                                                                                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                               NOT FOR PUBLICATION                              MAY 08 2013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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