Unpublished Disposition, 936 F.2d 578 (9th Cir. 1989)

MEMORANDUM^** 

Colvin McCright, a California state prisoner, appeals pro se the district court's interlocutory order denying his motion for a preliminary injunction ordering prison officials to separate McCright from his cellmate, alleged to be a gang member. In his underlying 42 U.S.C. § 1983 action, McCright claims he is denied access to both the prison exercise facilities and the library.

Plaintiff's Sec. 1983 action for insufficient access to the library and exercise area was filed on May 25, 1989. On July 14, 1989, plaintiff filed for a temporary restraining order, requesting he be separated from his cellmate, alleging that his cellmate was a known gang member and thus jeopardized the plaintiff's safety. The court denied the motion. Later, the court issued an order for the defendants to respond to plaintiff's objections to the court's denial. On August 15, 1989, after defendants filed a reply, the Magistrate issued Amended Findings and Recommendations which again recommended denial of the plaintiff's request for an injunction. On September 28, 1989, the district court, after conducting a de novo review, adopted the Magistrate's recommendation.

A threshold issue is whether we have appellate jurisdiction to hear this interlocutory appeal. In general only final decisions are reviewable on appeal. 28 U.S.C. § 1291. However, Congress created an exception: interlocutory orders which have a direct or irreparable impact on the merits of the controversy or which grant or refuse injunctions are appealable if their denial causes plaintiff to suffer serious, irreparable, harm. 28 U.S.C. § 1292(a) (1). But, " [t]he exception does not embrace orders that have no direct or irreparable impact on the merits of the controversy." Gardner v. Westinghouse, 437 U.S. 478, 482 (1978).

In this case, the cellmate issue is not related to the initial Sec. 1983 complaint about access to the library and exercise facilities. The outcome of the TRO motion does not affect the merits of plaintiff's initial Sec. 1983 complaint. There is no attempt in the pleadings to relate the two issues. Therefore, this court is without jurisdiction to hear this appeal.

DISMISSED.