KOSRAE STATE COURT TRIAL DIVISION
Cite as Talley v. Timothy
10 FSM Intrm. 528 ( Kos. S. Ct. Tr. 2002)
 
[10 FSM Intrm. 528]
 
WEYLER B. TALLEY,
Petitioner,
 
vs.
 
JEFFERSON TIMOTHY and STATE OF KOSRAE,
Respondents.
 
CIVIL ACTION NO. 94-01
 
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
 
Yosiwo P. George
Chief Justice
 
Hearing: January 24, 2002
 
Decided: January 24, 2002
 
Order Entered: January 28, 2002
 
APPEARANCES:
 
For the Petitioner:               Lyndon L. Cornelius, trial counselor
                                              Micronesian Legal Services Corporation
                                              P.O. Box 38
                                              Lelu, Kosrae FM 96944
 
For the Respondents:        April Dawn M. Skilling, Esq.
                                             Assistant Attorney General
                                             Paliknoa Welly, prosecutor
                                             Office of the Kosrae Attorney General
                                             P.O. Box 870
                                             Lelu, Kosrae FM 96944
 
* * * *
 
HEADNOTES
 
Mandamus and Prohibition
     The writ of mandamus is an extraordinary remedy, the object is not to cure a mere legal error or to serve as a substitute for appeal, but to require an official to carry out a clear nondiscretionary duty. The writ's purpose is to compel a judicial or other public officer who has failed or refused to perform a non-discretionary act which results from his official station or from the operation of law. Talley v. Timothy, 10 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2002).
Mandamus and Prohibition
     The party seeking the writ of mandamus has the burden of showing that its right to the writ's issuance is clear and undisputable. Talley v. Timothy, 10 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2002).
 
[10 FSM Intrm. 529]
Mandamus and Prohibition
     Five elements must be present before the court can exercise its discretion to issue a writ of mandamus: 1) the respondent must be a judicial or other public officer; 2) the act to be compelled must be non-discretionary or ministerial; 3) the respondent must have a clear legal duty to perform the act; 4) the respondent must have failed or refused to perform the act; and 5) there must be no other adequate legal remedy available. Each of these five requirements must be satisfied. Talley v. Timothy, 10 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Prisons and Prisoners; Mandamus and Prohibition
     When there is no constitutional provision which specifies the type of food to be provided to inmates and no statutory or regulatory provisions which specify the type of food to be provided to inmates, there is no clear ministerial duty of the Chief of Police which states the type of food to be provided to inmates. Talley v. Timothy, 10 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Cruel and Unusual Punishment
     In interpreting the provision against cruel and unusual punishment, a court considers the value and realities of Micronesia, against a background of the law concerning cruel and unusual punishment and international standards concerning human rights. Talley v. Timothy, 10 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Cruel and Unusual Punishment
     Deliberate indifference to an inmate's medical needs can amount to cruel and unusual punishment. Talley v. Timothy, 10 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Cruel and Unusual Punishment; Criminal Law and Procedure ) Prisons and Prisoners
     When it appears that the Chief of Police has attended to a prisoner's medical needs with respect to food preparation and the medical recommendation for low salt and low fat foods, there has been no refusal by the state to provide to the prisoner's medical needs. Talley v. Timothy, 10 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Cruel and Unusual Punishment
     When a prisoner has not shown deliberate indifference to his medical needs by the state, there was no cruel and unusual punishment. Talley v. Timothy, 10 FSM Intrm. 528, 531 (Kos. S. Ct. Tr. 2002).

* * * *

COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

     On August 29, 2001, Petitioner filed a Petition for a Writ of Mandamus. The Petition seeks a Writ of Mandamus to compel the Respondents to comply with medical instructions given to the Petitioner regarding providing the Petitioner with a diet of low salt and low fats. Respondents filed a Response to Petition for Writ of Mandamus on October 11, 2001. After several continuances, a hearing on the Petition was held on January 24, 2002. Petitioner was represented by Lyndon L. Cornelius, MLSC. April Dawn M. Skilling and Paliknoa Welly, from the Office of the Attorney General, appeared for the Respondents. The Petitioner himself, Chief of Police Jefferson Timothy, Dr. Paul Skilling and Officer William Tara testified at the hearing.

[10 FSM Intrm. 530]

     After receiving the evidence, and hearing from both parties at the hearing, I denied the Petition for Writ of Mandamus. I concluded that based upon the evidence presented, the Petitioner has not met the standard for the issuance of a writ of mandamus. The Court's reasoning is explained below.

