Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 1 of 21 . UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION IN RE: - I AJAY KUMAR - - MEMORANDUM OPINION AND ORDER ON SUPPLEMENTAL EMERGENCY MOTION FOR AUTHORIZATION FOR NON-CONSENSUAL FEEDING Before the court is ?Supplemental Emergency Motion for Order of Authorization? (?Motion?) No. 12], ?led August 14, 2019hy the United States of America ?Respondent?s Response to-the Govemment?s Supplemental Motion for Order of Authorization and Request to Stay Court?s Order? No. 18], ?led August 19, 2019 by Ajay Kumar ?Reply in Support of the United States? Supplemental Emergency . Motion for Order of Authorization and ReSponse in Opposition to Request to Stay Court?s Order? No. 21], ?led August 22,2019? ?Respondent?s Supplemental Brief in Opposition to the Government?s Supplemental Emergency Motion for Order of AuthorizatiOn? I No. 25], ?led August 27, 2019;4 and ?Sur-Reply'in Support of the United States? Supplemental Emergency Motion for Order of Authorization? No. 28], ?led September 3, . 2019.S ?Supplemental Emergency Motion for Order of Authorization? ECF No. 12-2, ?led Aug. 14, 2019 (redacted). 2 ?Respondent?s Response to the Government?s Supplemental Motion for Order of Authorization and Request to Stay Court?s Order? ECF No. 18, ?led Aug. 19, 2019. 3 ?Reply in Support of the United States? Supplemental Emergency Motion for Order of Authorization and Response in Opposition to Request to Stay Court?s Order? (?Reply?), ECF No. 21, ?led Aug. 22, 2019. 4 ?Respondent?s Supplemental Brief in Opposition to the Government?s Supplemental Emergency Motion for Order of Authorization? (?Suppl. Resp?), ECF No. 25, ?led Aug. 27, 2019. 5 ?Sur-Reply in Support of the United States? Supplemental Emergency Motion for Order of Authorization? ECF No. 28, ?led Sept. 3, 2019. Case 3:199mc-00205-FM Document 32 Filed 09/12/19 Page 2 of 21 In the Motion,_the Government seeks authorization to provide non?consensual medical examination,non-consensual hydration in the form of IV ?uids, and naso gastric tube placement with necessary enteral feedings.6 I. BACKGROUND A. Factual Background Respondent is a citizen of India? Respondent entered the United States near Otay Mesa, California.8 On March 27, 2019, an immigration judge ordered Respondent removed to India.9 Respondent ?led an. appeal with the Board Of Immigration Appeals on April 29, 2019.10 His appeal is still pending. 11 Respondent is currently detained in a detention facility operated by Immigration and Customs Enforcement and is engaged in a hunger strike. '2 Respondent stated his refusal to eat and hydrate is ?because I want my freedom.?l3 Respondent?s ?rst documented missed meal was breakfast on July 9, 2019.14 ICE placed Respondent on'hunger strike protocol after his ninth missed meal on July 11, 2019.15 6 Mot?Emergency Motion Hearing? (?Hr?g Test?) 60 1l 23, ECF No. 31, ?led Sept. 11, 2019MotUnder 201 _1 Operations Manual ICE Performance-Based National Detention Standards, an individual is placed on hunger strike protocol 72 hours after the ?rst missed meal. Immigrations and Customs Enforcement, Operations Manual ICE Performance-Based National Detention Standards (rev. July 2016) 2 Case 3:19-mc-00205-FM Document32 Filed-O9/12/19 Page30f21 On July 24, 2019, the Government ?led an ex parte motion to'obtain authorization for the United States Department of Homeland Security and ICE to perform non-consensual medical examination and non-consensual hydration in the form of IV ?uids to Respondent after he missed 46 meals. ?5 In a declaration submitted to the court, a. doctor under contract with ICE Doctor?) noted medical intervention Was necessary to combat serious medical complications arising from the hunger strike and dehydration.17 On July 24, 2019, the court granted the?ex parte motion and issued an order authorizing medical providers under contract with ICE to perform non?consensual medical examination and non-consensual hydration in the form of IV ?uids.13 ICE transported Respondent to a local hospital on August 3, 2019 because of ?severe right ?ank pain.?19 The chief concern was Respondent may have a ?kidney stone? or ?possibly an ulcer in the stomach from not eating?? .At the hospital, Respondent accepted IV ?uids and a CT scan.21 The hospital diagnosed Respondent with colitis?a colon infection.22 With the (?Any detainee who does not eat for 72 hours shall be referred to the medical department for evaluation and possible treatment by medical and mental health 1? ?Order of Authorization Filed Under Seal? (?Order of Auth.?) 1, ECF No. 4-2, ?led July 24, 2019 (redactedHr?g Test. 19 11 10?11. 