Rico v. Ducart

980 F.3d 1292

Jorge Andrade RICO, Plaintiff-Appellee,

v. Clark E. DUCART, Warden; F. P. Marulli, Lieutenant at P.B.S.P.; D. Abernathy, Sergeant at P.B.S.P.; C. Parry, P.B.S.P. Official; J. Cuske; Nelson; Garcia; Escamilla; Shaver, Defendants-Appellants,andJeffrey A. Beard, Secretary of CDCR; Michael Stainer; Scott Kernan; Harrington; Kathleen Allison, Warden, Defendants.

No. 19-15541

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2020 San Francisco, California

Filed November 20, 2020

TALLMAN, Circuit Judge:

This civil rights action over prison noise stems from the orders of a federal district court adopting recommendations of its Special Master to implement round-the-clock welfare checks to prevent inmate suicides in California's prison system. For purposes of qualified immunity, this interlocutory appeal requires us to address the reasonableness of actions taken by officials at California's Pelican Bay State Prison ("Pelican Bay") when carrying out the district court's orders. We reverse the district court's denial of qualified immunity to the Pelican Bay officials because we conclude that no reasonable officer would have understood that these court-ordered actions were violating the constitutional rights of the inmates.

I

Jorge Andrade Rico is an inmate at Pelican Bay—the most secure among California's 33 prisons. He was remanded to the Security Housing Unit ("SHU") inside the maximum security prison after attempting to murder another inmate, and his confinement in SHU is what subjected him to the court-directed Guard One welfare check system challenged in this litigation.

Guard One is the product of an ongoing class action, Coleman v. Newsom, et al. ,¹ concerning mental health services provided to California Department of Corrections and Rehabilitation ("CDCR") inmates. As part of that class action, the Coleman court appointed a Special Master to "monitor compliance" with injunctive relief. Coleman v. Wilson , 912 F. Supp. 1282, 1324 (E.D. Cal. 1995).²

In the late 2000's, the Coleman court issued a series of orders requiring CDCR officials to implement certain measures to reduce inmate suicides in solitary confinement cells. See Coleman v. Schwarzenegger , 922 F. Supp. 2d 882, 902 n.19 (E.D. & N.D. Cal. 2009). Since 2013, these measures included directives to correctional officers to conduct welfare checks on inmates in Security Housing Units every half hour. To ensure that prison officials conducted these welfare checks at the required frequency, the Guard One system was implemented in 2014 at some state prisons. The system functions like a time clock for night watchmen. Every half hour, an officer must touch the end of a hand-held metal "pipe" or "wand" to a metal disc attached to each cell door as the officer peers inside to assess the inmate's welfare. The wand triggers a sound confirming that the tracking system has electronically recorded the time of the observation. This tracking data is reviewed daily to verify that correctional officers are completing the required welfare checks every half hour.

Because of Pelican Bay's unique physical structure, it did not install Guard One in 2014. But the Special Master nonetheless recommended that Guard One be implemented at Pelican Bay to address a lack of data demonstrating compliance with the required welfare checks. In February 2015, the Coleman court adopted the recommendations of the Special Master by ordering the system be implemented, Coleman v. Brown ,³ and Pelican Bay started using Guard One in the SHU on August 3, 2015.

Compared to Guard One's use in other CDCR prisons, conducting the checks creates more noise at Pelican Bay because of the building's circular design.⁴

While many other CDCR facilities are arranged along a straight hall, Pelican Bay's SHU contains six pods arranged around a circular core. The door to each pod is made of metal. Inside each pod, two floors of four cells line one side of the pod. Metal stairs connect the two floors of cells on the other side. The door to each cell is also made of metal.

Each time a pod door opens and closes, the door makes a loud noise for approximately twelve seconds. When the door fully closes, it makes a loud sound that resonates through the walls. Inmates can hear the doors of all six pods opening and closing. As the officers conduct their rounds, inmates can also hear the noise of the officers' boots on the metal stairs and the metal-on-metal noise of the wands hitting the discs on every cell in their own pod and the two neighboring pods.

