Edward Ray, Jr. v. James MacDonald , 635 F. App'x 394 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD VINCENT RAY, Jr., No. 15-15138
Plaintiff - Appellant, D.C. No. 2:13-cv-00088-GMS-
DKD
v.
JAMES MACDONALD, Warden at La MEMORANDUM*
Palma Correctional Center/ in his
individual and official capacities; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Edward Vincent Ray, Jr., a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
constitutional claims arising from defendants’ interference with his incoming and
*
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).
outgoing mail. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal under 28 U.S.C.
§ 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order)
(dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm in part, reverse in part,
and remand.
The district court properly dismissed Ray’s equal protection claim because
Ray failed to allege facts sufficient to show that he was discriminated against
because of his membership in a protected class or that he was treated differently
than similarly situated individuals without a rational basis. See N. Pacifica LLC v.
City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (elements of “class of one”
equal protection claim); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003)
(requirements for equal protection claim based on membership in protected class).
However, dismissal of Ray’s First Amendment claim for interference with
his incoming and outgoing mail was premature because Ray’s allegations that
defendants seized and withheld his mail to and from his son, liberally construed,
are “sufficient to warrant ordering [defendants] to file an answer.” Wilhelm v.
Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); see also Thornburgh v. Abbott, 490
U.S. 401, 413-19 (1989) (holding that the factors set forth in Turner v. Safley, 482
U.S. 78 (1987), apply to the regulation of incoming mail); Procunier v. Martinez,
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416 U.S. 396, 413-14 (1974) (setting forth factors for evaluating claim relating to
the regulation of outgoing mail), overruled on other grounds by Thornburgh, 490
U.S. 401. Morever, dismissal of Ray’s procedural due process claim was
premature because Ray’s allegations that he was not provided with notice or an
opportunity to be heard after his mail was withheld, liberally construed, are
sufficient to state a claim. See Procunier, 416 U.S. at 417-18 (“[T]he decision to
censor or withhold delivery of a particular letter must be accompanied by
minimum procedural safeguards.”); Frost v. Symington, 197 F.3d 348, 353 (9th
Cir. 1999) (“[Prisoners have] a Fourteenth Amendment due process liberty interest
in receiving notice that [their] incoming mail is being withheld by prison
authorities.”).
Accordingly, we reverse the dismissal of Ray’s claims that defendants
interfered with his incoming and outgoing mail and denied him procedural due
process and remand for further proceedings.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED in part, REVERSED in part, and REMANDED.
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