Jorge Rico v. Clark Ducart

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE ANDRADE RICO, No. 19-15541

Plaintiff-Appellee,

D.C. No.

v. 2:17-cv-01402-

KJM-DB

CLARK E. DUCART, Warden; F. P.

MARULLI, Lieutenant at P.B.S.P.; D.

ABERNATHY, Sergeant at P.B.S.P.; OPINION

C. PARRY, P.B.S.P. Official;

J. CUSKE; NELSON; GARCIA;

ESCAMILLA; SHAVER,

Defendants-Appellants,

and

JEFFREY A. BEARD, Secretary of

CDCR; MICHAEL STAINER; SCOTT

KERNAN; HARRINGTON; KATHLEEN

ALLISON, Warden,

Defendants.

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted July 14, 2020

San Francisco, California

Filed November 20, 2020

2 RICO V. DUCART

Before: Richard C. Tallman and Danielle J. Hunsaker,

Circuit Judges, and Roslyn O. Silver, * District Judge.

Opinion by Judge Tallman;

Partial Concurrence and Partial Dissent by Judge Silver

SUMMARY **

Prisoner Civil Rights

The panel reversed the district court’s denial of qualified

immunity to Pelican Bay officials in a civil rights action over

prison noise stemming 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.

Plaintiff alleged that the round-the-clock welfare checks

disrupted his sleep and were conducted in a haphazard way.

The panel held that the defendants were entitled to qualified

immunity because, on the specific facts presented here,

every reasonable official would not have understood that

how they performed the court-ordered welfare checks

violated the Constitution. Existing caselaw did not provide

insight into the lawfulness of creating noise while

conducting court-ordered suicide-prevention welfare checks

*

The Honorable Roslyn O. Silver, United States District Judge for

the District of Arizona, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

RICO V. DUCART 3

in a maximum security facility built of concrete, metal, and

steel.

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. In

circumstances like these, where the defendants were

following court-ordered procedures to enhance inmate

safety that were inherently loud, all Pelican Bay officials

were entitled to qualified immunity from this civil rights suit.

Concurring in part and dissenting in part, Judge Silver

concurred with the majority that the defendants who worked

as floor officers during the day were entitled to qualified

immunity. Judge Silver also concurred that the Warden was

entitled to qualified immunity. As to the defendant who

conducted the night checks and the supervisory defendants

who took no remedial action after being informed that

prisoners were denied sleep, Judge Silver stated that

plaintiff’s allegations described an obvious deprivation of a

constitutional right, which was sufficient to survive a motion

to dismiss.

COUNSEL

Heewon Heidi Seo (argued) and Jeffrey T. Fisher, Deputy

Attorneys General; Neah Huynh, Supervising Deputy

Attorney General; Monica N. Anderson, Senior Assistant

Attorney General; Xavier Becerra, Attorney General; Office

of the Attorney General, San Francisco, California; for

Defendants-Appellants.

4 RICO V. DUCART

Kate S. Falkenstien (argued), Reichman Jorgensen LLP,

Redwood Shores, California, for Plaintiff-Appellee.

OPINION

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.

RICO V. DUCART 5

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.

1

Case No. 2:90-cv-0520-KJM-DB (E.D. Cal.).

2

Because the Coleman Special Master’s reports are court filings, it

is appropriate to take judicial notice of them. See Reyn’s Pasta Bella,

LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).

Accordingly, Defendants’ request for judicial notice is granted.

6 RICO V. DUCART

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

3

Case No. 2:90-cv-0520-KJM-DAD, Doc. 5271 (E.D. Cal. Feb. 3,

2015).

4

Because we accept as true all well-pleaded allegations of material

fact at the motion to dismiss stage, we state all of the facts taken from

his complaint in the light most favorable to Rico. See Hernandez v. City

of San Jose, 897 F.3d 1125, 1131–32 (9th Cir. 2018).

RICO V. DUCART 7

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

5

Case No. 2:90-cv-0520-KJM-DAD, Doc. 5393 (E.D. Cal. Dec. 28,

2015).

8 RICO V. DUCART

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 requests 6 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.

6

A Form 22 is a “request for interview, item, or service.” It is

known colloquially as a “kite” in prison settings. See Richey v. Dahne,

807 F.3d 1202, 1205 n.3 (9th Cir. 2015).

RICO V. DUCART 9

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

10 RICO V. DUCART

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 remaining nine defendants, finding that Rico had a

clearly established right to be free from sleep deprivation

caused by excessive noise. In denying qualified immunity

to the five supervisory officials, the district court found that

“it was unconstitutional to ignore an inmate’s complaint

detailing such allegations.” Regarding the four floor

officers, the district court reasoned that “a reasonable officer

would have known it was unlawful to create a racket” in

executing the Guard One system.

The remaining nine defendants, the supervisory officials

and the floor officers, timely appealed the district court’s

denial of qualified immunity. We have jurisdiction under

28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511,

530 (1985). We now reverse.

7

That ruling is not challenged on appeal.

