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.”

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 8^th 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 8^th 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

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

By Charlie Hinton, Verbena Lea, and Willow Katz

In prison isolation units throughout California, guards wake prisoners up every 30 minutes under the guise of suicide prevention. These “security/welfare checks” cause ongoing sleep deprivation. The United Nations and many sleep and mental health experts have long defined sleep deprivation as a form of torture, and sleep deprivation often is used as a torture technique for prisoners of war. So California tortures its prisoners to prevent them from killing themselves.

Dr. Jamie Zeitzer, Ph.D., an expert in sleep and circadian rhythms, concluded in a 2015 report:

“The current practice of 30 minute … checks of inmates housed in the [Security Housing Units] is likely a cause of severe sleep disruption … The mandated purpose of these … checks (i.e. suicide prevention) is, in fact, likely to have the opposite effect and inadvertently increase suicidality in these individuals … There have been no direct studies of intentionally waking an individual every thirty minutes every night for days, weeks, or months, as doing so would be considered highly unethical in a research environment.”

Yet this is the reality for people housed in California’s Security Housing Units (SHUs), Administrative Segregation Units (Ad-Segs/ASUs), Condemned Units (death row) and Psychiatric Services Units (PSUs). In these solitary confinement cells, prisoners are kept alone 24 hours a day with no direct contact with other people — except guards. Known effects of such isolation include suicidal thoughts and behavior, yet the California Department of Corrections and Rehabilitation (CDCR) fails to provide adequate, if any, mental or physical health services. Instead, it keeps people locked up in brutally oppressive conditions, and jars them awake every 30 minutes, purportedly to see if they’ve committed suicide.

artwork by R.T. 2016

CDCR does not even acknowledge that prolonged isolation is torture and psychologically harmful. They use the “checks” as a blanket practice, whether or not prisoners are suicidal and despite the fact that sleep deprivation increases the risk of suicide. In CCWF death row, where the checks began in May 2014, there has not been a suicide since 1991 [pg 6 in link]; in Pelican Bay SHU where the checks began in August 2015, there has been one suicide in 13 years. Prisoners point out these histories as they question the purpose of the “checks.” These “checks” only exacerbate CDCR’s abuse of prisoners and historic refusal to compassionately treat prisoners dealing with serious mental health issues, including suicide.

“CO’s can save lives by talking to potentially suicidal inmates…”¹ Good interpersonal communication skills by guards are consistently recommended to prevent suicides in prison, but such skills are rare in CA prisons. Admitting suicidal feelings to prison staff will, ironically, subject prisoners to the brutality of “suicide watch.” Prisoners report that guards use the “security/welfare checks” to be as loud and disturbing as possible.

Paradoxically, these so-called “security/welfare checks” come as the result of a settlement, theoretically a victory to improve the conditions of prisoners, in a federal class-action lawsuit, Coleman v. Governor of CA. The Coleman court determined that California prison officials did not provide adequate mental health care, thus violating prisoners’ Eighth Amendment protection from cruel and unusual punishment.

The judge appointed Matthew Lopes as Special Master to oversee CDCR’s implementation of Coleman reforms for 35,000 prisoners with serious mental illness, and Lopes brought in “suicide expert” Lindsay Hayes as a consultant. Just prior to becoming the “suicide expert” under the Coleman Special Master, Hayes worked as a consultant for the defendant — the California Department of Corrections and Rehabilitation itself. Hayes endorses the 30-minute checks.

Even as he receives letters from prisoners suffering from the checks and those who support the prisoners from the outside, he has not responded, or, to our knowledge, recommended a change.
The California State Auditor recently released a report on suicides in CA prisons commissioned by the Joint Audit Committee of the CA legislature (http://tinyurl.com/yca9tvf5.) While the report concludes that “It [CDCR] Must Increase Its Efforts to Prevent and Respond to Inmate Suicides,” it does not address prison conditions – like brutal and racist guards and administration, solitary confinement, and the horrific “suicide watch,” when prisoners considered suicidal are “allowed only a no-tear smock or gown, a safety mattress, and a no-tear blanket. All furniture is removed, [and] staff must provide continuous, direct visual observation as well as nursing checks every 15 minutes,” instead of any kind of humane and compassionate care.

