Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

MEMORANDUM^**

Charles Tidwell appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failure to state a claim. We review de novo and affirm in part and reverse and remand in part. Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987).

Dismissal for failure to state a claim is appropriate only if the plaintiff "can prove no set of facts which would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). The district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies cannot be cured. Noll, 809 F.2d at 1448.

* In his original complaint and later amendment, Tidwell asserts that a full scale search of his cell was conducted and legal papers belonging to other inmates were seized. He claims that subsequently he was placed in segregation and given disciplinary reports without being afforded certain post-segregation procedural safeguards. He also asserts that the seizure of the legal documents was arbitrary and in retaliation for his activities both in pursuing his own legal actions and in assisting other prisoners with their legal activities. He cites other incidents of alleged harassment by prison officials in retaliation for his legal activities, including loss of his prison job as a legal assistant, interference with his mail, and loss of other privileges.

These allegations state a claim. First, a liberty interest may be created through a state's enactment of statutory or regulatory measures that impose substantive limits on the exercise of official discretion such that "particularized standards or criteria guide the State's decisionmakers." Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (quotation omitted); see also Hewitt v. Helms, 459 U.S. 460, 466-72 (1983); Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989). Thus, by alleging that he was placed in segregation and given disciplinary reports without being afforded a hearing required by prison regulations, Tidwell states a due process claim. Second, prisoners have a constitutional right to meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 828 (1977). By retaliating against an inmate for pursuing his legal actions, prison officials interfere with that inmate's access to the courts. Valandingham v. Borjorquez, 866 F.2d 1135, 1138 (9th Cir. 1989); Navarette v. Enomoto, 536 F.2d 277, 280 (9th Cir. 1976), reversed on other grounds, 434 U.S. 555 (1978). Moreover, an inmate can state a first amendment claim against prison officials for retaliating against him for bringing his own actions and assisting other inmates with their litigation. Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985).¹  A pro se inmate states a first amendment claim for retaliation by alleging that the officials' acts are retaliatory, arbitrary, and capricious. Id. Thus, by citing specific incidents of harassment and by asserting that those incidents were arbitrary and in retaliation for his legal activities both in bringing his own actions and assisting other prisoners, Tidwell states a claim for denial of access to the courts and interference with his first amendment rights.² 

The district court did not address the retaliation issue. Rather, it determined that Tidwell's second pleading superseded his original complaint and that Tidwell failed to reassert the issues raised in his original complaint.³ 

It appears, however, that Tidwell intended his second pleading to supplement, not to supersede, his initial complaint. He entitled his pleading an amendment rather than an amended complaint and in a subsequent motion referred to the pleading as an "amended complaint in support of his complaint." In addition, Tidwell refers in his second complaint to being placed in segregation and alleges arbitrary and retaliatory behavior by the defendants in response to his legal activities. Given our mandate to construe pro se pleadings liberally, we conclude that he intended to preserve the claims raised in his first complaint. See Noll, 809 F.2d at 1448. Accordingly, we reverse the district court's order and remand so that the district court may consider these issues.

II

Tidwell also appeals from the district court's denial of his motion for a preliminary injunction to prevent further harassment by the defendants and transfer to another prison until this case is concluded.⁴ 

We reverse a district court's grant or denial of a preliminary injunction only where the court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Religious Technology Center, Church of Scientology Internat'l, Inc. v. Scott, 869 F.2d 1306, 1309 (9th Cir. 1989). Here, the district court, in denying Tidwell's motion, properly applied the two alternative tests set out by this court in City of Tenakee Springs v. Block, 778 F.2d 1402 (9th Cir. 1985):

The first test requires that a court find (1) the moving party will suffer irreparable injury if the injunctive relief is not granted; (2) there is a substantial likelihood that the moving party will succeed on the merits; (3) in balancing the equities the non-moving party will not be harmed more than the moving party is helped; and (4) granting injunctive relief is in the public interest.... The second test requires the moving party to demonstrate either (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips sharply in his favor.

Id. at 1407 (citations omitted).

The district court did not abuse its discretion in ruling that Tidwell failed to qualify for injunctive relief under these standards. Accordingly, we affirm the district court's denial of Tidwell's motion for a preliminary injunction.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.