RICO V. DUCART 11

II

We review de novo a denial of a motion to dismiss based

on qualified immunity, accepting as true all well-pleaded

allegations of material fact. Hernandez v. City of San Jose,

897 F.3d 1125, 1131–32 (9th Cir. 2018) (citations omitted).

III

Qualified immunity shields government officials under

§ 1983 unless “(1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their

conduct was ‘clearly established at the time.’” District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)). We may

exercise our discretion in deciding which of the two prongs

to address first. Pearson v. Callahan, 555 U.S. 223, 236

(2009).

“A clearly established right is one that is ‘sufficiently

clear that every reasonable official would have understood

that what he is doing violates that right.’” Mullenix v. Luna,

577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle,

566 U.S. at 664). While we do not require a case on all fours,

“existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011) (citations omitted). Qualified

immunity “protects ‘all but the plainly incompetent or those

who knowingly violate the law.’” Wesby, 138 S. Ct. at 589

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

We must consider “whether the violative nature of [the

defendants’] particular conduct is clearly established . . . in

light of the specific context of the case.” Hamby v.

Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016) (alteration

in original) (quoting Mullenix, 577 U.S. at 12). The Supreme

12 RICO V. DUCART

Court has made clear that we must consider the “specific

facts under review.” Id. at 1090; see City & County of San

Francisco v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1775–

76 (2015) (“We have repeatedly told courts—and the Ninth

Circuit in particular—not to define clearly established law at

a high level of generality.” (quoting al-Kidd, 563 U.S.

at 742)).

With these principles in mind, we review whether the

supervisory officials and floor officers are entitled to

qualified immunity in this case. We conclude that they are.

A

Existing precedent does recognize general rights against

excess noise and prison conditions that deprive inmates of

“identifiable human need[s],” such as sleep. See Wilson v.

Seiter, 501 U.S. 294, 304 (1991); accord Keenan v. Hall,

83 F.3d 1083, 1090–91 (9th Cir. 1996), opinion amended on

denial of reh’g, 135 F.3d 1318 (9th Cir. 1998) (holding “the

Eighth Amendment require[s] that [inmates] be housed in an

environment . . . reasonably free of excess noise” and

denying summary judgment for prison officials on claims

related to constant noise from other inmates and constant

illumination alleged to be causing sleeping problems); see

also Walker v. Schult, 717 F.3d 119, 122, 126 (2d Cir. 2013)

(finding an inmate plausibly alleged an Eighth Amendment

violation for sleep deprivation caused by his five cellmates

making constant and loud noise inside the cell all night);

Harper v. Showers, 174 F.3d 716, 717, 720 (5th Cir. 1999)

(finding that “[c]onditions designed to prevent sleep . . .

might violate the Eighth Amendment” when an inmate

alleged sleep deprivation because of noise caused by other

inmates); Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir.

1996) (not addressing qualified immunity but finding that an

inmate stated a cognizable Eighth Amendment claim when

RICO V. DUCART 13

noise “occurred every night, often all night”). But this is not

the end of the analysis; we must consider the “specific facts

under review” here. Hamby, 821 F.3d at 1090.

B

We go straight to the second prong of the qualified

immunity analysis: whether existing precedent placed the

question “beyond debate” that every reasonable official

would have understood that his specific actions violated a

clearly established right. Id. at 1092. Rico alleges that

creating excessive noise that deprives inmates of sleep for an

extended period is a clearly established constitutional

violation. However, the defendants in this case are entitled

to qualified immunity because, on the specific facts

presented here, every reasonable official would not have

understood that how they performed the court-ordered

Guard One checks violated the Constitution. See id. at 1090.

Our mandate to examine the particular facts, including

what caused Rico’s alleged sleep deprivation, reveals that

the challenged noise arose from activity that was inherently

noisy in a facility the very construction of which made

difficult quietly conducting round-the-clock welfare checks

that defendants were ordered by the Coleman court to

perform. 8 Rico suggests that we need not focus on the

factual specificity of precedent because the qualified

immunity inquiry in Eighth Amendment cases differs from

the inquiry in other types of cases, like those involving the

8

The dissent suggests that these facts are not properly before us at

the motion to dismiss stage, but Rico’s detailed factual allegations lay

the blame for much of the noise on Pelican Bay’s circular design.

Dissent at 29–30. Moreover, we have taken judicial notice of a court

order acknowledging the noise that Guard One produced because of “the

unique design of Pelican Bay.”

14 RICO V. DUCART

Fourth Amendment. But we have clarified “that the fact-

specific, highly contextualized nature of the inquiry does not

depend on which particular constitutional right a given

plaintiff claims the officials have violated.” Id. at 1091.

Existing caselaw did not provide insight into the

lawfulness of creating noise while conducting court-ordered

suicide-prevention welfare checks in a maximum security

facility built of concrete, metal, and steel. Rico relies upon

a single Ninth Circuit published opinion in Keenan. 83 F.3d

at 1090. But even a cursory review of the facts in Keenan

reveals how different that case is from this one: Keenan

involved unrelenting noise caused by other inmates.

