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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 KEVIN R. SCHRUBB, 9 10 11 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AFTER REMAND v. JAMES TILTON, SECRETARY, et. al., 12 (Doc. #58) Defendants. 13 United States District Court For the Northern District of California No. C-08-2986 TEH (PR) / 14 I 15 On June 2, 2008, Plaintiff, a California prisoner 16 currently incarcerated at California Men’s Colony, filed this pro se 17 18 19 20 21 22 23 24 25 26 27 28 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. 1 On the same day, the Court entered judgment in favor of Defendants. 2 Doc. #43. 3 Circuit issued an Order affirming the judgment except for one claim 4 which was reversed and remanded. 5 Plaintiff appealed and, on May 10, 2013, the Ninth Doc. #50. The Ninth Circuit held that Plaintiff had filed two 6 grievances with respect to his cap and shorts--(1) a grievance 7 regarding the prison’s mail-out policy as applied to the cap and 8 shorts, and (2) a grievance regarding the destruction of the cap and 9 shorts--and that it was an abuse of discretion for this Court to 10 treat these grievances as one when analyzing whether Plaintiff had 11 exhausted them. 12 The Ninth Circuit directed that, on remand, even if the 13 Court found that the mail-out claim was exhausted, it should 14 determine whether the property destruction grievance was properly 15 exhausted or subject to improper screening. 16 that, in regard to the property destruction grievance, there was no 17 evidence that Plaintiff had received notice that his cap and shorts 18 had been destroyed. 19 The Ninth Circuit noted The Court issued an Order for briefing after remand. 20 Thereafter, Defendants filed a motion for summary judgment. 21 than addressing exhaustion of Plaintiff’s due process claim based on 22 the destruction of his cap and shorts, Defendants address the merits 23 of the claim and move for summary judgment on the ground that there 24 are no material facts in dispute and therefore they are entitled to 25 judgment as a matter of law. 26 that, assuming their actions are found to be unconstitutional, it Defendants argue in the alternative 27 28 Rather 2 1 would not have been clear to a reasonable official that such conduct 2 was unlawful and that therefore they are entitled to qualified 3 immunity.1 4 filed a reply. Plaintiff has filed an opposition, and Defendants have 5 II 6 The following facts are undisputed unless otherwise noted. 7 A 8 9 On or around August 23, 2005, Plaintiff received a knit cap and shorts he had ordered through the mail from a prison- 10 approved vendor. 11 small. 12 cap was no longer allowed. 13 send both items back to the vendor. 14 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 15 regarding the status of the items, Plaintiff was informed that he 16 did not have sufficient funds in his prison account ($6.00) to 17 return the items to the vendor. 18 Doc. #1 at 28. On September 22, 2005, Plaintiff informed PBSP that he was 19 unable to obtain the $6.00 needed to return the items. 20 30. 21 Id. Doc. #1 at He asked to be notified of any decision to destroy the items. 22 On November 15, 2005, Plaintiff sent PBSP officials 23 24 1 27 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. 28 3 25 26 1 sixteen postage stamps and asked them to return the items for him. 2 Doc. #1 at 32. 3 On December 2, 2005, PBSP officials informed Plaintiff 4 that, per PBSP Operational Procedure No. 806, they were unable to 5 use postage stamps to return the items and explained that “all items 6 must go out via [United Parcel Service] for tracking purposes.” 7 Doc. #1 at 34. 8 On December 20, 2005, Plaintiff informed PBSP officials 9 that due to his indigency, he was unable to pay for United Parcel 10 Service shipping to return the items to the vendor. 11 PBSP officials suggested that Plaintiff get someone to supply him 12 with funds, which is the way Plaintiff was able to receive his 13 quarterly package. 14 provide[s] me with quarterly packages will not send me any funds, as 15 my account will bear out, because I have shown a propensity to 16 misuse my money.” 17 correspondence, Plaintiff asked if he could use his “indigent 18 envelopes as payment.” 19 that he could not. 20 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 21 June 3, 2006, Plaintiff again asked to be provided with notice 22 before PBSP destroyed the property. 23 Doc. #1 at 42, 44, 57. On June 4, 2006, Plaintiff submitted a CDCR form 602 24 Inmate/Parolee Appeal Form grieving PBSP’s refusal to allow him to 25 return the knit cap and shorts using United States Postal Service 26 postage stamps (“mail-out appeal”). 27 28 4 Doc. #1 at 60. 1 On June 13, 2006, the PBSP appeals coordinator screened 2 out Plaintiff’s appeal, checking a box that noted the appeal 3 “exceeds the 15 working days time limit, and the inmate has failed 4 to offer a credible explanation as to why he could/did not submit 5 the appeal within the time limit.” 6 coordinator also included a handwritten note that read: 7 told you could not mail out property with $6.00 [in] Jan. 2006.” 