NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE T. SMITH, No. 16-15193
Plaintiff-Appellant, D.C. No. 3:15-cv-00373-RCJ-
WGC
v.
RENEE BAKER, Warden; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Nevada state prisoner Willie T. Smith appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional violations
arising from the seizure of his mail. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s dismissal under 28 U.S.C. § 1915A.
*
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).
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm in part, reverse in
part, and remand.
The district court properly dismissed Smith’s procedural due process claim
regarding the confiscation of his mail because Smith’s allegations demonstrate that
defendants provided him with notice and an opportunity to appeal to an
independent official. See Procunier v. Martinez, 416 U.S. 396, 418-19 (1974)
(“[T]he decision to censor or withhold delivery of a particular letter must be
accompanied by minimum procedural safeguards.”); Krug v. Lutz, 329 F.3d 692,
696 (9th Cir. 2003) (prisoners have a right to two-level review of mail restrictions).
The district court properly dismissed Smith’s equal protection claim because
Smith 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 Smith’s First Amendment claim against Doe 1 and
Doe 2 regarding the confiscation of his incoming mail was premature because
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Smith’s allegations that defendants seized and withheld his mail without a
legitimate penological interest, liberally construed, are sufficient to state a claim.
See Thornburgh v. Abbott, 490 U.S. 401, 413-19 (1989) (setting forth factors for
evaluating a First Amendment claim relating to the regulation of incoming mail).
Accordingly, we reverse the judgment regarding the First Amendment claim
against Doe 1 and Doe 2 and remand for further proceedings.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).
Smith’s request for remand to a different district court judge or remand with
instructions for the district court to appoint pro bono counsel, set forth in his
opening brief, are denied.
AFFIRMED in part, REVERSED in part, and REMANDED.
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