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

Sacramento RALLY & COURT SOLIDARITY to End Sleep Deprivation in CA Solitary Confinement — FRIDAY, MAY 18

Jorge Rico is incarcerated in Pelican Bay State Prison and has brought a civil rights lawsuit challenging the constitutionality of the loud “security/welfare checks” that he (and others) in Pelican Bay’s solitary units endure every 30-60 minutes 24/7. These so-called “checks”- done by guards – wake and disturb prisoners day and night causing serious sleep deprivation and, as his lawsuit claims, constitute cruel and unusual punishment.as his lawsuit claims, constitute cruel and unusual punishment. (The guards do no checking on top of that). Sleep deprivation is internationally recognized as torture.

Please RALLY at 9am on May 18 in support of Jorge Rico’s case against the “security/welfare checks” and in public outrage against the jarring noise and sleep deprivation they cause. At 10am, after the rally, help form a STRONG COURTROOM PRESENCE at the hearing in his case.  Show solidarity with Jorge Rico while his attorneys argue that his case should not be dismissed at CDCR’s request.

The CA Department of Corrections and Rehabilitation (CDCR) will argue for the court to dismiss Jorge’s civil rights case. Jorge’s lawyers will argue that the case against CDCR administrators, guards, and wardens, must move forward. HERE is a link to Jorge Rico’s Opposition to CDCR’s motion to dismiss.

The PHSS Committee to End Sleep Deprivation asks you to help make a powerful showing of solidarity with Jorge and all people in CA solitary confinement who are suffering from the checks, and who cannot be in the courtroom or outside rallying and speaking about their experience.

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Friday, May 18, 2018
Robert T. Matsui United States Courthouse, 501 I St., Sacramento, CA 95814
Sacramento Federal Court/Eastern District
Case name and number: Rico v. Beard  2:17-cv-01402-KJM-DB

9:00am RALLY outside the Courthouse
10:00am COURTROOM SOLIDARITY with Jorge Rico,
prisoner who brought this case (Crtrm #27, 8th Floor)

After the hearing, Jorge’s attorney, Kate Falkenstein, will be available briefly outside the courthouse to speak with community supporters and media.

Note: You must show ID and pass through a metal detector to get inside the Courthouse.

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Artwork by Jaime Amesquita, in High Desert State Prison. “I’m hoping that maybe through the publishing of my art I can bring attention to the long term effects brought by security/welfare checks, like sleep deprivation or PTSD.”

One way CDCR is attempting to get rid of the civil rights cases against the checks is by claiming that the guards and administrators causing the sleep deprivation and harm are only ‘following orders’ and not violating any clearly established right. We recall these words from a person in Pelican Bay solitary, who, like Jorge, has been subjected to the checks’ loud, reverberating banging noise every 30 minutes 24/7 in a small, enclosed concrete and metal cell:

“For decades, military and police forces have used extreme isolation, sleep deprivation and constant banging/noise to cause mental/physical torment and try to break a person’s mind or human will to resist questioning. These are so-called clean torture methods. So CDCR/Pelican Bay State Prison cannot possibly claim, ‘We did not know the cause or effect of this new program’s use of extreme isolation, sleep deprivation, and constant noise/banging.’”

Jorge’s Opposition to CDCR’s Motion to Dismiss quotes the court in another current federal case challenging the checks, Matthews v. Holland:

“It has been clearly established in the Ninth Circuit, since the 1990s, that inmates are entitled to conditions of confinement which do not result in chronic, long term sleep deprivation.” 

These “security/welfare checks” have been occurring for almost three years in Pelican Bay State Prison.

Feb. 12, 2015: Important Hearing in SHU Lawsuit

In Ashker v. Brown, we will prove that ten years in solitary confinement in the Pelican Bay SHU is cruel and unusual punishment (violating the 8th Amendment).

In an end-run around our lawsuit, CDCR has been transferring hundreds of prisoners out of that SHU.  This is good news for some, but many prisoners are simply being transferred to other SHUs, most notably to Tehachapi.  Four of our ten named plaintiffs have been moved there.  Because the judge previously defined our 8th Amendment class as prisoners presently at Pelican Bay SHU for ten years or more, these plaintiffs and others are no longer considered part of the class.

In response, we recently filed a motion to expand the reach of the solitary confinement lawsuit to include prisoners who have spent 10 years or more at Pelican Bay SHU but have recently been transferred to other California SHUs.
As we wrote:

“the cruel and unusual treatment they experienced, and its debilitating effects, have not abated, but instead continue under a different name in a different prison.”

CDCR should not be able to thwart our 8th Amendment claim by transferring these long-suffering prisoners to a different SHU.  These prisoners should be released from SHU, not moved to a different SHU.  Granting our motion will give the court jurisdiction over these prisoners so that, when we succeed at trial, they will be included in the relief that the court orders.

Please attend the hearing on Plaintiffs’ (Prisoners’) Motion to Amend the Complaint.  Your presence in the courtroom shows the judge that we care and are paying attention to decisions made about the torture in the SHU.

DATE: Thursday,  Feb. 12, 2015
TIME: 2:00 p.m.
ADDRESS: U.S. District Court in Oakland, 1301 Clay Street (federal courthouse)
COURTROOM: Dept. #2,  4th Floor, Hon. Claudia Wilken, presiding

Information explaining the motion came from Carol Strickman,Staff Attorney, Legal Services for Prisoners With Children and Co-Counsel for Plaintiffs in Ashker v. Brown