Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Fuller appeals from summary judgment in favor of appellees Santos and others on Fuller's complaint alleging a claim cognizable under 42 U.S.C. § 1983. We affirm.

Fuller's complaint charges Santos, a hearing officer in the Oregon prison system, and others, with disseminating false information to the effect that Fuller was a reliable informant concerning a stabbing incident in the prison in which Fuller was the victim. Fuller is black, while his attacker is alleged to be white. Fuller alleges that this false information placed his life in jeopardy and that he will be in peril without regard to the location of the prison in which the remainder of his sentence is served. The result, Fuller alleges, is a violation of the Eighth Amendment made applicable to the states by the Fourteenth Amendment.

The defendants moved for summary judgment which the magistrate recommended be granted. Prior to action by the district court, Fuller filed an objection in which he challenged the truth of the information attributed to the reliable informant who one must surmise was Fuller himself. The district court referred the matter to the magistrate for consideration of Fuller's objection. The magistrate once more concluded that the defendants were entitled to summary judgment. The district court approved the magistrate's recommendation and entered judgment against the plaintiff. This timely appeal followed.

At the threshold we must dispose of Fuller's motion for appointment of counsel and a motion for oral argument. We deny both motions. Neither would aid in the disposition of a meritless case. That is the condition of Fuller's case as this disposition will make clear.

Next, it is necessary to consider Fuller's contention that the failure of the district court to provide notice of Rule 56(e), Fed. R. Civ. P., requires reversing the judgment and remanding the case to the district court as directed by Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988). That is not necessary, however. Here Fuller opposed the motion to grant summary judgment with vigor. This served the purpose of Rule 56(e); therefore, Klingele does not require reversal.

Turning to the sufficiency in law of Fuller's complaint, we hold that Fuller did not set forth events evidencing an infliction of cruel and unusual punishment within the meaning of the Eighth Amendment. At worst the complaint charges Santos and others with falsely stating that Fuller was an informant in the investigation of the incident in which he was injured. While Fuller alleges that his life has been endangered, his complaint and his objection to summary judgment allege no threats or attempts to injure him by other prisoners. This does not evidence the Eighth Amendment's required level of "deliberate indifference." See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Fuller may have a cause of action under state law for defamation, but any wrong done to him by the defendants does not amount to a deprivation of a constitutional right. See Paul v. Davis, 424 U.S. 693, 710 (1976).

A showing of deliberate indifference "does not require that the guard or official ' "believe to a moral certainty that one inmate intends to attack another at a given place at a time certain before the officer is obligated to take steps to prevent such an assault. But, on the other hand, he must have more than a mere suspicion that an attack will occur." ' " Berg, 794 F.2d at 459 (quoting Vun Cannon v. Breed, 391 F. Supp. 1371, 1374-75 (N.D. Cal. 1975)). Fuller's showing in opposition to the defendant's motion for summary judgment even fails to reach the foothills of "mere suspicion" at best.

AFFIRMED.