Schrubb v. Tilton et al

Filing 78

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AFTER REMAND. ***Civil Case Terminated. Signed by Judge Thelton E. Henderson on 08/20/2014. (tmi, COURT STAFF) (Filed on 8/21/2014) (Additional attachment(s) added on 8/21/2014: # 1 Certificate/Proof of Service) (tmi, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KEVIN R. SCHRUBB,

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Plaintiff,

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
AFTER REMAND

v.
JAMES TILTON, SECRETARY, et. al.,

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(Doc. #58)

Defendants.

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United States District Court
For the Northern District of California

No. C-08-2986 TEH (PR)

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On June 2, 2008, Plaintiff, a California prisoner
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currently incarcerated at California Men’s Colony, filed this pro se
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civil rights action under 42 U.S.C. § 1983 alleging that officials
at Pelican Bay State Prison (PBSP) violated his constitutional
rights while he was incarcerated at that facility.

Specifically,

Plaintiff alleged he was deprived of several items of personal
property he ordered from prison-approved vendors, including a cap
and a pair of shorts, and two children’s books he ordered for his
toddler son that inadvertently were sent to him in prison.
Plaintiff alleged this deprivation of property violated his right to
due process.

Plaintiff also alleged an equal protection violation.

On March 29, 2010, the Court issued an Order Granting
Defendants’ Motion to Dismiss and for Summary Judgment.

Doc. #42.

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On the same day, the Court entered judgment in favor of Defendants.

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Doc. #43.

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Circuit issued an Order affirming the judgment except for one claim

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which was reversed and remanded.

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Plaintiff appealed and, on May 10, 2013, the Ninth

Doc. #50.

The Ninth Circuit held that Plaintiff had filed two

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grievances with respect to his cap and shorts--(1) a grievance

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regarding the prison’s mail-out policy as applied to the cap and

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shorts, and (2) a grievance regarding the destruction of the cap and

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shorts--and that it was an abuse of discretion for this Court to

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treat these grievances as one when analyzing whether Plaintiff had

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exhausted them.

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The Ninth Circuit directed that, on remand, even if the

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Court found that the mail-out claim was exhausted, it should

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determine whether the property destruction grievance was properly

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exhausted or subject to improper screening.

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that, in regard to the property destruction grievance, there was no

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evidence that Plaintiff had received notice that his cap and shorts

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had been destroyed.

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The Ninth Circuit noted

The Court issued an Order for briefing after remand.

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Thereafter, Defendants filed a motion for summary judgment.

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than addressing exhaustion of Plaintiff’s due process claim based on

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the destruction of his cap and shorts, Defendants address the merits

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of the claim and move for summary judgment on the ground that there

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are no material facts in dispute and therefore they are entitled to

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judgment as a matter of law.

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that, assuming their actions are found to be unconstitutional, it

Defendants argue in the alternative

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Rather

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would not have been clear to a reasonable official that such conduct

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was unlawful and that therefore they are entitled to qualified

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immunity.1

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filed a reply.

Plaintiff has filed an opposition, and Defendants have

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II

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The following facts are undisputed unless otherwise noted.

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A

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On or around August 23, 2005, Plaintiff received a knit
cap and shorts he had ordered through the mail from a prison-

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approved vendor.

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small.

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cap was no longer allowed.

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send both items back to the vendor.

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Id.

Doc. #1 at 10.

The shorts were several sizes too

Plaintiff was informed by a staff member that the knit
Id. at 10 & 25.

Plaintiff elected to

Id.

On September 9, 2005, in response to Plaintiff’s inquiry

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regarding the status of the items, Plaintiff was informed that he

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did not have sufficient funds in his prison account ($6.00) to

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return the items to the vendor.

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Doc. #1 at 28.

On September 22, 2005, Plaintiff informed PBSP that he was

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unable to obtain the $6.00 needed to return the items.

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30.

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Id.

