Hinzo 1983 Complaint

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Hinzo Complaint: 1: 14-cv-1083

JASON FLORES-WILLIAMS, ESQ.

LAW OFFICE OF JASON FLORES-WILLIAMS

2064 PASEO PRIMERO

SANTA FE, NM 87501

Tel: 505-467-8288

Fax: 505-467-8288

Email: [email protected]

NM Bar No. 132611

Federal Bar No. 10-99

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

ALBUQUERQUE DIVISION

JUSTIN HINZO )

)

Plaintiff, ) Case No.: 1:14-cv-1083

)

v. ) Complaint for The Recovery of Damages

) Caused By The Deprivation of Civil Rights

)

SUSANA MARTINEZ, Governor of )

The State of New Mexico; )

GREGG MARCANTEL, )

Secretary, New Mexico Department of )

Corrections; )

GERMAN FRANCO )

Warden, New Mexico Penitentiary, Santa Fe; )

DEREK WILLIAMS, )

Deputy Warden, Level VI. )

)

Defendants. )

_____________________________________________________ )

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I. INTRODUCTION

Plaintiff Justin Hinzo (Plaintiff or Mr. Hinzo) has spent seven years buried

alive by New Mexicos currently sanctioned system of long-term solitary confinement.

As if his isolation were not enough, there have been multiple instances of physical

brutality, and deprivation of the mental and physical care to which he is entitled. Such

treatment falls below our standards as a society: it violates who we are.1

Plaintiff brings this complaint for damages, injunctive and declaratory relief for

violation of his civil and constitutional rights (Complaint). Plaintiff files this

Complaint under the federal Civil Rights Act and the Constitution of the United States.

Plaintiff also brings claims under the New Mexico Tort Claims Act. In support of his

Complaint, Plaintiff alleges the following:

Facts Common To All Counts

1. Mr. Hinzo has been held in solitary confinement by the New Mexico

Department of Corrections for more than seven years, since July 2007.

2. He has been held in solitary confinement in Level VI of the State

Penitentiary of New Mexico, Santa Fe (The Penitentiary), since January

2008.

3. At the time of filing of the instant Complaint, 12/1/14, he has been held in

lockdown for 24 hours a day for the last six weeks, since mid-October 2014.

4. He has not been allowed to exercise for the last six weeks due to a chronic

staff shortage on Level VI.

5. He has been allowed to shower only twice a week due to a chronic staff

shortage on Level VI.

1 As recently as Friday, November 28, 2014, a United Nations Panel condemned the use of long-term solitary confinement and torture in the United States.

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6. The current penological justification for Mr. Hinzos long-term solitary

confinement is known as protective custody.

7. Under the policies of the New Mexico Corrections Department, protective

custody is also known as involuntary inmate protection.

8. The New Mexico Corrections Departments policy of involuntary inmate

Protection is unconstitutional as it is indefinite, without process, and

constitutes cruel and unusual punishment.

9. Mr. Hinzo has alertedrepeatedly placed on noticeDefendants Franco and

Williams regarding the inhumane treatment and conditions of Level VI.

10. Defendant Marcantel was put on notice regarding the inhumane conditions

of Level VI when he voluntary appeared on a television program entitled

Undercover Bosses in which he spent 48 hours in Level VI solitary

confinement.

11. Mr. Marcantel complained of the claustrophobic conditions during his two

days in Level VI, after only 24 hours saying: Im feeling a little nauseated

and Im standing at the door now and Im looking outside and Im realizing

that I cant get on the other side of the door, he said. I felt like the cell was

kind of squeezing down on me."

12. Mr. Marcantels 48 hours on Level VI, however, resulted in zero policy

change to Level VI or review of the seven years that Mr. Hinzo has spent in

solitary confinement.

13. When the Secretary of the New Mexico Department of Corrections uniquely

appears on a highly-publicized, primetime, nationally-televised program,

then the State government of which he is a high-ranking member, and the

Department over which he directly presides, is effectively put on notice

regarding the subject matter of his involvement. i.e. the self-described

terrible conditions of Level VI that he found intolerable after only 48 hours.

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14. Ms. Martinez has therefore knowingly ratified the policies that have resulted

in permanent physical and psychological injury to Mr. Hinzo. To wit:

chronic staff shortages and involuntary inmate protection that have

resulted in his indefinite solitary confinement in violation of the 8th and 14th

Amendments to the United States Constitution.

15. Mr. Marcantel has personally ratified and implemented the policies that

have resulted in physical and psychological injury to Mr. Hinzo. To wit:

chronic staff shortages and involuntary inmate protection that have



16. Mr. Franco has personally ratified and implemented the policies that have

resulted in physical and psychological injury to Mr. Hinzo. To wit: chronic

staff shortages and policy of involuntary inmate protection that have



17. Mr. Williams has personally ratified and implemented the policies that have

resulted in physical and psychological injury to Mr. Hinzo. To wit: chronic

staff shortages and policy of involuntary inmate protection that have



18. Mr. Hinzo, in times of normalcy, is held 23-hours day in a cramped,

concrete, 12 x 7 ft. windowless cell (24 hours a day for the past six weeks).