2? Id. at 2011 1.4. 21161. at 2011 13?17. 22 Id. at 20 11 23. Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 4 of 21 exception of referring Respondent for ??ank pain,? ICE Doctor did not send him to an outside doctor to evaluate his condition.23 On August 5, 2019, the American Civil Liberties Union of Texas ?led a motion on ReSpondent?s behalf for the appointment of counsel.? The court held the appointment of counsel was in the interest of justice, reasoning that Respondent had ?not had the Opportunity to meaningfully respond'as to whether non-consensual medical examination and non-consensual hydration are necessary and appropriate.?25 On August 14, 2019, the Government ?led the Motion seeking further authorization to perform non-consensual medical examination in addition to non-consensual hydration in the form of IV ?uids, and nasogastric tube placement with necessary enteral feedings.26 Prior to seeking force feeding authorization, ICE Doctor attempted to persuade Respondent to. get I nutrition from protein shakes.? Respondent declined.23 The court granted the Motion? and set a hearing to determine whether the authorization should remain in place}0 At this hearing, ICE Doctor testi?ed that the naso gastric tube insertion procedure was performed three times.? On the ?rst two attempts, the nasogastric tube ?coiled??resulting in 23 Id. 33 1i14~18. 24 See generaliy ?Motion for Appointment of Counsel," ECF No. 9, ?led Aug. 5, 2019. 25 ?fMemorandum Opinion and Order Appointing Counsel? ECF No. 1 I, ?led Aug. 13, 2019. 26 Met. 1. 27 Hr?g Test. 44 11 9-?15. 23 Id. at 36 1} 4?5. 29 ?Supplemental Order of Authorization? (?Order of Suppl. Auth.?) 3, ECF No. 13- 1, entered Aug. 14, 2019. 3? ?Order Setting Status Conference? 1, ECF No. 15, entered Aug. 14, 2019. 31 Hr?g Test. 10119?12. Case 3;l9-mc-00205-FM Document 32 Filed 09/12/19 Page50f21 the tube failing to enter the stomach}2 This caused ReSpondent?s nose to swell, and ICE Doctor to become concerned about whether the procedure could be successfully completed.33 Respondent testi?ed his nose began bleeding and he ?was ?nding it dif?cult to breathe??4 ICE Successfully" inserted the tube on the third attempt and Respondent began receiving nutritiOn from it.35 I As of September 9, 2019, Respondent?s hunger strike has lasted 61 days, and he has missed 188 meals?? ICE removed the nasogastric tube on September 5, 2019 as Respondent?s health Was improving.? However, ICE Doctor reiterates that Respondent still refuses to cat, which raises the potential for ?further deterioration and serious medical complications.?38 Therefore, the Government still requests the authorization to force feed remain in place.39 B. Parties Arguments I. The Government?s Arguments The Government contends the authorization of non-consensual medical treatment and nasogastric tube placement with necessary enteral feedings (?force feeding?) is necessary to ensure Respondent?s condition resulting from hunger strike ?does not decompensate to a critical 43?49 11'? 25, 34 Id. at 62 1123. I 35 Id. at 1011 15?16. 36 ?Advisory to the Court of September 9, 2019? (?Sept 9 Adv?), ECF No. 30, ?led Sept. 9, 2019, ?Declaration? (?Sept. 9 Decl.?) 1, Ex. A. 37 Id. at 1?2 11'? 5?Sept. 9 Adv. 2. Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 6 of 21 junCture.?40 The Government argues the force feeding 0f immigration detainees is permissible, as courts have regularly found prison of?cials ?may compel a prisoner to accept treatment when, in the exercise of professional judgment, they deem it necessary to carry out valid medical and penological objectives.?41 I The Government argues the appropriate standard to decide whether ICE has authority to perform force feedings is contained in Turner v. Sa?ey.?42 In defense of Turner, the Government cites to some district courts that used the timer test in determining whether immigration detainees could be force fed.43 I Finally, the Government, argues ?detainee of?cials'have broad administrative and discretionary authority over the institutions they manage? and points to potential security concerns related to hunger strikes.44 2. Respondent?s Arguments Respondent contends he has a constitutional right to engage in a hunger strike? under the First Amendment and a substantive due process right to refuse medical treatment.45 Respondent argues the court should apply the standard in Youngberg v. l?iomeo,46 which the Supreme Court used to evaluate the due process rights of a mentally disabled individual involuntarily cemmitted 4? Mot. 8. 41 Id. at 6 (citing Pabon v. Wright, 459 F.3d 241, 252 (2d Cir. 2006)).- 42 id. at 3 (citing 432 ms. 78 (1987)). 43 Reply 9. I 44 Mot. 9 (citing Hewitt v. Helms, 459 460, 467 (1983)). 45 Resp. 2. 46 457 US. 307 (1982). Case Document 32 Filed 09/12/19 Page 7 of 21 to a state institution.? Respondent notes he is a civil detainee awaiting his BIA appeal?not a criminal prisoner.48 Therefore, Respondent reasons the Turner test does not apply to his circumstances, as it is speci?cally aimed towards penological regulations.419 Respondent also asserts ICE Doctor?s medical testimony does not deserve deference under Youngberg, as it substantially departs from accepted medical professional standard in recommending force feeding.50 I In the alternative, Respondent asserts that even if the Turner test were to apply to immigration detainees-the request for authorization for force feeding lacks a basis.51 Respondent argues there are alternatives to force feedings: (1) transferring him to a community hospital; or (2) releasing him on bond pending the completion of his In support of an alternative medical option, Respondent attaches an af?davit from Dr. Parveen Parmar Parmar?), an Associate Professor of Clinical Emergency Medicine at the University of Southern California, Keck School of Medicine.53 Dr. Parmar reviewed Respondent?s records and determined ?the care Mr. Kumar is receiving in ICE custody is markedly below standard of I 47 Resp. 3, 5. (citing Youngberg v. Romeo, 457 U.S. 307 (1982)). '3?4. 50 Id. at 8 (citing to World Medical Association, Declaration of Malta on Hunger Strikers, Guidelines for - the Management of Hunger Strikes fl 13 (Nov. 1991) (revised Oct. 2006), available at World Medical Association, WMA Declaration of Tokyo Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment (Oct. 1975) (revised Oct. 2006), available Supp. Brief, ?In the Matter Regarding Detention of Ajay Kumar, ICE Detainee at El Paso Service Processing Center? (?Parmar Aff.?) l, ECF No. 25?1, ?led Aug. 27, 2019. 7 Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 8 of 21 care, and putting his life at risk.?54 Finally, Respondent claims the Government?s security interests are not credible, lack a foundation, and are insubstantial.55 II. DISCUSSION A. Applicable Standard The parties ?rst contest which standard is proper to evaluate the Motion: oungberg or . Turner. I Youngberg involved the question of whether a mentally disabled individual involuntarily committed to a state institution had substantive rights under the Due Process clause of the - Fourteenth Amendment to safe conditions of con?nement; (2) freedom from bodily restraints; and (3) training or ?habilitation.?56 The Supreme Court acknowledged that although Romeo retained liberty interests protected by the Constitution, these rights were not Without limitations by the state?s interests.57 The Court explained that determining whether a substantive. right protected by the Due Process Clause has been violated, it is necessary to balance ?the liberty of. the individual? and the ?demands of an organized society.?58 In Turner, the Supreme Court analyzed a prison regulation?s reasonableness. To reach a determination, the Court employed a four-factor test: (1) there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether alternative means of exercising the asserted constitutional right remain 5? 