Pelican Bay Human Rights Movement Presents: Litigating the Hunger Strike

By Kijana Tashiri Askari

“What you and I need to do is learn to forget our differences…we have a common oppressor, a common exploiter and common discriminator…once we all realize that we have a common enemy, then we can write on the basis of what have in common.” –Malcolm X

 

It is a historical truth that repression breeds resistance, which is why we prisoners at Pelican Bay State Prison’s SHU/CMU (e.g. “Security Housing Unit/Communications Management Unit” units took the initiative to come together, and go on a hunger strike, in order to say to our oppressors, that: “10 to 40 plus years of state sponsored torture and persecution in which our human rights have been routinely violated, for no other reason than to keep us prisoners confined in their mad scientist-like ‘torture chambers’ as alleged prison gang members is enough!!”

 

But for those who are not familiar with the historical materialism of our legacy of struggle, that entails a continuum of resistance against the subjugations of US colonial slavery, that is perpetrated under the cloak of US imperialism, the Pelican Bay Human Rights Movement, and thus the hunger strike, is an out-growth of this phenomenon, as we collectively stand on the shoulders of those courageous New Afrikan Black sistas/brothas like: Harriet Tubman, Nat Turner, SoJourner Truth, Denmark Vessey, Assata Shakur, Frederick Douglas, Betty Shabazz, Gabriel Prosser, Ida B. Wells, George Jackson, Angela Davis, W.L. Nolen, Dessie Woods, Aiprentice “Bunchy” Carter, Elaine Brown and Marcus Garvey, just to name a few.

 

All of these New Afrikan Black Sistas/Brothas have paved the way for us, via their fearless and committed struggle against our oppressors, that constituted an unrelenting fight to protect our human rights, while ultimately pursuing the objective of total liberation of all oppressed people!! Meaning, that the Hunger Strike, and in addition to the Pelican Bay Human Rights Movement were not mere aberrations that just appeared out of nowhere.

 

An example of this truth is echoed by the New Afrikan Black Historian/Author Herbert Aptheker who stated in his book, “The American Negro Slave Revolts”: “From personal experience, I can testify that American Negro slave revolts made a tremendous impact on those of us in the Civil Rights and Black Liberation Movement. It was the single most effective antidote to the poisonous ideals that Blacks had not a history of struggle or that such struggle took the form of non-violent protest. Understanding people like Denmark Vessy, Nat Turner, William Lloyd Garrison, etc, provided us with what link to our past that few ever though existed.” – American Negro Slave Revolts by Herbert Aptheker

 

As many know by now, CDCR’s undersecretary Scott Kernan and his fascist co-horts have issues a state wide memorandum dated September 27, 2011, to every prisoner/prison in the state of California that orders, instructs, and authorizes his lackeys to initiate punitive retaliatory actions against every prisoners that have chosen to exercise their human and 1st Amendment constitutional right to peacefully protest, by way of a hunger strike, the tortuous human rights abuses, and inhumane living conditions that we have been subjugated to in the SHU/CMU for the past 10 to 40 plus years!!

 

Therefore, it is within the spirit of our collective resistance, that the Pelican Bay Human Rights Movement and our representations, is offering this self help litigation manual in order to help guide, assist, and inform those prisoners who may not have a concrete understanding of the Amerikan Jurisprudence of Law and our human rights in particular, from the perspective of instituting the application of how to proceed with your 60 appeals, write of habeas corpuses, or lawsuits, in so far as, what issues to raise with regards to the retaliation that was waged against us.

 

Everybody who participated in the hunger strike should have by now been issued a CDC 115 and should have also been found guilty of said CDC 115, in which the punishments (e.g. “TV/Canteen restrictions; loss of good time credits; fired from your job; placed in Ad Seg; etc” varied from individual to individual, thus speaking to the arbitrariness of the whole process. The manner in which the 115 hearings were conducted were a complete “sham” which is indicative of Amerikan Justice at its finest!! In that, we prisoners were prohibited from presenting any mitigating evidence on our behalf at the 115 hearings, and the disciplinary hearing officer had already pre-determined our guilt, before we were even escorted out of our cells to the 115 hearing. All of which is reminiscent of the Soledad Brother’s Trial, that was held in the Salinas County Superior Courthouse during 1970/1971, in which comrade George Jackson, Fleeta Drumgo and John Cluthchette were all charged, but later acquitted of killing a prison guard.

 

The CDC 115 Rules Violation Reports allege/Charge as follow: Violated Rule No(s) 3005(a); Specific Acts: Willfully delaying/obstruction of a peace officer (Hunger Strike).

