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Vogelsang v. Tilton

November 10, 2008

GREGORY LEE VOGELSANG, PLAINTIFF,
v.
JAMES E. TILTON, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Before the court is defendants' June 6, 2008 motion to dismiss the case on the ground that plaintiff's complaint fails to state a cognizable claim for relief. Plaintiff has filed a timely opposition. Defendants have not filed a reply.

BACKGROUND

Plaintiff challenges the constitutionality of a policy that only allows him to keep two appliances in his cell. First, plaintiff claims that the two-appliance policy violates the Equal Protection Clause because he is allowed no more than two appliances in his cell while a female inmate is allowed three appliances in her cell as long as one is a hair care appliance. Plaintiff contends that he would like to use his electric razor, but he has been told that he must donate, destroy, or send it home at his own expense. (Compl. at 1-4.)

Plaintiff also claims that the two-appliance policy violates the Due Process Clause because he is no longer able to keep his legally-owned property. In this regard, plaintiff alleges that prison officials took three games away from him as a result of the new policy. In addition, plaintiff alleges that hot-pots and fans should be exempt from the policy because they are a medical necessity for some inmates. For example, plaintiff alleges that Mule Creek State Prison does not have air conditioned cells and inmates who are part of the mental health delivery system are extremely heat sensitive as a result of their medications. Plaintiff also alleges that hot-pots are necessary to heat food and boil water if the water is contaminated. (Compl. at 5-9 & 10-12.)

Plaintiff seeks an injunction prohibiting implementation of the two-appliance policy, requiring prison officials to re-write the policy to allow male inmates the same number of appliances as female inmates, allowing for medical necessity exemptions for certain inmates and ordering prison officials to articulate new guidelines to allow prisoners to come to terms with the two-appliance policy through attrition. (Compl. at 4, 8-9 & 12).

DEFENDANTS' MOTION TO DISMISS

I. Defendants' Motion

Defendants argue that plaintiff's complaint should be dismissed because his request for injunctive relief under the Equal Protection Clause has been rendered moot, and his claim under the Due Process Clause fails to state a cognizable claim for relief. (Defs.' Mot. to Dismiss at 1.)

First, defendants argue that, under the revised inmate property schedule, both male and female prisoners are allowed to possess three electrical appliances as well as battery-operated fans and razors. Defendants maintain that there is no existing disparity in the number of appliances male and female prisoners may keep in their cells. In this regard, defendants contend that the facts fatally undermine plaintiff's claim and render his request for injunctive relief moot. (Defs.' Mot. to Dismiss at 4 & 7-8.)

Defendants also argue that plaintiff has no cognizable property interest in maintaining personal possessions within a California prison. Specifically, defendants argue that state regulations have vested wardens and superintendents with the right to control a prisoner's possession of personal property within their institutions. A prisoner may only possess those items permitted by institutional policy, and when a prisoner comes to possess personal property barred by institutional policy, he must send it home at his expense, donate it to a charitable organization, or donate it to the institution. In the alternative, defendants argue that, even if plaintiff has a cognizable property interest at stake, due process protects prisoners only from conditions constituting an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Defendants maintain that regulating a prisoner's possession of property presents neither an atypical nor significant hardship. (Defs.' Mot. to Dismiss at 6-7.)

For the foregoing reasons, defendants conclude that the court should grant their motion to dismiss and dismiss this action in its entirety. (Defs.' Mot. to Dismiss at 9.)

II. Plaintiff's Opposition

In opposition, plaintiff argues that although the California Department of Corrections and Rehabilitation (CDCR) rewrote its policy to allow male and female inmates to possess the same number of appliances after he filed his complaint, his claims should not be dismissed. Specifically, plaintiff argues that he has a cognizable interest in the property CDCR previously allowed him to purchase. Plaintiff argues that CDCR does not have the right to "steal" his property by labeling it contraband simply because the property no longer meets CDCR guidelines or ...


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