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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: JFW@JFWLAW.NET
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,
)
)
v.
)
)
)
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.
)
_____________________________________________________)

Hinzo Complaint: 1: 14-cv-1083

Case No.: 1:14-cv-1083


Complaint for The Recovery of Damages
Caused By The Deprivation of Civil Rights

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.

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.

Hinzo Complaint: 1: 14-cv-1083

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.
Hinzo Complaint: 1: 14-cv-1083

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
resulted in his indefinite solitary confinement in violation of the 8th and 14th
Amendments to the United States Constitution.
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
resulted in his indefinite solitary confinement in violation of the 8th and 14th
Amendments to the United States Constitution.
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
resulted in his indefinite solitary confinement in violation of the 8th and 14th
Amendments to the United States Constitution.
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.
Hinzo Complaint: 1: 14-cv-1083

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.
Hinzo Complaint: 1: 14-cv-1083

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
solitary confinement.
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.

Hinzo Complaint: 1: 14-cv-1083

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.

Hinzo Complaint: 1: 14-cv-1083

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

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

Hinzo Complaint: 1: 14-cv-1083

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
solitary confinement.
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
Amendments to the United States Constitution.

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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

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
mental injury to Mr. Hinzo.
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
mental injury to Mr. Hinzo.
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


137. Plaintiff incorporates by reference each and every allegation contained in the
preceding paragraphs as if set forth fully herein.
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
146. Plaintiff incorporates by reference each and every allegation contained in the
preceding paragraphs as if set forth fully herein.
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
157. Plaintiff incorporates by reference each and every allegation contained in the
preceding paragraphs as if set forth fully herein.
158. Plaintiff advances this claim on his own behalf against Marcantel, Franco,
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
solitary confinement.
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.
164. 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 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
167. Plaintiff incorporates by reference each and every allegation contained in the
preceding paragraphs as if set forth fully herein.
168. Plaintiff advances this claim on his own behalf against Marcantel, Franco,
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.
179. The policies of the New Mexico Department of Corrections as designed and
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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180. The policies of the New Mexico Department of Corrections as designed and
implemented by Mr. Marcantel and executed by his staff including Mr. Franco
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.
183. Accordingly, Plaintiff is thus entitled to recover punitive damages from
Defendants in amounts to be proven at trial.
SIXTH CAUSE OF ACTION NEGLIGENT HIRING UNDER THE
STATE TORT CLAIMS ACT
184. Plaintiff incorporates by reference each and every allegation contained in the
preceding paragraphs as if set forth fully herein.
185. Plaintiff advances this claim on his own behalf against Marcantel, Franco,
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.
191. The policies of the New Mexico Department of Corrections as designed and
implemented by Mr. Marcantel and executed by his staff including Mr. Franco
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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.
195. Accordingly, Plaintiff is thus entitled to recover punitive damages from
Defendants in amounts to be proven at trial.
SEVENTH CAUSE OF ACTION: NEGLIGENT SUPERVISION UNDER THE STATE
TORT CLAIMS ACT
196. Plaintiff incorporates by reference each and every allegation contained in the
preceding paragraphs as if set forth fully herein.
197. Plaintiff advances this claim on his own behalf against Marcantel, Franco,
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.
205. The policies of the New Mexico Department of Corrections as designed and
implemented by Mr. Marcantel and executed by his staff including Mr. Franco
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.
208. Accordingly, Plaintiff is thus entitled to recover punitive damages from
Defendants in amounts to be proven at trial.

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.

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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31

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
JFW@JFWLAW.NET

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