Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1989)

MEMORANDUM^** 

This is an appeal by a prisoner proceeding pro se from a dismissal of his complaint under 42 U.S.C. § 1983 (1982) for failure to state a claim. We affirm in part and reverse in part.

Plaintiff's complaint is quite lengthy, but in essence it sets forth three claims. The first is that defendant Williams threatened to have the plaintiff discharged from his prison dry cleaning job in retaliation for numerous law suits against the staff. The district court was right in stating that allegations of a threat without more do not state a constitutional wrong. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam). The second is that defendant Bell falsely accused the plaintiff of reporting to prison officials the unauthorized use of the dry cleaning shop by other inmates. Defamation by a person under color of state law does not constitute an injury under Sec. 1983. Paul v. Davis, 424 U.S. 693, 701 (1976).

Finally, plaintiff alleges that defendants Williams and Bell conspired to inform another prisoner, Spanky Brown, that plaintiff was an informer. Or as plaintiff expressed it in his complaint, defendants conspired "to put the false 'rat jacket' on plaintiff" by telling Spanky Brown that plaintiff was an informer. Alone this amounts only to the claim that Williams and Bell conspired to defame the plaintiff. This suffers the same infirmity as the second claim. However, it closely approaches a claim that the defendants "labelled him [plaintiff] a snitch and are exposing him to inmate retaliation" because of the lawsuits brought by plaintiff. See Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir. 1984) (per curiam). This allegation may state a claim under the Eighth Amendment. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (holding that a prisoner states a claim for relief by alleging deliberate indifference by prison officials in creating an unsafe environment that led to plaintiff's injury); see also Noll v. Carlson, 809 F.2d 1446, 1449 n. 4 (9th Cir. 1987) (recognizing that prisoner states a claim by alleging that prison officials acted with deliberate indifference by placing prisoner in cell with "known enemies"). Miller may also be making a First Amendment claim. See Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Such claims would be immune from dismissal at the complaint stage. See Valandingham v. Bojorquez, slip op. at 743 (9th Cir. Jan. 30, 1989).

Under the teaching of our decision in Hernandez v. Denton, 861 F.2d 1421 (9th Cir. 1988), we must reverse the dismissal of the third claim by the district court to allow the plaintiff to amend his complaint should he believe it appropriate to do so. Under Hernandez we should not dismiss unless "it is 'absolutely clear' that a pro se civil rights plaintiff's complaint could not be amended to allege constitutional violations...." Id. at 1427 (Wallace, J., concurring) (quoting Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987)). We cannot say amendment is not possible with respect to the plaintiff's third claim.

AFFIRMED IN PART; REVERSED IN PART. Each party shall bear their own costs.