Hillery v. Palmer

81 F. App'x 927

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2003
• Docket: No. 03-16447
• Status: Published

Opinion

MEMORANDUM

**

Booker T. Hillery, a California state prisoner, appeals pro se the district court’s order dismissing his 42 U.S.C. § 1983 action alleging prison officials’ response to his grievance regarding his classification status violated his constitutional rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of an action under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). We affirm.

Hillery’s complaint fails to state a claim for retaliation, because it does not allege either infringement of his right to file prison grievances or a chilling effect. See id. at 449.

The complaint also fails to state a claim for violation of the Eighth Amendment, because it does not allege that prison officials knew of and disregarded a substantial risk of serious harm to Hillery’s health and safety. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) .

Finally, the complaint fails to state a claim for violation of Hillery’s due process rights, because it fails to allege how the prison officials’ decision not to use a dropped charge in making a classification determination created an atypical and significant hardship giving rise to a liberty interest. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) .

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.