ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on claims raised in plaintiff's complaint against defendants James Tilton, Mathew Cate and Suzan Lynn Hubbard. This matter is before the court on the parties' cross motions for summary judgment.
All facts stated herein are undisputed unless noted otherwise. At all times relevant to this action, plaintiff was incarcerated at Mule Creek State Prison ("MCSP"). James Tilton is the former Secretary of the California Department of Corrections and Rehabilitation ("CDCR"). Mathew Cate is the current Secretary of CDCR. Suzan Lynn Hubbard is the Deputy Director of CDCR.
Section 3190 of the California Code of Regulations ("CCR") governs the type and amount of personal property that inmates may possess. See 15 CCR § 3190; see also CDCR Department Operations Manual ("DOM") §§ 54030.17.1 -- 54030.17.9.3 (the "Authorized Personal Property Schedule ('APPS')" Matrix). Personal property not meeting the criteria in section 3190 will be disposed of by either mailing the property to an individual willing to accept the property (if the inmate has sufficient funds in his trust account), returning the item to the sender if the inmate has enough funds in his trust account, donating the property/items to a charitable organization as designated by the prison or to the prison, or disposing of the property/items according to prison procedures. See 15 CCR § 3191.
On August 24, 2007, a Notice of Change of Regulations ("the Notice"), which was posted at locations accessible to inmates, parolees and employees, notified the public that a hearing was scheduled concerning proposed modifications to sections 3190 and 3191 affecting the type and amount of personal property that inmates may possess. See Doc. No. 1 at 10-14.*fn1
The gravamen of plaintiff's complaint is that the proposed modifications distinguished between the type and amount of personal property that male inmates could possess compared to the type and amount of personal property that female inmates could posses. Prior to the modifications, the APPS Matrix consisted of a single schedule for all inmates, male and female. Doc. No. 1 at 24. Following the modifications, the single-schedule APPS Matrix was converted into a five-schedule matrix. The schedule that applies to a particular inmate is determined by the institution mission of the prison where he or she is housed: (1) Reception Centers (DOM § 54030.17); (2) Levels I, II, III, Male Conservation Camps and Community Correctional Facilities (DOM § 54030.18); (3) Levels III and IV (DOM § 54030.19); (4) High Security and Transitional Housing (DOM § 54030.20); and (5) Female Offenders Programs (DOM § 54030.21).
Facilities within the mission of the "Female Offenders Programs" serve as Reception Centers, providing short term housing to female inmates for initial assessment. Doc. No. 1 at 24. They also serve as long term housing and provide services to all levels of custody and security for female inmates. Id.
Under the new APPS Matrix, female inmates may possess certain items that no male inmate may possess, including specific pieces of personal clothing (personal jeans, robes, sandals, scarves); personal care and hygiene items (bath towels, body splash / spray, hair brush, cotton balls, emery boards and makeup, hair gel and spray, permanent curl / hair relaxer kit, hair ties, tweezers); food items (dried fruit and vegetables, peanut butter); miscellaneous items (antenna wire, can openers, clothes pins, eyeglass repair kits, hangers, immersion heaters, light bulbs, umbrellas); games (Scrabble, UNO); and other registerable items (chains / necklaces / bracelets / earrings, prescription glasses, rings with value not exceeding $150*fn2 ). See DOM §§ 54030.17 -- 54030.21.
The new APPS Matrix does not distinguish among female inmates on the basis of their security classifications, whereas it does distinguish between male inmates based on their security classifications. Compare DOM §§ 54030.17-54030.20 with § 54030.21.
The new APPS Matrix also sets forth limits on registerable appliances. While both male and female inmates are subject to a three-appliance limit, female inmates may possess the following appliances that male inmates may not possess: curling irons, hair dryers, electric hair rollers and pressing combs. See DOM § 54030.21.7.1. Whereas fans count toward the appliance limit for male inmates, they do not count toward the appliance limit for two of the three female institutions due to physical plant design. See id. Lastly, hot pots and immersion heaters are considered registerable appliances for male inmates, but an immersion heater does not count as a registerable appliance for female inmates, and a hot pot is not listed as a registerable item at all for female inmates.
CDCR set forth its reasons for the modifications to sections 3091 and 3191 in its "Initial Statement of Reasons" ("ISOR"), which was posted with the Notice:
Current [Division of Adult Institutions] policies provide a single property schedule for all inmates regardless of security level or institution mission. This currently makes it difficult to create incentives for inmates that program in a positive manner or to address issues specific to female offenders. Female offenders in particular have demonstrated a lower level of violence, less escape risk and a need for the building of self-esteem. [¶]
The Department weighed institutional concerns against the concerns of inmates in order to determine reasonable personal property standards. Reasons requiring the personal property standards include, but are not limited to: (1) increases staff's ability to detect contraband, drugs, and weapons; (2) reduces the ability for inmates to barter or trade; (3) reduces inmate personal property claims;
(4) provides property distinctions for the five mission-based programs; (5) reduces the ability of inmates to intimidate other inmates into relinquishing personal property; and (6) in the interest of security and safety.
The ISOR notes that "The Department, in proposing the amendments to these regulations, has not identified nor has it relied upon any technical, theoretical, or empirical study, report, or similar document." Doc. No. 1 at 16.
The ISOR also states that "[t]he personal property list is necessary due to the lack of storage space and constrictive conditions in the inmates' quarters / living area. . . . The intent is to permit the inmate population within a given mission-based program to possess as much personal property as practical, in keeping with safety and security needs." Doc. No. 1 at 15.
Plaintiff initiated this action on March 23, 2009 alleging defendants violated (1) the Equal Protection Clause by imposing disparate property requirements for male and female inmates within CDCR; (2) the Due Process Clause and ex post facto laws by depriving plaintiff of previously-approved property; and (3) the Eighth Amendment by failing to exempt certain appliances from the property requirement ...