Opinion
C078534
03-26-2018
MICHAEL CLARK, Plaintiff and Appellant, v. SCOTT KERNAN, as Secretary, etc., et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2014-00158968-CU-MC-GDS)
In February 2014, while an inmate at High Desert State Prison in Susanville, plaintiff Michael Clark sued defendants, the secretary of the Department of Corrections and Rehabilitation and the warden at High Desert State Prison, over the implementation of a rule prohibiting inmates at High Desert State Prison from possessing certain personal property, including long-handled tooth brushes, nail clippers, cream-filled pastries and cookies, stringed instruments, razors, open-toed slippers, and sweatpants and shorts with drawstrings. Clark sought declaratory and injunctive relief; he did not seek monetary damages.
The trial court sustained defendants' demurrer to Clark's verified complaint without leave to amend. Clark appeals.
While this case was pending on appeal, Clark was transferred to Corcoran State Prison, and thus is no longer subject to the rule that formed the basis of his complaint. Given the limited nature of his lawsuit and the relief sought, any order invalidating the subject rule, which applies only to inmates at High Desert State Prison, would not affect Clark in any way. Accordingly, his appeal is moot. (See Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 257.)
In his supplemental reply brief, Clark urges this court to exercise its discretion to resolve the legal issues raised. He argues that the case is of public interest and affects all inmates within the Department of Corrections and Rehabilitation. The thrust of his complaint is that the rule constitutes an underground regulation because it was not promulgated pursuant to the Administrative Procedures Act (Gov. Code, §11340 et seq.; hereafter APA). The Fourth District has already issued a published decision holding that a "local rule," such as this, that applies only to the inmates at a particular prison is not subject to the APA. (In re Garcia (1998) 67 Cal.App.4th 841.) Moreover, the substance of the rule at issue (possession of long-handled toothbrushes, etc.) is not a matter of public importance. In Garcia, the court opted to exercise its discretion even though the appeal may have been technically moot where a similar challenge was pending and the rule at issue involved correspondence between inmates at other prisons. Communication is different from the possession of certain snacks and toiletries.
DISPOSITION
The appeal is dismissed as moot. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
Blease, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.