Kenneth Tiedemann v. Mary Mitchell

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH DANIEL TIEDEMANN, No. 18-17112
Plaintiff-Appellant, D.C. No. 4:17-cv-00597-CKJ-
PSOT
v.
MARY M. MITCHELL, Regional Director; MEMORANDUM*
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted September 18, 2019**
Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.
Federal prisoner Kenneth Daniel Tiedemann appeals pro se from the district
court’s judgment dismissing his action brought under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging
equal protection and substantive due process claims. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A.
Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). We affirm in part,
vacate in part, and remand.
The district court properly dismissed Tiedemann’s equal protection claim for
injunctive relief because Tiedemann failed to allege facts sufficient to state a
plausible claim that he was intentionally treated differently from others similarly
situated, and that there was no rational basis for the different treatment. See Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (elements of an
equal protection “class of one” claim); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th
Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must allege
facts sufficient to state a plausible claim).
The district court erred by analyzing Tiedemann’s due process claim for
injunctive relief as a procedural due process claim under Sandin v. Conner, 515
U.S. 472 (1995). Tiedemann alleged a substantive due process claim predicated on
his fundamental liberty interest in a relationship with his children. We vacate the
judgment on this claim and remand for the district court to consider in the first
instance whether the allegations “are sufficient to warrant ordering [defendants] to
file an answer.” Wilhelm, 680 F.3d at 1116. On remand, the district court may
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also wish to consider whether, liberally construing the operative complaint,
Tiedemann alleged a First Amendment freedom of association claim. See Overton
v. Bazzetta, 539 U.S. 126, 131-37 (2003) (applying factors set forth in Turner v.
Safley, 482 U.S. 78 (1987), to prisoners’ claims challenging prison regulation
affecting alleged right of association). In light of our disposition, we express no
opinion on the dismissal of Tiedemann’s claims for damages under Bivens, which
Tiedemann may appeal upon the district court’s entry of judgment on his claims
for injunctive relief.
AFFIRMED in part, VACATED in part, and REMANDED.
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