Tierney v. Stanley

76 F.3d 388 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Michael C. TIERNEY, Plaintiff-Appellant, v. Phil STANLEY, Superintendent; Catherine Ward; Leslie Raphael, Counselor; Bill Eyler, Supervisor; Kurt Peterson, Superintendent; Jean Stewart; Chase Riveland; Tom Rolfs, Defendants-Appellees. No. 95-35785. United States Court of Appeals, Ninth Circuit. Submitted Jan. 23, 1996.* Decided Jan. 26, 1996. Before: ALARCON, HALL, and BRUNETTI, Circuit Judges. [1] MEMORANDUM** [2] Washington state prisoner Michael Tierney appeals pro se the district court's 28 U.S.C. § 1915(d) dismissal as frivolous of his 42 U.S.C. § 1983 action, challenging his assignment to administrative segregation at the Special Offenders Center at the Washington State reformatory at Monroe. Tierney appears to contend that prison officials retaliated against him when he informed them that he "would be exercising [his] fifth amendment right to remain silent during a mental examination." Because remaining silent during a mental examination is not a constitutionally protected activity, we affirm the district court's dismissal without prejudice of Tierney's action. See Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir.1985) (in a 1983 claim based on retaliation a plaintiff must allege both that the type of activity was constitutionally protected and that the state impermissibly infringed on the protected activity). [3] AFFIRMED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3