8 Id. 9 Doc. #1 at 59. The appeals “You were On August 28, 2007, PBSP officials notified Plaintiff that 10 the thirty-day waiting period on his disallowed property, which had 11 been in PBSP storage since November 2006, had expired, and that his 12 property was destroyed on March 19, 2007 in accordance with 13 PBSP/CDCR policy. 14 Doc. #1 at 14, 73. On September 8, 2007, Plaintiff submitted a CDCR form 602 15 Inmate/Parolee Appeal Form grieving PBSP’s disposal of his 16 disallowed property (“property destruction appeal”). 17 18 19 20 21 22 23 24 25 26 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. 27 28 Doc. #1 at 75. 5 1 Doc. #1 at 79. 2 B 3 Plaintiff received a copy of PBSP Operational Procedure 4 No. 806 and read it before he ordered his shorts and cap from the 5 vendor. 6 relevant part: 7 Doc. #32 at 59. Operational Procedure No. 806 provides, in Personal Property Package Vendor Criteria 8 . . . . 9 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. 10 11 12 13 17 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. 18 . . . . 14 15 16 19 20 Processing Disapproved Property 21 Unauthorized inmate property, . . . shall be disposed of in accordance with the provisions of this section. 22 . . . . 23 3. 24 25 26 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. 27 28 6 1 4. 2 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. 3 4 5 6 7 Doc. #24 at 5, 24–25 & 33 (PBSP Operational Procedure No. 806, 8 Sections VI. K & Y (emphasis added)). 9 An inmate with excess or non-permitted property may 10 voluntarily submit his property to prison officials for shipping. 11 Ducart Decl., Doc #24, at 2. 12 withdrawal form” to pay for the shipping costs. 13 hold is placed on the inmate trust account to allow the inmate time 14 to obtain the necessary funds to pay the shipping costs. 15 the funds are not available after thirty-days, the property is 16 disposed of or donated. 17 The inmate must sign a “trust account Id. A thirty-day Id. If Id. Currently, PBSP uses FedEx as the common carrier to ship 18 inmates’ personal property. 19 ship his items, PBSP used UPS to ship inmates’ personal property. 20 Id. 21 common carrier identifies each parcel with a tracking number without 22 additional charge. 23 determine if the parcel was received by the addressee. 24 the tracking number, an inmate or addressee could claim that a 25 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 26 27 28 7 Id. Id. at 2-3. Without 1 III 2 A 3 Summary judgment is properly granted when no genuine 4 disputes of material fact remain and when, viewing the evidence most 5 favorably to the non-moving party, the movant is clearly entitled to 6 prevail as a matter of law. 7 v.Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. 8 Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). 9 the burden of showing there is no material factual dispute. Fed. R. Civ. P. 56(c); Celotex The moving party bears 10 Celotex, 477 U.S. at 331. 11 the opposing party’s evidence, if supported by affidavits or other 12 evidentiary material. 13 court must draw all reasonable inferences in favor of the party 14 against whom summary judgment is sought. 15 Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel 16 Corp. v. Harford Accident & Indem. Co., 952 F.2d 1551, 1559 (9th 17 Cir. 1991). 18 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 19 those portions of the pleadings, discovery and affidavits which 20 demonstrate the absence of a genuine issue of material fact. 21 Celotex, 477 U.S. at 323. 22 production, the burden then shifts to the opposing party to produce 23 “specific evidence, through affidavits or admissible discovery 24 material, to show that the dispute exists.” 25 Inc., 929 F.2d 1404, 1409 (9th Cir 1991), cert. denied, 502 U.S. 994 26 (199); Nissan fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 If the moving party meets its burden of 27 28 8 Bhan v. NME Hosps., 1 F.3d 1099, 1105 (9th Cir. 2000). 2 Material facts which would preclude entry of summary 3 judgment are those which, under applicable substantive law, may 4 affect the outcome of the case. 5 which facts are material. 6 242, 248 (1986). 7 cannot defeat a motion for summary judgment. 8 San Diego, 84 F.3d 1162, 1168-70 (9th Cir. 1996), rev’d on other 9 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 10 1997). 11 sufficient evidence for a reasonable jury to return a verdict for 12 the nonmoving party. A dispute as to a material fact is genuine if there is Anderson, 477 U.S. at 248. 13 B 14 1 15 In his Complaint, Plaintiff alleges that PBSP officials 16 violated his right to due process when they confiscated his cap and 17 shorts. 18 argue that, because California prison regulations limit a prisoner’s 19 right to possess property while in prison, Plaintiff had no right to 20 possess the cap and shorts in the first place, and that therefore 21 they are entitled to summary judgment as a matter of law on his due 22 process claim. 