internalmedicine and licensed to practice in Illinois. Dr. Funk stateddefendant has been on a number of hunger strikes, with the currenthunger strike starting on April 12, 2003. Defendant was previouslyon a hunger strike from March 18 to April 1, 2003, and from April 2to April 8, 2003. The hunger strikes started while defendant wasincarcerated at Stateville Correctional Center (Stateville) andcontinued after his transfer to Pontiac on April 3, 2003.

After the issuance of the temporary restraining order,defendant was given oral supplements, which he occasionally refusedto take. Defendant received an intravenous solution on April 18,2003, for a short period of time. After administering these supplements, defendant's laboratory results were normal.

Defendant has been housed in the infirmary since hearrived at Pontiac. On April 17, 2003, defendant was examined by Dr.Kowalkowski, a psychiatrist, and he found defendant competent. Dr.Funk testified that defendant will die if he continues his hungerstrike.

On cross-examination, Dr. Funk stated defendant suffersfrom a thyroid disorder, seizure disorder (epilepsy), and emphysema. Defendant had not had a seizure since arriving at Pontiac. Defendantis prescribed Dilantin for his seizures, which he occasionallyrefuses. Dr. Funk stated the seizure disorder is not curable;however, the seizures will not worsen with age, and the disorder isnot a life-shortening condition.

According to Dr. Funk, defendant also suffers from emphysema, which is also not curable. Defendant's emphysema is currentlystable, but it will worsen with age. Emphysema can shorten a person's life span. According to Dr. Funk, defendant's emphysema hasnot progressed, and defendant has not complained of any discomfortdue to emphysema. Defendant's thyroid disorder is also not curable. The disorder will not shorten defendant's life. The disorder can betreated by hormone replacement. However, defendant does not requiretreatment.

Dr. Funk stated that DOC's policy allows an inmate torefuse treatment for medical conditions, even if that treatment isnecessary to save his life. On redirect examination, Dr. Funk statedthat hunger strikes are not considered medical conditions. Dr. Funkfurther stated that DOC does not allow inmates to commit suicide.

Defendant testified that he did not know why he wastransferred from Stateville to Pontiac. Pontiac was "a death trap"for him because of a 1993 incident involving allegations that defendant tried to kill the warden. After that incident, DOC transferreddefendant out of Pontiac to Stateville.

Defendant started his hunger strike in response to aroutine shakedown of his cell at Stateville. During the shakedown,defendant saw officers removing property from his cell, and he "wentberserk." Defendant was taken to internal affairs and drug tested. The test came back negative. Defendant was placed in "1-a" for threedays in response to his behavior during the shakedown. When hereturned to his cell after the three days, defendant discovered muchof his property was missing, and the missing property was not listedon a "shakedown list." A week or so later, some of defendant'smissing property was found in the garbage can outside of Superintendent Hunter's office. Defendant believes that the officers took theproperty during the shakedown and threw it in the trash can where itwas later discovered.

Defendant spoke to his sergeant, a couple of lieutenants,and a captain with DOC, who told defendant they would speak toHunter. Defendant also wrote Hunter a letter. Hunter responded thathe would come talk to defendant, but he never did. Defendant contacted another superintendent and an assistant warden, who referredthe matter to internal affairs. On March 31, 2003, defendant toldthe assistant warden that he was on a hunger strike in response tohis property being taken. On April 3, 2003, DOC transferred defendant to Pontiac. Defendant has never received his missing property.

Defendant stated that he was on a hunger strike at Pontiacbecause he fears for his life. Officers come to his room and standin his door. Officers stand over him while he is sleeping, and theycall him "Richard Speck." Defendant found a rope on his floor madeout of cotton that was tied into a loop. Defendant stated thatPontiac does not allow inmates to have as much personal property asStateville.

Defendant is in the infirmary at Pontiac, and therefore,he is not allowed his personal property. However, defendant has seenother inmates in the infirmary with personal property. Defendant hasnot had a change of underwear since arriving at the infirmary. Defendant is afraid to eat any food or drink the cold water atPontiac. Defendant drinks hot water after the lead has been "cooked"out.

Defendant stated his seizure disorder causes him totremble. Defendant does not take the full dosage of the medicationprescribed to control the seizures. Defendant's emphysema makesbreathing difficult. Defendant's thyroid disorder causes his weightto fluctuate.

Defendant stated he would continue his hunger strike atPontiac because he believes "they would end up killing [him] anyway." Therefore, defendant stated if he was going to die in Pontiac, it wasnot going to be "by nobody else's hands but mine." Defendant furtherstated, "But I am not suicidal. I [am] not trying to kill myself. *** I am not trying to commit suicide."

On examination by the court, defendant stated that hishunger strike is "letting the administration know that by me prolonging this hunger strike, that they need to start taking me seriously." Defendant further stated he would stop the hunger strike if he wastransferred back to Stateville because it "is just a much betterfacility." Defendant stated he would continue his hunger strike atPontiac even if his property were returned.

Following the hearing, the trial court entered a preliminary injunction, pending hearing on the permanent injunction.

