                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 06 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



EUGENE A. MAUWEE,                                No. 11-15251

               Plaintiff - Appellant,            D.C. No. 3:10-cv-00250-RCJ-
                                                 RAM
  v.

JACK PALMER; et al.,                             MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Robert Clive Jones, Chief Judge, Presiding

                            Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Nevada state prisoner Eugene A. Mauwee appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various claims

arising from the confiscation of an eagle talon that he believed to be a Native

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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American religious artifact. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a dismissal under 28 U.S.C. §§ 1915A or 1915(e)(2)(B)(ii).

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152

F.3d 1193, 1194 (9th Cir. 1998) (order). We may affirm on any ground supported

by the record. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.

2008). We affirm in part, vacate in part, reverse in part, and remand.

       Dismissal of Mauwee’s claims against the State of Nevada, the Nevada

Department of Corrections, and state officials in their official capacities was proper

because these defendants are entitled to immunity under the Eleventh Amendment.

See Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007).

       The district court properly dismissed Mauwee’s Eighth Amendment claim

against state officials in their individual capacities because he failed to allege how

the destruction of the eagle talon violated the Eighth Amendment. See Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (elements of Eighth Amendment claim).

      Although the district court properly concluded that Mauwee failed to allege a

claim under the First Amendment’s Free Exercise Clause, it should have given him

notice of the defects in this claim and an opportunity to amend, especially because

Mauwee’s motion for reconsideration showed that the defects in this claim are

curable. See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007).


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      The district court erred in dismissing Mauwee’s Fourteenth Amendment due

process claim against state officials in their individual capacities based on the

availability of adequate state law post-deprivation remedies because Mauwee

challenged the destruction of property under established state procedure. See Logan

v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982).

      In sum, we affirm dismissal of Mauwee’s claims against the State of Nevada,

the Nevada Department of Corrections, and state officials in their official capacities.

And, as to Mauwee’s claims against state officials in their individual capacities, we

affirm dismissal of his Eighth Amendment claim; vacate dismissal of his First

Amendment claim to allow him leave to amend; reverse dismissal of his Fourteenth

Amendment claim; and remand for further proceedings.

      Mauwee’s remaining contentions, including issues and claims raised for the

first time in Mauwee’s motion for reconsideration, are unpersuasive.

      We do not consider issues and claims raised for the first time on appeal. See

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      Mauwee shall bear his own costs on appeal.

      AFFIRMED in part, VACATED in part, REVERSED in part, and

REMANDED.




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