In Keenan, we held that, while an inmate does not have

a right to a quiet environment, an inmate does have a right to

an environment that is “reasonably free” from constant,

excessive noise caused by other inmates. See id. (finding a

right to be free from excessive noise caused “at all times of

day and night [by other] inmates . . . screaming, wailing,

crying, singing, and yelling, often in groups”). That case did

not put “beyond debate” the lawfulness of periodic noise

resulting from court-ordered suicide-prevention checks and

the immutable characteristics of a solitary confinement unit

deliberately constructed in a maximum security prison not

conducive to these kinds of activities.

Rico also relies on cases about sleep deprivation caused

by constant illumination, but none of these cases involve

suicide-prevention checks or inherently noisy and recurring

action ordered by a court. Keenan found that an inmate had

stated a separate Eighth Amendment claim for being

subjected to constant illumination with no legitimate

penological purpose, id. at 1090–91, and an unpublished

case echoed this. Jones v. Neven, 399 F. App’x 203, 204–05

(9th Cir. 2010) (denying qualified immunity when prison

RICO V. DUCART 15

officials forced an inmate to sleep on a cell floor with

constant illumination and noise from a light fixture); but see

Chappell v. Mandeville, 706 F.3d 1052, 1057–58 (9th Cir.

2013) (granting qualified immunity where there was a

legitimate penological purpose for constant illumination).

Grenning v. Miller-Stout found that constant illumination

can violate the Eighth Amendment but noted that the district

court might find that the prison officials were entitled to

qualified immunity on remand. 739 F.3d 1235, 1238–39,

1241 (9th Cir. 2014). In contrast to constant illumination not

mandated by a court, the Pelican Bay officials were carrying

out a court order designed to benefit at-risk inmates that

caused frequent, but not constant, sound. 9

Rico also relies on cases from other circuits, but again,

these cases do not address the specific circumstances faced

here by the Pelican Bay officials. See Walker, 717 F.3d

at 122, 126 (finding an inmate plausibly alleged an Eighth

Amendment violation for sleep deprivation caused by his

five cellmates making constant and loud noise inside the cell

all night); Harper, 174 F.3d at 717, 720 (finding that

“[c]onditions designed to prevent sleep . . . might violate the

Eighth Amendment” when an inmate alleged sleep

9

The dissent suggests that the facts in this case are as extreme as

those present in the Supreme Court’s recent decision in Taylor v. Riojas,

No. 19-1261, 2020 WL 6385693, at *1 (U.S. Nov. 2, 2020) (per curiam),

such that no reasonable officer could believe the implementation of the

Guard One system was lawful. This is incorrect, if for no other reason

than the Guard One system, unlike Taylor’s placement in “deplorably

unsanitary conditions,” was implemented by a court order intended to

protect inmates from harm. Moreover, Taylor confirms that an officer is

entitled to qualified immunity if she “reasonably misapprehends the law

governing the circumstances she confronted.” Id. (quoting Brosseau v.

Haugen, 543 U.S. 194, 198 (2004)). This principle clearly applies here

given the Coleman court’s orders and Pelican Bay’s “unique design.”

16 RICO V. DUCART

deprivation because of noise caused by other inmates);

Antonelli, 81 F.3d at 1433 (not addressing qualified

immunity but finding that an inmate stated a cognizable

Eighth Amendment claim when noise “occurred every night,

often all night”). While these cases suggest that prison

officials need to regulate incessant noise caused by other

inmates, they do not provide guidance to a reasonable prison

official carrying out a court-ordered activity that is

inherently noisy.

Rico also relies on unpublished district court decisions.

While “unpublished decisions of district courts may inform

our qualified immunity analysis . . . it will be a rare instance

in which, absent any published opinions on point or

overwhelming obviousness of illegality, we can conclude

that the law was clearly established on the basis of

unpublished decisions only.” Sorrels v. McKee, 290 F.3d

965, 971 (9th Cir. 2002). “Indeed, common to cases in

which qualified immunity is unavailable is that ‘the issue . . .

has been litigated extensively and courts have consistently

recognized’ the right at issue.” Id. (omission in original)

(quoting Malik v. Brown, 71 F.3d 724, 729–30 (9th Cir.

1995)). This is not that rare instance.

The specific facts of these cases fail to establish the

specific right advanced here beyond debate, and the single

published opinion in Keenan, repeated in one unpublished

disposition, combined with the other three cases from our

sister circuits about constant illumination, cannot form the

basis for a “robust consensus.” See Wesby, 138 S. Ct.

at 589–90 (stating that we must look first to binding

precedent, then we may consider a “robust consensus of

cases of persuasive authority”); 9th Cir. R. 36-3(a)

(unpublished dispositions are not precedential).

