                       NOT FOR PUBLICATION WITHOUT THE
                     APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
     Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R.1:36-3.



                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0455-16T4

IN THE MATTER OF W.L.

_________________________

             Submitted September 20, 2017 – Decided October 2, 2017

             Before Judges Haas and Rothstadt.

             On appeal from Superior Court of New Jersey,
             Chancery Division, Essex County, Docket No.
             C-000012-16.

             Kunal Sharma, attorney for appellant W.L.

             Christopher S. Porrino, Attorney General,
             attorney for respondent New Jersey Department
             of Corrections (Melissa H. Raksa, Assistant
             Attorney General, of counsel; Nicole E. Adams,
             Deputy Attorney General, on the brief).

PER CURIAM

       Defendant W.L., an inmate at Northern State Prison (NSP),1

engaged in a months-long hunger strike that placed his health and

life in imminent danger.          Defendant appeals from the January 21,

2016 and March 18, 2016 orders of the Chancery Division, granting

a preliminary injunction to the Department of Corrections that



1
    Defendant's maximum release date is December 28, 2017.
permitted       the     Department's        medical          personnel        to   provide

involuntary      medical        treatment       and    nutrition         to    defendant.

Defendant also appeals from an August 15, 2016 order dismissing

his counterclaim with prejudice for failure to state a claim upon

which relief may be granted.               R. 4:6-2(e).           We affirm in part,

reverse in part, and remand for further proceedings.

       Prior to transferring defendant to NSP in December 2014, the

Department housed defendant at New Jersey State Prison (NJSP).

While at NJSP, defendant went on a prolonged hunger strike between

March 2012 and March 2013, which caused him to lose approximately

100    pounds    from    his    260-pound       frame.        Defendant       refused     to

regularly eat or take fluids because he said he was upset with a

disciplinary charge he received that resulted in his placement in

administrative segregation for a lengthy period of time.

       Defendant was not happy with his transfer to NSP.                           In the

months that followed, the Department advised defendant that he

would   soon     be    placed    in   a   double      cell    with      another    inmate.

Defendant asserted that he had not yet successfully transitioned

from    living    in    segregation       to    living       in   the   general     prison

population,      and    that    placing        him    with    another     inmate     would

adversely affect his physical and mental health.

       Based on these complaints, defendant began a second hunger

strike in July 2015 and again refused to regularly consume food

                                            2                                      A-0455-16T4
or fluids.       As a result, defendant's health rapidly deteriorated.

Defendant also refused to cooperate with medical staff who were

attempting to monitor his vital signs.                   The uncontradicted medical

evidence in the record reveals that by January 2016, when the

Department       sought      the     preliminary       injunction,       defendant       had

already suffered tissue and cardiac muscle destruction, and severe

malnutrition.          The    Department's          medical      director    opined     that

defendant       was   in    danger    of     dying    if    the    Department     was   not

permitted to provide life-saving treatment to him.

      On January 7, 2016, the Department filed a verified complaint

and an order to show cause seeking a preliminary injunction

permitting it to provide treatment to defendant.                         Following oral

argument,       the    trial       judge       entered      a    temporary    injunction

permitting the Department to monitor defendant's vital signs,

perform lab tests, and feed defendant "via intravenous hydration

and   a   Naso-Gastric"        tube     if     he    refused      to   voluntarily      take

nutrition pending the return date.

      Following a hearing, the judge entered a second order on

March     18,    2016,      granting       a    preliminary        injunction     to     the

Department.           The    order    permitted       the       Department   to   provide

involuntary medical treatment and nutrition to defendant if he

refused, and to "employ reasonable force in order to conduct lab

tests to obtain blood and urine samples" from defendant and to

                                               3                                  A-0455-16T4
give him intravenous hydration and nutrition.                          The judge found

that the preliminary injunction was "necessary to avoid serious

bodily damage and/or death."

       Together   with     his    answer     to    the    Department's      complaint,

defendant filed a four-count counterclaim.                       Among other things,

defendant    asserted      that    the     Department          violated    his     Eighth

Amendment protections against cruel and unusual punishment by

keeping him in isolation and then attempting to place him in the

general prison population without adequate transitional care.

Defendant also alleged that the Department deprived him of due

process, and infringed his First Amendment right to engage in

political protest by taking retaliatory action against him as a

result of his hunger strikes.

       The   Department     filed      a     motion       to    dismiss    defendant's

counterclaim.        On    August      15,       2016,    the    judge    granted     the

Department's      motion     and    dismissed            defendant's      claims     with

prejudice.     This appeal followed.                On appeal, defendant argues

that   the   trial   judge       erred     by     granting       the   Department     the

preliminary    injunction        and     dismissing        his    counterclaim       with

prejudice.

       At the outset, we recognize that the three orders listed in

defendant's amended notice of appeal are interlocutory because the

trial judge never conducted a final hearing to determine whether

                                             4                                   A-0455-16T4
the restraints ordered on January 21, and March 18, 2016 should

be permanent or were no longer necessary.         Thus, the judge did not

issue a final, appealable judgment in this case.              See Smith v.

Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 383 (App.

Div.) (holding that in order for a "judgment to be final and

therefore appealable as of right, it must dispose of all claims

against   all   parties")   (internal   quotation    marks    and   citation

omitted), certif. denied, 209 N.J. 96 (2011).

