Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, Jr., District Judge, Presiding. D.C. No. CV-02-00560-FCD/KJM.
Booker T. Hillery, pro se, Vacaville, CA, for Plaintiff-Appellant.
Before: KOZINSKI, SILVERMAN, and TALLMAN, Circuit Judges.
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.
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
Page 928.
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.