RICO V. DUCART 17

C

Rico argues that the Coleman court order does not make

the Pelican Bay officials’ implementation of Guard One

lawful. Of course, a court order does not give carte blanche

to prison officials. “[S]ome things are so obviously unlawful

that they don’t require detailed explanation and sometimes

the most obviously unlawful things happen so rarely that a

case on point is itself an unusual thing.” Hines v. Youseff,

914 F.3d 1218, 1230 (9th Cir. 2019) (citation omitted).

However, the Pelican Bay officials carrying out the Coleman

court order can hardly be considered to fall into this category

of obvious unlawfulness.

Moreover, because the Pelican Bay officials

implemented Guard One at the behest of the Coleman court

and under the supervision of its Special Master, these

circumstances play a major role in determining what

“reasonable official[s] in [the defendants’] shoes would have

understood” about what they were commanded to do, how

that would impact a prisoner’s rights, and whether they were

violating those rights. See Sheehan, 135 S. Ct. at 1774

(citation omitted). Even viewing Rico’s allegation as true

that the floor officers improperly implemented Guard One,

causing extra noise by running on the metal stairs, hitting the

Guard One discs with more force than necessary, and

rushing through checks, it is not “beyond debate” that every

reasonable floor officer would be aware that this conduct

violated the law. See Taylor v. Barkes, 575 U.S. 822, 135 S.

Ct. 2042, 2044–45 (2015) (per curiam) (although evidence

showed the suicide screening process did not comply with

standards, no existing precedent established a right to the

proper implementation of suicide prevention protocols).

According to Rico’s allegations, much of the noise that

kept him awake resulted from the design of the Pelican Bay

18 RICO V. DUCART

SHU and use of the Guard One system in and of itself—not

the allegedly haphazard implementation of that system by

the floor officers. 10 Rico blames much of the noise on the

metal doors of the pods, the metal-on-metal contact of the

Guard One wands with the metal discs, the metal staircases,

and the circular design of Pelican Bay’s SHU. He alleges

that the layouts of SHUs in other facilities are quieter, so

inmates do not hear as many pod doors opening and closing,

the metal pipes hitting the metal discs on as many cells,

officers who must use metal staircases within the pods, and

the same degree of reverberation with the cell walls. While

the officers may have made extra noise by rushing to

complete the checks, the officers were undoubtedly and

unavoidably going to make noise simply by complying with

the court-mandated use of the Guard One system within the

SHU at Pelican Bay. Pelican Bay’s circular layout required

the floor officers to travel up and down the metal stairs to

check the inmates confined on the lower and upper levels of

the pods. Assuming perfect implementation of the system,

inmates were still susceptible to being awoken every hour

each night when heavy entry doors to the pods opened and

closed.

10

The injunctive relief initially sought by Rico in the district court

reveals Rico’s awareness that the noise inherent in the unique design of

the prison and the court-ordered checks caused his alleged sleep

deprivation. Rather than requesting the guards to execute the court-

ordered checks more quietly, Rico asked to relocate the Pelican Bay

SHU to a facility with a less disruptive layout, to reduce the frequency

of the checks to every two hours, to develop a quieter system utilizing

non-metal surfaces, to alter the doors to reduce the amount of noise

caused by officers’ entries and exits from the pods, and to provide

earplugs that could fully block the noise of the welfare checks. These

requests were denied as moot by the district court as Rico was no longer

in the SHU and are not before us on appeal.

RICO V. DUCART 19

Rico argues that dismissal at this stage is inappropriate

because discovery is necessary to address factual questions

including whether the checks were too loud for the inmates

to sleep, whether officers caused noise through their “sloppy

implementation of the checks,” and whether the officers

“were doing the best they could under the circumstances.”

We need not wait for the summary judgment stage; even

taking every fact Rico pleads as true, under these

circumstances, no reasonable officer would believe that

creating additional noise while carrying out mandatory

suicide checks for prisoner safety clearly violated Rico’s

constitutional rights. See Hines, 914 F.3d at 1231 (“[N]o

reasonable prison official would understand that executing a

court order without investigating its potential illegality

would violate [a] prisoner’s right to be free from cruel and

unusual punishment.” (citation omitted)).

Assuming that the officers created extra noise by rushing

to complete checks, this action was, at most, a reasonable

mistake. See Saucier v. Katz, 533 U.S. 194, 205 (2001)

(“The concern of the immunity inquiry is to acknowledge

that reasonable mistakes can be made as to the legal

constraints on particular . . . conduct. It is sometimes

difficult for an officer to determine how the relevant legal

doctrine . . . will apply to the factual situation the officer

confronts.”). The initial court order required officers to

conduct the checks twice an hour; thus, the officers had to

move quickly. Moreover, the Guard One system itself was

intended to ensure prison officials complied with the

required frequency of the checks; reasonable officers might

touch the metal disc more than once if they were not sure if

the first touch had been recorded. A reasonable guard could

be uncertain whether it was better to rush to complete

checks—making more noise for a shorter period of time—or

20 RICO V. DUCART

to more slowly complete checks—making less noise for a

longer period of time. 11

Qualified immunity “protects ‘all but the plainly

incompetent or those who knowingly violate the law.’”

