FILED
NOT FOR PUBLICATION MAY 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN R. SCHRUBB, Sr., No. 10-15927
Plaintiff - Appellant, D.C. No. 3:08-cv-02986-
TEH
v.
JAMES E. TILTON, Secretary of CDCR; MEMORANDUM*
ROBERT A. HOREL, Warden, Pelican Bay
State Prison; M.D. YOX, Associate Warden,
Pelican Bay State Prison; C. E. DUCART,
Correctional Officer; A. SPALDING,
Correctional Officer,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, Senior District Judge, Presiding
Argued and Submitted April 19, 2013
San Francisco, California
Before: NOONAN, O’SCANNLAIN and N.R. SMITH, Circuit Judges.
1. Assuming Schrubb had a protected property interest in the children’s books,
we find no procedural due process violation where the prison gave Schrubb ample
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
notice of the prison’s mail out policy, which is apparently applied to both
unauthorized and unwanted property. See Nev. Dep’t of Corr. v. Greene, 648 F.3d
1014, 1019 (9th Cir. 2011). The prison also gave Schrubb plenty of opportunity to
comply with that policy, allowing ample time for Schrubb to raise funds to pay for
shipment of the books. Id.
2. We do not reach Schrubb’s substantive due process claim as he failed to raise
this claim in the district court and cannot raise it for the first time on appeal. See
Spurlock v. FBI, 69 F.3d 1010, 1017 (9th Cir. 1995).
3. There was no equal protection violation. The prison demonstrated a “valid,
rational connection” between (1) the requirement of using a common carrier (i.e.,
requiring a tracking number) for shipment of all packages and the legitimate
government interest of defeating potential claims that a package was never
received; and (2) the policy that Receiving and Release will hold prisoner property
for only a limited amount of time and the legitimate government interests of
avoiding the financial burden of effectively maintaining a prisoner storage facility.
See Turner v. Safley, 482 U.S. 78, 89 (1987).
4. Schrubb initiated two grievances with respect to his cap and shorts: (1) a
grievance regarding the prison’s mail out policy as applied to the cap and shorts,
and (2) a grievance regarding the destruction of the cap and shorts. It was an abuse
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of discretion for the district court to treat these grievances as one when analyzing
whether Schrubb exhausted the property destruction grievance. Indeed, at oral
argument on appeal, the prison conceded that these grievances constitute two
separate claims. The prison carries the burden of proof to show nonexhaustion.
Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). While the notice of
property destruction purports to notify Shrubb that his property was destroyed on
March 19, 2007, there is no evidence that Schrubb received this notice. Schrubb’s
September 5, 2007 letter suggests to the contrary where he wrote to inquire about
whether the destruction had occurred. Even if the mail out claim was unexhausted,
on remand the district court should determine whether the property destruction
grievance was exhausted or subject to improper screening.
Each party shall bear its own costs.
AFFIRMED in part; REVERSED and REMANDED in part.
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