 

“On Wednesday, September 28, 2011, at about 1650 hours, while conducting my duties as the Facility D Housing Unit Floor Officer, I was distributing the meal trays in the unit. I offered inmate —, housed in —, his meal tray and he refused. — had previously been participating in the statewide hunger strike and had already refused at least eight consecutive meals. This meal refusal constituted his ninth consecutive meal refused.”

 

“Per Pelican Bay State Prison Operational Procedure 228, Hunger Strike, ‘Any inmate refusing nine consecutive meals is considered to be on a hunger strike.’ This refusal coincided with a planned, state-wide hunger strike/mass disturbance organized by inmates in the Security Housing Unit at Pelican Bay State Prison. His willful and deliberate behavior has caused delays in the custody operations and additional workload for custody and medical staff by increase in escorts and the monitoring of inmates suspected of participating in this hunger strike. These additional requirements have deterred staff from their normal duties of providing routine services to the remainder of the inmate population and have required supervisory staff to respond to the disturbance as well, significant delays, or cancellation of services such as visiting, canteen, medical appointments, and yard has occurred as a result of this inmate’s participation in this mass hunger strike. His refusal to use the appropriate venue to voice his grievances resulted in a decrease of services for themselves and to the inmates who have not participated in this disturbance and this hunger strike can lead to disorder.”

 

“A statement was not recorded as to why he was participating in the hunger strike.”

[Note: Some 115 Rule Violation reports allege/charge some prisoners with participating in a mass disturbance via the hunger strike and the time constraints for filing your 602 appeal on this matter does not begin until you have received a copy of the final disposition of said CDC 115 per CCR Title 15 Sections 3084.6 (appeal Time Limits); and 3320 (1.)]

 

In preparing your 602 appeal; writ of habeas corpus; or lawsuit, there are some key issues to focus on:

1)     The CDC 115 Rule Violation reports only consisted of a (2) page documentation that merely alleges and put forth conclusory allegations that we prisoners: A) “willfully delayed/obstructed a peace officer during the hunger strike”; or B) “participated in a mass disturbance via the hunger strike.” The law is rather clear, in that, due process mandates that prison officials must produce “some evidence” in order to substantiate a guilty finding, and in addition to, a showing of material evidence that illustrates/proves that the expressed activity in question violated/threatened the security penological interests of this prison

  1. See: Toussaint v. McCarthy 801 F.2d 1090 (9th Cir. 1986); Wolff v. McDonnel 417 US 539 (1974); Superintendent v. Hill 472 US 445 (1985); Walker v. Sumner 917 F.2d 382 (9th Cir. 1990); and Penal Code Section 2932 (c)(1)

 

CDCR Undersecretary Scott Kernan, and his co-horts have failed to produce a shred of evidence, that would substantiate their rhetorical allegations!! And have instead, relied upon “vague” conclusory allegations as is noted in the body of the 115 Rule Violation Report, which the courts prohibit. – See: Swift v. Lewis 901 F.2d 730 (9th Cir. 1990); and Walker v. Sumner 917 F.2d 382 (9th Cir. 1990).

2)     We prisoners were prohibited by the disciplinary hearing officer from presenting any mitigating evidence on our behalf that would have enabled us, to defend against, and refute these bogus/slanderous charges. Which subsequently violations our human right to due process. – See: Toussaint v. McCarthy 801 F.2d 1080 (9th Cir. 1986); and Wolff v. McDonnell 418 U.S. 539 (1974).

3)     The September 27, 2011 memorandum that CDCR Undersecretary Scott Kernan et. al. authorized and circulated to every participating prisoner, along with the CDC 115 Rule Violation Reports, are void of any rule, policy, or law that would give us prisoners “fair notice”, as to how, peacefully refusing our state issued meals as part of our hunger strike, is unlawful. Or for that matter, a rule, policy or law that specifically mandates that we prisoners are required to eat/accept, every state issues meal that is provided to us. We prisoners have a human/constitutional right to due process, in so far as, being given “fair notice”, as to what is “lawful” or “unlawful”, prior to being sanctioned for any wrong doing. – See: Grayned v. City of Rockford 408 U.S. 104 (1972); and Newell v. Sauser 79 F.3d 115 (9th Cir. 1996).

The Courts have also held:

“That a prison regulation becomes invalid when it infringes upon our human/constitutional rights, and when it doesn’t advance any penological interests.” – See: Johnson v. Avery 393 U.S. 483 (1969); U.S. v. Mikhel 552 F3d 961 (9th Cir. 2009); California Attorneys for Criminal Justice v. Butts 195 F.3d 1039 (9th Cir. 2000); Cousins v. Lockyer 568 F.3d 1063 (9th Cir. 2009); and Swift v. Lewis 901 F.2d 730 (9th Cir. 1990).