Wesby, 138 S. Ct. at 589 (quoting Malley, 475 U.S. at 341).

Even if the floor officers created some extra noise in

implementing Guard One, they are entitled to qualified

immunity as their actions fell “within that vast zone of

conduct that is perhaps regrettable but is at least arguably

constitutional.” Hamby, 821 F.3d at 1095.

D

Supervisory prison officials may be liable under § 1983

if they were “personally involved in the constitutional

deprivation or a sufficient causal connection exists between

[their] unlawful conduct and the constitutional violation.”

Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1085

(9th Cir. 2013) (citation omitted). This causal connection

can be established by “knowingly refusing to terminate a

series of acts by others, which the supervisor[s] knew or

should have known would cause others to inflict a

constitutional injury.” Id. (quoting Starr v. Baca, 652 F.3d

1202, 1207–08 (9th Cir. 2011)) (affirming a grant of

summary judgment to supervisory prison officials on a

prisoner’s § 1983 claim about a failure to train staff when the

11

The dissent claims that we have added new facts in analyzing the

reasonableness of the officers’ actions, but the reasonableness of an

officer’s action is a legal question to be decided by the court. While we

take all of Rico’s factual allegations as true, we, not Rico, decide the

objective reasonableness of an officer’s actions. See al-Kidd, 563 U.S.

at 734, 743 (taking as true the factual allegations in the complaint but

granting qualified immunity at the motion to dismiss stage).

RICO V. DUCART 21

evidence was undisputed that the officials were complying

with a Coleman court order).

As discussed above, no reasonable official would believe

that creating additional noise while carrying out mandatory

suicide checks for prisoner safety clearly violated Rico’s

constitutional rights. Rico acknowledged that the

supervisory officials offered mental health referrals and

provided earplugs. The supervisory officials had no reason

to believe that carrying out the Coleman court’s orders

would cause the floor officers “to inflict a constitutional

injury.” Warden Ducart, Lieutenant Marulli, Sergeant

Abernathy, Sergeant Cuske, and Officer Parry are entitled to

qualified immunity.

IV

Even if the Pelican Bay officials haphazardly

implemented the Guard One system, no reasonable official

in these circumstances would believe that creating additional

noise while carrying out mandatory suicide checks for

prisoner safety clearly violated Rico’s constitutional rights.

In circumstances like these, where the defendants were

following court-ordered procedures to enhance inmate

safety that are inherently loud, all Pelican Bay officials are

entitled to qualified immunity from this civil rights suit.

That portion of the district court’s order denying

qualified immunity on Rico’s Eighth Amendment claim is

REVERSED and the case is REMANDED for entry of an

order of dismissal granting qualified immunity as to all

remaining defendants.

22 RICO V. DUCART

SILVER, District Judge, concurring in part and dissenting in

part:

I respectfully concur in part and dissent in part.

I

I concur with the majority that Defendants Garcia,

Escamilla, and Shaver, who worked as floor officers during

the day, are entitled to qualified immunity. Rico’s

allegations are the Guard One system “prevent[ed] [him]

from concentrating during the day.” 1 Thus, he has “failed to

demonstrate that [the day-shift guards] were personally

involved in any Eighth Amendment violations.” Hines v.

Youseff, 914 F.3d 1218, 1228 (9th Cir. 2019).

And I concur that Ducart, the Warden, is entitled to

qualified immunity. Rico did not allege that Ducart had

knowledge, after his August 20, 2015 response to the group

grievance, that prison staff were disobeying his order to

“make as little noise as possible on 1st Watch.”

II

The district court correctly denied qualified immunity to

Defendant Nelson, who conducted the Guard One checks at

night, and to the supervisory Defendants who, after being

informed that prisoners were being denied sleep, took no

remedial action. Thus, for those Defendants, I dissent.

My difference with the majority rests primarily on the

procedural posture. The district court considered and denied

a motion to dismiss, which requires on appeal that all well-

1

Rico does not allege noise during the day deprived him of sleep,

and, on appeal, the focus is on the excessive noise at night.

RICO V. DUCART 23

pleaded factual allegations in the complaint be accepted as

true and viewed in the light most favorable to the plaintiff. 2

Kroessler v. CVS Health, 977 F.3d 803 (9th Cir. 2020); see

Curtis v. Irwin Indus., 913 F.3d 1146, 1151 (9th Cir. 2019);

Hernandez v. City of San Jose, 897 F.3d 1125, 1131–32 (9th

Cir. 2018); see also Bell Atl. v. Twombly, 550 U.S. 544, 555

(2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The first prong of the qualified immunity analysis

requires determining whether, based on the facts alleged in

the complaint, Rico suffered a deprivation of a constitutional

or statutory right. District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018) (citation omitted). The majority did recount

facts alleged in the complaint, but for my analysis certain

facts require emphasis. 3

According to the complaint, from August 3, 2015

through August 23, 2016, Rico was housed in the SHU and

subject to the noise created by the Guard One system that

allegedly caused the pod doors to open and close creating “a

loud noise.” But significant for Rico’s claim, additional

excessive noise was generated by the manner in which

guards completed their required tasks. Rico clearly alleges

(1) the guards “ran loudly up and down the metal stairs”;

(2) “hit the Guard One buttons with more force than

necessary”; and (3) “regularly rushed through the pods too

quickly to hit the Guard One buttons accurately, causing

them to attempt to hit the Guard One button on each cell

multiple times, making extra unnecessary noise.” And when

2

It may be that all Defendants are determined to be entitled to

qualified immunity at summary judgment or trial.

