Unpublished Dispositionrobert Earl Ellis, Plaintiff-appellant, v. Daryl Styer, Co. Ii; Dr. G. Martinez; Harry K. Russell,supt., Defendant- Appellees, 848 F.2d 190 (6th Cir. 1988)

Before MERRITT and ALAN E. NORRIS, Circuit Judges, and BARBARA K. HACKETT, District Judge.^* 

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

This pro se Ohio prisoner appeals the district court's judgment denying his motion for a preliminary injunction sought while his 42 U.S.C. § 1983 civil rights suit was pending. Appellee has filed a motion to dismiss the appeal on the ground that it is now moot. Plaintiff has responded to the motion to dismiss.

Upon consideration we conclude that the appeal is not moot in its entirety. To the extent that plaintiff sought release from solitary confinement in his motion for preliminary injunction, that issue is now moot as it appears that the plaintiff has been transferred to another prison. See Martin v. Sargent, 780 F.2d 1334 (8th Cir. 1985). However, to the extent plaintiff sought return of allegedly confiscated legal materials and evidentiary items, we conclude that the issue is not moot because such relief can still be granted. See In re DeLorian Motor Co., 775 F.2d 1223 (6th Cir. 1985).

We conclude, however, that the district court did not abuse its discretion by denying plaintiff's motion for a preliminary injunction as it related to the return of confiscated materials. Plaintiff has failed to demonstrate that irreparable injury will occur absent the injunction. See Frisch's Restaurant, Inc., v. Shoney's, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985).

Accordingly, the defendant's motion to dismiss is denied, and the judgment of the district court is affirmed for the reasons set forth in its order filed April 21, 1987. Rule 9(b) (5), Rules of the Sixth Circuit.