Unpublished Disposition, 940 F.2d 1533 (9th Cir. 1991)

MEMORANDUM^** 

Wilfredo Martinez Cardero, a federal prisoner housed at the Nevada State Prison, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C. § 1915(d). We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and we affirm.

Under section 1915(d), a district court may dismiss frivolous in forma pauperis complaints before service of process. A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). If the plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640 (citing Neitzke, 490 U.S. at 329-30).

In his complaint, Martinez Cardero alleged that his civil rights were violated when he was transferred from a federal institution to the Nevada State Prison. Martinez Cardero apparently requested a prison transfer after he was assaulted by another prisoner at the federal penitentiary in Lompoc, but was dissatisfied with prison conditions at the state prison.

Prisoners have no due process right to be housed in a particular institution. See Meachum v. Fano, 427 U.S. 215, 225 (1983). Moreover, Congress has authorized the Board of Prisons to designate the place of imprisonment "whether maintained by the Federal Government or otherwise," see 18 U.S.C. § 3621(b), and to contract with states to house federal prisoners in state prisons, see 18 U.S.C. § 4002. Accordingly, the district court properly dismissed the complaint as frivolous.

On appeal, Martinez Cardero contends that the district court should have addressed his challenges to prison conditions at the Nevada State Prison. In his complaint, Martinez Cardero described prison conditions to illustrate his dissatisfaction with his transfer from the federal penitentiary to a state prison, but requested only that he be transferred to a federal prison. Given these circumstances, the district court did not err in dismissing the complaint.

Martinez Cardero's allegation that prison officials denied him access to the courts in connection with this action when they refused to provide him with legal materials essential to the preparation of his appeals brief is first raised on appeal. Accordingly, we do not reach this issue.

AFFIRMED.