3

It is noteworthy that the complaint is unusually detailed, providing

more than thirty factual allegations.

24 RICO V. DUCART

Rico filed complaints regarding the noise generated by

Guard One, the supervisory defendants provided

“assurances that they were looking into ways to reduce the

noise” but “no actions [were] taken to make the Guard One

checks any quieter.” In other words, Rico alleges guards

created far more noise than necessary, and, when Rico

complained, the supervisory personnel declined to resolve it.

The first prong of qualified immunity analysis asks

“whether the official’s conduct violated a constitutional

right.” Hines, 914 F.3d at 1218. As the majority recognized,

prisoners are entitled to “identifiable human need[s], such as

sleep.” (Majority at 12). Therefore, conditions of

confinement depriving prisoners of sleep for an extended

period violate the Constitution. According to the complaint,

Rico was deprived of sleep for over a year, which establishes

a viable claim for an Eighth Amendment violation.

III

The second prong of the qualified immunity analysis

requires determining whether every reasonable official

would have known that depriving Rico of sleep for a year

violated his rights.

We have made clear both excessive noise and conditions

causing sleep deprivation violate the Eighth Amendment. In

Keenan v. Hall, the inmate challenged several of the

conditions of his confinement that lasted six months,

including constant illumination that caused “grave sleeping

problems,” and excessive noise (“constant, loud banging”

“at all times of day and night”). 83 F.3d 1083, 1087–88,

1090–91 (9th Cir. 1996), opinion amended on denial of

reh’g, 135 F.3d 1318 (9th Cir. 1998). We first held that

“public conceptions of decency inherent in the Eighth

Amendment require that [inmates] be housed in an

RICO V. DUCART 25

environment that, if not quiet, is at least reasonably free of

excess noise.” Id. (quoting Toussaint v. McCarthy, 597 F.

Supp. 1388, 1410 (N.D. Cal. 1984) aff’d in part, rev’d in

part on other grounds, 801 F.2d 1080, 1110 (9th Cir.1986),

cert. denied, 481 U.S. 1069 (1987)); see also Toussaint,

597 F. Supp. at 1398 (noting that “[n]oise contributes to the

great difficulty many [inmates] experience in sleeping” and

“adversely affects . . . mental health”).

Next, we affirmed there is “no legitimate penological

justification for requiring [inmates] to suffer physical and

psychological harm by living in constant illumination,” in

this case causing “grave sleeping problems.” Keenan,

83 F.3d at 1090–91 (citation and internal quotation marks

omitted). Like constant illumination, courts have recognized

noise that occurs at night, thereby depriving a person of

sleep, causes greater harm than noise that occurs during the

day. Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir.

1996) (finding allegations of “excessive noise” occurring

“every night, often all night, interrupting or preventing

[plaintiff’s] sleep,” stated a Due Process or Eighth

Amendment claim); see generally Bravman v. Baxter

Healthcare Corp., 984 F.2d 71, 75 n.3 (2d Cir. 1993) (“The

gravity of the harm from noises that disturb a person’s sleep,

for example, is ordinarily much greater when the noises

occur at night than it is when the noises occur in the

daytime.”) (quoting Restatement (Second) of Torts § 827

cmt. b (1979)).

The right to adequate sleep, a well-recognized human

need, is also established by persuasive authority. As the

majority notes, a right may be clearly established by “a

robust consensus of cases of persuasive authority.” Wesby,

138 S. Ct. at 589–90. Our sister circuits have not often

decided cases involving sleep deprivation, but every circuit

26 RICO V. DUCART

that has held that conditions of confinement depriving

inmates of sleep violate the Eighth Amendment. Walker v.

Schult, 717 F.3d 119, 126 (2d Cir. 2013) (“[S]leep is critical

to human existence, and conditions that prevent sleep have

been held to violate the Eighth Amendment.”); Harper v.

Showers, 174 F.3d 716, 720 (5th Cir. 1999) (“[S]leep

undoubtedly counts as one of life’s basic needs. Conditions

designed to prevent sleep, then, might violate the Eighth

Amendment.”); see Mammana v. Fed. Bureau of Prisons,

934 F.3d 368, 374 (3d Cir. 2019) (holding denial of

“sufficient sleep” could violate the Eighth Amendment);

Walton v. Dawson, 752 F.3d 1109, 1120 (8th Cir. 2014)

(noting “the Constitution guarantees a minimum right to

sleep”).