1d. at 1?2 (emphasis removed). 5?5 Resp. 9. 56 Youngberg v. Romeo, 457 US. 307, 309 (1982). 57 Id. at 319?20. - 58 1d; . Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Pages of 21 open to the detainee; (3) the extent to which accommodation of the asserted right will have an impact on prison staff, inmates, and the allocation of resources; and (4) whether the presence of ready alternatives undermines the reasonableness of the regulations, or if the regulation is an ?exaggerated response? to penal concerns.?- Sor'ne District Courts have. applied the Turner factors when considering civil immigration detainee related hunger strikes.60 This is incorrect. The Turner test is designed to address the legitimacy of ?penological interests.?61 Courts have applied Tamer speci?Cally to a variety of prison regulation challenges.62 This is highly illustrative of the penological focus enshrouding the test. The Turner factors themselves are explicit in referencing ?prison staff,?63 prison 9:66 and ?inmates.?65 Turner also discusses the'cornplexities of ?running a prison. Promulgating penological regulations affords the state more discretion.? 59 Turner v. Sa?ey, 482 U.S. 78, 89-91 (1987). 60 See United States v. Glushchenko, N0. 2019 WL 3290334, at *2 (D. Ariz. July 22, 2019); see also Dep of Homeland Sec. v. Ayvazian, No. 15-23213-CIV, 2015 WL 5315206, at *4 (SD. Fla. Sept. 11, 2015). - 61 Turner, 482 U.S. at 3'9. 62 See e. g. Beard v. Banks, 548 U.S. 521, 525 (2006) (upholding a prison policy denying magazines, newspapers, and photographs to dangerous inmates); Johnson'v. California, 543 U.S. 499, 510 (2005) (?the Court has applied the Turner test only to rights that are ?inconsistent with proper indarceration.? This is because certain privileges and rights must necessarily be limited in the prison context?) (emphasis added) (internal citations omitted); Overi?onv. Bozzeito, 539 U.S. 126, 131w32 (2003) (upholding prisons regulations restricting visitation rights); Washington v. Harper, 494 U.S. 210, 236 (1990) (holding the Due Process Clause permits involuntary treatment of a prisoner suffering from a mental disorder who is violent); Prison Legal News v. Livingston, 683 F.3d 201, 218 (5th Cir. 2012) (permitting prison regulations restricting access from certain books). 63 Turner, 482 U.Overion v. Bozzetto, 539 U.S. at 131 (?Many of the liberties and privileges enjoyed by other citizens must be surrendered by the see also Turner 482 U.S. at 89. Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 10 of 21 Words matter?~?a detainee is not a prisoner. These werds have different de?nitions. This I difference is not merely semantic nor are the words interchangeable. An individual seeking asylum is not akin to a criminal prisoner.68 Respondent is a competent civil detainee?9 Thus, the penological interests presented in Turner are inapposite to the merits of this action. Accordingly, evaluating the claim under Turner would be unnecessarily restrictive on Respondent?s Constitutional rights. The correct standard to apply to a civil immigration-detainee is Youngberg?where the Supreme Court evaluated a claim of an individual involuntarily committed by balancing the state?s interests and the individual?s liberty In Youngberg, the Supreme Court stated: ?[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of con?nement than criminals whose conditions of con?nement are designed to punish?? It is undisputed the conditions of Respondent?s con?nement are not designed to punish.72 As Respondent is civilly con?ned, his detention certainly warrants mere considerate treatment than a criminal prisoner. Stricter treatment is reasonably necessary in prisons due to the many fears uniquely present in a prison environment. These concerns can include escape}3 violence,TF4 53 ?Mr. Kumar is in the lawful custody of ICE pursuant to 8 U.S.C. 1226 . . . he is not being held pursuant to a sentence of incarceration for the commission of a crime.? Met. 8. 