Unpublished Disposition, 852 F.2d 571 (9th Cir. 1981)

MEMORANDUM^** 

Appellant brought this Sec. 1983 action against the Arizona Department of Corrections, alleging that his transfer to Arizona from an out-of-state prison violated his plea agreement and interfered with his right to due process. The district court granted summary judgment in favor of appellees. We affirm.

While incarcerated in Missouri, appellant filed a motion for injunctive relief in an Arizona district court. The court characterized the motion as requesting that the Department of Corrections be restrained from seeking his return to the State of Arizona. In considering the request, the court examined the plea agreement and decided that appellant had no right to an out-of-state confinement: "His plea agreement of February 27, 1981 stated that it was the recommendation of the court that the defendant be confined in an out-of-state institution. It was never an actual condition of the plea agreement that defendant be confined out-of-state." C.R. 23, Ex. A at 3. Because the prior action required scrutiny of the same evidence, involved the infringement of the same asserted right, and arose out of the same nucleus of facts, we conclude that this action and the prior action involve the same cause of action. See Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.), cert. denied, 459 U.S. 1087 (1982). Thus this action and the prior action involve both the same parties and the same cause of action. Therefore the prior district court order construing the plea agreement as creating no right to out-of-state confinement precludes relitigation of the issue here. See McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir. 1986).

Appellees' request for attorneys' fees is denied.

AFFIRMED.