The majority, however, has narrowed the “clearly

established” prong to determine whether “[e]xisting

caselaw” addresses “the lawfulness of creating noise while

conducting court-ordered suicide-prevention welfare checks

in a maximum security facility built of concrete, metal, and

steel.” (Majority at 14). This approach is functionally

equivalent to requiring “a case directly on point,” something

the Supreme Court has rejected. Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). Thus, while identifying the

appropriate “level of generality” for existing precedent can

be difficult, a greater level of generality is required here. Id.

I agree that this inquiry requires considering if existing

precedent establishes the “violative nature of . . . particular

conduct . . . in light of the specific context of the case.”

Hamby v. Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016)

(citation omitted) (emphasis in original). However, the

clearly established prong of qualified immunity must be

applied in a reasonable fashion, preventing liability where

genuine uncertainty exists but allowing liability where no

RICO V. DUCART 27

reasonable official could actually be confused. Hope v.

Pelzer, 536 U.S. 730, 741 (2002). Basic and clearly

necessary requirements, such as sleep, are not subject to

debate. 4 See Rhodes v. Chapman, 452 U.S. 337, 347 (1981)

(holding that prisoners are entitled to “the minimal civilized

measure of life’s necessities”). The majority does not

dispute that sleep is one of life’s necessities. (Majority at

12).

Our case law regarding providing adequate nutrition is

analogous. In Foster v. Runnels, 554 F.3d 807, 810 (9th Cir.

2009), a guard failed to provide a prisoner his meals because

the prisoner refused to remove paper blocking the back

window of his cell. Id. The guard’s supervisors had issued

a “memo” stating any prisoner who refused to unblock cell

windows could be denied meals. Id. at 811. After the

prisoner sued the guard for denying him food, the district

court granted qualified immunity at summary judgment. Id.

In conducting the “clearly established” analysis, we began

by noting “[t]here is no question that an inmate’s Eighth

Amendment right to adequate food is clearly established.”

Id. at 815. We held, “[t]he decisions from this Circuit and

others alerting prison officials of their obligations to provide

inmates with nutritionally adequate meals on a regular basis

should have given [the guard] sufficient notice of the

contours of the Eighth Amendment right.” Id. Even though

a “memo” allegedly authorized the guard’s actions, it was

held that the memo was never an official policy and, in any

4

In contrast, whether a hernia should be treated surgically or non-

surgically, no reasonable prison official could be confused whether

prisoners are entitled to adequate sleep. Hamby v. Hammond, 821 F.3d

1085, 1094 (9th Cir. 2016) (granting qualified immunity at summary

judgment to prison officials who opted for non-surgical treatment of

hernia). Moreover, Hamby was decided on summary judgment, which

included additional fact-finding beyond the complaint. Id. at 1090.

28 RICO V. DUCART

event, the guard’s “conduct was not reasonable because she

took no other action to ensure that her obligation to provide

[the prisoner] with meals was met.” Id. Thus, when a prison

official’s behavior, according to the complaint, deprives a

prisoner of such a basic need, the “clearly established”

inquiry is met.

In Foster, we did not adopt the majority’s position that a

prisoner is required to point to case law that establishes the

unlawfulness of depriving an inmate of food under the

particular circumstances in that case. See Torres v. City of

Madera, 648 F.3d 1119, 1129 (9th Cir. 2011) (quoting Hope,

536 U.S. at 741) (“requir[ing] such a granular specificity . . .

effectively wrench[es] . . . all meaning [from] the Supreme

Court’s admonition that ‘officials can still be on notice that

their conduct violates established law even in novel factual

circumstances.’ ”); see also Hope, 536 U.S. at 741 (quoting

United States v. Lanier, 520 U.S. 259, 271 (1997)) (“general

statements of the law are not inherently incapable of giving

fair and clear warning”); Hardwick v. Cty. of Orange,

844 F.3d 1112, 1117 (9th Cir. 2017). Where essential rights,

such as food or sleep, are deprived, every reasonable prison

official has “sufficient notice of the contours” of that right,

even in idiosyncratic circumstances. Foster, 554 F.3d

at 816.

A very recent Supreme Court case supports this point. In

Taylor v. Riojas, the inmate spent six days between two

cells: one covered in massive amounts of feces and the other

frigidly cold with a clogged drain overflowing with raw

sewage. No. 19-1261, 2020 WL 6385693, at *1 (U.S. Nov.

2, 2020) (per curiam). Finding the inmate had an obvious

right to be free from “deplorably unsanitary conditions,” the

Supreme Court reversed the Fifth Circuit’s grant of qualified

immunity on summary judgment rejecting that “ ‘[t]he law

RICO V. DUCART 29

wasn’t clearly established’ ” because of “ ‘ambiguity in the

caselaw.’ ” Id. at *1, *2 n.2 (citation omitted). Instead, the

Court held the prisoner’s rights were so obvious that

“ambiguity in the caselaw” could not create any doubt. Id.

at *2 n.2. Thus, “no reasonable correctional officer could

have concluded . . . [the conditions were] constitutionally

permissible.” Id. at *1 (citing Hope, 536 U.S. at 741)

(explaining “ ‘a general constitutional rule already identified

in the decisional law may apply with obvious clarity to the

specific conduct in question’ ”)).

