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HEADNOTE: Warren R. Stevenson v. Richard A. Lanham, Sr. No. 445, September Term, 1998

DECLARATORY RELIEF -- JUSTICIABILITY -- MOOTNESS -- RIPENESS. When in declaratory judgment action concerning adverse constitutional rights of parties, party voluntarily ceases the legal and not improper conduct that implicated the conflicting rights, under circumstances that make it unlikely that the conduct will be resumed, the controversy no longer is "live," and is moot; and any future controversy arising out of possible recurrence of the conduct is not ripe.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 445 SEPTEMBER TERM, 1998

WARREN R. STEVENSON v. RICHARD A. LANHAM, SR.

Eyler, Sonner, Byrnes, JJ. Opinion by Byrnes, J. Dissenting Opinion by Sonner, J.

Filed: September 1, 1999

Warren R. Stevenson, appellant, an inmate at the Roxbury Correctional Institution who is on a self-proclaimed "hunger

strike," challenges a judgment by the Circuit Court for Washington County declaring of that Richard A. Lanham, may Sr., in the Maryland use

Commissioner

Correction,

appellee,

the

future

medically reasonable force to administer "sustenance and medical care" to him over his objection if necessary to prevent physical harm or death, so long as he is confined. Appellant presents the

following questions for review, which we have rephrased: I. Did the circuit court err in declining to dismiss appellee's declaratory judgment action for mootness? Did the circuit court err in granting a permanent injunction?

II.

For the reasons explained below, we conclude that there was no justiciable controversy before the lower court when the declaratory judgment was entered. Accordingly, we answer the first question We do not reach

presented affirmatively and vacate the judgment. the second question presented.

FACTS AND PROCEEDINGS
In 1989, appellant began serving a sentence of twenty-five years without the possibility of parole for a burglary conviction. At first, he was incarcerated in the Maryland House of Correction Annex, in Jessup. On January 1, 1994, while housed at Jessup, appellant went on a "hunger strike" to protest his sentence. His version of a hunger strike is to abstain from eating all solid foods and liquid nutritional supplements, such as "Ensure," and to

take in only fluids, such as milk, fruit juices, coffee, tea, and water. While at Jessup, appellant asked the prison authorities to supplement his meal trays with extra containers of milk and juice. They agreed to do so and for slightly more than three years appellant continued on his liquid diet hunger strike, drinking the fluids that were routinely provided with his meals and the

supplemental servings of milk and juice that were being given to him specially. that time. On March 7, 1997, appellant was transferred from Jessup to the Roxbury Correctional Institution ("RCI"), in Hagerstown. He was still on his hunger strike. Upon arrival at RCI, appellant asked to be given the same "liquid diet" that he had received at Jessup, i.e., to be furnished additional servings of milk and juice with his meal trays. Dr. Mohamed Moubarek, the associate medical He did not experience any health problems during

director for RCI, denied appellant's request as being without a medical basis. Appellant continued his hunger strike nevertheless,

refusing solid food and drinking only the liquids provided to all prisoners with their meals. On July 24, health 1997, care Dr. Moubarek and a several "patient medical and

psychiatric

providers

held

management

conference" with appellant. They warned him that his continued refusal to take in solid food was jeopardizing his health and

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reiterated that his requests for extra liquids such as milk and juice were not medically indicated. They urged appellant to start eating a normal diet. Appellant responded by stating that his intention in continuing his hunger strike was not to kill himself, but to express a point. Despite ongoing requests by members of the RCI medical staff for appellant to relent and start eating solid food, appellant remained on his hunger strike. He continued to ask that his meals

be supplemented with extra servings of milk and juice, and the medical staff continued to deny his requests. When it became apparent that appellant was losing weight, the medical staff started to monitor his condition by performing routine weight checks and urine and blood tests and by conducting periodic

interviews to confirm that appellant was competent.

From June 28,

1997 to December 8, 1997, appellant's weight dropped from 121 pounds to 107 pounds. At 107 pounds, the medical staff considered

that he was severely underweight.1 On December 12, 1997, during a routine weight, urine, and blood check at the RCI dispensary, appellant suddenly lost

consciousness. Members of the medical staff initiated emergency measures, including administration of intravenous fluids and

dextrose. They performed blood tests that revealed that appellant's blood chemistry was abnormal, and that it evidenced malnutrition. The record does not contain any information about appellant's height or about his ideal or proper weight. - 3 1

Appellant's

physical

condition

by

then

was

consistent

with

malnutrition: in addition to his substantial weight loss, he was suffering gross muscle wasting, mild loss of skin tone, and dry lips. In addition, his heart rate, body temperature, and blood pressure were abnormally low. Appellant slowly regained consciousness after a few hours. The next day, appellee, in his capacity as Maryland Commissioner of Correction, filed an application for temporary restraining order and preliminary and permanent injunctions and an action for

declaratory judgment against appellant, in the Circuit Court for Washington County. Appellee requested inter alia that the court

issue a temporary restraining order, pursuant to Md. Rule 15-504, "requiring [appellant] to submit to the medically appropriate administration of life-essential nutrition and medical treatment necessary to avoid permanent injury or death, and authorizing the Commissioner and his employees and agents to use reasonable force to administer life-essential nutrition and medical treatment over the objection and resistance of [appellant]." The complaint was

supported by an affidavit by Dr. Moubarek, in which he opined that, without medical intervention, bodily appellant harm within likely seven would days, sustain and an

serious and

permanent

affidavit by Richard A. Lanham attesting that appellant's selfinduced death would cause disruption and low morale in the prison population.

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The court granted the temporary restraining order, ex parte, upon a finding that before an adversary hearing could be held, appellant's refusal to submit to medical treatment and continued refusal to eat would bring about his death or would cause serious and irreversible bodily harm, and that appellant's death would cause irreparable harm to appellee, in his official capacity, "due to the disruption to the operation of the Division [of Correction] caused by the voluntary starvation of an inmate committed to the custody of the Commissioner." The temporary restraining order

required appellant to submit to medical treatment necessary to support his life and to prevent permanent physical injury. It authorized appellee or his agents to use reasonable force to administer sustenance and medical treatment to appellant, over his objection and resistance. By its terms, the temporary restraining

order was to expire on December 23, 1997. Immediately upon the issuance of the temporary restraining order, the RCI medical staff inserted a nasogastric ("NG") tube into appellant's nose and esophagus through which they began Appellant was still being

administering liquid nutrition to him.

"tube fed" in this manner on December 19, 1997, when appellee filed a motion for preliminary injunction or, in the alternative, for extension of temporary restraining order. In that filing, appellee

alleged that appellant's general state of health had improved since the initiation of tube feedings; that, in Dr. Moubarek's opinion,

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appellant's

health

would

decline

if

the

tube

feedings

were

discontinued; and that death or serious injury to appellant would cause irreparable harm to important state interests, including the state's interest in preserving life and maintaining the orderly operation of its prison system. On December 20, 1997, appellant filed an opposition to the motion for preliminary and permanent injunction and an answer to the declaratory judgment action. Three days later, the court

issued a memorandum opinion and order extending the effective period of the temporary restraining order until midnight, January 2, 1998, and scheduling a hearing on the request for preliminary injunction for January 5, 1998. At that hearing, Dr. Moubarek recounted the events that had culminated in appellant passing out at the dispensary on December 12, 1997, none of which are in dispute.2 He also explained the

process by which appellant later had been tube fed and opined, based upon his physical examination of appellant the day before the hearing, that appellant's physical condition had improved by virtue of the tube feedings and that he had gained 17

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