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

CALL TO ACTION from PHSS Committee to End Sleep Deprivation – THURS. FEB 8, 2018

Thurs. Feb 8, 2018

9:00am: RALLY & PRESS CONFERENCE outside the Courthouse

10:00am: COURTROOM SOLIDARITY (Crtrm 2, 17th Floor) with the prisoners who brought these cases

Federal Building & U.S. Courthouse
450 Golden Gate Ave. San Francisco, CA 94102

3:14-cv-02767-VC – Lipsey v. Norum et al
3:15-cv-05756-VC – Suarez v. Beard et al

On Feb 8, 2018, in the Federal Courthouse in San Francisco, the California Department of Corrections and rehabilitation (CDCr) will argue for the court to dismiss civil rights cases brought by Christopher Lipsey and Maher Suarez, who are imprisoned in California. The men’s cases challenge the constitutionality of the loud “security/welfare checks” that are done every 30 minutes in CA solitary units, causing serious sleep deprivation and other harms for the people in those units, and, as the lawsuits claim, constitute cruel and unusual punishment. (The guards do no checking on top of that). The lawyers for Christopher and Maher will argue that the case against CDCr administrators, guards, and wardens, must move forward. (HERE is a link to Christopher and Maher’s Opposition to CDCR’s motions to dismiss)

We are mobilizing support for the prisoners’ cases. Please be in the courtroom on Feb 8, and also outside, before court, for a Rally and Press Conference.

2-sleep dep CA prisons-POSTER

artwork by R.T. 2016

We have received many letters over the past two+ years from people in 14 different CA prisons describing the loud, disruptive “checks,” every 30 minutes/24 hours a day (now every 60 minutes at night in Pelican Bay SHU), and the mental and physical health problems the “checks” are causing or exacerbating. The courthouse is one place where we can amplify the voices of prisoners, expose the torture of the “checks” to society at large, and apply pressure for the “checks” to cease.

Christopher Lipsey started his case in 2014. He has been enduring the “checks” for over 3 years.

Let’s come together at the SF Federal Courthouse on Feb 8th in strong solidarity with all those who are suffering from the “checks,” and who cannot be in the courtroom or outside rallying and speaking about their experience. Let’s make a powerful showing against torture at the SF Federal Courthouse!

Our Committee has a number of purple t-shirts which will be available to wear at the rally and in the courthouse to show our solidarity with the prisoners. Please wear purple if possible!

Read more about the so-called “security/welfare “checks” at the Sleep Deprivation tab on the Prisoner Hunger Strike Solidarity Coalition’s website.

Recent article: The Policy of the Cruel and Absurd: Sleep Deprivation in California’s Prisons

If you have questions or want to give or get a ride to the SF Courthouse, please call or text Verbena at 707.267.4757.

Note: You must show ID and go through a metal detector to get inside the Federal Bldg./Courthouse.

See you on Thursday in San Francisco!

Solitary Confinement: A “Social Death” ––– New York Times on “Shocking” Data from Lawsuit [VIDEO included]

New York Times video:
Effects of Solitary Confinement

by Colin Archdeacon and Center for Constitutional Rights
Aug. 3, 2015
People imprisoned in Pelican Bay State Prison describe their experiences in long-term solitary confinement http://www.nytimes.com/video/science/100000003831139/effects-of-solitary-confinement.html

Today’s New York Times science section features a front-page piece about the research that CCR commissioned and compiled for our ground-breaking challenge to long-term solitary confinement. … 10 expert reports we submitted to the court in Ashker v. Brown, the class-action lawsuit on behalf of prisoners in solitary in California’s Pelican Bay prison. …
According to the expert reports, prisoners subjected to prolonged solitary experience a form of “social death” that is not cured upon release, but rather lingers as a “post-SHU syndrome” characterized by social withdrawal, isolation, and anxiety. …
The international and domestic experts agree that such prolonged isolation is not only unnecessary for prison security, but actually counter-productive, as well as a violation of international law. …
By bringing public scrutiny to the severe physical and psychological harm our clients and so many others are suffering as a result of their isolation, we hope to continue turning the tide against this form of torture until it is eradicated from the U.S. once and for all.  Read entire Center for Constitutional Rights article here: https://ccrjustice.org/home/blog/2015/08/04/solitary-confinement-social-death-nyt-shocking-data-ccr-case

New York Times article:
Solitary Confinement: Punished for Life

Successful Motion in Court Strengthens CA Prisoners’ Case Against Solitary

For Immediate Release – March 10, 2015
Press Contact: Mohamed Shehk, Critical Resistance – 408.910.2618mohamed@criticalresistance.org

Oakland, CA – Pelican Bay prisoners named as plaintiffs in a class action lawsuit against the use of solitary confinement in California gained an important victory yesterday as U.S. District Judge Claudia Wilken ruled in favor of a motion filed by the plaintiffs’ counsel. The motion allows prisoners who have been in solitary confinement for more than 10 years, but have been transferred out of Pelican Bay State Prison since the lawsuit was first filed, to be eligible as class members in the case.

Our success with this motion should be a strong message to the prison administration that its attempts to evade court review of its unconstitutional practices,” says Carol Strickman, co-counsel for the plaintiffs and Staff Attorney at Legal Services for Prisoners with Children. “Our goal in this case is to support the demand of prisoners to end the inhumane use of indefinite solitary, and no amount of legal shell games is going to stop us from achieving that goal.”

In June 2014, the court granted class action status to the case for prisoners held in Pelican Bay’s notorious Security Housing Units (SHU) for more than 10 years. Since then, the California Department of Corrections and Rehabilitation (CDCR) has attempted to weaken the case and repress political organizing by transferring prisoners out of Pelican Bay, thereby claiming that they are no longer eligible class members in the lawsuit. Continue reading