Doc. #1 at

He asked to be notified of any decision to destroy the items.

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On November 15, 2005, Plaintiff sent PBSP officials

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Defendants also filed a motion to dismiss the remaining due
process claim as against individual defendants Tilton, Horel, and Yax
on the grounds that Plaintiff failed to show a causal connection
between them and the alleged due process violation. As set forth
below, the Court finds that Defendants are entitled to summary
judgment on Plaintiff’s remaining claim, thereby obviating the need
to address the motion to dismiss.

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sixteen postage stamps and asked them to return the items for him.

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Doc. #1 at 32.

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On December 2, 2005, PBSP officials informed Plaintiff

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that, per PBSP Operational Procedure No. 806, they were unable to

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use postage stamps to return the items and explained that “all items

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must go out via [United Parcel Service] for tracking purposes.”

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Doc. #1 at 34.

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On December 20, 2005, Plaintiff informed PBSP officials

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that due to his indigency, he was unable to pay for United Parcel

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Service shipping to return the items to the vendor.

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PBSP officials suggested that Plaintiff get someone to supply him

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with funds, which is the way Plaintiff was able to receive his

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quarterly package.

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provide[s] me with quarterly packages will not send me any funds, as

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my account will bear out, because I have shown a propensity to

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misuse my money.”

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correspondence, Plaintiff asked if he could use his “indigent

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envelopes as payment.”

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that he could not.

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Id.

Doc. #1 at 36.

Plaintiff responded that “the person who

Id. at 38 (emphasis in original).

Id.

In the same

On January 5, 2006, staff advised him

Id.

In letters dated January 10, 2006, March 28, 2006, and

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June 3, 2006, Plaintiff again asked to be provided with notice

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before PBSP destroyed the property.

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Doc. #1 at 42, 44, 57.

On June 4, 2006, Plaintiff submitted a CDCR form 602

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Inmate/Parolee Appeal Form grieving PBSP’s refusal to allow him to

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return the knit cap and shorts using United States Postal Service

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postage stamps (“mail-out appeal”).

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Doc. #1 at 60.

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On June 13, 2006, the PBSP appeals coordinator screened

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out Plaintiff’s appeal, checking a box that noted the appeal

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“exceeds the 15 working days time limit, and the inmate has failed

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to offer a credible explanation as to why he could/did not submit

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the appeal within the time limit.”

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coordinator also included a handwritten note that read:

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told you could not mail out property with $6.00 [in] Jan. 2006.”

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Id.

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Doc. #1 at 59.

The appeals
“You were

On August 28, 2007, PBSP officials notified Plaintiff that

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the thirty-day waiting period on his disallowed property, which had

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been in PBSP storage since November 2006, had expired, and that his

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property was destroyed on March 19, 2007 in accordance with

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PBSP/CDCR policy.

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Doc. #1 at 14, 73.

On September 8, 2007, Plaintiff submitted a CDCR form 602

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Inmate/Parolee Appeal Form grieving PBSP’s disposal of his

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disallowed property (“property destruction appeal”).

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On September 10, 2007, the PBSP appeals coordinator
screened out Plaintiff’s appeal, explaining:
There has been too great a TIME LAPSE
between when the action or decision occurred and
when you filed your appeal with no explanation
of why you did not or could not file in a timely
fashion. Time limits expired per CCR 3084.6(c).
Therefore, if you would like to pursue this
matter further, you must submit an explanation
and supporting documentation explaining why you
did not or could not file your appeal timely.
YOUR “ISSUE” OF DISALLOWED PROPERTY BEGAIN
ON 1-10-06. THE FACT THAT YOU WERE RECENTLY
NOTIFIED OF ITS DISPOSITION DOES NOT PROVIDE YOU
WITH A NEW APPEAL ISSUE AND/OR NEW APPEAL TIME
CONSTRAINTS.

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Doc. #1 at 75.

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Doc. #1 at 79.