69 Hr?g Test. 14 15; Mot. 8. 7? Youngberg v. Romeo, 457 307, 321 (1982). 711d. at 321?22. . 72 See generally Mot; Sur?Reply T3 Turner v. So?ey, 482 U.S. 78, 91 (1987). 74 Id; see also Pell v. Procunier, 417 U.S. 817, 826-27 (1974). 10 Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 11 of 21 or encouragement of further criminal behtwiorf?s The Government does not allege he may escape?mas was a concern in Turner76mnor does ICE allege he is Violent or dangerous.W The Government Imeekly states that hunger strikes present a concern for ?security problems? yet fails to offer any support for this proposition.73_ Contrary to the Government?s fear of disruption, ICE Doctor testi?ed Respondent was ?cOoperative and respectful? despitehis protest?9 Furthermore, RespOndent is not charged with a crime, and if his appeal is denied the outcome is simply deportation?not incarceration.80 This distinguishes his con?nement from eyen pre-tr'ial detention, Where there is a possibility of incarceration. Accordingly, this? court ?nds it is proper to eyaluate Respondent?s claim under the Youngberg balancing test. B. Applying Youngberg, the State'has an Overwhetming Interest in Preventing Hunger Strike Related Deaths The state must provide ?adequate food, shelter, clothing, and medical care.?81 The 2011 Operations Manual ICE Performance-Based National Detention Standards inform detainees that they will receive ?appropriate and necessary medical, dental and mental health 75. Overton v. Bazzetta, 539 U.S. 126, 134 (2003) (?Drug smuggling and drug use in prison are intractable problems?). - 76 Turner, 482 U.S. at 91. 77 See Mot. 78 Id. at 10. 79 I-Ir?g Test. 13 113?6. 3? 8 U.S.C. 1226; see Mot. 8. 31 Farmer v. Brennan, 511 U.S. 825, 832 (1994). 11 Case Document 32 Filed 09/12/19 Page 12 of 21 care, including emergency services.?82 Under the medical care includes the prevention of self-harmful behavior,83 including hunger strikes.84 The state?s interest in preventing the death of an individual in its custody is paramount. The Supreme Court clearly held neither the Fifth nor Fourteenth Amendments support the due process right to commit suicide.85 Thus, allowing Respondent to starve himself to death would violate the obligations the United States owes as a custodian.86 Respondent no doubt has a liberty interest in conveying his message and in directing his own medical care. However, while in federal custody, his interest is diminished as his chosen avenue of conveying his message, suicide by starvation, is not a liberty interest protected under the Constitution.? I I The next step in applying Youngberg is to evaluate the testimony of ICE Doctor.88 A professional89 is afforded deference in so much as the judgment is not ?such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.?90 ICE Doctor 32 43(1). 33 Id. at 4.6. 84 Id. at 4.2. 35 Washington v. Glucksberg, 521 U.S. 702, 728 (1997). - ?5 Aomer v.10bamo, 953 F. Supp.2d 213, 221 (D.D.C. 2013), a??d on other grounds, 742 F.3d 1023 (DC. Cir. 2014). 8" Glucksberg, 521 U.S. at 728. 83 Youngberg v. Romeo, 457 U.S. 307, 323 (1982). 39 1d. at 323 n.30 (1982) (?By ?professional? decisionmaker, we mean a person competent, Whether by education, training or experience, to make the particular decision at issue. Long?term treatment decisions normally should be made by persons with degrees in medicine or nursing . . 9? 1d. at 323. 