        IN THE COMMONWEALTH COURT OF PENNSYLVANIA




Commonwealth of Pennsylvania,            :
Department of Corrections                :
                                         :
            v.                           :   No. 186 C.D. 2014
                                         :
Tyrone Glenn,                            :   Submitted: June 27, 2014
                                         :
                         Appellant       :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                              FILED: August 27, 2014


      Tyrone Glenn, pro se, appeals from the Order of the Court of Common Pleas
of Luzerne County (trial court), dated July 1, 2013, granting the Department of
Corrections (Department) a preliminary injunction to involuntarily examine Glenn;
to perform invasive diagnostic tests; and to administer medical treatment, including
nutrition and hydration, when the Department’s medical staff deems such treatment
necessary to preserve Glenn’s health and life.        Glenn asserts that multiple
procedural deficiencies occurred prior to and during the July 1, 2013 hearing held
before the trial court pursuant to Rule 1531 of the Pennsylvania Rules of Civil
Procedure, Pa. R.C.P. No. 1531, on the Department’s motion for preliminary
injunction; therefore, the preliminary injunction should be vacated. Discerning no
error, we affirm.


      Glenn is an inmate serving a life sentence at State Correctional Institution
(SCI) Retreat. (Trial Ct. Op. at 2.) Glenn began a hunger strike on May 29, 2013.
(Trial Ct. Op. at 2.) As a result, he was transferred from SCI-Retreat, which does
not have an infirmary, to a psychiatric holding cell at SCI-Dallas, which does have
an infirmary. (Trial Ct. Op. at 2.) Glenn informed prison officials that his hunger
strike was an effort to make the Department: permanently transfer him to a single
occupancy cell at SCI-Dallas; provide him with more food throughout the day; and
to medically treat him for an array of self-diagnosed ailments. (Trial Ct. Op. at 2.)
Between May 29, 2013 and June 27, 2013, Glenn had refused approximately
eighty-seven meals. (Trial Ct. Op. at 2.) On June 27, 2013, the Department filed a
complaint, motion for preliminary injunction, and an application for ex parte
preliminary injunction to allow the Department to involuntarily administer medical
treatment to Glenn, including nutrition and hydration. (Trial Ct. Op. at 2-3.) The
trial court granted an ex parte preliminary injunction the same day and scheduled a
hearing, pursuant to Rule 1531(d), Pa. R.C.P. No. 1531(d), for July 1, 2013. (Trial
Ct. Op. at 2-3.)


      During the July 1, 2013 hearing, Glenn asked the trial court whether an
attorney would be appointed to represent him during the proceedings. (Hr’g Tr. at
4.) The trial court informed Glenn that he did not have a right to appointed
representation because the matter was a civil case, not criminal. (Hr’g Tr. at 4-5.)
Glenn responded that he understood that this was not a criminal proceeding and


                                         2
further informed the trial court that he did not wish to retain legal representation.
(Hr’g Tr. at 4-5.) Glenn stated that he was “capable of handling the case” and
requested that the trial court permit him to represent himself. (Hr’g Tr. at 5.) The
trial court granted his request, and Glenn proceeded pro se. (Hr’g Tr. at 5.)


       After the hearing, the trial court granted the Department’s motion for a
preliminary injunction. (Trial Ct. Op. at 2.) Glenn did not demand a final hearing
pursuant to Rule 1531(f)(1), Pa. R.C.P. No. 1531(f)(1). Glenn filed a notice of
appeal1 of the trial court’s Order on July 30, 2013 and a statement of errors
complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of
Appellate Procedure, Pa. R.A.P. 1925(b), on December 13, 2013. (Trial Ct. Op. at
2.)   The trial court issued a 1925(a) opinion in support of the grant of the
preliminary injunction on February 28, 2014.2




       1
         Glenn filed the notice of appeal with the Superior Court, which then transferred this
matter to this Court on February 7, 2014 pursuant to Section 762(a)(1)(ii) of the Judicial Code,
42 Pa. C.S. § 762(a)(1)(ii) (providing that the Commonwealth Court has exclusive jurisdiction of
appeals from final orders of the trial court in all civil actions commenced by the
Commonwealth).

       2
          When reviewing an order granting a preliminary injunction, this Court must “determine
whether or not reasonable grounds appear for the granting of the preliminary injunction,” without
deciding the merits of the case. Hill v. Department of Corrections, 992 A.2d 933, 936 (Pa.
Cmwlth. 2010). “To sustain a preliminary injunction, the plaintiff’s right to relief must be clear,
the need for relief must be immediate, and the injury must be irreparable if the injunction is not
granted.” Id. It is appropriate for this Court to “consider whether greater injury will occur from
refusing the injunction than granting it and whether the injunction returns the parties to the status
quo as it existed before the alleged wrongful conduct.” Id.

