Harrison v. Kernan

• Decision Date: 21 August 2020
• Docket Number: No. 17-16823,17-16823
• Citation: 971 F.3d 1069
• Parties: David Scott HARRISON, Plaintiff-Appellant, v. Scott KERNAN; Jeffrey A. Beard, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

971 F.3d 1069

David Scott HARRISON, Plaintiff-Appellant,

v.Scott KERNAN; Jeffrey A. Beard, Defendants-Appellees.

No. 17-16823

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2020 San Francisco, California

Filed August 21, 2020

Samir Deger-Sen (argued) and Adam J. Tuetken, Latham & Watkins LLP, Washington, D.C., for Plaintiff-Appellant.

Joshua Patashnik (argued), Deputy Solicitor General; Kristin A. Liska, Associate Deputy Solicitor General; Preeti K. Bajwa, Deputy Attorney General; Misha D. Igra, Supervising Deputy Attorney General; Edward C. DuMont, Solicitor General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellees.

Before: Eugene E. Siler,^** Richard C. Tallman, and Danielle J. Hunsaker, Circuit Judges.

TALLMAN, Circuit Judge:

This case requires us to decide what level of scrutiny should be applied to equal protection challenges of prison regulations which facially discriminate on the basis of gender. Following the lead of at least two of our sister circuits, and mindful of the deference owed to prison officials in light of the special difficulties that arise in the prison context, we conclude that intermediate scrutiny applies to such claims. Because we had not yet established intermediate scrutiny as the applicable standard at the time the district court reviewed the regulation at issue in this case, we follow our normal practice of remanding to the district court to determine in the first instance whether Defendants have met the standard we outline today.

I

A

Plaintiff David Scott Harrison is a California state prisoner housed in San Quentin State Prison, California's oldest and best-known correctional institution. In 2016, Harrison, proceeding pro se, filed a civil rights suit in California superior court against two now-former secretaries of the California Department of Corrections and Rehabilitation ("CDCR" or "the Department"), Scott Kernan and Jeffrey Beard. In his complaint, brought under 42 U.S.C. § 1983, Harrison alleged that CDCR Secretary Kernan and his predecessor Secretary Beard discriminated against him based on his male gender by not allowing him to purchase certain prison vendor products available only to female inmates.¹ The Department removed the action to federal court.

Before further describing the procedural history of Harrison's suit, an explanation of the regulations under which California manages its inmate personal property regime is necessary. The following recitation of the history and specifics of the regulation Harrison challenges is drawn from the record developed over the course of summary judgment proceedings in the district court as well as the administrative record supplied to us on appeal via the Department's motion to take judicial notice.²

B

Title 15 of the California Code of Regulations outlines the procedures for determining the personal property that may be purchased from various contracted vendors by California state prison inmates at their own expense. See Cal. Code Regs. tit. 15, § 3190. The Standardized Procedures Unit of CDCR's Division of Adult Institutions oversees and administers the inmate property regime and develops Authorized Personal Property Schedules identifying allowable property an inmate may acquire and possess. Id. Until 2007, the Department maintained a single personal property schedule that applied to imprisoned men and women alike, regardless of security level or institution mission.³ Five new schedules were proposed in August 2007 and finalized in May 2008. Those schedules corresponded to different categories of institutions housing adult inmates and, because imprisoned women in California are housed at separate institutions from imprisoned men, necessarily included a separate schedule for female offender programs.