12 Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 13 of 21 testi?ed speci?cally that Respondent?s bodyiis ?very weak.?91 ICE Doctor goes on to say Respondent has ?absolutely no energy? and rarely is observed cornmunicatingf2 Therefore, it is ICE Doctor?s judgment that Respondent is ?in danger? for ?muscle breakdown, vvhich includes cardiac muscle, . . his heart and potential irreversible organ damage, usually affecting the kidneys.?93 This will lead to deathif untreated. It is this opinion the court will evaluate for deference. In his Supplemental Brief, Respondent attaches the opinion of Dr. Parmar.94 Therein, Dr. Parmar analyzed Respondent?s medical data and rendered her opinion.95 Critically, Dr. Parmar did not contradict ICE Doctor?s testimony that Respondent was in a life-threatening situation.96 Dr. Parmar?s af?davit is critical of the approach taken by ICE, but consistently reiterated the seriousness of the threat Respondent faces.91F Both experts? agreement on this point makes it clear to this court that ICE Dector?s Opinion regarding the danger to Respondent?s health and need for immediate action is not a departure from accepted medical standards. It is undisputed Respondent is 61 days into a hunger Strike.98 He testi?ed he would only end the hunger strike if released from ICE custody.99 His BIA appeal is ?currently pending, with. 9' Hr?g Testssh-37 1111 25, 1?2. 93 Id. at 36 $14?19. 9? Parmar Aff. 95 Id. at 2. 9'5 See generally id. 97 1d; at 2?6. . I 98 Sept. 9 Decl. l. 99 I-Ir?g Test. 65 1113. I3 Case D?o-CUment 32 Filed 09/12/19 Page 14 of 21 no information as to its resolution date.100 Without intervention, Responden?s hunger strike will kill him. In situations where a detainee?s life is at great risk, the government is required to act. C. Forced Feeding Is Necessary Considering Respondent Faces Imminent Serious Harm The court must now determine what is necessary to effectuate the state interest to protect - the Respondent from imminent death. The options presented to the court are a bond hearing,101 forced feeding,102 or transferring Respondent to a community hospital. 1. Bond Hearing Respondent argues the Attorney General could simply release him on bond?thus ending his hunger strike. This is true. .8 U.S.C. 1226 grants" the Attorney General. authority to release an alien on bond or conditional parole.105 However, this court does not have the authority to order this action.m6 The "decision of whether to-release a detainee rests solely in the discretion of the Attorney Generaldm There are no judicial enforcement ?mechanisms making this a credible alternative. 103 While it is advisable that bond be considered, the court does not have jurisdiction to order a bond hearing. To put it plainly, waiting to authorize force feedings until 10? Mot. 2 ?l 1. Resp. 12. 102 See Mot. 10. Resp. 12?13U.S.C. 1226(a)(2). 8 U.S.C. 1226(e) (?The Attorney General?s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole?). 107 Id. 108 Id. 14 Case 3:19-mc-00205-FM Document 32 Filed'O9/12/19 Page 15 of 21 ICE exercises a discretionary measure would jeopardize Respondent?s life. Therefore, a bond hearing is not a viable alternative. 2. Transferring Respondent toa Communitv Hospital Respondent suggest-s transferring him to a community hoSpital as an alternative to force feeding.109 The Government ripostes that transferring Respondent to a community hospital is futile, as Respondent would decline medical treatment at a hospital.110 However, the court does not see rejection of medical treatment as a certainty. Hospital staff are trained to treat patients with respect and professionalism, and having medical information discussed in a different environment could yield different results. This is especially true given ReSpondent?s discussion of the conditions at ICE facilities.111 Respondent in fact testi?ed he would allow an independent doctor to evaluate-his condition}12 I However, Respondent?s health has deteriorated to the point where transferring him to a community hospital is not a viable alternative. Respondent?s condition has grown markedly I worse, as even Dr. Parmar attests in her af?davit.113 His malnutrition is life threatening and he is at risk for ?potentially irreversible organ damage.?1 ?4 Doctor testi?ed that IV ?uids are not enough to prevent Respondent?s death.115 She also testi?ed that outside medical facilities in El ?09 Supp. Brief 1. ?0 Sur-Reply 111 See Hr?gTest. 61?66Farmer Aff. 2?6. ?4 Hr?g Test. 30-31 23?25, 1?3, 36 18. ?5 Id. at 35~36 1m 2345, 1?19. 