19. Mr. Hinzo is suffering from extreme sensory deprivation.

20. Mr. Hinzo has no contact with other human beings.

21. Mr. Hinzo is denied regular mental health evaluations.

22. Mr. Hinzo is denied regular physical health examinations.

23. He suffers from degenerated discs in his spine so that he is in constant pain.

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24. He sleeps on a cot that intensifies the constant pain.

25. The New Mexico Department of CorrectionsDefendants Marcantel,

Franco and Williamshave done nothing to accommodate him for his

medical conditions.

26. The lack of medical care has so damaged his body so that he is permanently

disabled.

27. He suffers from constant insomnia, able only to sleep one hour per evening.

28. He suffers from distortion of time, space and perception.

29. He suffers visual and auditory hallucinations, and constant paranoia,

symptoms of manic depression, and hyper-vigilance.

30. He suffers from post-traumatic stress disorder resulting from the long-term

solitary confinement and chronic physical pain.

31. He suffers from disassociation, loss of vision, and severe panic attacks as a

result of his mental illness, chronic pain and confinement.

32. As a result of his confinement, Mr. Hinzo suffers from chronic suicidal

ideation and debilitating mental illness.

33. Mr. Hinzos very life has been permanently damaged by the infliction of

long-term solitary confinement.

34. Through their policies and actions, Defendants have intentionally subjected

Mr. Hinzo to an indefinite, brutal term of solitary confinement that has

resulted in permanent mental and physical damage to him.

35. Though our medical, psychological and social sciences confirm the damage

inflicted on a human being subject to long-term sensory deprivation,

Defendants have intentionally confined Mr. Hinzo in this unconscionable

manner for a period of time that shocks the conscience.

36. And though on notice, Defendants have done nothing to accommodate his

deteriorating mental and physical health.

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37. Pain medications for his back were precipitously withheld so that Mr. Hinzo

was forced to go through weeks of hellish withdrawals while in solitary

confinement.

38. He was provided no medication to aid his withdrawals.

39. As has been well documented in medical and scientific literature, his body

was burning with excruciating pain for weeks during the withdrawals in


40. His mental health was so damaged during this time that he was thrown into

a psychosis during the withdrawals, the effects of which continue to this day.

41. He was provided no medical assistance whatsoever during his withdrawals

due to the aforementioned chronic staff shortage and reckless neglecta

result of the policies of the New Mexico Department of Corrections as

derived, executed and implemented by Defendants.

42. Mr. Hinzo now suffers from severe concentration and memory problems,

and demonstrates an inability to focus.

43. Mr. Hinzo has frequently been denied access to regular showers so that his

ability to cleanse himself and maintain personal hygiene has suffered, thus

exacerbating his mental illness and physical deterioration.

44. Mr. Hinzo is served processed food, which is slid through a metal hole, cold

and frequently underprepared.

45. The food does not satisfy basic dietary requirements and, at minimum, lacks

nutritional value.

46. Upon information and belief, the food provided in Level VI is substandard

from the food provided to the general population of The Penitentiary.

47. Level VI is the segregated housing unit, located approximately an eighth of

a mile, from the general housing unit of the Penitentiary.

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48. The Penitentiary is separated between the general population units for

maximum security prisoners and the Level VI segregated housing unit.

Level VI is its own segregated building, housing inmates in extreme

isolation, sensory deprivation, and restricted movement. There are

extremely limited recreational and cultural opportunities afforded to

prisoners, a near total lack of contact with other humans, denial of work

opportunities, limited access to personal property, and intense levels of

surveillance and control.

49. Level VI was designed to foster maximum isolation. The area used for the

rare family or attorney visit is less a visiting room, more akin to a makeshift

garage sale, with chairs and tables askew, disorganized, no basic bathroom

services, water fountains, or even vending machines typically found in

prison visiting rooms across the country. Visitors are forced to stand. The

area is not appropriate or safe for children or the elderly.

50. When visits do occur, no physical contact whatsoever is allowed; visits occur

behind Plexiglass in a dirty, cramped cubicle.

51. Access to mail and books is severely restricted.

52. The temperature in Mr. Hinzos cell fluctuates between extreme hot and

extreme cold.

53. Upon information and belief, the ventilation is poor, consisting solely of

recycled air.

54. Exercise, when it does occur, takes place in a cramped cage with limited

access to sunlight.

55. Mr. Hinzos cell has no access to natural light.

56. Level VI is loud and the noise conditions exacerbate Mr. Hinzos insomnia

and other mental conditions.

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57. The Penitentiary is a maximum security prison with one of the most brutal

histories in the prison-industrial complex.

58. In February 1980, 33 inmates died and more than 200 were injured in some

of the most violent riots in the history of the American prison-industrial

complex.2

59. Due to the aforementioned chronic shortage of trained correctional staff,

officers would label inmates as informers to control and manipulate them.

60. This tactic was known as the snitch game.

61. The snitch game was put in place to address a chronic staffing shortage

that exists to his day.

62. In the snitch game, an inmate is forced to either become an informer on

other inmates or be labeled an informer by the guards.

63. Under either premise, the inmate can be placed in protective custody under

the New Mexico Department of Corrections policy of involuntary inmate

protection.

