United States v. 2020-11-20 | 19-15541 | JORGE RICO V. CLARK DUCART | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

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,

and

JEFFREY A. BEARD, Secretary of
CDCR; M
ICHAEL STAINER; SCOTT
KERNAN; HARRINGTON; KATHLEEN
ALLISON, Warden,
Defendants.
No. 19-15541

D.C. No.
2:17-cv-01402-
KJM-DB

OPINION

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.