                           NOT FOR PUBLICATION                           FILED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

                                            2                                      18-17112
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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