(PC) Thomas v. Fry

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA OTIS MICHAEL THOMAS, No. 2:19-cv-1041 KJM CKD P 12 Plaintiff, 13 v. ORDER J.C. FRY, et al., 15 Defendants.

17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 On October 27, 2021, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Defendants have filed objections to the findings and recommendations.

24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this matter. Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by proper analysis. The court writes separately to emphasize that resolution of the motion before the court turns on the fact that defendants have not yet put forward any evidence to justify the prison regulation plaintiff challenges that on its face discriminates between male and female inmates. Assuming without deciding that the test announced in Turner v. Safley, 482 U.S. 78 (1987) applies to plaintiff’s claim against defendant Diaz, the first factor in the Turner test requires prison officials to “put forward” a “legitimate government interest” to justify the challenged regulation, so the court can assess whether there is a “‘valid, rational connection’” between the regulation and the asserted interest. Id. at 89. At this stage, defendants have tendered no evidence that sheds any light on the reason for the challenged regulation.

8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed October 27, 2021, are adopted in full; 10 2. Defendants’ motion to dismiss (ECF No. 41) is denied; and 11 3. Defendants Diaz and Allison shall file an answer within 14 days.

12 DATED: January 4, 2023.