23 In their pending motion for summary judgment, Defendants Prisons often ban or limit inmates’ possession of certain 24 types of personal property while incarcerated. 25 itself does not confer specific property interests. 26 Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). 27 28 9 The Constitution See Board of A 1 property interest that has been initially recognized and protected 2 by state law may be protected under the Due Process Clause of the 3 Fourteenth Amendment, however. 4 (1976); Roth, 408 U.S. at 577 (protected property interests “stem 5 from an independent source, such as state law -- rules or 6 understandings that secure certain benefits and support claims of 7 entitlement to those benefits.”). 8 must be a “legitimate claim of entitlement to it.” 9 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 10 it “imposes significant limitations on the discretion of the 11 decision maker.” 12 1102 (9th Cir. 2010) (citation and internal quotation marks 13 omitted). 14 interest that may not be withdrawn without procedural safeguards 15 only if mandatory language in the law substantively restricts the 16 discretion of state officials. 17 472 (1983); see, e.g., Castle Rock v. Gonzales, 545 U.S. 748, 755-66 18 (2005) (finding no protected property interest in enforcement of 19 restraining orders in part because relevant provisions of state law 20 did not truly make enforcement of restraining orders mandatory); 21 Bugler v. U.S. Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) 22 (finding no protected property interest in inmate UNICOR job 23 assignments); Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir. 1984) (no 24 protected interest in property designated by prison as contraband); 25 Arney v. Simmons, 923 F. Supp. 173, 177 (D. Kan. 1996) (no property 26 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, 27 28 10 1 Hewitt’s mandatory-language methodology may not apply to 2 property interest claims by prisoners any longer. 3 Conner, 515 U.S. 472, 477-84 (1995), the Supreme Court expressly 4 rejected Hewitt’s methodology in the context of prison liberty 5 interests. 6 process only if the restraint on his liberty of which he complains 7 imposes “atypical and significant hardship on the inmate in relation 8 to the ordinary incidents of prison life.” 9 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 10 property interest claims arising from prison conditions. 11 Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999) (extending 12 Sandin’s atypical-and-significant-deprivation methodology to 13 property claims by prisoners) and Abdul-Wadood v. Nathan, 91 F.3d 14 1023, 1025 (7th Cir. 1996) (suggesting that Sandin applies to 15 property interest claims brought by prisoners) with Bugler v. U.S. 16 Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (declining to 17 extend Sandin’s methodology to property interest claims by 18 prisoners) and Woodard v. Ohio Adult Parole Auth., 107 F.3d 1178, 19 1182-83 (6th Cir. 1997) (noting that “the Supreme Court has made it 20 clear that both state law and the Due Process Clause itself may 21 create [a liberty] interest,” while the prevailing doctrine 22 instructs that “state law controls as to the existence of a property 23 interest”). 24 Compare The United States Court of Appeals for the Ninth Circuit, 25 in two unpublished decisions, has suggested opposite results. 26 Compare Martin v. Upchurch, 67 F.3d 307 (9th Cir. 1995) (concluding 27 28 11 1 prisoner had no property interest in his prison job because state 2 law left prisoners’ employment to discretion of prison officials) 3 (unpublished disposition) with Emil v. Crawford, 125 F. App’x 112, 4 112-13 (9th Cir. Feb. 16, 2005) (citing Sandin’s “atypical and 5 significant hardship” language, the district court’s dismissal of 6 prisoner’s action was proper “because his allegations--that he was 7 charged for prescription drugs, including drugs he did not receive, 8 that he was required to pay for copies, . . . and that he was denied 9 canteen privileges--do not state a constitutional claim.”) 10 (unpublished disposition). 11 Ninth Circuit have no precedential effect. However, unpublished opinions by the See 9th Cir. R. 36-3. 12 Because it is not clear from existing case law whether the 13 rationale of Hewitt or Sandin should be applied to property interest 14 claims arising from prison conditions, the Court will evaluate 15 Plaintiff’s claim under both standards. 16 Under Hewitt, state law may create a protected property 17 interest that may not be withdrawn without procedural safeguards 18 only if mandatory language in the law substantively restricts the 19 discretion of state officials. 20 65 F.3d at 50 (no property interest in inmate UNICOR job 21 assignments); Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir. 1984) (no 22 protected interest in property designated by prison as contraband); 23 Owens v. Ayers, 2002 WL 73226, at *2 (N.D. Cal. Jan. 15, 2002) (no 24 protected interest to property in prison in California); Arney v. 25 Simmons, 923 F. Supp. 173, 177 (D. Kan. 1996) (no property interest 26 in inmate benefit fund). See Hewitt, 459 U.S. at 472; Bugler, In California, Plaintiff does not have a 27 28 12 1 general right to possess property in prison. 