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B

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Plaintiff received a copy of PBSP Operational Procedure

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No. 806 and read it before he ordered his shorts and cap from the

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vendor.

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relevant part:

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Doc. #32 at 59.

Operational Procedure No. 806 provides, in

Personal Property Package Vendor Criteria

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. . . .

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PBSP/CDCR shall not be a part of any
discrepancies between the vendor and the
purchaser. The vendor is responsible to correct
any errors in package contents. When an
incorrect item is received in a vendor package,
CDCR staff shall verify and may contact the
vendor to request a UPS call tag in order to
ship the incorrect item back to the vendor.

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A verified copy of the shipping invoice
shall be maintained in the corresponding
inmate’s property file in order to assist in the
resolution of any disputes between the vendor
and the purchaser. However, all disputes are
solely between the purchaser and the vendor and
must be settled without additional involvement
of PBSP and/or CDCR.

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. . . .

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Processing Disapproved Property

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Unauthorized inmate property, . . . shall
be disposed of in accordance with the provisions
of this section.

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. . . .

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3.

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Mail Out

At the inmate’s expense, send the property
to an agreeable correspondence via UPS. This
option is not available for inmates with
insufficient funds in their trust account.

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4.

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Appeal

File a [CDCR] 602, Inmate/Parolee Appeal
Form. Should the inmate desire to appeal, which
is one of the options, they must annotate and
sign the agreement form/Property Disposition
form to secure the right to appeal. Should an
inmate refuse to sign an agreement form
indicating one of the above choices, two
officers/witnesses shall document the refusal on
a [CDCR form] 128-B.

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Doc. #24 at 5, 24–25 & 33 (PBSP Operational Procedure No. 806,

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Sections VI. K & Y (emphasis added)).

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An inmate with excess or non-permitted property may

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voluntarily submit his property to prison officials for shipping.

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Ducart Decl., Doc #24, at 2.

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withdrawal form” to pay for the shipping costs.

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hold is placed on the inmate trust account to allow the inmate time

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to obtain the necessary funds to pay the shipping costs.

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the funds are not available after thirty-days, the property is

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disposed of or donated.

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The inmate must sign a “trust account
Id.

A thirty-day

Id.

If

Id.

Currently, PBSP uses FedEx as the common carrier to ship

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inmates’ personal property.

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ship his items, PBSP used UPS to ship inmates’ personal property.

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Id.

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common carrier identifies each parcel with a tracking number without

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additional charge.

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determine if the parcel was received by the addressee.

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the tracking number, an inmate or addressee could claim that a

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parcel was never delivered when it had been.

Id.

At the time Plaintiff sought to

PBSP requires inmates to use a common carrier because the

Id.

The tracking number permits PBSP to

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Id.

Id. at 2-3.

Without

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III

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A

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Summary judgment is properly granted when no genuine

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disputes of material fact remain and when, viewing the evidence most

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favorably to the non-moving party, the movant is clearly entitled to

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prevail as a matter of law.

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v.Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N.

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Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).

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the burden of showing there is no material factual dispute.

Fed. R. Civ. P. 56(c); Celotex

The moving party bears

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Celotex, 477 U.S. at 331.

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the opposing party’s evidence, if supported by affidavits or other

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evidentiary material.

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court must draw all reasonable inferences in favor of the party

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against whom summary judgment is sought.

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Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel

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Corp. v. Harford Accident & Indem. Co., 952 F.2d 1551, 1559 (9th

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Cir. 1991).

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Therefore, the Court must regard as true

Id. at 324; Eisenberg, 815 F.2d at 1289.

The

Matsushita Elec. Indus.

The moving party bears the initial burden of identifying

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those portions of the pleadings, discovery and affidavits which

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demonstrate the absence of a genuine issue of material fact.

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Celotex, 477 U.S. at 323.

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production, the burden then shifts to the opposing party to produce

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“specific evidence, through affidavits or admissible discovery

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material, to show that the dispute exists.”

