Metropolitan News-Enterprise


Thursday, September 17, 2020


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Court of Appeal:

Male Inmate Claiming Gender Bias Can’t Sue Under Unruh Act


By Sandra Hong, Staff Writer


A male state prisoner claiming an equal protection violation because those of his gender are not permitted to buy certain food and personal care products that female prisoners can obtain, cannot maintain an action under the Unruh Civil Rights Act, the Court of Appeal for this district has held, declaring that the act does not create rights where other laws have reasonably limited them.

Garrison S. Johnson, while serving at the state prison in Lancaster, sued prison commissary vendor Walkenhorst’s Inc., alleging the company’s refusal to sell certain goods, including Kurtz BBQ Sauce and Cetaphil facial cleanser, to both male and female inmates violated the Equal Protection Clause under state and federal constitutions and California Civil Code §51, the Unruh Act, which says, in part:

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

Presiding Justice Dennis M. Perluss’s unpublished opinion, which was filed Tuesday, affirms a judgment of dismissal which followed Los Angeles Superior Court Judge Randolph Rogers’s sustaining of a demurrer without leave to amend.

Rogers dismissed Johnson’s constitutional claims on the ground that Walkenhorst’s does not qualify as a state actor and determined Johnson cannot pursue a cause of action under the Unruh Act as his rights as an inmate were limited “as is reasonably related to legitimate penological interests” under Penal Code §2600 of the California Code of Regulations. 

As such, Rogers concluded subsection (c) of the Unruh Act applies, which states:

“This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law.”

Missing Defendant

In his opinion affirming Rogers’s decision, Perluss pointed to the major defect in Johnson’s complaint of failing to name the California Department of Corrections and Rehabilitation (“CDCR”) as a defendant. Under the Penal Code, he noted, the CDCR has rulemaking authority to limit what private vendors such as Walkenhorst’s may sell for safety reasons or otherwise.

 “The CDCR regulations and policies also specify what personal property items an inmate may possess and create ‘privilege groups’ within the general prison population that further expand or limit the rights of inmates,” Perluss wrote.

The case is Johnson v. Walkenhorst’s, B290884.

Johnson represented himself. Counsel for Walkenhorst was Stephen M. Caine of Thompson Coe in Los Angeles and Donna G. Marks of Law Offices of John A. Hauser in Brea.

Supreme Court Decision

Johnson was plaintiff in a lawsuit filed against the state prison system alleging that  the use of race in assigning new inmates a cellmate violates the Equal Protection Clause. The case reached the U.S. Supreme Court.

Writing for the majority, then-Justice Sandra Day O’Connor (now retired) said:

“We do not decide whether the CDC’s policy violates the Equal Protection Clause. We hold only that strict scrutiny is the proper standard of review and remand the case to allow the Court of Appeals for the Ninth Circuit, or the District Court, to apply it in the first instance.”

In that case, Johnson v. California, “intermediate scrutiny” was applied. The case was cited in an Aug. 21  Ninth U.S. Circuit Court of Appeals opinion by Judge Richard C. Tallman.

That opinion, in Harrison v. Kernan, reverses a grant of summary judgment to California prison officials in an action paralleling that brought by Johnson in state court, with the plaintiff contending that he should be able to buy such items as are available to female inmates. Tallman said a magistrate judge employed the wrong standard in finding that the regulation in issue is “reasonably related to legitimate penological interests.”


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