2 Regulations, title 15, section 3192 provides that “[a]n inmate’s 3 right to inherit, own, sell or convey real or personal property does 4 not include the right to possess such property within the 5 institutions/facilities of the department.” 6 (2005). 7 of Regulations further limit a prisoner’s rights to personal 8 property, including canteen, mail, and library privileges. 9 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, 10 seq. (library access); §§ 3130 et seq. (outside mail). 11 PBSP Operational Procedure 806 specifically allows for disposal of 12 property for which an inmate cannot pay shipping costs. 13 does not cite any state law or prison regulation that authorizes or 14 entitles him to possess personal property in prison.2 15 Plaintiff does not have a legitimate claim of entitlement to possess 16 personal property in prison. Finally, Plaintiff Therefore, Without such a property interest, 17 18 2 27 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. 28 13 19 20 21 22 23 24 25 26 1 Plaintiff’s due process claim based on a property interest fails as 2 a matter of law. 3 Plaintiff's claim also fails as a matter of law under the 4 Sandin analysis because PBSP’s Operational Procedure, which imposes 5 limited restrictions on an inmate’s right to possess certain types 6 of property, does not amount to an atypical or significant hardship 7 as a matter of law. 8 (8th Cir. 2002) (no due process claim for deprivation of television, 9 certain property, access to commissary and restrictions on outdoor See Rahman X v. Morgan, 300 F.3d 970, 973-74 10 exercise for twenty-six months); Cosco v. Uphoff, 195 F.3d 1221, 11 1224 (10th Cir. 1999) (new prison regulation which limited the type 12 and quantity of individual property in cells was not an atypical, 13 significant deprivation); Frazier v. Coughlin, 81 F.3d 313, 317 (2d 14 Cir. 1996) (loss of commissary, recreation, package, and telephone 15 privileges did not amount to an atypical and significant 16 deprivation); Bales v. Ault, 2004 WL 42647, at *6-7 (N.D. Iowa Jan. 17 8, 2004) (deprivation of electric razor not atypical); Owens v. 18 Ayers, 2002 WL 13226, at *5 (N.D. Cal. Jan. 15, 2002) (“Under 19 Sandin, separating an inmate from his property for a mere three 20 months would not amount to an atypical and significant hardship on 21 the inmate in relation to the ordinary incidents of prison life.”); 22 Warren v. Irvin, 985 F. Supp. 350, 353 (W.D.N.Y. 1997) (denial of 23 telephone, packages, commissary, earphones, movies, television, and 24 third shower “does not represent the type of deprivation which could 25 reasonably be viewed as imposing atypical and significant hardship 26 on an inmate”). Again, to be clear, Plaintiff was deprived of a cap 27 28 14 1 and shorts. 2 property interests have been upheld under Sandin, the property loss 3 at issue here plainly was not atypical or significant. 4 Given that deprivations of substantially larger In sum, because Plaintiff did not have a possessory right 5 to his shorts or cap while in prison, he was not entitled to due 6 process, and Defendants are therefore entitled to summary judgment 7 on this ground alone. 8 2 9 Even assuming a right that could be protected through the 10 Due Process Clause, Plaintiff received all the process that would be 11 due. 12 notice and an opportunity to be heard before the government may 13 deprive a person of a protected interest. 14 Loudermill, 470 U.S. 532, 542 (1985). 15 in Nev. Dep’t. of Corrections v. Greene, 648 F.3d 1014 (9th Cir. 16 2011) is on point. 17 changed its policy, which change created a ban on inmate possession 18 of typewriters. 19 inmates were notified of the new policy. 20 choice of shipping the typewriters out of the prison, donating the 21 typewriters, or destroying them. 22 inmate in Greene was not given an individual pre-deprivation 23 hearing, the Ninth Circuit found that his due process rights were 24 not violated because he had been notified of the ban and given ample 25 time to comply with it. 26 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 27 28 Cleveland Bd. of Educ. v. 15 See id. at 1019; 1 see also Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (“[T]he fact 2 that prisoners retain rights under the Due Process Clause in no way 3 implies that these rights are not subject to restrictions imposed by 4 the nature of the regime to which they have been lawfully 5 committed.”). 6 Here, it is undisputed that Plaintiff had knowledge of 7 PBSP Operational Procedure 806 and that he knew the shorts and cap 8 would be destroyed if he did not pay the shipping costs within 9 thirty days of submitting the items for shipment. As discussed 10 above, Plaintiff admits he received a copy of Operational Procedure 11 806 and read it before even ordering the shorts and cap. 12 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 20 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

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