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Inc., 929 F.2d 1404, 1409 (9th Cir 1991), cert. denied, 502 U.S. 994

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(199); Nissan fire & Marine Ins. Co. v. Fritz Companies, Inc., 210

If the moving party meets its burden of

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Bhan v. NME Hosps.,

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F.3d 1099, 1105 (9th Cir. 2000).

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Material facts which would preclude entry of summary

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judgment are those which, under applicable substantive law, may

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affect the outcome of the case.

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which facts are material.

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242, 248 (1986).

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cannot defeat a motion for summary judgment.

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San Diego, 84 F.3d 1162, 1168-70 (9th Cir. 1996), rev’d on other

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grounds by Acri v. Varian Associates, Inc., 114 F.3d 999 (9th Cir.

The substantive law will identify

Anderson v. Liberty Lobby, Inc., 477 U.S.

Questions of fact regarding immaterial issues
Reynolds v. County of

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1997).

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sufficient evidence for a reasonable jury to return a verdict for

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the nonmoving party.

A dispute as to a material fact is genuine if there is

Anderson, 477 U.S. at 248.

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B

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In his Complaint, Plaintiff alleges that PBSP officials

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violated his right to due process when they confiscated his cap and

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shorts.

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argue that, because California prison regulations limit a prisoner’s

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right to possess property while in prison, Plaintiff had no right to

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possess the cap and shorts in the first place, and that therefore

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they are entitled to summary judgment as a matter of law on his due

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process claim.

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In their pending motion for summary judgment, Defendants

Prisons often ban or limit inmates’ possession of certain

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types of personal property while incarcerated.

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itself does not confer specific property interests.

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Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).

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The Constitution
See Board of
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property interest that has been initially recognized and protected

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by state law may be protected under the Due Process Clause of the

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Fourteenth Amendment, however.

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(1976); Roth, 408 U.S. at 577 (protected property interests “stem

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from an independent source, such as state law -- rules or

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understandings that secure certain benefits and support claims of

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entitlement to those benefits.”).

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must be a “legitimate claim of entitlement to it.”

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See Paul v. Davis, 424 U.S. 693, 710

To assert such an interest, there
Id.

State law creates a “legitimate claim of entitlement” when

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it “imposes significant limitations on the discretion of the

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decision maker.”

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1102 (9th Cir. 2010) (citation and internal quotation marks

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omitted).

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interest that may not be withdrawn without procedural safeguards

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only if mandatory language in the law substantively restricts the

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discretion of state officials.

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472 (1983); see, e.g., Castle Rock v. Gonzales, 545 U.S. 748, 755-66

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(2005) (finding no protected property interest in enforcement of

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restraining orders in part because relevant provisions of state law

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did not truly make enforcement of restraining orders mandatory);

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Bugler v. U.S. Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995)

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(finding no protected property interest in inmate UNICOR job

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assignments); Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir. 1984) (no

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protected interest in property designated by prison as contraband);

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Arney v. Simmons, 923 F. Supp. 173, 177 (D. Kan. 1996) (no property

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interest in inmate benefit fund).

Braswell v. Shoreline Fire Dep’t, 622 F.3d 1099,

In other words, state law may create a protected property

See Hewitt v. Helms, 459 U.S. 460,

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Hewitt’s mandatory-language methodology may not apply to

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property interest claims by prisoners any longer.

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Conner, 515 U.S. 472, 477-84 (1995), the Supreme Court expressly

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rejected Hewitt’s methodology in the context of prison liberty

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interests.

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process only if the restraint on his liberty of which he complains

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imposes “atypical and significant hardship on the inmate in relation

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to the ordinary incidents of prison life.”

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split on whether the rationale of Sandin should be extended to

In Sandin v.

It held that a prisoner is entitled to procedural due

Id. at 484. Courts are

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property interest claims arising from prison conditions.