     The Writ of Mandamus is an extraordinary remedy, the object is not to cure a mere legal error or to serve as a substitute for appeal, but to require an official to carry out a clear nondiscretionary duty. In re Raitoun, I FSM Intrm. 561 (App. 1984). The purpose of the writ of mandamus is to compel a judicial or other public officer who has failed or refused to perform a non-discretionary act which results from his official station or from the operation of law. In re Failure of Justice to Resign, 7 FSM Intrm. 105 (Chk. S. Ct. App. 1995).

     The party seeking the writ of mandamus has the burden of showing that its right to issuance of the writ is clear and undisputable. Senda v. Trial Division, 6 FSM Intrm. 336 (App. 1994). The five elements that must be present before the court can exercise its discretion to issue a writ of mandamus are:

     1. the respondent must be a judicial or other public officer

     2. the act to be compelled must be non-discretionary or ministerial

     3. the respondent must have a clear legal duty to perform the act

     4. the respondent must have failed or refused to perform the act and

     5. there must be no other adequate legal remedy available

     Each of these five requirements must be satisfied. First, the respondent, Chief of Police Timothy, is clearly a public officer. The second requirement is that the act to be compelled, "to provide low salt and low fat foods" must be non-discretionary or ministerial. There is no Constitutional provision which specifies the type of food to be provided to inmates. There is no statutory or regulatory provisions which specify the type of food to be provided to inmates. There is no clear ministerial duty of the Chief of Police, provided by Constitution, law or regulation, which states the type of food to be provided to inmates.

     Instead, Petitioner claims that the food provided by the jail violates the constitutional protection against cruel and unusual punishment. In interpreting the provision against cruel and unusual punishment, the Court has considered the value and realities of Micronesia, but against a background of the law concerning cruel and unusual punishment and international standards concerning human rights. Plais v. Panuelo, 5 FSM Intrm. 179 (Pon. 1991). For example, deliberate indifference to an inmate's medical needs can amount to cruel and unusual punishment. Plais, at 199. Under FSM caselaw and Constitutional interpretation of the Court in Plais, the Chief of Police here has a legal duty to attend to an inmate's medical needs.

     The jail, as supervised by the Chief of Police, has provided the inmates with chicken, turkey tails and rice. Considering the value and realities of Micronesia, these items appear to be appropriate food items for the inmates. The food preparation for inmates has been modified to accommodate the Petitioner: no salt used in cooking and removal of the skin. Considering the value and realities of Micronesia, this action appears to be an appropriate food modification to comply with the Petitioner's medical needs. Under Plais v. Panuelo, it appears that the Chief of Police has attended to the Petitioner's medical needs with respect to food preparation and the medical recommendation for low salt and low fat foods. Therefore, there has been no refusal by the State to provide to Petitioner's medical needs. I find that the Respondents have taken adequate and reasonable steps to comply with the Petitioner's medical instructions concerning food preparation. I also find that in compliance with the medical recommendations, the Petitioner has been assigned to less strenuous work.

[10 FSM Intrm. 531]

     Furthermore, Petitioner's own conduct in this matter merits some discussion. Petitioner has a choice to attend to his own medical needs and medical recommendations. Petitioner now consumes foods from his family which may be in violation of the medical report recommendation. Petitioner also continues to smoke, albeit less frequently, in violation of the medical report recommendation. Petitioner has been given opportunities to exercise at the jail, but had not taken advantage of those opportunities to exercise. Petitioner continues to take actions which do not comply with his medical recommendations.

     The Petitioner has not shown deliberate indifference by the State to his medical needs, and therefore there is no cruel and unusual punishment. Furthermore, the State has shown that the Petitioner himself continues to fail to follow the medical recommendation to stop smoking and participate in exercise. Petitioner has failed to satisfy the five requirements for granting of the Petition for a Writ of Mandamus. Accordingly, the Petition for Writ of Mandamus must be denied. The Respondents are instructed to continue to follow the medical recommendations with respect to food preparation for the Petitioner. The Respondents are requested to assist, with the Office of Public Safety, to the extent possible, with transportation of food from the Petitioner's family to the Petitioner at the jail. Finally, Petitioner is advised that he may present his claim through the regular civil case process.

      The Petition for Writ of Mandamus is denied and the Petition is dismissed.

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