NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 18 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEITH A. BROWN, No. 18-35417

Plaintiff-Appellant, D.C. No. 1:17-cv-00160-BLW

v.

MEMORANDUM*

KEITH YORDY, Warden; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief Judge, Presiding

Submitted September 12, 2018**

Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

Idaho state prisoner Keith A. Brown appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action alleging various constitutional

claims arising out of his disciplinary proceedings and sanctions. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Wilhelm v. Rotman, 680

* 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). F.3d 1113, 1118 (9th Cir. 2012) (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 Brown’s due process claims that were

premised on his allegations that internal policies were not followed during his

disciplinary proceedings and that his thirty-day confinement in disciplinary

segregation violated a protected liberty interest. See Sandin v. Conner, 515 U.S.

472, 483-85 (1995) (a constitutionally protected liberty interest arises only when a

restraint imposes an “atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life”); Walker v. Sumner, 14 F.3d 1415, 1419-20

(9th Cir. 1994) (allegations that prison regulations were not followed during

disciplinary proceedings, without more, does not violate the Due Process Clause).

However, Brown further alleged that he was unable to present evidence during his

disciplinary proceedings, and that because of the disciplinary charges, he was

transferred to the Idaho State Maximum Security Institution, denied parole, and

excluded from “almost all human contact.” Liberally construed, these allegations

“are sufficient to warrant ordering [defendants] to file an answer.” Wilhelm, 680

F.3d at 1116; see also Wilkinson v. Austin, 545 U.S. 209, 223-225 (2005) (prisoner

2 18-35417 has a protected liberty interest in avoiding detention in a “supermax” facility,

where such placement disqualified the prisoner from parole consideration, duration

of the assignment was indefinite, and almost all human contact was limited); Wolff

v. McDonnell, 418 U.S. 539, 566-69 (1974) (prisoner must be allowed to call

witnesses and present documentary evidence in his defense during disciplinary

proceedings, unless limited exceptions apply). We therefore reverse the judgment

as to these claims and remand for further proceedings.

The district court dismissed Brown’s equal protection and retaliation claims

on the basis that the prison had a legitimate penological reason for enhancing

Brown’s disciplinary charge. However, Brown alleged that disciplinary charge

number 166443 was enhanced in retaliation for his involvement in a class action

lawsuit, and that prison authorities thereby treated him differently than other

similarly situated inmates. Liberally construed, these allegations “are sufficient to

warrant ordering [defendants] to file an answer.” Wilhelm, 680 F.3d at 1116; see

also Sandin, 515 U.S. at 487 n.11 (Equal Protection Clause protects prisoners from

arbitrary state action); Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)

(elements of First Amendment retaliation claim in the prison context); McElyea v.

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

3 18-35417 prisoner’s constitutional rights must be reasonably related to a legitimate

penological interest). We therefore reverse the judgment as to these claims and

remand for further proceedings.

We reject as without merit Brown’s contentions that the district court

improperly dismissed his claims against the Idaho Board of Corrections and the

Idaho Commission of Pardons and Parole. See S. Pac. Transp. Co. v. City of Los

Angeles, 922 F.2d 498, 508 (9th Cir. 1990) (Eleventh Amendment immunity bars

claims against states and their agencies).

AFFIRMED in part, REVERSED in part, and REMANDED.

4 18-35417