A representative from the Auditor’s office had contacted our committee for input. We provided written descriptions of the “security/welfare checks”, documentation from prisoners in 13 prisons describing the checks as torture and explaining the harm to their mental and physical health, and material opposing the checks from 3 sleep experts and the American Public Health Association. Nevertheless, the audit completely ignored the input of our committee and all “advocacy groups,” and apparently the auditor did not seek any input at all from prisoners. The report has little mention of the “security/welfare checks,” except to say 2 of the 4 prisons the Auditor examined “did not conduct these checks as required.” The report refers frequently, however, to the “suicide expert,” and calls for his recommendations to be implemented, clearly indicating support for the “security/welfare checks”.

Other experts, however, have recommended the checks be halted:

“Repeated intrusions, especially to nightly sleep, lead to a variety of negative physical, cognitive and emotional consequences, adding to the already well-documented harms of solitary confinement.… There are other strategies for suicide prevention that can be pursued in prison contexts that do not result in the suffering caused by th[is] approach …” — Jail and Prison Health Committee, American Public Health Association

“This level of [interrupted] sleep has been shown to have profound effects on cognitive performance, memory, mood, immune function, pain sensitivity, metabolism, and other parameters.… Importantly these effects accumulate across time. Thus as these checks are done nightly their negative effects will become greater across time … There is much research on disturbed sleep in Intensive Care Units in hospitals. Checking on patients for their safety has resulted in many ill effects. Today there are many initiatives to overcome the negative effects of this safety monitoring.” — Dr. Thomas Roth, PhD Chief, Sleep Disorders and Research Center, Henry Ford Hospital

“A recent series of studies in Veterans has further pointed to the strong connection between suicidality and sleep, so much so that treatment of sleep problems in Veterans is considered part of the first line of treatment in reducing the risk of suicides.” — Dr. Jamie Zeitzer, PhD. Stanford University and the VA Palo Alto Health Care System

Feb 1st: RALLY Against the Torture of Prisoners

Rally Against the Torture of Prisoners Feb 1, 2016

As of February 1st, it will be 181 days that the men in Pelican Bay SHU have been tortured by sleep deprivation. For six months the men have been awakened every 30 minutes, 48 times per day, due to so-called “security/welfare checks” by guards.

“…they’re killing us with these Guard One/Welfare Checks…I don’t know what to do? We really are suffering right now and I can assure you that this is worse than the hunger strikes.” PB SHU prisoner Oct. 2015

Join us in Sacramento on February 1st, 2016 at 1:00 pm to rally against the torture of prisoners!

California Department of Corrections and Rehabilitation (CDCR) claims these ‘checks’ will prevent suicide. Instead, these checks are causing serious psychological and physical harm. John R. Martinez, in solitary for 15 years, stated that the checks “are counter-productive to their so called intended purpose (mental health care) and serve zero legitimate penological purpose other than to harass and mentally torment us prisoners.”

Come and stand with us to put an end to torturous ‘welfare checks’ in the SHU.

RIDESHARES will be leaving from Southern California, Santa Cruz, the SF Bay Area, the North Coast, and locations in between. PHSS will help with travel expenses.  Please contact phssreachingout@gmail.com, 510-426-5322 if you need or can provide a ride. You can also message Prisoner Hunger Strike Solidarity on Facebook.

We need to make the Senate and Assembly Public Safety Committees and Governor Brown stop this now!

We must keep the pressure on!

Media Advisory HERE.