     "Ordinarily,    appellate   courts    seek     to   avoid   'piecemeal

litigation' and the 'premature review of matters.'"           House of Fire

v. Zoning Bd., 379 N.J. Super. 526, 531 (App. Div. 2005) (quoting

Moon v. Warren Haven Nursing Home, 182 N.J. 507, 513 (2005)).

Thus, this appeal is subject to dismissal.           Nevertheless, in an

effort to facilitate a fair and final resolution, we will address

the disputed issues.    See R. 2:4-4(b)(2) (permitting us to grant

leave to appeal as within time).

     "Because the grant of a preliminary injunction typically

involves a delicate balance of equities, the scope of . . . review

of such determinations is narrow.         A trial court's decision to

issue a preliminary injunction will not be disturbed on appeal

unless it results from an abuse of discretion."              Nat'l Starch &

Chem. Corp. v. Parker Chem. Corp., 219 N.J. Super. 158, 162 (App.

Div. 1987) (citation omitted).

                                   5                                 A-0455-16T4
     Applying this deferential standard, we discern no basis for

disturbing the trial judge's decision to grant the Department a

preliminary injunction to enable it to save defendant's life.      We

affirm substantially for the reasons set forth in the judge's oral

opinions of January 21, and March 17, 2016.

     In rendering his thoughtful decisions, the judge carefully

applied the well-settled test of Crowe v. De Gioia, 90 N.J. 126,

132-34 (1982), and made specific findings concerning each of the

Crowe factors.     The judge found that defendant's life was in

imminent danger; his heart was "racing" and "skipping beats"; and

he was in "a severe malnourished state."    Unless given nutrition

and hydration, defendant was at "serious risk of irreversible

organ damage, [which] may have already occurred, heart attack,

organ failure, brain damage, muscle breakdown, along with kidney

and liver failure, or death."    The judge further found that the

Department's established duty to protect inmates, coupled with its

and the public's strong interest in preserving the lives of inmates

in the Department's custody, outweighed defendant's interest in

protesting the conditions of his confinement.

     On this record, the judge's findings and conclusions are

unassailable and, therefore, we affirm the January 21, and March

18, 2016 orders.    As noted above, however, we are required to

remand this matter to the trial court for a final hearing to

                                 6                          A-0455-16T4
determine whether the restraints issued in those orders should be

made permanent or dissolved, and for the entry of a final judgment.

     We are also constrained to reverse the trial judge's decision

to dismiss defendant's counterclaim with prejudice.      We    review

a grant of a motion to dismiss a pleading for failure to state a

cause of action de novo, applying the same standard under Rule

4:6-2(e) that governed the motion court.   See Frederick v. Smith,

416 N.J. Super. 594, 597 (App. Div. 2010), certif. denied, 205

N.J. 317 (2011).   Such review "is limited to examining the legal

sufficiency of the facts alleged on the face of the [pleading],"

and, in determining whether dismissal under Rule 4:6-2(e) is

warranted, the court should not concern itself with the party's

ability to prove his or her allegations.   Printing Mart-Morristown

v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). If "the fundament

of a cause of action may be gleaned even from an obscure statement

of claim," then the pleading should survive this preliminary stage.

Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 626 (1995)

(citation and internal quotation marks omitted).

     A trial court should grant the dismissal "in only the rarest

of instances." Printing Mart, supra, 116 N.J. at 772.   Ordinarily,

such motions are granted without prejudice.   Smith v. SBC Commc'ns

Inc., 178 N.J. 265, 282 (2004).



                                  7                           A-0455-16T4
     Here, the judge found that the primary defect in defendant's

counterclaim was his failure to assert sufficient facts to support

his claim that the Department violated his constitutional rights.

For example, the judge found that defendant's Eighth Amendment

claims were deficient because defendant "failed to plead any facts

that suggest[ed] deliberate indifference" on the Department's part

to defendant's complaints about being moved from isolation to a

double-lock cell.      The judge also noted that defendant did not

allege   that   the    Department   "committed   specific    harms"     in

connection with this housing arrangement.

     With regard to defendant's argument that the Department did

not provide him with due process concerning its housing and medical

treatment decisions, the judge found that defendant failed to

"allege how the transfer between administrative segregation . . .

to general population and/or the infirmary impose[d] an atypical

or significant hardship for him[.]"       The judge also found that

defendant's First Amendment arguments were wanting because the

counterclaim only contained a one-sentence allegation that the

Department violated his "rights to free speech of a political

nature by threatening to end [the] hunger strike by extraordinarily

and predictably painful and obtrusive means of force feeding."

     Thus, defendant may well have been able to file an amended

counterclaim    that   alleged   sufficient   facts   to    correct   the

                                    8                            A-0455-16T4
deficiencies the judge found in his initial pleading.     However,

the judge dismissed the counterclaim with prejudice without giving

defendant an opportunity to amend it.

     Considering the matter de novo, we conclude that the dismissal

should have been without prejudice, especially because the judge

found that defendant alleged insufficient facts in the pleading.

We therefore reverse the portion of the August 15, 2016 order

dismissing defendant's counterclaim with prejudice, and remand to

allow him an opportunity to file an amended counterclaim.

     Affirmed in part; reversed in part; and remanded.   We do not

retain jurisdiction.




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