Reportback from HEARING in Jorge Rico’s Case Against Sleep-Depriving Checks

Report on Jorge Rico Hearing

by Charlie Hinton

A number of hardy souls ventured to Sacramento on May 18, 2018 to a federal court hearing on CDCr’s motion to dismiss Jorge Rico’s suit opposing the every half hour Guard One “security/welfare checks” that take place in isolation units throughout the state. With Guard One, guards press a metal baton into a metal receiver positioned either in or besides cell doors, making a loud disruptive noise in most cases, waking prisoners up every 30 minutes and causing sleep deprivation. The good news is that the magistrate judge, Deborah Barnes, gave every indication she will deny CDCr’s motion and will move the case to its next stage. She suggested several times to CDCr’s lawyers that at this very early stage of the case, there was no basis for a motion to dismiss, and she said at least twice “I’m really struggling with your arguments.”

Rico Rally photo,5-18-18

There are currently 6 suits against the “checks” before this judge, and Kate Falkenstien, above in the center wearing a pink blouse, represents 3 of them, including that of Jorge Rico. In a press conference after the hearing, she explained the 3 arguments of CDCr.

In a motion they filed the day before, CDCr claims that because Mr. Rico has been moved from Pelican Bay SHU to general population, the case is now moot. The judge asked “Can’t he again be moved into SHU?” Which is exactly what has happened. During the last year or so, he’s gone from SHU to RCGP (from where he filed the suit) to SHU to Ad Seg  to SHU and now to GP.

The judge said that Rico’s claim would be viable for damages, but it was “questionable” whether injunctive relief could be sought.  [The judge’s point being that, at the present time, the conduct that would be enjoined does not affect Rico, the sole plaintiff in this case, because he is no longer in SHU.]

Prisoner rights campaigner Marie Levin commented outside the courthouse, “Regardless of Mr. Rico’s present or future housing assignment, he still suffered what he suffered when he suffered it.”

Second, CDCr argues that although sleep deprivation is illegal, they don’t think it’s illegal to keep people awake in this way. They didn’t know it was wrong. Ms. Falkenstien brought up a case from Alabama, Hope v. Pelzer, in which Alabama prison guards tied Mr. Hope to a hitching post with his shirt off in the sun for seven hours, offering him water twice and never a bathroom break. He sued, under the grounds that this was a violation of the 8th amendment guarantee against cruel and unusual punishment. Alabama said they knew it was illegal to tie a person for a sustained time to a fence or a cell door, but they didn’t think it was illegal to tie a person to a hitching post. The Supreme Court ruled for Mr. Hope.

CDCr’s third argument is that the Coleman judge has already ruled that Guard One is acceptable. Ms. Falkenstien argued for Rico that Coleman was a case involving mental illness, and neither Jorge nor many other prisoners undergoing the “checks” are mentally ill, and that even if one case has been decided, each person should be able to be heard in court.

In Ms. Falkenstien’s original brief in opposition to CDCr’s motion to dismiss, she argued 1) an Eighth Amendment challenge to the Guard One checks
 was not actually litigated in Coleman, 2) Rico Is neither a Coleman Class Member nor in privity 
with Class Members, and 3) the Coleman order can also be collaterally challenged, 
because none of the Coleman class representatives are 
affected by the Guard One checks.

Commenting on CDCr’s claims, the judge remarked that it was well established that sleep deprivation can rise to the level of an 8th Amendment violation. She said she was having a hard time with CDCr’s argument, and further, that she would be shocked to find any mention of sleep deprivation in Coleman, or anything in Coleman saying that if the checks using the Guard One system cause sleep deprivation, “that’s okay.”

Judge Barnes declined to dismiss the case and on Monday, May 21, 2018 she ordered the parties to brief the mootness issue (about Mr. Rico currently being out of the SHU) before she rules on the motion to dismiss.  The briefing is going to take about a month in total, so we won’t have a final answer about whether the case will be dismissed until the end of June at the earliest. We are optimistic, however, she will dismiss CDCr’s motion and move forward with the case.

pdf of this Report (with photo) HERE

April 21, 3-5pm: ‘Solitary Man’ Benefit Show for SF Bay View Newspaper to Stay in Print!

BIG Bay View BENEFIT 4/21: ‘SOLITARY MAN’ at the Black Repertory Group Theater

3201 Adeline Street, Berkeley, CA 94703 (1 ½ blocks from Ashby BART)
Facebook event: https://www.facebook.com/events/1476593779118037/

It’s the biggest venue yet for “Solitary Man: A Visit to Pelican Bay State Prison,” and the wonderful folks at the Black Rep, led by the legendary Mona Vaughn Scott, are donating it to support the SF Bay View newspaper! Let’s not miss this opportunity to fill all 250 seats and meld ourselves into a fighting force for justice.

For only $10 admission, you’ll be enriched by an unforgettable and deeply transforming play by Charlie Hinton, who is working nonstop to make this benefit a big success; hear some sweet trumpet playing by co-star Fred Johnson; listen to and get involved in a panel discussion with decade-long solitary confinement survivor José Villarreal, “First Sister” of the Prison Movement Marie Levin, and Ashker attorney Anne Weills; and enjoy the company of 250 activists young and old, plenty of us to change the world. Family Pot Catering will have delicious food and beverages for sale. Go to Brown Paper Tickets, https://solitaryman.brownpapertickets.com/, today and buy up a row for you and all your friends!
– Mary Ratcliff, SF Bay View Editor

Continue reading

PRISONER HUMAN RIGHTS! events Jan 22 & Feb 1

Join Prisoner Hunger Strike Solidarity Coalition for two events to

END SLEEP DEPRIVATION TORTURE
IN PELICAN BAY SOLITARY

Peter Collins-Solidarity withPBHunger Strike


Solitary Man

Solo Performance by Charlie Hinton,
followed by discussion

When: Friday, Jan 22 at 7pm

Where: Omni Commons

4799 Shattuck Ave
Oakland 94609

Charlie created Solitary Man based on his letters and visits with people in solitary confinement. The show is set in 2014, a year after the largest prisoner hunger strike in history.

Charlie says,“I want this show to gain an audience and become one more voice calling for the end of mass incarceration and solitary confinement…The world is such a cold and cruel place these days, I want Solitary Man to add at least one drop of humanity.”

After the performance, we will discuss how and why the men in Pelican Bay SHU have been continuously deprived of sleep since Aug 2, 2015.

Suggested Donation $5-15, snacks & beverages provided
No one turned away for lack of funds

Facebook: SOLITARY MAN, Performance by Charlie Hinton
http://tinyurl.com/h3adxdd

SacCDCrRally_2-1-16

Rally in Sacramento Against the Torture of Prisoners

When: Monday, Feb 1st at 1pm

Where: CA Dept. of Corrections and Rehabilitation (CDCR) Headquarters

1515 S St. Sacramento, CA  95811

Since Aug 2, 2015, people in Pelican Bay SHU have been jolted awake by guards doing loud “checks” every 30 minutes. This cruel torture tactic is causing serious psychological and physical harm. Sleep deprivation is inhumane.  Join us to demand an immediate end to this torture.

No more torture in our name!

prisonerhungerstrikesolidarity.wordpress.com

Facebook:
Rally Against the Torture of Prisoners

RIDESHARE & More Info
510.426.5322
phssreachingout@gmail.com