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Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999) (extending

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Sandin’s atypical-and-significant-deprivation methodology to

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property claims by prisoners) and Abdul-Wadood v. Nathan, 91 F.3d

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1023, 1025 (7th Cir. 1996) (suggesting that Sandin applies to

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property interest claims brought by prisoners) with Bugler v. U.S.

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Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (declining to

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extend Sandin’s methodology to property interest claims by

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prisoners) and Woodard v. Ohio Adult Parole Auth., 107 F.3d 1178,

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1182-83 (6th Cir. 1997) (noting that “the Supreme Court has made it

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clear that both state law and the Due Process Clause itself may

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create [a liberty] interest,” while the prevailing doctrine

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instructs that “state law controls as to the existence of a property

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interest”).

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Compare

The United States Court of Appeals for the Ninth Circuit,

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in two unpublished decisions, has suggested opposite results.

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Compare Martin v. Upchurch, 67 F.3d 307 (9th Cir. 1995) (concluding

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prisoner had no property interest in his prison job because state

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law left prisoners’ employment to discretion of prison officials)

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(unpublished disposition) with Emil v. Crawford, 125 F. App’x 112,

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112-13 (9th Cir. Feb. 16, 2005) (citing Sandin’s “atypical and

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significant hardship” language, the district court’s dismissal of

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prisoner’s action was proper “because his allegations--that he was

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charged for prescription drugs, including drugs he did not receive,

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that he was required to pay for copies, . . . and that he was denied

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canteen privileges--do not state a constitutional claim.”)

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(unpublished disposition).

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Ninth Circuit have no precedential effect.

However, unpublished opinions by the
See 9th Cir. R. 36-3.

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Because it is not clear from existing case law whether the

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rationale of Hewitt or Sandin should be applied to property interest

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claims arising from prison conditions, the Court will evaluate

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Plaintiff’s claim under both standards.

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Under Hewitt, state law may create a protected property

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interest that may not be withdrawn without procedural safeguards

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only if mandatory language in the law substantively restricts the

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discretion of state officials.

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65 F.3d at 50 (no property interest in inmate UNICOR job

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assignments); Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir. 1984) (no

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protected interest in property designated by prison as contraband);

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Owens v. Ayers, 2002 WL 73226, at *2 (N.D. Cal. Jan. 15, 2002) (no

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protected interest to property in prison in California); Arney v.

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Simmons, 923 F. Supp. 173, 177 (D. Kan. 1996) (no property interest

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in inmate benefit fund).

See Hewitt, 459 U.S. at 472; Bugler,

In California, Plaintiff does not have a

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general right to possess property in prison.

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Regulations, title 15, section 3192 provides that “[a]n inmate’s

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right to inherit, own, sell or convey real or personal property does

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not include the right to possess such property within the

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institutions/facilities of the department.”

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(2005).

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of Regulations further limit a prisoner’s rights to personal

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property, including canteen, mail, and library privileges.

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e.g., 15 C.C.R. §§ 3090 et seq. (canteen privileges); §§ 3120 et

California Code of

15 C.C.R. § 3192

Several other sections of title 15 of the California Code

See,

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seq. (library access); §§ 3130 et seq. (outside mail).

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PBSP Operational Procedure 806 specifically allows for disposal of

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property for which an inmate cannot pay shipping costs.

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does not cite any state law or prison regulation that authorizes or

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entitles him to possess personal property in prison.2

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Plaintiff does not have a legitimate claim of entitlement to possess

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personal property in prison.

