                            NOT FOR PUBLICATION                             FILED
                     UNITED STATES COURT OF APPEALS                         MAR 27 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

TANIKO C. SMITH,                                  No. 17-15960

                Petitioner-Appellant,             D.C. No. 3:16-cv-00456-MMD-
                                                  WGC
 v.

ISIDRO BACA, Warden; et al.,                      MEMORANDUM*

                Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                             Submitted March 13, 2018**

Before:      LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

      Nevada state prisoner Taniko C. Smith appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action at screening alleging

various constitutional claims relating to the denial of visitation with his fiancé, a

former staff member at Smith’s prison. We have jurisdiction under 28 U.S.C.


      *
             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).
§ 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 reverse and remand.

      The district court dismissed Smith’s equal protection claim because the

decision to deny Smith’s request for visitation was discretionary. However, Smith

alleged that by denying his fiancé visitation because she was a former prison

employee, prison authorities treated him differently than other similarly situated

inmates, and did so without a legitimate penological justification. See Village of

Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000) (elements of “class of one”

equal protection claim); Sandin v. Conner, 515 U.S. 472, 487 n.11 (1995) (Equal

Protection Clause protects prisoners from arbitrary state action); McElyea v.

Babbit, 833 F.2d 196, 197-98 (9th Cir. 1987) (prison policy that impinges on

prisoner’s constitutional rights must be reasonably related to a legitimate

penological interest). We reverse the dismissal of Smith’s equal protection claim

and remand for defendants to respond to the complaint.

      We do not consider documents or facts not presented to the district

court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents

or facts not presented to the district court are not part of the record on appeal.”).

      REVERSED and REMANDED.

                                           2                                     17-15960