64. The snitch game results in unjustified, indefinite periods of long-term

solitary confinement, i.e. involuntary inmate protection, a policy that is

unconstitutional on its face.

65. The New Mexico Department of Corrections uses the snitch game in

tandem with alleged gang association to place inmates in involuntary

inmate protection.

66. As a result of these policies, inter alia, Mr. Hinzo has been held in long-term

solitary confinement for more than seven years.

67. The New Mexico Department of Corrections historical practice of using

coercive forms of manipulation like the snitch game to justify permanent

2 Some researchers suggest that the number of fatalities may have been higher as bodies were burned.

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incarceration in long-term solitary confinement violates all form and

substance of procedural and substantive due process.

68. Mr. Hinzos physical and psychological injuries are a result of New Mexico

Department of Corrections policy.

69. Plaintiffs injuries are almost identical to those described in psychological

literature about the long-term effects of severe trauma and torture.

70. The totality of conditions in which Mr. Hinzo is forced to liveand the

seven years in which he has been forced to endure themare

unconscionable.

71. These stark conditions are a matter of New Mexico Department of

Corrections policy and have been personally approved and/or implemented

by Defendants. Defendants are directly responsible for these conditions and

for the degree to which the conditions are compounded by other punitive

measures, including a pattern and practice of coercive denial of standard

medical care and deprivation of the most rudimentary human needs.

72. Mr. Hinzo has no access to rehabilitative or educational programming.

73. He has no real access to a law library so has been compelled to exhaust

nearly all of his judicial remedies without being able to conduct even basic

legal research.

74. Mr. Hinzo received a court order dated July 16, 2014 from the State District

Court in Santa Fe mandating assessment of his long-term solitary

confinement in Level VI. (Hon. Judge Mary Marlowe Sommer.)

75. The order mandated that the New Mexico Corrections Department shall

have 60-days to conduct an assessment Mr. Hinzos placement in long-term


76. Upon information and belief, this court-ordered assessment was never

conducted.

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77. Mr. Hinzo has attempted to assert the order of the District Court.

78. The Penitentiary has retaliated against Mr. Hinzo for attempting to assert

the court order and his constitutional rights.

79. This retaliation has taken the form of indefinite solitary confinement.

80. Visiting and contact procedures are so dysfunctional as to render the

attorney-client representation difficult.

81. The fact that Mr. Hinzo has spent more than seven years of his life in Level

VI could never have been contemplated by the original framers of Level VI

or, for that matter, the Federal Constitution of the United States.

82. Further exacerbating his physical and mental deterioration, guards working

at Level VI have informed Mr. Hinzo that he will never be released from

this inhumane and debilitating regime.

83. The solitary confinement regime in Level VI, turns an already dark penal

history here in New Mexico into an abomination that leaves this state on the

outliers of the civilized world, violates the United States Constitutions

requirement of due process and prohibition of cruel and unusual

punishment, as well as the most basic human rights prohibitions against

cruel, inhuman or degrading treatment.

84. The brutal confinement and isolation at Level VI New Mexico State Prison

Santa Fe have no valid penological purpose and, along with the wide spread

use of long-term solitary confinement in America, are condemned by the

international community as nothing less than torture.

JURISDICTION AND VENUE

85. Mr. Hinzo brings this claim pursuant to 42 U.S.C. 1983 and the 8th and 14th


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86. This Court has jurisdiction over Mr. Hinzos claims of violation of his federal

constitutional rights pursuant to 28 U.S.C. 1331 and 1343 and 42 U.S.C.

1983 and 1988.

87. The Court also has supplemental jurisdiction over the state law tort claims

under 28 U.S.C 1367.

88. Venue is proper in the United States District Court of New Mexico,

Albuquerque Division, pursuant to 28 U.S.C. 1391(b)(2) in that a

substantial part of the events or omissions giving rise to the claims brought

by Plaintiff have occurred in Santa Fe County, New Mexico, in the District of

New Mexico.

JURY REQUEST

89. Plaintiff requests a jury on all triable counts.

PARTIES

Plaintiff

90. Plaintiff Justin Hinzo (Inmate # 44490) is a 39-year-old prisoner who has

spent seven years in solitary confinement in the Level VI Segregated

Housing Unit, New Mexico State Penitentiary, Santa Fe. He has not had a

proven disciplinary violation of any kind since 2007. He is serving a 28-year

sentence for a killing that was committed in self-defense. He has exhausted

every possible administrative remedy within the prison system without

access to a law library and has been told that he will not be released from

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solitary confinement as a matter of protective custody, i.e. involuntary

inmate protection. He currently resides at The Penitentiary Level VI.

Defendants

91. Defendant Susana Martinez, is the Governor of the State of New Mexico. As

such, she has caused, created, authorized, condoned, ratified, approved or

knowingly acquiesced in the illegal, unconstitutional, and inhumane

conditions, actions, policies, customs and practices that prevail at Level VI at

The Penitentiary as described herein. She has, therefore, directly and

proximately caused, and will continue to cause in the future, the injuries and

violations of rights set forth below. Defendant Martinez is sued in her official

capacity.