Finally,

Plaintiff

Therefore,

Without such a property interest,

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Plaintiff asserts that, with regard to the cap, PBSP was
required to provide him with a Notification of Disapproval Form
pursuant to Operational Procedure 806, VI, C, 4. Doc. #76 at 7. This
provision, however, only applies to disapproved books and
publications.
See Doc. #76 at 27.
With regard to the shorts,
Plaintiff asserts that PBSP was required to contact the vendor and
request a UPS call tag in order to ship the item back at no cost to
the inmate, pursuant to Operational Procedure 806, VI, K. Doc. #76
at 7.
To the contrary, this provision, which is copied above in
relevant part, states that staff “may” contact a vendor, but makes
explicit that PBSP “shall not be a part of any discrepancies between
the vendor and the purchaser” and that “all disputes are solely
between the purchaser and the vendor and must be settled without
additional involvement of PBSP and/or CDCR.” See Doc. #76 at 43-44.
Inexplicably, Plaintiff attaches several of the aforementioned
portions of the California Code of Regulations and PBSP Operational
Procedures to his opposition papers, which directly refute his
argument that he has any claim of entitlement. See Doc. #76 at 24-84.

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Plaintiff’s due process claim based on a property interest fails as

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a matter of law.

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Plaintiff's claim also fails as a matter of law under the

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Sandin analysis because PBSP’s Operational Procedure, which imposes

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limited restrictions on an inmate’s right to possess certain types

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of property, does not amount to an atypical or significant hardship

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as a matter of law.

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(8th Cir. 2002) (no due process claim for deprivation of television,

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certain property, access to commissary and restrictions on outdoor

See Rahman X v. Morgan, 300 F.3d 970, 973-74

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exercise for twenty-six months); Cosco v. Uphoff, 195 F.3d 1221,

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1224 (10th Cir. 1999) (new prison regulation which limited the type

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and quantity of individual property in cells was not an atypical,

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significant deprivation); Frazier v. Coughlin, 81 F.3d 313, 317 (2d

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Cir. 1996) (loss of commissary, recreation, package, and telephone

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privileges did not amount to an atypical and significant

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deprivation); Bales v. Ault, 2004 WL 42647, at *6-7 (N.D. Iowa Jan.

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8, 2004) (deprivation of electric razor not atypical); Owens v.

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Ayers, 2002 WL 13226, at *5 (N.D. Cal. Jan. 15, 2002) (“Under

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Sandin, separating an inmate from his property for a mere three

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months would not amount to an atypical and significant hardship on

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the inmate in relation to the ordinary incidents of prison life.”);

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Warren v. Irvin, 985 F. Supp. 350, 353 (W.D.N.Y. 1997) (denial of

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telephone, packages, commissary, earphones, movies, television, and

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third shower “does not represent the type of deprivation which could

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reasonably be viewed as imposing atypical and significant hardship

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on an inmate”).

Again, to be clear, Plaintiff was deprived of a cap

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and shorts.

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property interests have been upheld under Sandin, the property loss

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at issue here plainly was not atypical or significant.

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Given that deprivations of substantially larger

In sum, because Plaintiff did not have a possessory right

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to his shorts or cap while in prison, he was not entitled to due

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process, and Defendants are therefore entitled to summary judgment

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on this ground alone.

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2

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Even assuming a right that could be protected through the

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Due Process Clause, Plaintiff received all the process that would be

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due.

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notice and an opportunity to be heard before the government may

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deprive a person of a protected interest.

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Loudermill, 470 U.S. 532, 542 (1985).

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in Nev. Dep’t. of Corrections v. Greene, 648 F.3d 1014 (9th Cir.

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2011) is on point.

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changed its policy, which change created a ban on inmate possession

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of typewriters.

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inmates were notified of the new policy.

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choice of shipping the typewriters out of the prison, donating the

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typewriters, or destroying them.

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inmate in Greene was not given an individual pre-deprivation

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hearing, the Ninth Circuit found that his due process rights were

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not violated because he had been notified of the ban and given ample

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time to comply with it.

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prisoners, that is all the process that is due.”

The fundamental requirements of procedural due process are

The Ninth Circuit’s decision

In Greene, the Nevada Department of Corrections

Id. at 1017.

The ban was system-wide, and all

Id.

Id.

Inmates had the

Even though the plaintiff

“With respect to the personal property of

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Cleveland Bd. of Educ. v.