4)     We prisoners have a human/constitutional right to self-determination, that is predicated upon our autonomy, to freely choose/decide, what to consume or not to consume into our bodies. The law on this truth is rather clear, and states follows:

“We hold that under California law a competent, informed adult has a fundamental right of self-determination to refuse or demand the withdrawal of medical treatment of ‘any form’ irrespective of the personal consequences. Under the facts of this case, we further conclude that in the absence of evidence demonstrating a threat to institutional security or public safety, prison officials, including medical personnel, have no affirmative duty to administer such treatment and may not deny a person incarcerated in state prison this freedom of choice…”

A physician had no duty to provide further life sustaining procedures for quadriplegic prisoner who had refused use of surgical tube for feeding and medication and such medical treatment would not be imposed upon prisoner; prisoner was competent to make decision and was aware of its consequences and record did not show countervailing state interest sufficient to override exercise of prisoner’s right to self-determination.” – See: Thor v. Superior Court (1993) 21 Cal. Rptr. 2d. 357, 5 Cal. 4th 725, 855 P.2d. 375; and Penal Code Sections 2600 & 2601.

5)     We prisoners have a human/constitutional right to peacefully assemble and to petition the government for redress of our grievances as prescribed in the 1st Amendment of the US Constitution. And through the course of us exercising this human/constitutional right, we are accorded the right to not be retaliated against. But nonetheless, CDCR Undersecretary Scott Kernan et. al., as there atypical totalitarians, still decided to order, instruct, and authorize punitive retaliatory measures against us, per the September 27, 2011 memorandum, in spite of Scott Kernan et. al. being notified via our formal complaint that was served on them, and clearly put CDCR, etc. on notice that we prisoners will be engaging in a peaceful hunger strike beginning July 1, 2011, if are (5) five core demands were not met, in particular, as it pertains to the torturous human rights abuses, and the inhuman living conditions that we have been subjugated to, in these “concrete tombs” for the past 10 to 40 plus years!! Scott Kernan, CDCR, etc. choose to ignore our formal complaint, thus leaving us with no choice but to proceed with the peaceful hunger strike.

On August 2, 2011 we were issued CDC 128 B Chronos, that also threatened us with punitive retaliation, in the event of our hunger strike activities continuing. Due to bad faith negotiations on the part of CDCR, we were forced to resume our hunger strike on September 26, 2011. But prior to us resuming our hunger strike on September 26, 2011, CDCR et. al. were again informed of our intentions to peacefully assemble and seek redress to the government, by way of a peaceful hunger strike. This brought forth the September 27, 2011 memorandum from Scott Kernan, et. al. and confirms that we have been retaliated against, for exercising our human/constitutional rights. – See: Brodheim v. Cry 584 F.3d 1262 (9th Cir 2009); Rhodes v. Robinson 408 F.3d 559 (9th Cir. 2005); and The California State Constitution Section 3.

[Note: For a copy of the formal complaint, and of other notices that were sent to Scott Kernan, Governor Jerry Brown, etc. contact:

ATTN: Legal Services for Prisoners with Children

C/O: Ms. Carol Strickman

1540 Market St. Suite 490

San Francisco, CA 94102

(415) 255-7036

www.prisonerswithchildren.org

 

ATTN: Ms. Marilyn McMahon SBN #270059

PO Box 5187

Berkeley, CA 94705]

 

But in addition to the CDC 115 guilty findings and the arbitrary punishments that were rendered forth, those prisoners who were fired from their jobs or placed in Ad Seg in retaliation for your participating in the hunger strike, if you have a release date, or have been scheduled for a parole board suitability hearing, you can also make the argument, that said retaliation has created an atypical and significant hardship on your liberty interest to be release from prison, and/or found suitable for parole. – See: Wilkinson v. Austin 545 U.S. 209 (2005); Sandin v. Conner 515 U.S. 472 (1995); and CCR Title 15 Sections 3040; 3041; 3042; 3044; 3045, etc.

These (5) five core points, are the primary issues toward litigating the reprisals that have become manifest, from our participation in the hunger strike. And they should guide, assist, and inform you of your human rights on this issue, in particular, from the perspective of, the application of summarizing these (5) five core points onto a 602 appeal, and then proceeding into the courts to seek further redress. I would encourage individuals to read the legal cases that are cited herein, in order to advance your understanding on these legal issues. All of these legal cases are available at every prison’s law library.

And with that, keep your eyes on the prize, as it is imperative that we remain unified, by permanently setting aside our petty differences, as our struggle for real self respect, dignity, human rights, and freedom can only be accomplished with unity…we have a long road ahead of us, as our struggle has only just begun…thus we must remain duty bound, in helping each other, help ourselves!!!

 

*All power to the people, who do not fear real freedom!!

*Freedom and Justice Humyn Rights Coordinator for the Pelican Bay Human Rights Movement

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