Unpublished Disposition, 928 F.2d 1136 (9th Cir. 1991)

No. 90-15868.

United States Court of Appeals, Ninth Circuit.

On Appeal From the United States District Court for the Northern District of California, No. CV-89-4296-VRW; Vaughn R. Walker, District Judge, Presiding.

N.D. Cal.

AFFIRMED.

Before BEEZER and NOONAN, Circuit Judges, SINGLETON^**  District Judge.

MEMORANDUM^*** 

David Brown appeals the district court's dismissal of his Bivens action alleging violation of his constitutional rights due to his transfer from a federal prison in California to a federal prison in Kentucky while his criminal appeal was pending before the Ninth Circuit. We affirm.

* Shortly after his sentencing, Brown was assigned to a federal prison in Ashland, Kentucky. He objected to this assignment on the ground that it interfered with his ability to communicate with his newly appointed appellate counsel. Brown did not receive the relief he requested through administrative channels and thus filed a Bivens action against various federal prison employees. The district court found that Brown had exhausted his administrative remedies, but dismissed the Bivens action on the ground that Brown has no constitutional right to incarceration in a particular prison and that Brown had failed to demonstrate prejudice as a result of the transfer. Brown timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

II

The district court's dismissal was a dismissal for failure to state a claim. As such, it was a ruling of law that we review de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990).

As the Supreme Court has stated: "an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, [and] he has no justifiable expectation that he will be incarcerated in any particular State." Olim v. Wakinekona, 461 U.S. 238, 245 (1983). "Confinement in another State ... is 'within the normal limits or range of custody which the conviction has authorized the State to impose.' " Id. at 247 (citing Meachum v. Fano, 427 U.S. 215, 225 (1976).

The single issue then is whether the transfer violated Brown's Sixth Amendment right of access to counsel. To sustain his argument, Brown must show that he was prejudiced by the transfer. See United States v. Mayo, 646 F.2d 369, 373 (9th Cir.), cert. denied, Dondich v. United States, 454 U.S. 1127 (1981). The district court held that Brown had failed to demonstrate any prejudice as a result of the transfer. The district court found that Brown had failed to show that his ability to communicate with his attorney by letter or phone was impaired by the transfer.

Brown asserts that his illiteracy impaired his ability to fully communicate with his attorney by mail. However, he does not establish what he would have told his attorney had he been more literate or why he could not have communicated his knowledge by telephone. The district court, therefore, correctly held that Brown failed to establish prejudice as a result of the transfer.

AFFIRMED.