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See id. at 1019;

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see also Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (“[T]he fact

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that prisoners retain rights under the Due Process Clause in no way

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implies that these rights are not subject to restrictions imposed by

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the nature of the regime to which they have been lawfully

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committed.”).

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Here, it is undisputed that Plaintiff had knowledge of

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PBSP Operational Procedure 806 and that he knew the shorts and cap

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would be destroyed if he did not pay the shipping costs within

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thirty days of submitting the items for shipment.

As discussed

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above, Plaintiff admits he received a copy of Operational Procedure

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806 and read it before even ordering the shorts and cap.

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discussed above, when an inmate submits property for shipping, he is

13

notified of the shipping costs, and a thirty-day hold is placed on

14

the inmate’s trust account to allow time to obtain the necessary

15

funds.

16

property is disposed of or donated.

17

notified of any decision to destroy the items in his September 22,

18

2005 letter.

19

Plaintiff again inquired whether the shorts and cap had been

20

destroyed.

21

cap were subject to disposal.

22

As also

If the funds are not available after thirty days, the
Here, Plaintiff asked to be

In his January 10, March 28, and June 3, 2006 letters,

These letters show that Plaintiff knew the shorts and

Further, Plaintiff had ample time to pay the $6.00

23

shipping fee in accordance with Operational Procedure 806.

24

Plaintiff sought to return the property on or around August 23,

25

2005.

26

have sufficient funds.

On September 9, 2005, PBSP informed Plaintiff that he did not
On December 2, 2005, PBSP informed Plaintiff

27
28

16

1

that the prison was unable to use his postage stamps to return the

2

items.

3

from another person.

4

advised that he could not use postage to send out the items.

5

Ultimately, the shorts and cap were not destroyed until March 19,

6

2007, nearly nineteen months after Plaintiff sought to return them

7

to the vendor.

8

Operational Procedure 806.

9

On December 20, 2005, staff advised Plaintiff to seek funds
On January 5, 2006, Plaintiff was again

This is far beyond the thirty days provided by

In sum, Plaintiff had advance notice that the shorts and

10

cap were subject to destruction and had ample time to comply with

11

Operational Procedure 806 if he wanted the items shipped out.

12

This is all the process he was due.

13

See Greene, 648 F.3d at 1019.

Indeed, although not required by Greene, Plaintiff also

14

had an opportunity to be heard through the inmate grievance process

15

before the items were destroyed.

16

administratively appeal “any policy, decision, action, condition, or

17

omission by the department or its staff.”

18

Plaintiff could have filed a grievance concerning prison policy

19

relating to the confiscation and mail-out requirements as soon as he

20

submitted them for return to the vendor on August 23, 2005.

Instead

21

he waited until June 4, 2006 to submit his mail-out appeal.

This

22

was screened out as untimely.

23

properly utilize the grievance process, the process was available to

24

him and offered him the opportunity to be heard before the property

In California, inmates may

In sum, although he failed to

25
26
27
28

15 C.C.R. § 3084(a).

17

1

was destroyed.3

2
3

Accordingly, Defendants are entitled to summary judgment
on Plaintiff’s remaining due process claim.

4

C

5

Defendants argue, in the alternative, that summary

6

judgment is warranted because they are entitled to qualified

7

immunity from Plaintiff’s remaining due process claim.

8

of qualified immunity protects “government officials . . . from

9

liability for civil damages insofar as their conduct does not

The defense

10

violate clearly established statutory or constitutional rights of

11

which a reasonable person would have known.”

12

457 U.S. 800, 818 (1982).

13

immunity analysis is: “Taken in the light most favorable to the

14

party asserting the injury, do the facts alleged show the officer's

15

conduct violated a constitutional right?”

16

194, 201 (2001).

17

must determine whether the plaintiff has alleged the deprivation of

18

an actual constitutional right and whether such right was “clearly

19

established.”