                                                 3
       Glenn raises several arguments3 on appeal: (1) the July 1, 2013 hearing was
improperly conducted under Rule 1531 because Glenn’s First Amendment rights
were violated by the injunction; (2) the Department’s attorney committed a fraud
upon the trial court; and (3) Glenn, as an indigent inmate facing involuntary
medical treatment, should have been provided counsel.


       First, Glenn argues that the trial court did not properly adhere to Rule 1531
in conducting the hearing held on July 1, 2013. Rule 1531 reads, in pertinent part:

              (a) A court shall issue a preliminary or special injunction only
       after written notice and hearing unless it appears to the satisfaction of
       the court that immediate and irreparable injury will be sustained
       before notice can be given or a hearing held, in which case the court
       may issue a preliminary or special injunction without a hearing or
       without notice. In determining whether a preliminary or special
       injunction should be granted and whether notice or a hearing should
       be required, the court may act on the basis of the averments of the
       pleadings or petition and may consider affidavits of parties or third
       persons or any other proof which the court may require.

               ....

               (c) Any party may move at any time to dissolve an injunction.

             (d) An injunction granted without notice to the defendant shall
       be deemed dissolved unless a hearing on the continuance of the
       injunction is held within five days after the granting of the injunction
       or within such other time as the parties may agree or as the court upon
       cause shown shall direct.
       3
          Glenn neither challenges the Department’s request for the preliminary injunction, nor
does he challenge the factual basis upon which the trial court granted the preliminary injunction.
Rather, Glenn’s arguments focus on procedural deficiencies prior to and during the hearing on
the Department’s motion for a preliminary injunction. During the July 1, 2013 hearing, Glenn
specifically stated that he was not challenging the Department’s right to impose involuntary
medical attention on him as a result of his hunger strike. (Hr’g Tr. at 6.)

                                                4
             (e) After a preliminary hearing, the court shall make an order
       dissolving, continuing or modifying the injunction.

               (f)(1) When a preliminary or special injunction involving the
       freedom of expression is issued, either without notice or after notice
       and hearing, the court shall hold a final hearing within three days after
       demand by the defendant. A final order shall be filed in the office of
       the prothonotary within twenty-four hours after the close of the
       hearing. If the final hearing is not held within the three-day period, or
       if the final order is not filed within twenty-four hours after the close of
       the hearing, the injunction shall be deemed dissolved.

Pa. R.C.P. No. 1531. Glenn asserts that Rule 1531(f)(1) should have been applied
instead of Rule 1531(d) because his hunger strike was a demonstrative protest
protected by the First Amendment of the United States Constitution.4


       This Court considered the issue of whether hunger strikes by inmates are
constitutionally protected forms of speech in Hill v. Department of Corrections,
992 A.2d 933 (Pa. Cmwlth. 2010). Hill, an inmate serving a life sentence at SCI-
Houtzdale, engaged in a hunger strike and refused several consecutive meals. Id.
at 935. The Department filed a complaint, a motion for a preliminary injunction,
and an application for an ex parte preliminary injunction to involuntarily
administer medical care to Hill, including involuntary nutrition and hydration. Id.
at 935. Hill argued that his hunger strike was not a suicide attempt, but a protest of
his accommodations within the correctional facility and of the Department’s
refusal to transfer him to a different facility. Id. at 935-936. Hill asserted that the

       4
         “Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S.
Const. amend. I.

                                               5
Department’s injunction should have been dismissed because his hunger strike was
a form of expression protected by the First Amendment. Id. at 938.


      This Court rejected Hill’s argument because “the curtailment of Hill’s right
to freedom of expression is justified when viewed against [the Department’s] needs
in maintaining an orderly prison facility and the health and safety of its prisoners.”
Id. We expressed agreement with the Supreme Court of New York, which, when
analyzing a similar case, stated, “‘[w]hereas a prisoner’s right of expression may
not be circumscribed to an extent greater than that required for the legitimate ends
of prison security and administration, those legitimate interests clearly include the
need to prevent a prisoner’s suicide, even if cloaked in the guise of First
Amendment expression.’” Id. at 939 (quoting Von Holden v. Chapman, 87 A.D.2d
66, 70-71 (N.Y. App. Div. 1982) (citations omitted)).


      Here, if Glenn were to successfully starve himself to death, even though he
claims that suicide is not his intent, the Department’s legitimate goals of keeping
its inmates in good health, maintaining order within the prison population, and
protecting the morale of its medical staff would be severely undermined. Hill, 992
A.2d at 938; see also, Department of Public Welfare v. Kallinger, 580 A.2d 887,
891 (Pa. Cmwlth. 1990) (stating that “[i]t is clear that allowing a prisoner to starve
to death while in state custody would have an unpredictable negative effect on the
security and order within the prison system”). We see no reason to reach a
different conclusion here.      Therefore, the Department is not barred from
administering involuntary nutrition and hydration by Glenn’s constitutional right to
free speech. Thus, it was not necessary for the trial court to apply Rule 1531(f)(1).