15 Case Document 32 Filed 09/12/19 Page 16 of 21 Paso, Texas refuse to force feed individuals who decline medical treatment.116 Respondent testi?ed he will not eat until his release from ICE custody.117 If transferred to a community hospital, Respondent would. remain in ICE custody.118 Therefore, transferring Respondent to a community hospital would not provide him with the necessary nutrition to save his life. I 3. The only'option remaining to the court is to order force feeding. Respondent is adamant that he will not voluntarily eat untilhis release from ICE custody. I ?9 This court cannot order his release from ICE custody.120 The court cannot fathom Respondent strictly surviving on IV ?uids, and it is well-documented that a community hospital would not perform naso gastric feedings. '21 ICE Doctor testi?ed that there are two methods of force feeding: naso gastric and a percutaneous endoscopic gastric tube. 122 PEG is a ?surgical procedure into the stomach to have a tube where you would just pour the shake directly into the stomach.?123 In comparing the two, she described nasogastric as the less intrusive and carrying less risks than the PEG tube.124 Neither Respondent nor Dr. Parmar contest this comparison. ?25 Nasogastric feedings ?6 Id. at 51 1] 15-25. ?7 Id. at 65 1i18. 118 Id at 51?52 {[11 15?25T13. 120 8 U.S.C. 1226(6). 121Hr?g Test. 51 1 15-25- 122 Id. at 58 ii 8-13- 123 Id. at 50 it 19?24. 124 Id. at 50 1119?21. 125 See Supp. Brief; Parmar Aff. 16 Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 17 of 21 will give Respondent the necessary nutrition to stay alive. '26 Therefore, the least intrusive medical course of action that will ful?ll the state?s obligation to keep Respondent alive is to allow nasogastric feedings to continue pursuant to the court?s previous order.127 - . CONCLUSION AND ORDERS It is troubling that Respondent was not brought to an independent doctor for immediate evaluation upon initiation of his hunger strike. While he was seen for ?ank pain at a community hospital,128 ICE Doctor testi?ed that Respondent has not been seen for his conditibn regarding malnutrition.? Additionally, Dr. Parmar pointed out various times where ICE treatment may have fallen below acceptable standards. ?30 I For example, the nasogastric tube was placed twice unsuccess?illy due to the tube coiling.131 ICE Doctor described the coiling as something she had ?never seen before.?132 Dr. Parmar expressed concern that-ICE Doctor failed to perform further investigation as to the cause of coiling, given the rarity of that complication.133 At the Motion hearing, ICE Doctor stated she would recommend Respondent receive an endoscopy. ?34 The ICE facility holding Respondent 126 Hr? Test. 46 11 16?20. 127 Order for Suppl. Auth. 123 Hr?g Test. 191l10?11- 129 Id. 33 1] 14?18. 130 Parmar Aff.? 3?7. 131Hr?g Test. 10 11 9?12. 132 Id. at 47 11 16?24. ?33 Parmar Aff. 8. ?34 Hr?g Test. 491i 6?17. 17 Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 18 of 21 cannot perform this test.135 Despite this recommendation, ICE Doctor did not refer him to a community hospital.136 Dr. Parrnar also takes issue with ICE Doctor?s visitation records?Which indicate only four Visits on or before. August 14, 2019.137 This is concerning due to his ?profoundly abnormal vital signs.?138 ICE Doctor testi?ed that she does not always document her conversations with Respondent. 139 She described the undocumented conversations as ?informal.?140 However, Dr. Parmar notes this is ?Well below the standard of care to see a patient and not document your visit/an assessment.?141 Critically,l_it is in violation of 4.2, which states ?records shalt be kept of all interactions with the striking detainee . . . 3?142 Dr. Parmar also points to various aspects of Respondent?s treatment that may place'hirn I 144 at a greater risk for harm. These risks include worsening colitis,?3 a severe lack of ?uids, orthostatic hypotension,145 and inadequate calories.146 Dr. Parmar repeatedly states ?136161. ?37 Parmar Aff. 3. 138 Id. ?39 Hr? Test. 43 11 5?7. 