Although the conditions in Taylor appear more extreme,

Rico’s allegations in the complaint, which must be taken as

true, can be inferred as extreme. See id. at *1 (suggesting that

that both “degree” and “duration” factor into the obviousness

of a violation). Rico alleges he was deprived of sleep for

over a year. As a result, he alleged that he suffered several

health problems including an “abnormal heartbeat,”

“irregular breathing,” “blurred vision,” “dizzy spell[s],”

“throbbing headaches,” “anxiety,” “trouble sleeping,” and

“difficulty concentrating.” 5

After defining the relevant right narrowly, the majority

states that Guard One was “inherently noisy” and “the very

construction” of the SHU “made difficult quietly conducting

round-the-clock welfare checks that defendants were

ordered by the Coleman court to perform.” (Majority at 13).

Ultimately, these facts may be established on summary

judgment or at trial, but when reviewing a denial of a motion

5

It is noteworthy that in Taylor the district court granted qualified

immunity on summary judgment, not on a motion to dismiss. And the

Supreme Court, in reversing the decision, held the issue of qualified

immunity will require an “officer-by-officer analysis” on remand.

Taylor, 2020 WL 6385693 at*1.

30 RICO V. DUCART

to dismiss, unless those facts are in the complaint or inferred

in the plaintiff’s favor, considering and relying on them on

appeal is inappropriate. Rico’s allegations thus describe an

obvious deprivation of a constitutional right, which is

sufficient to survive a motion to dismiss.

The majority also rejects Rico’s arguments that

discovery is necessary to determine the amount of noise

actually created by the manner in which Guard One was

implemented, concluding that even if the guards “created

extra noise by rushing to complete checks, this action was,

at most, a reasonable mistake.” 6 (Majority at 19) (citing

Saucier v. Katz, 533 U.S. 194, 205 (2001)). And the

majority offers new facts, that are not set forth in the

complaint, that the initial requirement of checks twice per

hour meant “the officers had to move quickly” and

“reasonable officers might touch the metal disc more than

once if they were not sure if the first touch had been

recorded.” (Majority at 19.) The majority adds, without

support in the complaint, that maybe “it was better to rush

checks . . . making more noise for a shorter period of time”

instead of completing checks more slowly “making less

noise for a longer period of time.” (Majority at 19–20).

Again, these facts may be born out on summary judgment or

trial, but there is no support for them in the complaint.

Rather, Rico alleges it was the guard’s desire to “rush[]

through the pods” that created more noise than necessary.

This allegation cannot be inferred as a reasonable mistake by

itself at this stage. What is alleged is the guards “ran loudly

up and down the metal stairs,” hit the “buttons with more

6

The guards were ordered by the court to engage in critical efforts

to ensure prisoners could not commit suicide. The problem here,

however, was their implementation of those efforts.

RICO V. DUCART 31

force than necessary,” and repeatedly missed hitting the

buttons “making extra unnecessary noise.”

IV

With regard to specific prison guards, I would affirm the

denial of qualified immunity to Defendant Nelson because

he worked as a floor officer during First Watch (the 10 p.m.

to 6 a.m. shift).

I would also affirm the denial of qualified immunity as

to Defendants Abernathy, Cuske, Marulli, and Parry. A

prison official in a supervisory position may be liable under

§ 1983 if he “knowingly refus[es] to terminate a series of

acts by others, which the supervisor knew or should have

known would cause others to inflict a constitutional injury.”

Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d

1062, 1085 (9th Cir. 2013) (quoting Starr v. Baca, 652 F.3d

1202, 1207–08 (9th Cir. 2011)). Rico filed five Form

22 complaints over the first four months of the

implementation of the Guard One system, complaining the

excessive noise from the Guard One checks was depriving

him of sleep and harming his physical and mental health.

Abernathy, Cuske, Marulli, and Parry responded to at least

one Form 22 that specifically mentioned Rico’s previous

complaints and Defendants’ failure to cure the noise

problem. These defendants responded to Rico’s repeated

noise complaints and assured him “that they were looking

into ways to reduce the noise.” But, despite being put on

notice the excessive noise related to the Guard One checks

was causing Rico sleep deprivation, Rico alleged Defendants

failed to adequately “train their staff to conduct the checks

more quietly” and the conduct causing excessive noise

continued. Therefore, “[a]t this early stage,” they are liable

32 RICO V. DUCART

under § 1983. 7 Preschooler II v. Clark Cty. Sch. Bd. of

Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Lemire,

726 F.3d at 1085.

7

Marulli and Abernathy are responsible for supervising operations

at the Pelican Bay SHU.