DOC v. Warren Lilly, Jr., 2011 WI App 123 (recommended for publication); case activity
¶2 The primary issues we address on this appeal and their resolution are as follows:
I. In light of Saenz, what is the correct legal standard for the showing DOC must make to obtain a court order continuing to authorize the forced feeding of an inmate?[1]
We conclude that in this situation DOC must show that: (1) if forced feeding is withdrawn, it is likely the inmate would continue his or her hunger strike; and (2) if the inmate does continue, the inmate would, based on reliable medical opinion, be in imminent danger of suffering serious harm or death. We also conclude that the “compelling circumstances” exception the circuit court employed is inconsistent with Saenz, and we therefore do not adopt it.
II. In the context of DOC’s application for initial or continued authorization to force feed an inmate, must the circuit court accord a presumption of validity to the opinions of qualified physicians on matters involving their professional judgment?
We conclude that in this context the circuit court must accord the physicians’ opinions a presumption of validity. For the reasons we explain, we conclude that, when this standard is applied to the evidence here, DOC has established that it is entitled to an authorization of continued forced feeding of Lilly.
III. What is the correct legal standard for analyzing an inmate’s objections to the manner in which the forced feeding has been carried out?
We conclude that objections to the manner of forced feeding that may implicate the Eighth Amendment are properly before the circuit court when DOC seeks an order continuing to authorize forced feeding of an inmate. For the reasons we explain, we hold that certain of Lilly’s objections do not constitute an Eighth Amendment violation but we are unable to determine whether other objections do.
IV. What is the proper scope of an order authorizing a continuation of forced feeding for Lilly?
Consistent with the principle of deference to the professional judgment of the physicians treating the inmate, we conclude that, in general, an order authorizing, or continuing to authorize, forced feeding should not prescribe the specifics of how and when it is carried out. However, if the circuit court determines that any particular aspect of the manner in which forced feeding has been carried out constitutes a violation of an inmate’s constitutional rights, the order authorizing forced feeding or continuing to authorize forced feeding must prohibit that particular practice or procedure.
Not, strictly speaking, within the charter of SPD-authorized representation, but if you have a client who, like Lilly, goes on a hunger strike, you might want to be aware of this development.