 

For RIDESHARE info and MEETING WITH LEGISLATORS before the Rally,

EMERGENCY ACTION ALERT: over 5 months of sleep deprivation in Pelican Bay SHU

Please make calls (and keep calling!) to demand a STOP to the 30 minute “checks” in Pelican Bay SHU:

• CA Dept. of Corrections and Rehabilitation (CDCR) Secretary’s Office: 916-323-6001
• Kelly Harrington, CDCR Director of Adult Divisions: 916-445-7688
• Senator Loni Hancock, Senate Public Safety Comm. Chair: 916-651-4009
• Assembly Member Bill Quirk, Assembly Public Safety Comm. Chair: 916-319-2020
• CA Governor Jerry Brown: 916.445.2841

Suggested script for calls:
Begin with your name and the city and state where you live. Tell them all: “Stop the so-called ‘welfare’ checks in the SHU at Pelican Bay State Prison. Sleep deprivation is torture.”

 

Send emails to CA elected officials:
Click this link from Californians United for a Responsible Budget (CURB) to email the message to STOP the ‘checks’!  http://tinyurl.com/ztjcos3

 

Join the fight against the checks!:
Find out how here! http://wp.me/P1BB1k-28B

 

Share this YouTube Video far and wide!
“Sleep Deprivation” from Liberated Lens Collective
https://www.youtube.com/watch?v=zjWF3OtGSkQ

Background info:

From Solitary Confinement at Pelican Bay, Jesse Perez Sues Guards for Retaliation, Wins $25,000

On Nov. 25, 2015, a federal jury awarded $25,000 in damages to Jesse Perez, who had sued guards for trashing his cell in retaliation for his lawsuit against the prison and for his stand against solitary confinement.

By filing the lawsuit, Perez wrote that he sought the “opportunity to shine a public light at trial and rein in what prisoner activists often endure in exercising their constitutional rights: the retaliatory abuse of the department’s disciplinary process by prison guards.”

Jesse Perez, 35, is from Colton in San Bernardino County and has been imprisoned since age 15. He was sent to the Security Housing Unit at Pelican Bay in December 2003 and was held there for 10 years. He took part in all three hunger strikes in 2011 and 2013, protesting prolonged isolation.

Perez’s lawyer, Randall Lee, said the verdict sends “a resounding message that the rights guaranteed under the First Amendment are sacrosanct for all of us — even a prisoner in solitary confinement at Pelican Bay.”

Jesse Perez, 2nd from the left, with his legal team in his successful civil rights case about guards’ retaliation – Randall Lee, lead attorney, Jesse, Katie Moran, Matthew Benedetto

The case is based on Jesse Perez challenging the legitimacy of a CDCr gang validation pro se in 2005. He was assigned counsel after a state dismissal motion was defeated. After his attorneys’ filed a Reply Brief, the CDCr reached out to him to settle the case, which he ultimately did in 2013. Perez received a monetary award as well as the right to have his gang affiliation reevaluated.

This is similar to the CDCr settling the Ashker case as the state of CA wants to avoid having to be held publicly accountable and to be subjected to scrutiny and interrogation in court.

In the current civil suit, his attorneys argued that guards retaliated against Perez for exercising his right to file a lawsuit and in response to successfully litigating human rights challenges – in this case the gang validation.

Perez argued that guards retaliated against him for exercising his right to file a lawsuit and in response to his successful litigating for his human rights and to overturn
his baseless gang validation.

During settlement negotiations in his initial lawsuit, which CDCr could anticipate would be successful for Perez and require a re-review of his ‘gang validation’, four officers forced Perez to strip, removed all of his legal paperwork, and trashed his cell.  In the process, one officer stated, “you might have been able to win some money from us, but we will make sure that you stay [in solitary] where you belong.” Perez did not get all of his property back.  He was later charged with a serious rules violation for “willfully obstructing the officers” during that search, for which he was ultimately found Not Guilty.

Jesse Perez states “As prisoner activists seeking to make positive contributions to the interest and human dignity of prisoners, we understand that the trappings of power enjoyed by guards represent the biggest obstacle to significant and lasting progress.”

Please DONATE for family bus trip to visit loved ones in Pelican Bay

To make tax-deductible donations to
California Families Against Solitary Confinement (CFASC)
for family visits, work, and support:

Donate directly on website:
www.familyunitynetwork.org

OR  Make checks payable to: FACTS Education Fund

Write CFASC in the memo line.