92. Defendant Gregg Marcantel is the Secretary of Corrections for the State of

New Mexico. As such, he has caused, created, authorized, condoned, ratified,

approved, or knowingly acquiesced in the illegal, unconstitutional, and

inhumane conditions, actions, policies, customs and practices that prevail at

Level VI at The Penitentiary as described herein. He has, therefore, directly

and proximately caused, and will continue to cause in the future, the injuries

and violations of rights set forth below. Defendant Marcantel is sued in his

official and individual capacities.

93. Defendant German Franco is the Warden of The Penitentiary. As such, he

has caused, created, authorized, condoned, ratified, approved or knowingly

acquiesced in the illegal, unconstitutional, and inhumane conditions,

actions, policies, customs, and practices that prevail at Level VI of The

Penitentiary as described herein. He has, therefore, directly and proximately

caused, and will continue to cause in the future, the injuries and violations

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of rights set forth below. Defendant Franco is sued in his official and

individual capacities.

94. Defendant Derek Williams is the Deputy Warden in charge of Level VI of

The Penitentiary. As such, he has caused, created, authorized, condoned,

ratified, approved or knowingly acquiesced in the illegal, unconstitutional,

and inhumane conditions, actions, policies, customs, and practices that

prevail at Level VI of the Penitentiary as described herein. He has, therefore,

directly and proximately caused, and will continue to cause in the future,

the injuries and violations of rights set forth below. Defendant Franco is

sued in his official and individual capacities.

95. All the Defendants have acted, and continue to act, under color of state law

at all times relevant to the complaint.

International Standards Regarding Torture and Cruel, Inhuman or Degrading

Treatment3

96. In light of the well-documented harms described above, see Undercover

Bosses, there is an international consensus that long-term solitary

confinement violates international human rights norms and civilized

standards of humanity and human dignity. International human rights

organizations and bodies have condemned indefinite or prolonged solitary

confinement as a human rights abuse that can amount to torture.

97. As just one example, in August 2011, the United Nations Special Rapporteur

of the Human Rights Council on Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment concluded that the use of solitary

confinement is acceptable in only exceptional circumstances, and that its

3 Credit Second Amended Complaint Ashker v.Brown for this section.

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duration must be as short as possible and for a definite term that is properly

announced and communicated.

98. Plaintiffs indefinite detention justified as protective custodyinvoluntary

inmate protectionmeets none of these criteria.

99. Indeed, seven years in solitary confinementand the policies that allow it to

occurfacially violate all forms of human rights law including the United

States Constitution. It is, in short, a failure of humanity.

100. The Special Rapporteur of the United Nations concluded that prolonged

solitary confinement is prohibited by the International Covenant on Civil

and Political Rights (ICCPR) and the Convention Against Torture (CAT),

and that prolonged solitary confinement constitutes torture or cruel,

inhuman or degrading treatment or punishment. The Special Rapporteur

has concluded that even 15 days in solitary confinement constitutes a

human rights violation.

101. The Special Rapporteurs view comports with standards laid out by the

Istanbul Statement on the Use and Effects of Solitary Confinement, the

ICCPR Human Rights Committee, and the United Nations Office of the

High Commissioner for Human Rights.

102. The Convention Against Torture (CAT), ratified by the United States in

1994, provides the following definition of torture:

For the purposes of this Convention, torture means any act by which severe

pain or suffering, whether physical or mental, is intentionally inflicted on a

person for such purposes as obtaining from him or a third person information

or a confession, punishing him for an act he or a third person has committed

or is suspected of having committed, or intimidating or coercing him or a third

person, or for any reason based on discrimination of any kind, when such pain

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or suffering is inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.

CAT, art. 1, para. 1. By being forced to endure the crushing and inhumane policies and

conditions at Level VI as described above, Plaintiff is being subjected to treatment

consistent with CATs definition of torture.

Exhaustion of Administrative Remedies

103. Plaintiff has exhausted his administrative remedies with regard to all claims

and Defendants. Furthermore, he has filed, pro se, habeas petitions with the

State District Court of New Mexico, Santa Fe. The outcome of the habeas

petitionan order for assessment within 60 days of his solitary confinement in

Level VIhas been ignored by the administration of the prison or not been

afforded the diligence required by due process under the 14th Amendment.

CLAIMS FOR RELIEF

FIRST CAUSE OF ACTION: 8th AND 14th AMENDMENT

Cruel and Unusual Punishment

104. Plaintiff incorporates by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

105. Plaintiff advances this claim against all Defendants.

106. By their policies and practices described herein, Defendants have deprived and

continue to deprive Plaintiff of the minimal civilized measure of lifes

necessities, and have violated his basic human dignity and his right to be free

from cruel and unusual punishment under the 8th and 14th Amendments to the

United States Constitution for each of the reasons set forth below.

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107. Through reckless neglect and deliberate indifference, Defendants Marcantel,

Franco and Williams have personally ratified and implemented policies that

violate the United States Constitution.

108. Defendants Marcantel, Franco and Williams have intentionally confined Mr.

Hinzo in unconscionable conditions for a period of time that shocks the

conscience.

109. Through reckless neglect and deliberate indifference, Defendant Governor

Martinez has ratified policies that violate the United States Constitution.