Revised again in 2014, each property schedule now corresponds to a security-driven categorization of inmates: 1) male reception center inmates; 2) Level I, II, and III male inmates in general population; 3) Level IV male inmates in general population; 4) male inmates in Administrative Segregation, Secure Housing, or Psychiatric Service Units; and 5) female inmates. Within each schedule, the type and amount of property an inmate is permitted is further determined by the inmate's privilege group.⁴

Items whose availability depends at least in part on inmate gender include, inter alia : products that contain small metal pieces or otherwise may be used as a weapon, such as hair dryers and electric curling irons, as well as bath robes, scarves, kimonos, and bath towels, which could be used for strangulation; clothing, such as denim jeans, that "would allow [inmates] to blend in with the general public" and thus could be used to disguise escaped prisoners; sugary foods that could be used to make an alcoholic beverage known as "pruno"; and items which the Department claims could give rise to disputes over gambling or money, such as necklaces and bracelets, as well as the card game Uno. For the purpose of this appeal, it is undisputed that under the current property regulation female inmates of the highest security classification housed in general population have access to more personal property than male inmates in the lowest security classification housed in general population.

C

After removing Harrison's suit to federal court, the Department moved for summary judgment. In support of its motion it submitted a nine-page declaration by Captain Bickham, commanding officer of the Department's Standardized Procedures Unit, as well as copies of the challenged regulation, the Department's Operations Manual, the property schedules, and two pages of COMPSTAT statistics from 2015.⁵ Captain Bickham's declaration also referenced and provided a link to a 2012 study by the National Gang Crime Research Center. Harrison, still proceeding pro se, opposed summary judgment in part on the basis that he had not received sufficient responses to his discovery requests, and asked for a continuance in order to conduct further discovery under Fed. R. Civ. P. 56(d).

The district court granted summary judgment in favor of the Department and denied Harrison's cross-motion, including his Rule 56(d) request, without a hearing.⁶ In its order, the district court largely recited the facts set forth in Captain Bickham's declaration. It then turned to whether Harrison's identified classes of inmates—male inmates and female inmates of the same or greater security classification—are similarly situated for the purpose of an equal protection analysis. The court concluded that the classes are not similarly situated because male and female inmates are not housed together, the facilities housing female inmates are generally smaller than the facilities for male inmates, and female inmates exhibit substantially less dangerous behavior than male inmates. Holding that Harrison had therefore failed to show that he is treated differently than a similarly situated group, the court went on to find that even if imprisoned men and women were similarly situated, Harrison still would not be entitled to relief because, under Turner v. Safley , 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the challenged regulation is "reasonably related to legitimate penological interests."

Harrison timely appealed the district court's order. After Harrison filed his pro se opening brief and the Department filed its answering brief, our Appellate Commissioner appointed pro bono counsel for Harrison, ordered replacement briefing, and directed the clerk of court to strike the previously tendered briefs.⁷ After a new round of briefing, we heard argument and submitted the case for decision.

II

In its original answering brief on appeal, the Department argued that Harrison lacked standing to pursue his equal protection claims. In its replacement (and now operative) brief, the Department concedes that Harrison has standing to challenge the existence of separate property schedules for male and female inmates but maintains that he does not have standing to challenge differences in access to any particular items of property because "he has never sought access to any specific item of property, and thus cannot establish that he has suffered concrete, particularized injury as a result of the denial of any item of property." Appellees’ Br. at 28. We address each of these positions in turn.⁸

The "irreducible constitutional minimum" of standing requires that a "plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). That constitutional minimum is met here. In his complaint, Harrison alleged that the challenged regulation "prohibit[s him] from purchasing those vendor products the same and equal to those vendor products allowed to similarly situated female prisoners, as well as allowed to those female prisoners of demonstrated greater security risk than [Harrison]." Complaint at 4–5. Thus, he has alleged that he is being denied "equal treatment under law," which is "a judicially cognizable interest that satisfies the case or controversy requirement of Article III." Davis v. Guam , 785 F.3d 1311, 1315 (9th Cir. 2015). This is true even if that equal treatment would "bring[ ] no tangible benefit to the party asserting it." Id. Accordingly, Harrison has standing to challenge the existence of separate property schedules for male and female prisoners even if he has not tried to place an order for any specific item of property listed only on the property schedule for females.

The Department's further argument that Harrison does not have standing to challenge differences in access to any specific items of property listed in the property schedules unless he has actually attempted to order them appears to us to be a...