Mail to:
FEF c/o CFASC
1137 E. Redondo Blvd.
Inglewood, CA 90302

Pressure Builds To Stop Sleep Deprivation in Pelican Bay SHU

Following the historic gains made against solitary confinement last month, people in Pelican Bay State Prison’s SHU report the use of “welfare” or “suicide” checks occurring every thirty minutes, 48 times a day. The checks are being conducted in an aggressive way and prevent people from sleeping for over thirty minutes at a time. Loud stomping, the slamming of doors, the striking of electronic wands against buttons installed by cell doors, and the shining of lights into prisoners’ faces are routine. Deprivation of sleep is widely seen as a form of torture.

 

• Alleged sleep deprivation at Pelican Bay State Prison | KIEM TV      Sept.23, 2015  [VIDEO]

http://kiem-tv.com/video/alleged-sleep-deprivation-pelican-bay-state-prison
CRESCENT CITY – Civil rights issues regarding solitary confinement in state prisons are an ongoing concern. Wednesday a new issue was protested at Pelican Bay State Prison. ….

 

• California prison advocates say suicide checks are inhumane treatment | US news | The Guardian       Sept. 25, 2015

http://www.theguardian.com/us-news/2015/sep/25/california-prison-suicide-checks-inhumane-treatment
Since August, inmates at Pelican Bay state prison say they have been awoken every half hour by guards in a practice that amounts to sleep deprivation

 

• Statewide protests against solitary confinement | Crescent City California News | The Triplicate       Sept. 25, 2015

Front page article: Statewide Protests Over New SHU Policy
http://www.triplicate.com/News/Local-News/Statewide-protests-against-solitary-confinement
Pelican Bay State Prison was among several sites across the country to see coordinated demonstrations Wednesday protesting solitary confinement. Lawyers, activists, and family members gathered outside Crescent City’s state supermax prison to protest a recently implemented Inmate Welfare Check System ….

---

⇒⇒ Demand that the noisy, aggressive checks stop.
Contact Warden Clark E. Ducart, Pelican Bay State Prison,
P.O. Box 7000, Crescent City, CA 95531-7000
CDucart@cdcr.ca.gov      (707) 465–1000 ext. 9040
Please bcc your message to phssreachingout@gmail.com or email us stating, “I called Ducart.”

If you are on Facebook, “like” the page, Prisoner Hunger Strike Solidarity and check out the event page, Statewide Coordinated Actions To End Solitary Confinement

Treatise on Solitary Confinement Torture and Call To Action, Todd Ashker, March 30, 2015

Brilliant treatise on solitary confinement- compelling legal, moral, ethical and political arguments.

Treatise on Solitary Confinement Torture and Call To Action, 3/30/15 by Todd Ashker, CA hunger strike rep, lead plaintiff in Ashker v Brown, human rights activist, imprisoned in Pelican Bay SHU for over two decades  (Excerpts of Treatise below)

“Moving Forward:  With Our Fight To End Solitary Confinement [SHU/Ad.-Seg.]

….  I personally believe the prisoncrats’ efforts to turn the global support we have gained for our cause, against us, will fail.  An example is, CDCr Secretary Beards’s reliance on 20-40 year old prison history, much of it taken out of context, and/or, telling only one [biased] side of the story, which was transparently weak— for the purpose of dehumanizing the prisoner class- in response to our global exposure of CDCr’s decades long state-sanctioned “policy” of torturing thousands of prisoners in SHU/Ad.-Seg. cells ….

California prisoncrats’ have little-to-no credibility regarding most of their policies and practices, in what is a failed, multi-billion dollar- fraudulent system. ….

The imperialistic, fascist police state elitists abusive exploitation of the working class poor is out of control, and the only way for people to bring about meaningful change is to come together collectively!  This includes the prisoner class, which is a microcosm of the working class poor; with most prisoners being casualties of the class war. ….

