Michael C. Tierney, Plaintiff-appellant, v. Phil Stanley, Superintendent; Catherine Ward; Leslieraphael, Counselor; Bill Eyler, Supervisor; Kurtpeterson, Superintendent; Jean Stewart;chase Riveland; Tom Rolfs,defendants-appellees, 76 F.3d 388 (9th Cir. 1996)

MEMORANDUM^** 

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).

AFFIRMED.