(PC) Thomas v. Fry

Opinion

1 2 3 4 5 6 7 10 11 OTIS MICHAEL THOMAS, No. 2:19-cv-1041 KJM CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 J.C. FRY, et al., 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se with a civil action. The claims that 18 remain are a claim for damages under 42 U.S.C. § 1983 and the Equal Protection Clause of the 19 Fourteenth Amendment against former California Department of Corrections and Rehabilitation 20 (CDCR) Secretary Ralph Diaz, and a claim for injunctive relief arising under the Equal Protection 21 Clause against current CDCR Secretary Jeff Macomber. Plaintiff’s motion for a preliminary 22 injunction is before the court. 23 In his second amended complaint, plaintiff alleges that his access to products containing 24 high amounts of real sugar, such as sugar itself, syrup, honey, jelly, and certain types of candy, is 25 prohibited under CDCR regulations. It appears that plaintiff cannot purchase those items in the 26 commissary at his prison or receive such products from outside the prison. Plaintiff alleges that 27 the wardens of prisons housing females have discretion to permit the sale of products 28 ///// 1 containing high amounts of real sugar in their commissaries, and to permit their inmates to obtain 2 such products from outside the prison. 3 In his motion for a preliminary injunction, plaintiff asks that the court order CDCR to 4 institute the same policies for men and women with respect to their abilities to purchase, inside 5 and outside prison, products containing high amounts of sugar including sugar itself, syrup, 6 honey, jelly, and candy. 7 To obtain preliminary injunctive relief, plaintiff must show a likelihood of success on the 8 merits of his equal protection claim for injunctive relief, a likelihood of irreparable harm if 9 preliminary relief is not granted, that the balance of equities tips in favor of granting preliminary 10 relief, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 11 555 U.S. 7, 24–25 (2008). 12 In order to prevail on his equal protection claim for injunctive relief, plaintiff has to 13 establish by a preponderance of the evidence that he is being treated differently from others with 14 whom he is similarly situated, and that the unequal treatment is the result of intentional or 15 purposeful discrimination. Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). Even if 16 plaintiff makes that showing, he will not be entitled to relief if the defendants demonstrate that the 17 regulations at issue “serve important governmental objectives and that the discriminatory means 18 employed are substantially related to the achievement of those objectives.” (Internal quotation 19 omitted.) Harrison v. Kernan, 971 F.3d. 1069, 1076 (9th Cir. 2020). 20 At this point, plaintiff has not shown that he is likely to succeed on the merits of his equal 21 protection claim for injunctive relief as he has not adequately established that he is similarly 22 situated to female inmates who, under certain circumstances, are allowed to purchase products 23 containing a high amount of sugar. Groups of individuals are “similarly situated” when their 24 circumstances are “arguably indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609 (1974). 25 Circumstances of confinement for men and women are not “arguably indistinguishable” in a 26 general sense, most evident by the fact that not only are men and women not housed together, but 27 they are also not even housed at the same prisons. 28 As defendants point out, CDCR has regulations which concern the handling of products 1 | which contain large amounts of sugar because those products can be used by inmates to make 2 |} alcohol. ECF No. 72 at 5. Plaintiff does not show a likelihood that his being denied high-sugar 3 || products under these regulations, while certain women are permitted to obtain such products, is 4 || the product of sex-based discrimination rather than circumstances of confinement of inmates who 5 || are not similarly situated. 6 For these reasons, IT IS HEREBY RECOMMENDED that plaintiffs motion for a 7 || preliminary injunction (ECF No. 63) be denied. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 || after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 || objections shall be served and filed within fourteen days after service of the objections. The 14 | parties are advised that failure to file objections within the specified time may waive the right to 15 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 | Dated: August 17, 2023 / ae □□ / a Ly a "7 CAROLYNK.DELANEY 18 UNITED STATES MAGISTRATE JUDGE 19 20 | 1 thom1041.pi 22 23 24 25 26 27 28