110. These unconstitutional conditions have resulted in permanent physical and

mental injury to Mr. Hinzo.

A. Deprivation of Basic Human Need

111. First, the cumulative effect of extremely prolonged confinement, the

deprivation of good medical care, of mental health care and other crushing

conditions of confinement at Level VIand the indifference to these brutal

conditions and the policies that enable themconstitute a serious deprivation

of at least one basic human need, including but not limited to human contact,

environmental and sensory stimulation, mental and physical health, physical

exercise, sleep, nutrition, family contact and meaningful activity.

112. Through an outrageous indifference to Mr. Hinzos condition, Defendants

Marcantel, Franco and Williams have personally ratified and implemented

policies and actions that have rendered them in violation of the constitution of

the United States in their individual capacities.

113. Through willful indifference, Defendant Governor Martinez has violated the

United States Constitution in her official capacity.

114. These unconstitutional conditions have resulted in permanent physical and


B. Imposition of Serious Psychological and Physical Injury, Pain and Suffering

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115. Extremely prolonged exposure to these deprivations of basic human need is

currently imposing severe psychological pain and suffering and permanent

psychological and physical injury on the Plaintiff.

116. In addition to Plaintiffs current psychological and physical pain, the likelihood

that Plaintiff will remain in Level VI for the foreseeable future subjects

Plaintiff to even greater debilitating, permanent mental illness and physical

harm.

117. Defendants are on notice of the severe and brutal conditions on Level VI and

in reckless, deliberate and willful indifference to them.

118. Indeed, Defendants policies and actions have created indefinite long-term

solitary confinement that is so brutal as to shock the conscience and be

unconstitutional on its face.

119. Defendants Marcantel, Franco and Williams have personally ratified and

implemented these unconstitutional conditions.

120. Defendant Governor Martinez has through willful indifference ratified these

unconstitutional conditions.

121. These unconstitutional conditions have resulted in permanent mental and

physical injury to Mr. Hinzo.

C. Disproportionate Punishment

122. Defendants policy of indefinite and prolonged segregation imposes

disproportionate punishment on the Plaintiff. Defendants have no legitimate

penological interest in retaining prisoners indefinitely in the debilitating

conditions of Level VI simply because Defendants allege that the confinement

for the purpose of the Plaintiffs own good, i.e. protective custody. Nor is this

policy and practice rationally related to legitimate security needs.

123. Under of state-wide policy of involuntary inmate protection, Mr. Hinzo has

been permanently psychologically and physically damaged.

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124. Defendants willful and indifferent infliction of significant psychological and

physical harm offends civilized societys sense of decency, constitutes an

intolerable practice in modern society, and is a disproportionate punishment

which violates the 8th and 14th Amendments to the United States Constitution.

125. These constitutional violationsratified by Defendantshave resulted in

permanent physical and mental injury to Mr. Hinzo.

D. Deprivation of Human Dignity in Violation of Contemporary Standards of

Human Decency

126. Defendants continuation of Plaintiffs solitary confinement for more than

seven years under the debilitating and extreme conditions existing at Level VI

have stripped him of his basic dignity and humanity in violation of

contemporary standards of human decency and constitutes cruel and unusual

treatment prohibited by the 8th and 14th Amendments to the United States

Constitution.

127. That New Mexicos policies and practices violate contemporary standards of

human dignity and decency is evidenced by the fact that those practices are

unusual in comparison to other states practices with respect to segregated

prisoner housing.

128. That New Mexicos practices with respect to the Plaintiff violate contemporary

standards of human decency and dignity is also evidenced by the international

communitys condemnation of the practice of prolonged and indefinite solitary

confinement under very harsh and stifling conditions such as exist Level VI.

Such condemnation is reflected in international treaties such as the

Convention Against Torture, the International Covenant on Civil and Political

Rights, decisions and declarations of international bodies, customary

international law, and decisions of regional and national courts such as the

European Court of Human Rights and Canadian courts.

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129. Defendants have been on notice of the conditions in Level VI and have

exhibited a deliberate, reckless indifference that has resulted in physical and


130. Through the aforementioned television programming and Plaintiffs repeated

letters to Wardens Franco and Williams, Defendants have been on notice of the

unconstitutional conditions in Level VI.

131. Defendants policies and reckless indifference to the brutality of long-term

solitary confinement maintained under the guise of involuntary protective

custody are not only unconscionable, but unconstitutional on their face.

132. Defendants have intentionally ratified and implemented unconstitutional

policies resulting in permanent injury to Mr. Hinzo.

E. Defendants Deliberate Indifference to the Deprivations Suffered by Plaintiff

133. The policies and practices complained of herein have been and continue to be

implemented by Defendants and their agents, officials, employees, and all

persons acting in concert with them under color of state law, in their official

capacity.

134. Defendants have been and are aware of all of the deprivations complained of

herein, and have condoned or been deliberately indifferent to such conduct.

135. It should be obvious to Defendants and to any reasonable person that the

conditions imposed on Plaintiff have caused tremendous mental anguish,

suffering, and pain. Moreover, Defendants have repeatedly been made aware,

through administrative grievances and written complaints that Plaintiff is

currently experiencing significant and lasting injury. Defendants have been

deliberately indifferent to the Plaintiffs pain and suffering.