On May 16, 2003, a trial on the complaint for permanentinjunction was held. The trial court took judicial notice of Dr.Funk's testimony from the preliminary injunction hearing. Defendant's testimony was substantially the same as his testimony at thepreliminary injunction hearing, with defendant further detailing theunpleasant conditions at Pontiac. Following the trial, the trialcourt entered an injunction permitting DOC to force-feed defendant ifnecessary to prevent his death. Defendant filed a posttrial motion,which was denied, and this appeal followed.

II. ANALYSIS

During the pendency of this appeal, DOC transferreddefendant back to Stateville, and defendant ceased his hunger strike. Therefore, the present controversy is moot. The State, however, asksus to retain jurisdiction and consider the issue under the public-interest exception to the mootness doctrine. To invoke the public-interest exception, there must be (1) an issue of a public nature,(2) a desirability of an authoritative determination for the purposeof guiding public officers, and (3) the likelihood that the questionwill generally recur. People ex rel. Department of Corrections v.Millard, 335 Ill. App. 3d 1066, 1069, 782 N.E.2d 966, 969 (2003),citing Johnson v. Edgar, 176 Ill. 2d 499, 513, 680 N.E.2d 1372, 1378(1997).

This court, in a case of first impression, previouslyfound this issue properly considered under the public-interestexception to the mootness doctrine. See Millard, 335 Ill. App. 3d at1070, 782 N.E.2d at 969. In the instant case, we again find that itis appropriate to invoke the exception. Whether an inmate may starveto death while under the care of DOC is a matter of public importance, and the role of DOC in these situations is a recurring question. Millard, 335 Ill. App. 3d at 1070, 782 N.E.2d at 969. Moreover, the factual posture of the instant case is different from thatin Millard, and therefore, DOC is in need of further guidance.

A. Standard of Review

Defendant appeals the trial court's grant of a permanentinjunction, arguing the State failed to prove a legitimate penological interest was affected by defendant's hunger strike.

"When granting permanent injunctive relief, the trialcourt, by definition, necessarily decides the plaintiff's success onthe merits of the case. And when, as here, the case raises purequestions of law, we find that the determination of the merits of thepermanent injunction is subject to de novo review." Butler v. USAVolleyball, 285 Ill. App. 3d 578, 582, 673 N.E.2d 1063, 1066 (1996),citing Magee v. Huppin-Fleck, 279 Ill. App. 3d 81, 85, 664 N.E.2d246, 249 (1996). We, therefore, review de novo DOC's interest inadministering the prison system against defendant's and other inmates' constitutional rights. Millard, 335 Ill. App. 3d at 1070, 782N.E.2d at 969, citing Quantum Pipeline Co. v. Illinois CommerceComm'n, 304 Ill. App. 3d 310, 314, 709 N.E.2d 950, 953 (1999).

B. Trial Court's Grant of Permanent Injunction to DOC Was Proper

A prison regulation, even one that impinges on an inmate'sconstitutional right, is valid if it is reasonably related to alegitimate penological interest. Turner v. Safley, 482 U.S. 78, 87,96 L. Ed. 2d 64, 77, 107 S. Ct. 2254, 2260 (1987). "[T]he preservation of life, prevention of suicide, and the enforcement of prisonsecurity, order, and discipline" are legitimate penological interests. Millard, 335 Ill. App. 3d at 1073, 782 N.E.2d at 971. Further, these interests are superior to the constitutional rights of aninmate whose hunger strike is an attempt to manipulate DOC. Millard,335 Ill. App. 3d at 1073, 782 N.E.2d at 972.

In the instant case, the purpose of defendant's hungerstrike was to manipulate DOC. Defendant was protesting his transferto and treatment at Pontiac. Defendant testified at great lengthabout the conditions at Pontiac and how the conditions at Statevillewere far more preferable. Defendant testified that he did not wantto commit suicide, and he did not want to die. Defendant alsotestified that returning his missing property, which was the motivation for starting the hunger strike, would not make him end hishunger strike. Instead, defendant testified that he would end hishunger strike if moved to another correctional facility less restrictive than Pontiac or if the staff at Pontiac who defendant allegedharassed him were no longer there. Clearly, defendant's hungerstrike was intended to manipulate DOC into improving his conditionswhile incarcerated.

Finally, defendant's argument that the facts of theinstant case are distinguishable from Millard are unpersuasive. Defendant argues that the grant of a permanent injunction in theMillard case was, according to the trial court, "pragmatic" becausethe defendant was scheduled for release from DOC within a few monthsof the court's ruling. Therefore, the trial court in Millard believed the defendant could wait until released and kill himself "onhis own time." On appeal, however, the timing of the defendant'srelease from DOC was not a factor this court considered in findingthat the defendant's hunger strike was an attempt to manipulate DOC. Similarly, in the instant case, defendant's scheduled release fromDOC in 2027, when defendant is approximately 80 years old, is notdeterminative as to whether defendant is attempting to manipulate DOCby his hunger strike. Therefore, the trial court's grant of apermanent injunction was not in error.III. CONCLUSION

For these reasons, we affirm the trial court's grant of apermanent injunction, allowing DOC to force-feed defendant to preventhis death.

Affirmed.

COOK, J., concurs.

STEIGMANN, J., dissents.

I respectfully dissent for the reasons expressed byJustice Knecht in his thoughtful dissent in Millard. Millard,335 Ill. App. 3d at 1074-75, 782 N.E.2d at 972-73 (Knecht, J.,dissenting).