A

Rico experienced this noise from the time Guard One was implemented at Pelican Bay on August 3, 2015, until he was released from the SHU on August 23, 2016. Each round of Guard One checks took approximately 15 minutes to complete, so the inmates initially had only 15 minutes of uninterrupted time between rounds. This was adjusted to 45 minutes between rounds after December 28, 2015, when the Coleman court approved the parties' stipulation to reduce the welfare checks to once per hour at night "because of the unique design of ... Pelican Bay." Coleman v. Brown .⁵ Accordingly, Rico had 45 minutes per hour of uninterrupted time between the hours of 10:00 p.m. and 6:00 a.m. until he was released back into less restrictive confinement on August 23, 2016.

B

On August 9, 2015, Rico joined other inmates in filing a group administrative grievance about the noise generated by Guard One during First Watch (10:00 p.m. to 6:00 a.m.). The inmates asked Pelican Bay officials to use a different system for the welfare checks, to leave pod doors unlocked and slightly open, and to make as little noise as possible when conducting the checks. On August 20, 2015, Pelican Bay's Warden, C.E. Ducart, denied the inmates' request to use an alternative system because the inmates did not provide any proof that the current welfare checks were ineffective. Ducart also denied the request to leave pod doors open as it would be a safety and security hazard. Finally, Ducart granted in part the inmates' request, directing staff to try to make as little noise as possible on First Watch.

Between August 9, 2015, and December 20, 2015, Rico individually filed five Form 22 requests⁶ asking for officers "to hit the metal buttons more quietly[,] ... to leave the pod doors open while conducting the checks," and to put tape or rubber on the pipes to reduce noise. Rico's requests also claimed that the noise was harming his mental and physical health and asked both for staff to reduce the noise and for the Facility Captain to fix Rico's door to reduce noise.

Sergeant Abernathy responded to four of Rico's requests, stating that staff were "looking into ways to reduce the noise," suggesting earplugs, and denying Rico's requests to leave the pod doors open. After Rico requested supervisory review of these responses, Lieutenant Marulli responded that staff were attempting to "keep the noise to a minimum" and had "no control over the amount of noise the door makes." In response to Rico's request to have the door fixed because it was affecting his mental and physical health, Sergeant Cuske responded that he would refer Rico for a mental health visit. When Rico requested higher level review because a mental health visit would not solve the problems stemming from excessive noise, Officer Parry responded that Rico could file an administrative appeal.

C

On August 2, 2016, Rico instead filed a pro se civil rights lawsuit in the Northern District of California under 42 U.S.C. § 1983. Pro bono counsel later filed a Second Amended Complaint, which alleged an Eighth Amendment condition-of-confinement claim for sleep deprivation caused by excessive noise, against fourteen Defendants: the nine Defendants on appeal as well as five past and present Secretaries of CDCR and Directors of the Division of Adult Institutions of CDCR. Rico's claims against the five Secretaries and Directors alleged that the Guard One System itself was unconstitutional, even if implemented without any human error. Rico alleged that Warden Ducart, Lieutenant Marulli, Sergeant Abernathy, Sergeant Cuske, and Officer Parry ("the supervisory officials") were responsible for supervising operations and were deliberately indifferent to his sleep deprivation in their responses to his administrative grievances about the Guard One System.

Rico also brought claims against four correctional officers: Officer Nelson, who worked the First Watch (10:00 p.m. to 6:00 a.m.), Officer Garcia, who worked the Second Watch (6:00 a.m. to 2:00 p.m.), and Officers Escamilla and Shaver, who worked the Third Watch (2:00 p.m. to 10:00 p.m.) ("the floor officers"). Rico alleged that the officers made "extra noise by conducting the Guard One checks haphazardly." This haphazard conduct consisted of running loudly on the metal stairs, hitting the discs with more force than necessary, and hitting the disc at each cell multiple times. Rico claimed that this noise deprived him of sleep, which caused medical problems and prevented him from concentrating during the day.

The Northern District of California sua sponte transferred the case to the Eastern District, where it was deemed related to Coleman and assigned to the Coleman case district judge. Defendants moved to dismiss, arguing that they were entitled to qualified immunity because a reasonable officer would not be aware that complying with the Coleman court's order to execute the Guard One checks would violate Rico's constitutional rights. The magistrate judge recommended granting qualified immunity to the five Secretaries and Directors but denying qualified immunity to the supervisory officials and the floor officers.

The district court adopted the magistrate judge's report and recommendations and granted qualified immunity to the five Secretaries and Directors because they were carrying out a facially valid court order in implementing the Guard One system.⁷ The district court denied qualified immunity to the...