Guards immune from suit for waking prisoners to check on them

A split federal appellate panel has upheld the qualified immunity of prison officials accused in a lawsuit of depriving inmates of sleep through a noisy procedure designed to prevent suicides in cells. But the attorney representing the plaintiff said there are still legal avenues to force the Department of Corrections and Rehabilitation to change the system to protect prisoners' rights.

Many prisoners have claimed the Guard One system used in Pelican Bay State Prison and elsewhere is so loud it keeps them up at night, in violation of their Eighth Amendment right to be free from cruel and unusual punishment.

However, the majority of a 9th U.S. Circuit Court of Appeals panel found the system was implemented in response to a court order and, "Existing case law did not provide insight into the lawfulness of creating noise while conducting court-ordered suicide-prevention welfare checks." Judge Richard C. Tallman wrote the opinion, issued Friday, and Judge Danielle J. Hunsaker concurred.

"Even if Pelican Bay officials haphazardly implemented the welfare check system, no reasonable official in these circumstances would believe that creating additional noise while carrying out mandatory suicide checks for prisoner safety clearly violated plaintiff's constitutional rights," Tallman wrote in Rico v. Ducartz, 19-15541 (U.S. 9th Cir., filed March 25, 2019).

A partly dissenting opinion by U.S. Judge Roslyn O. Silver of the District of Arizona, sitting by designation, said preventing prisoners from sleeping was "an obvious deprivation of a constitutional right, which was sufficient to survive a motion to dismiss."

"I am disappointed in the decision, and we are considering our options for next steps," Kate M. Falkenstien, who argued the case for plaintiff Jorge Andrade Rico, said in an email. "Qualified immunity should not shield correctional officers who violate established and basic rights like the right to sleep. Any reasonable officer would have known that it is not constitutional to awaken inmates twice an hour, 24/7, for months on end."

The associate with Reichman Jorgensen LLP in Redwood City said she would continue trying to force the prisons department to eliminate or change the checking methods in order to allow prisoners to sleep.

"The decision does not address any injunctive claims to try to change the system itself," Falkenstien said. "Because it is only about qualified immunity, it only affects Mr. Rico's right to seek damages."

Under the system a guard must touch a metal wand to a button outside each cell every half hour. Prisoners have claimed the sound of metal on metal and a loud beep when guards push each button caused them to wake up repeatedly throughout the night.

The appellate court reversed a 2019 order by U.S. District Judge Kimberly J. Mueller, who became chief judge of the U.S. Eastern District of California at the beginning of 2020. Mueller rejected Rico's claims against Corrections Secretary Jeffrey A. Beard and several other high-ranking officials. But she allowed Rico to continue his claims against Pelican Bay's warden and several officers.

Tallman's order remands the case back to Mueller. In her dissent, Silver wrote her objections were mainly procedural. She found the warden should receive qualified immunity, but said individual guards could face claims. This is because evidence showed guards made unnecessary noise while operating the system and did not correct the problems despite frequent complaints, Silver wrote..

Rico has since moved out of the secure housing unit, Falkenstien said, but retains his right to seek injunctive relief if he moves back to a unit where Guard One is in use. She also represents another prisoner seeking to force changes to the welfare check system.

That prisoner, Christopher Lipsey, lives in a segregation unit where Guard One is in use at Kern Valley State Prison in Delano. Corrections department staff have diagnosed him with schizo-affective disorder, making him a class member in a three-decade case over prisoner mental health care. On Nov. 5, Falkenstien filed a complaint in intervention in that case to force changes to Guard One. Coleman v. Newsom, 2:90-cv-00520-KJM-DB (E.D. Cal., filed April 23, 1990) is also before Judge Mueller.