Another case that makes you go hmmmmm that it had to be appealed. Yes, petitioner lost custody credits for refusing to eat as part of the SHU hunger strike. The official rule violation? Engaging in behavior that can cause violence, disorder, or endanger the facility, community or other person.
The appellate court did not address the free speech issue but held that a hunger strike does none of these things, therefore the rule violation could not stand.
The prison’s theory of the violation was that the hunger strike is an orchestrated effort to get gang members back in the general population to wreak havoc. These people should get the speculators of the year aware.
The rest of the justification was essentially boiled down to: we have to do a lot of extra work to deal with the hunger strike. I may be projecting, but my read of the COA’s response is essentially: so it sounds like the strikes do not cause disorder because you make sure of that.
“None of these contentions indicate that the facility, outside community or another person was endangered, i.e., put in danger or peril of harm or loss, nor do they indicate that there was a breakdown of order in any aspect of the prison; to the contrary, it is apparent from Navarro’s [prison representative] statements that PBSP authorities were acting within their discretion to make adjustments to workloads and services in order to contend with the hunger strike and work stoppage, and his statements do not indicate that the protest involved any violence or disorderly conduct. Indeed, even assuming for the sake of argument that the disorder prohibited by section 3005(a) did not have to rise to the level of endangering “facility, outside community or another person,” nothing in Navarro’s account of the delays and cancellation of services, and the reallocation of prison personnel, such as to monitor the hunger strikers, suggests prison operations were thrown into disorder.”
It would have been interesting to see the 1st amendment argument, but this creates a lovely bright line rule .