20

(overruling the sequence of the two-part test that required

21

determination of a deprivation first and then whether such right was

22

clearly established, as required by Saucier, and holding that court

23

may exercise its discretion in deciding which prong to address first

Harlow v. Fitzgerald,

The threshold question in qualified

Saucier v. Katz, 533 U.S.

A court considering a claim of qualified immunity

Pearson v. Callahan, 555 U.S. 223, 236 (2009)

24
25

3

27

The Ninth Circuit’s order remanding the case did not reverse
this Court’s finding that the mail-out appeal was unexhausted.
Rather, the Ninth Circuit remanded for a determination of whether the
property destruction appeal, which was pursued through a separate
grievance, was exhausted or subject to improper screening.

28

18

26

1

in light of the particular circumstances of each case).

2

is no clearly established law that certain conduct constitutes a

3

constitutional violation, a defendant cannot be on notice that such

4

conduct is unlawful.

5

964, 970-71 (9th Cir. 2009).

6

determining whether a right is clearly established is whether it

7

would be clear to a reasonable officer that his conduct was unlawful

8

in the situation he confronted.

9

Where there

Rodis v. County of San Francisco, 558 F.3d
The relevant, dispositive inquiry in

Saucier, 533 U.S. at 202.

Viewing the evidence in the light most favorable to

10

Plaintiff, the Court has determined above that Defendants’ actions

11

did not amount to a due process violation, as Plaintiff failed to

12

raise a triable issue of fact as to (1) whether he had a property

13

right implicating the Due Process Clause; and (2) assuming he had

14

such a right, whether he was given the process due.

15

Assuming arguendo there was a constitutional violation,

16

the Court nonetheless concludes that it would not have been clear to

17

a reasonable officer that the destruction of the cap and shorts

18

would be considered unlawful.

19

have no constitutional right to possess property while in prison.

20

Roth, 408 U.S. at 577; 15 C.C.R. § 3192.

21

the fundamental requirements of procedural due process are notice

22

and an opportunity to be heard, no reasonable officer would have

23

believed he was violating Plaintiff’s due process by (1) notifying

24

him that his property would be destroyed if he did not pay the

25

shipping costs, and (2) providing him ample time to respond.

26

Loudermill, 470 U.S. at 542.

As detailed above, California inmates

Indeed, Plaintiff was provided almost

27
28

Further, considering that

19

1

nineteen months to come up with the $6.00 shipping fee.

2

significantly more time than the thirty days provided by the PBSP

3

Operational Procedure.

4

832 (9th Cir. 1997) (prison officials entitled to qualified immunity

5

where no reasonable prison official would have reason to know that

6

undisputed classification procedures violated due process).

7

Plaintiff points to no law or policy, nor is the Court aware of any,

8

that would have put Defendants on notice that their actions would be

9

clearly unlawful.

This is

See, e.g., Neal v. Shimoda, 131 F.3d 818,

Accordingly, the Court finds Defendants are

10

entitled to summary judgment on the alternative ground of qualified

11

immunity.4

12

IV

13

For the foregoing reasons, Defendants’ motion for summary

14

judgment after remand (Doc. #58) is GRANTED.

15

to terminate any pending motions as moot, enter judgment in

16

accordance with this Order, and close the file.

17

The Clerk is directed

IT IS SO ORDERED.

18
19

DATED

08/20/2014
THELTON E. HENDERSON
United States District Judge

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21
22

G:\PRO-SE\TEH\CR.08\Schrubb-08-2986- MSJ 2.wpd

23
24

4

27

In his opposition, Plaintiff claims that certain defendants
violated Plaintiff’s right to use the United States Postal Service.
The Court does not reach Plaintiff’s claim as he failed to raise the
claim in his Complaint. Nor does the Court reach Plaintiff’s equal
protection arguments given that the Ninth Circuit affirmed this
Court’s earlier grant of summary judgment on the equal protection
claims.

28

20

25
26