                                          6
       Moreover, even had Glenn’s hunger strike been considered a constitutionally
protected form of expression, Rule 1531(f)(1) still would not apply.                        Rule
1531(f)(1) explicitly states that “the court shall hold a final hearing within three
days after demand by the defendant.” Pa. R.C.P. No. 1531(f)(1) (emphasis added).
Glenn did not demand a final hearing in accordance with this Rule; therefore, the
trial court did not err in applying Rule 1531(d) instead of Rule 1531(f)(1).5


       Next, Glenn argues that the Department’s attorney committed fraud upon the
trial court “by falsely creating a sense of urgency . . . to hold a final hearing
because once the preliminary injunction was granted, [Department] agents began
force feeding inmate Glenn and additionally he began to eat on his own.” (Glenn’s
Br. at 24.) Glenn argues that, by urging the trial court to quickly proceed to a
hearing, the Department’s attorney deprived Glenn of a multitude of procedural
rights and provided inaccurate facts to the trial court. Glenn argues further that
because the medical staff at the correctional facility was able to successfully, albeit
involuntarily on his part, administer nutrition and hydration, the hearing was
unnecessary. However, Glenn’s interpretation of the Rule is incorrect.




       5
          Glenn also argues that the disregard of the correct procedural Rule denied Glenn his due
process and equal protection rights under the Fourteenth Amendment of the United States
Constitution, U.S. Const. amend. XIV, and Article I of the Pennsylvania Constitution, Pa. Const.
art. I. However, for the same reasons that the Department is not barred from administering
involuntary nutrition and hydration by Glenn’s constitutional right to free speech and that the
trial court did not err by applying Rule 1531(d), we conclude that Glenn’s due process and equal
protection arguments are not persuasive, which are based on the premise that the provisions of
Rule 1531(f) should have been applied rather than Rule 1531(d).

                                                7
      Pursuant to Rule 1531(a), an ex parte preliminary injunction was issued in
this matter without prior notice to Glenn. Rule 1531(d) states that, in such cases, a
hearing must be held “within five days after the granting of the injunction or within
such other time as the parties may agree or as the court upon cause shown shall
direct.” Pa. R.C.P. No. 1531(d). Here, a hearing was held four days after the ex
parte preliminary injunction was granted, in accordance with the five-day time
limit of Rule 1531(d). Moreover, Glenn admits that he was given notice of the
hearing scheduled for July 1, 2013, and he neither made an attempt to reschedule
the hearing pursuant to Rule 1531(d), nor avail himself of Rule 1531(c), which
allows any party to move for dissolution of the injunction at any time. Pa. R.C.P.
No. 1531(c). Accordingly, the hearing was held so quickly after the issuance of
the ex parte preliminary injunction to comply with the requirement of Rule
1531(d) and in the absence of any action by Glenn. Therefore, the Department’s
attorney did not commit fraud upon the trial court.


      Lastly, Glenn argues that as an indigent defendant facing involuntary,
invasive medical procedures, the trial court should have assigned an attorney to
him. The Department correctly notes that an individual does not have a right to an
appointed attorney in a civil matter. See Johnson v. Desmond, 658 A.2d 375, 376
(Pa. Super. 1995); Weir v. Weir, 631 A.2d 650, 657 (Pa. Super. 1993); Kase v.
Commonwealth, 489 A.2d 986, 987-988 (Pa. Cmwlth. 1985). Glenn argues that
the injunction interferes with his freedom of expression, which is a substantial
right; therefore, he should be appointed an attorney because courts may “appoint
counsel in civil cases to indigent parties when deprivation of ‘substantial rights’
raises due process and equal protection concerns.”         (Glenn’s Br. at 42-43.)


                                         8
Although Glenn does not elaborate on what constitutes a substantial right we glean
from his argument, as a whole, that he is referring to the right of free speech
protected by the First Amendment.        As we have already determined that an
inmate’s hunger strike is not a protected form of speech, this argument is not
persuasive. Moreover, during the July 1, 2013 hearing, Glenn did not contend that
he should be appointed an attorney because he was being deprived of a substantial
right. Glenn understood that he was not entitled to have an attorney appointed to
represent him and when given the opportunity by the trial court to retain counsel,
Glenn informed the trial court that he was capable of handling the matter and
formally requested permission to represent himself. (Hr’g Tr. at 4-5.)


      For the foregoing reasons, the trial court’s Order is affirmed.



                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge




                                          9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Commonwealth of Pennsylvania,        :
Department of Corrections            :
                                     :
           v.                        :   No. 186 C.D. 2014
                                     :
Tyrone Glenn,                        :
                                     :
                       Appellant     :



                                   ORDER




     NOW, August 27, 2014, the Order of the Court of Common Pleas of
Luzerne County entered in the above-captioned matter is AFFIRMED.




                                     ________________________________
                                     RENÉE COHN JUBELIRER, Judge