14? Id. at 43 1] 9?10. I Pannar Aff. 3?4. 142 (emphasis added). 143 Parmar AffCase 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 19 of 21 147 administering IV ?uids would address several of these concerns -??something this court?s previous order empowered ICE to effectuate.148 Dr. Parmar also states that ICE failed to give ?149 9 ?appropriate attention? to Respondens scritically low blood pressure. Serious as Dr. Parmar?s criticisms are, the Government chose not to provide a rebuttal or acknowledge mistakes in Respondent?s medical care.150 The record before this court shows ICE is acutely aware of hunger strikes. In this case, Respondent was placed On force feeding protocol after missing nine meals in accordance with - With this acute awareness of a detainee?s health, there is no excuse for ICE to not bring a hunger striking individual to an independent doctor prior to seeking court intervention. The permit transferring an individual who initiates a hunger strike to a community hospital.152 I While it is certainly possible that a detainee could refuse medical treatment by an independent doctor, it is clearly preferable to see that situation come to pass than to deal with hypothetical refusals. Even. if a detainee were to refuse medical treatment, an independent doctor could assess the collected Vitals and submit a report to this court?like Dr. Parmar did. Respondent testi?ed he would accept an examination by an independent doctor.153 Furthermore, 14'; Id. ?43 Order of Auth. 3; Order Iof Suppl. Auth. 2?3. 14? Parmar Aff. 4. 150 See generally 151 Mot 3 12; 4 ?52 4. (?If medically necessary, the detainee may be transferred to a community hospital or a detention facility appropriately equipped for treatment. 153 Hr? Test. 65 1i 19?21. 19 . Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 20 of 21 - ICE Doctor testi?ed she would welcome a second opinion ?regarding the need to force feed Mr. Kumar.?154 The court has no reason to doubt either Respondent or ICE doctor on this point. It is the duty of the Government to provide adequate medical care, not just to keep Respondent alive.155 Based on ICE Doctor and Dr. Parmar?s concurring opinions, the court informs the Government that in future cases it is both prudent and in the interest of justice for ICE to bring an individual on a hunger strike to an independent doctor prior to seeking a court order to- begin naso gastric feeding. This practice Will expedite the fact-finding process and allow a thorough examination-allowing the court to properly ensure civil detainees receive proper medical attention. In this case, Respondent is facing too great a risk of organ failure, muscle atrophy, and death. Thus, the court has no other alternative except to maintain the order authorizing forced feeding. Accordingly, the court enters the following orders: 1. It is HEREBY ORDERED that, pursuant to 28 U.S.C. 1651, the medical staff at DHS, ICE, SPC or other providers, who are under contract with ICE to provide for the medical care of detainees, may perform laboratory tests and physical evaluation, to non-consensually hydrate in the form of IV ?uids, and utilize nasogastric tube placement with necessary enteral feedings as needed to assure Mr. Kumar's condition does not decompensate to a critical juncture. 2. It is FURTHER ORDERED that if, after the medical providers perform the involuntary medical examinations and non-consensual hydration, the medical providers feel that in theirmedical judgment, more intrusive medical procedures are necessary to preserve the life and health of Mr. Kumar, ICE will seek further - Court approval. I 154 Id. at 52 'll 21?23. 155 Aamer v. Obama, 9531?. Supp.2d 213?, 221 (D.D.C. 2013), a??d on other grounds, 742 F.3d 1023 (13.0. Cir. 2014Case 3:19-mc-00205-FM Document 32 Filed 09/12/19 Page 21 of 21 3. It is FINALLY ORDERED that Immigration and Customs Enforcement SHALL provide bi?weekly status updates as to Ajay Kumar?s condition. SO ORDERED. SIGNED this 12th day of September, 2019. M. FRANK MONTALVO UNITED STATES DISTRICT JUDGE 21