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Judge skeptical of CDCr’s excuses for sleep deprivation in solitary confinement

May 30, 2018

Report on Jorge Rico hearing

by Charlie Hinton

The prisoner supporters who traveled to Sacramento for the sleep deprivation hearing on May 18 gather outside the courthouse. Attorney Kate Falkenstien, in the center of the photo wearing a pink blouse, represents three of the plaintiffs challenging the welfare/security checks that cause sleep deprivation. – Photo: Charlie Hinton

A number of hardy souls ventured to Sacramento on May 18 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 beside 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 six suits against the “checks” before this judge, and Kate Falkenstien, in the center of the photo wearing a pink blouse, represents three of them, including that of Jorge Rico. In a press conference after the hearing, she explained the three arguments of CDCr.

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.

In a motion it 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 is 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, on the grounds that this was a violation of the Eighth 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.

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.”

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 Eighth 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 OK.”

Commenting on CDCr’s claims, the judge remarked that it was well established that sleep deprivation can rise to the level of an Eighth Amendment violation.

Judge Barnes declined to dismiss the case and on Monday, May 21, 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.

Charlie Hinton is a Bay Area-based activist, commentator, actor and playwright who performs the solo show “Solitary Man: My Visit to Pelican Bay State Prison.” He is a member of Haiti Action Committee and the Prisoner Hunger Strike Solidarity Committee to End Sleep Deprivation, and he works with DeWayne Ewing’s family to free DeWayne, an innocent man, from prison. You can reach him at ch.lifewish@gmail.com.

One thought on “Judge skeptical of CDCr’s excuses for sleep deprivation in solitary confinement

  1. Simon Black

    Guard One is only in place because inmate families keep suing whenever their beloved criminal commits suicide and keep claiming that the custody officers never checked up on them. In fact, it is the genius idea of the inmates’ attorneys. The prison staff did not like Guard One because it meant even more work and stress for them. They preferred the old way of logging welfare checks with pen and paper and having a supervisor audit the checks every shift. But, in the age of us embracing automation for just about everything, the didn’t trust the floor staff to do their jobs. Well, it turns out that they did do their job, and did it so well, that the welfare checks were done down to the tee. The inmates can sue to get rid of Guard One, but it must not be overlooked that Guard One is something they sued to get put into place. I’m sure the prison staff would have no problem with being given less work to do on their shift and going back to the old way.

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