136. Indeed, Defendants have deliberately and knowingly caused such pain by

knowingly leaving unconstitutional policies in place resulting in cruel and

unusual punishment.

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SECOND CAUSE OF ACTION: 14th AMENDMENT

Substantive and Procedural Due Process



138. Plaintiff advances this claim on his own behalf against all Defendants.

139. Defendants have deprived Plaintiff of a liberty interest without due process of

law by denying him meaningful and timely periodic review of his continued

long-term and indefinite detention at Level VI and meaningful notice of what

they must do to earn release, in violation of the 14th Amendment to the United

States Constitution.

140. The conditions and the duration of Defendants confinement of Plaintiff is an

atypical and significant hardship as compared with the ordinary incidents of

prison life for two basic reasons: (a) the exceedingly harsh and isolated

conditions in Level VI; (b) the indefinite duration of confinement.

141. Because indefinite placement in Level VI constitutes a significant and atypical

hardship, Plaintiff is entitled to meaningful notice of how he may alter their

behavior to rejoin general population, as well as meaningful and timely

periodic reviews to determine whether he still warrants detention in Level VI.

142. Defendants have denied and continue to deny any such notice or meaningful

review by: (1) failing to provide prisoners with notice of what they can do to get

released from Level VI; (2) not conducting assessment or review of Plaintiff

Justin Hinzos confinement on Level VI in violation of a court order issued by

the State District Court in Santa Fe; (3) making a predetermination that

Plaintiff will stay in Level VI until he dies, saying to Plaintiff[T]hat [he] will

never get out,thus rendering the periodic reviews substantively and

procedurally meaningless; and (4) making the length of time between reviews

far too long to comport with the constitutional due-process standard.

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143. Defendants are also violating Plaintiffs substantive and procedural due process

rights by holding Justin Hinzo in conditions that amount to an atypical and

significant hardship without legitimate penological interest.

144. Defendants have been repeatedly put on notice regarding the need for review

of Mr. Hinzos long-term solitary confinement, but have exhibited willful and

deliberate indifference to not only his requests for review, but an order of the

New Mexico District Court issued July 16, 2014.

145. This deliberate, reckless indifference has resulted in physical and

psychological injury to Mr. Hinzo and constitutes facial violation of substantive

and procedural due process pursuant to the federal constitution.

THIRD CAUSE OF ACTION: NEGLIGENCE UNDER THE

STATE TORT CLAIMS ACT



147. Plaintiff advances this claim on his own behalf against Marcantel, Franco,

Williams.

148. Defendants, as caretakers of the Plaintiff, owe a duty to Plaintiff that he not be

made to suffer physically or mentally and that he be provided adequate

medical treatment for his degenerative spine disease. Furthermore, that he not

be confined to solitary confinement for the excessive period of seven years

when science has shown that such a period is permanently damaging to a

human being.

149. Defendants breached that duty by negligently withholding medical care and

by leaving Plaintiff in the damaging conditions of solitary confinement for

seven years.

150. By negligently leaving Mr. Hinzo in solitary confinement for seven years,

Defendants have breached the duty owed to him.

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151. Plaintiff has suffered permanent and profound injuries due to the Defendants

negligence ranging from deterioration of his spine to permanent mental

illness.

152. Defendants are the proximate cause of Plaintiffs injuries.

153. Defendants have exhibited reckless and deliberate indifference to Mr. Hinzos

long-term solitary confinement resulting in permanent physical and

psychological injury to him.

154. The policies of the New Mexico Department of Corrections as designed and

implemented by Mr. Marcantel and knowingly executed by his staff including

Mr. Franco and Mr. Williams are negligent and unconstitutional on their face.

155. These policies have been personally ratified and executed by Defendants

Marcantel, Franco and Williams.

156. Accordingly, Plaintiff is entitled to recover punitive damages in amounts to be

proven at trial.

FOURTH CAUSE OF ACTION: FALSE IMPRISONMENT UNDER STATE TORT

CLAIMS ACT




Williams.

159. Defendants violated Plaintiffs liberty by segregating him in conditions of

extreme sensory deprivation for more than seven years without justification

and for a period that was explicitly expressed as an indefinitewe will never

let you outso that Plaintiff was rendered without any form of actual process

with regard to this false, fraudulent imprisonment.

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160. Plaintiff Hinzo did and does not hold the keys to his release from long-term


161. Defendants accomplished this restraint through physical force as well as the

explicit and implicit threat of physical force.

162. As a proximate result of this conduct, Plaintiff has suffered and will continue

to suffer bodily injury, extreme emotional distress and other physical and

emotional injuries.

163. Defendants committed these acts with malice in retaliation to Plaintiffs

attempts to assert his rights through these Honorable Courts as well as in

retaliation for Plaintiffs refusal to simply die, but to shine a light on his

torturous captivity.


implemented by Mr. Marcantel and knowingly executed by his staff including

Mr. Franco and Mr. Williams constitute false imprisonment.

165. These policies have been personally ratified by Defendants Marcantel, Franco

and Williams.

