In re Kakowski CA4/1

Filed 2/28/24 In re Kakowski CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re BRIAN KAKOWSKI D080001

on (San Diego County Super. Ct. No. HSC11878) Habeas Corpus.

Original proceeding on a petition for writ of habeas corpus. Order to show cause discharged and petition dismissed. Brian Kakowski, in pro. per.; and Gerald J. Miller, under appointment by the Court of Appeal, for Petitioner. Rob Bonta, Attorney General, Heather M. Heckler, and Rachael Anne Campbell, Deputy Attorneys General, for Respondent. INTRODUCTION Brian Kakowski, a prisoner in the custody of the California Department of Corrections and Rehabilitation (Department), petitions this court for writ of habeas corpus. He raises an equal protection challenge to a Department policy permitting transgender female inmates, but not cisgender male inmates, to possess certain personal hygiene items. While Kakowski’s petition was pending, the Department changed its policy so as to make the subject hygiene items available to both cisgender male inmates and

transgender female inmates. We conclude this development has made Kakowski’s petition for writ of habeas corpus moot. Accordingly, the order to show cause is discharged and the petition dismissed. BACKGROUND In February 2022, Kakowski filed with this court a petition for writ of habeas corpus challenging a Department policy that prohibited cisgender inmates housed at male institutions from accessing certain hygiene products—specifically, tweezers, emery boards, shower caps, and facial scrub—while allowing such access to transgender inmates and inmates having symptoms of gender dysphoria housed at male institutions. He asserted the policy violated his rights to equal protection. (Cal. Const., art. I, § 7, subd. (a); U.S. Const., 14th Amend.) The difference in inmate access to the specified hygiene products was the result of two sets of personal property schedules incorporated by reference in title 15, section 3190 of the California Code of Regulations. (See Cal. Code Regs., tit. 15, § 3190, subds. (b), (e).) Under the first set of schedules, the Authorized Personal Property Schedules (APPS), an inmate’s right to possess personal property depended on the type of institution (male or female) and security level in which the inmate was housed. (See Cal. Code Regs., tit. 15, § 3190, subd. (b).) In 2017, the Department added a second schedule, the newly created Transgender Inmates Authorized Personal Property Schedule (TIAPPS), which was “a separate list of allowable personal property afforded to transgender inmates and inmates with symptoms of gender dysphoria as identified and documented . . . by medical or mental health personnel within a CDCR institution.” (See Cal. Code Regs., tit. 15, § 3190, former subd. (d), now subd. (e).)