…[I]ntentionality of CDCr prisoncrats continual dehumanization of the prisoner-class is supported by more than 100 years of scientific study and experimentation …  From Stanford Professor Philip Zimbardo’s book, “The Lucifer Effect- Understanding How Good People Turn Evil.” … Dehumanization occurs whenever some human beings consider other human beings to be excluded from the moral order of being a human person….  By identifying certain individuals or groups as being outside the sphere of humanity, dehumanizing agents suspend the morality that might typically govern reasoned actions toward their fellows. …Under such conditions, it becomes possible for moral, morally upright and even idealistic people to perform acts of destructive cruelty. ….

In response to those who pose the question: “Why should we care about what’s going on in prisons?” …  We, as a people, do not condone the torture or other cruel, inhuman, or degrading treatment or punishment of our fellow human beings—under any circumstances!  Such practices are not in keeping with our nation’s international-public stance of being a protector of human rights; nor is it in keeping with our society’s “evolving standards of decency.”  “

Read ENTIRE TREATISE  HERE

In CA Prisons, Hundreds Have Been Removed from Solitary Confinement——and Thousands Remain

January 27, 2015 by Sal Rodriguez

It has been over three years since the first statewide hunger strike in protest of the California prison systems’ use of solitary confinement. The hunger strike, the first of many to follow, was launched by individuals housed in the state’s Security Housing Units (SHUs). The hunger strikes prompted state Legislative hearings, international scrutiny, and some reforms.

The SHU, first established in 1989 at Pelican Bay State Prison, was designed to house the “worst-of-the-worst” in close, secure, isolated confinement. Keeping individuals in small, windowless cells for 22 1/2 to 24 hours a day eventually proved to be a convenient solution to deal with individuals exhibiting behavioral or mental health problems and real or suspected gang affiliation as well.

The SHU, once limited to Pelican Bay, has been expanded to a total of four male facilities and one female facility. Despite this expansion, California doesn’t have enough room in the SHUs for all the individuals prison officials would like to place in them, necessitating their placement in Administrative Segregation Units (ASUs), which are dispersed throughout each prison.

By 2011, there were thousands of individuals in the SHU, including over 1,100 in the Pelican Bay SHU alone. Of them, approximately half had been in the SHU for over a decade and 78 had been in the SHU for at least 20 years.

In June 2011, individuals in the Pelican Bay SHU coordinated a hunger strike in protest of long-term isolation. The hunger strike lasted three weeks, notably bringing together people of all racial groups. There would be an additional hunger strike that year, followed by a third, 60-day-long hunger strike in July 2013.

Partly in response to the hunger strikes, the California Department of Corrections and Rehabilitation (CDCR) proposed and implemented an array of reforms purportedly aimed at tightening the standards for SHU placement and potentially reducing the number of individuals held in highly restrictive custody.

Beginning in October 2012, the CDCR has changed the criteria used to place individuals in the SHU, created a “Step Down Program” for individuals to transition out of the SHU, and began a process of case-by-case reviews of all individuals held in the SHU and ASU to determined the appropriateness of their placement.

The reviews are ongoing, but the data collected so far is quite revealing.

According to data obtained from CDCR, 725 SHU case reviews have been conducted, with about 69%  those cases leading to release to the final step in the Step Down Program and/or a General Population setting. A further 63% of ASU case reviews have led to a return to the general population.

In other words, in most cases, it appears that under slightly stricter standards, CDCR could not justify keeping individuals in highly restrictive, isolating conditions.

With these reviews being conducted for over two years now, and the overall decline of the prison population, one would expect that the number of people in restrictive housing would be on the decline.

Officially, CDCR does not believe it holds individuals in solitary confinement. Thus, a true count of the total number of individuals in such conditions is difficult to determine. The purpose of this research is to use CDCR data to provide a means of determining how many individuals might be in solitary confinement.

The CDCR releases pertinent data through COMPSTAT (COMPuter STATistics or COMParative STATistics). CDCR  keeps track of the following data: the number of individuals in single-celled housing, the number of individuals in the SHU and ASU, and the number of individuals in the SHU and ASU in single-celled housing. This data is the closest one can get to determining the number of individuals in solitary confinement.

http://solitarywatch.com/2015/01/27/in-california-hundreds-have-been-removed-from-solitary-confinement-and-thousands-remain/