166. Accordingly, Plaintiff is thus entitled to recover punitive damages from

Defendants in amounts to be proven at trial.

FIFTH CAUSE OF ACTION NEGLIGENT MAINTENANCE OF A BUILDING UNDER

THE STATE TORT CLAIMS ACT




Williams.

169. Defendants owe a duty to maintain Level VI in a manner that allows Plaintiffs

family to visit him pursuant to his constitutional rights.

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170. Defendants owe a duty to the public to maintain Level VI in a manner that is

safe and not dangerous.

171. Defendants have a legal duty to maintain Level VI in a manner that allows

Plaintiffs legal representation to meet with him pursuant to his constitutional

rights.

172. Level VI is in a state of reckless disrepair that precludes safe visits from the

elderly, children and the satisfaction of Plaintiffs Sixth Amendment right to

counsel.

173. The state of disrepair and lack of privacy in Level VI disrupts and invades the

attorney-client privilege.

174. The lack of visiting and human contact due to the state of disrepair in Level VI

has injured Plaintiff Justin Hinzos mental and physical health.

175. He has no connectedness to loved ones or family due to the negligent

maintenance of the Level VI building.

176. Visiting families are unsafe in Level VI resulting in almost no visitation to Mr.

Hinzo, which contributes to mental illness, suicidal ideation and potential

violence.

177. Family visitsespecially from the elderlyare strongly discouraged by the

negligent maintenance of Level VI.

178. There are no cell phones or recording devices allowed in Level VI precluding

any form of documentation of the negligent conditions.


implemented by Mr. Marcantel and executed by his staff including Mr. Franco

and Mr. Williams have resulted in the negligent condition of Level VI so that it

is dangerous and unsafe for the public, guards, penitentiary employees, inmate

families and Mr. Hinzo.

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and Mr. Williams are negligent.

181. Defendants Marcantel, Franco and Williams have personally ratified the

policies giving rise to negligent maintenance of Level VI.

182. Defendants are the proximate cause of Plaintiffs deprivations resulting in the

furtherance of psychological and constitutional injury.



SIXTH CAUSE OF ACTION NEGLIGENT HIRING UNDER THE

STATE TORT CLAIMS ACT




Williams.

186. Defendants have a legal duty to use care in hiring, training and retaining its

employees.

187. Defendants have a legal duty to employ enough individuals for safe staffing to

ensure that basic human dignities such as exercise and showers were provided

Plaintiff.

188. Defendants breached this duty by allowing for chronic staffing shortages in

Level VI.

189. This breach has resulted in extreme deprivations to Mr. Hinzo.

190. This breach has resulted in extended lockdown periods, no exercise, limited

shower and limited personal hygiene for Plaintiff.



26


and Mr. Williams have resulted in a chronic staffing shortage that, in turn, has

resulted in negligent conditions.

192. Defendants Marcantel, Franco and Williams have personally ratified the

policies that give rise to these negligent hiring practices.

193. Defendants Marcantel, Franco and Williamsas directly in charge of

Penitentiary Hiringare liable for negligent hiring practices.

194. As a direct result of Defendants reckless and negligent hiring practices,

Plaintiff has suffered severe permanent physical and psychological Injury.



SEVENTH CAUSE OF ACTION: NEGLIGENT SUPERVISION UNDER THE STATE

TORT CLAIMS ACT




Williams.

198. Plaintiffs injuries were not caused by any negligence on the part of the

Plaintiff, but caused solely by Defendants Breach of Duty to properly supervise

and train its Supervisory and Managerial Staff.

199. To wit: failure to employ enough guards to furnish Plaintiff Justin Hinzo with

the most rudimentary of human dignities.

200. To this date, Defendants have not taken affirmative steps to remedy the

historical, institutional failings of Level VI.

201. The agents charged by Defendants with exercising care over Plaintiff have

negligently and carelessly conducted themselves in connection with such

supervision.

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202. Defendants have exhibited a reckless and outrageous indifference with regard

to Plaintiffs mental and physical health.

203. Defendants are charged with a sacred public trust to utilize competent hiring

practices in our correctional facilities.

204. Defendants have breached the duty owed to Mr. Hinzo and the trust owed to

the public. Defendants have failed in their duty to properly train their staff.



and Mr. Williams have resulting negligent supervision that have resulted in

violation of the federal constitution, i.e. lack of due process and cruel and

unusual punishment.

206. Defendants Marcantel, Franco and Williams have personally ratified and

executed these unconstitutional and negligent policies.

207. As a result of Defendants reckless and negligent supervisory practices,

Plaintiff has suffered severe physical and emotional harm as well as

constitutional deprivations.



PRAYER FOR RELIEF

Plaintiff has suffered and will continue to suffer irreparable injury as a result of the

unlawful acts, omissions, policies, and practices of Defendants, as alleged herein. The

need for relief is critical because the rights at issue are paramount under the United

States Constitution and our sense of decency as a society.

WHEREFORE, Plaintiff requests that this Court grant him the following relief:

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DECLARATORY RELIEF

209. Issue a declaratory judgment that the more than seven years spent in solitary

confinement in Level VI of The Penitentiary violated Plaintiff Justin Hinzos

rights under the 8th Amendment to the United States Constitution and clearly

constitutes cruel and unusual punishment.

210. Issue a declaratory judgment that the absence of meaningful review of his

solitary confinementindeed, ignoring a district court order for assessment

violated Plaintiffs due process rights under the 14th Amendment.

211. Issue a declaratory judgment that Defendant Governor Susana Martinezs

failure to take action to end the practice of long-term solitary confinement in

the State of New Mexico violated Plaintiffs rights under the 8th and 14th

Amendments.4

212. Issue a declaratory judgment that Defendant Secretary Marcantels failure to

take action to end the practice of long-term solitary confinement in the State of

New Mexico violated Plaintiffs rights under the 8th and 14th Amendments.

213. Issue a declaratory judgment that Defendant Warden Francos failure to take

action to end the practice of long-term solitary confinement in the State of

New Mexico violated Plaintiffs rights under the 8th and 14th Amendments.

214. Issue a declaratory judgment that Defendant Deputy Warden Williams failure

to take action to end the practice of long-term solitary confinement in the State

of New Mexico violated Plaintiffs rights under the 8th and 14th Amendments.

215. Issue a declaratory judgment that the policy of involuntary inmate protection

as practiced by the New Mexico Department of Corrections and as personally

ratified and executed by Defendants Marcantel, Franco and Williams violates

the 8th and 14th Amendments to the United States Constitution.

4 International law holds that any period more than 15 days in solitary confinement is torturethis Honorable court will of course issue its own assessment.

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INJUNCTIVE RELIEF

216. Issue injunctive relief ordering Defendants to IMMEDIATELY RELEASE

Plaintiff from Level VI solitary confinement/protective custody/involuntary

inmate protection and place him in the general population of The Penitentiary

within 30 dayswith restoration of all rights and privileges.

217. Issue injunctive relief ordering that Plaintiff be evaluated by a medical

practitioner with expertise in the treatment and restoration of degenerative

spine disease, chronic back pain and that the prison make proper

accommodation for Justin Hinzo based on said practitioners evaluation and

recommendations.

218. Issue injunctive relief ordering that Plaintiff be evaluated by a mental health

care professional specializing in extreme sensory deprivation and that any

treatment or counseling be carried out without delay.

219. Order a comprehensive review of the practice of long-term solitary

confinement in the State of New Mexico.

DEMAND FOR MONETARY DAMAGES

220. Award Compensatory and Punitive Damages jointly and severally in an

amount for Plaintiff Justin Hinzo and against:

221. Defendants Marcantel, Franco and Williams for the permanent physical and

emotional damage sustained by Plaintiff as a result of being forcibly caged for

seven years in solitary confinementan unconscionable period of time that

shocks the conscience, violating our core values as a society and the 8th

Amendment. $700,000. ($100,000 per year.)

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222. Defendants Marcantel, Franco and Williams for the permanent physical and

emotional injury resulting of their denial of due process in connection with the

Plaintiffs long-term solitary confinement. By this demand, Plaintiff seeks

compensatory and punitive damages for the loss of privileges and semi-quality

of life in his prison living conditions, and the extreme loss of the limited

liberty enjoyed by prisoners, resulting from his segregated confinement in that

he was confined for 24 hours a day for more than a month in a 12 x 7 cell and

confined for 23-hours day for more than seven years in a 12 x 7 cell, deprived

of most of his personal property, the ability to work, attend educational,

rehabilitative and vocational programs, engage in recreational activities, attend

outdoor recreation in a congregate setting, attend meals with other prisoners,

interact socially with other prisoners, shake hands or have any physical contact

with other human beings, and overall live in conditions of extreme sensory

deprivation that have directly resulted in the permanent deterioration of his

mental and physical health and loss of the ability to function in life going into

the future. Plaintiff separately and in addition seeks compensatory and

punitive damages from the permanent psychological distress and harms

suffered as a result of his extreme sensory deprivation and resulting from

more than seven years in long-term solitary confinement without due process

of law, to which he is entitled due to the physical injuries he sustained to his

back from being left untreated and from the deprivation of medical care pled

herein. Further, punitive and compensatory damages awarded against

Defendants Marcantel, Franco and Williams for the permanent mental and

emotional injuries resulting from the chronic unceasing pain resulting from

the lack of medical treatment afforded to Plaintiff. Finally, punitive and

compensatory damages for seven years of negligence and torture in violation

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of the United States Constitution and human standards. $700,000. ($100,000

per year.)

223. Award Plaintiff the costs of this suit and reasonable attorneys fees and

litigation expenses pursuant to 42 U.S.C. 1983; 1988, and other applicable

law.

224. Retain jurisdiction of this case until Defendants have fully complied with the

orders of this Court.

225. Award such other and further relief as the Court deems just and proper.

Dated: November 30, 2014

Respectfully submitted,

/s/ Jason Flores-Williams

Jason Flores-Williams

Attorney For Plaintiff

Law Office of Jason Flores-Williams (State Bar: 132611) (Fed. Bar: 10-99)

2064 Paseo Primero

Santa Fe, New Mexico 87501

505-467-8288

[email protected]

Documents

Hinzo 1983 Complaint