Unpublished Disposition, 872 F.2d 432 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 432 (9th Cir. 1989)

Randal N. WIIDEMAN, Plaintiff-Appellant,v.CLARK COUNTY DETENTION CENTER, LAS VEGAS, NEVADA; State ofNevada; United States Marshal, District of Nevada; EighthJudicial District of Nevada; U.S. Attorney for New York,Eastern, Defendants-Appellees.

No. 87-2797.

United States Court of Appeals, Ninth Circuit.

Submitted*  Feb. 14, 1989.Decided March 8, 1989.

Before WALLACE, TANG and SCHROEDER, Circuit Judges.


Wiideman, a Nevada state prisoner, appeals from the district court's dismissal of his civil rights complaint without leave to amend. Wiideman alleged that the State of Nevada, a Nevada court, a Nevada prison, the United States Marshal for the District of Nevada, and the United States Attorney for the Eastern District of New York conspired to interfere with his state court proceedings by transporting him to New York pursuant to a writ of habeas corpus ad testificandum. Wiideman also contends that his case was improperly transferred from the Eastern District of New York to the District of Nevada. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We have jurisdiction to review the New York district court's order transferring Wiideman's action to Nevada. See American Fidelity Fire Insurance Co. v. United States District Court for the Northern District of California, 538 F.2d 1371, 1376-77 & n. 4 (9th Cir. 1976); Varsic v. United States District Court for the Central District of California, 607 F.2d 245, 251 (9th Cir. 1979). We hold that the New York district court did not abuse its discretion by transferring Wiideman's case to Nevada. The New York district court could not exercise personal jurisdiction over the Nevada defendants because Wiideman's allegations of conspiracy were too vague. See Lehigh Valley Industries, Inc. v. Birenbaum, 527 F.2d 87, 93-94 (2d Cir. 1975). To cure a lack of personal jurisdiction in the district where the case was first brought, a district court may transfer a case under 28 U.S.C. §§ 1404(a) or 1406(a) to a district where the action could have been brought. Nelson v. International Paint Co., 716 F.2d 640, 643 (9th Cir. 1983). Wiideman's action could have been brought in Nevada because his claims arose there, see 28 U.S.C. § 1391(b), and because the Nevada district court could exercise personal jurisdiction over all the defendants.

We also hold that the Nevada district court properly dismissed Wiideman's action because it is clear that the deficiencies in his complaint cannot be cured by amendment. See Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988). Wiideman cannot state a claim under 42 U.S.C. § 1985 because his complaint alleges no racial or class-based animus. His transfer to New York was not motivated by invidious discrimination but by a letter Wiideman himself wrote to the United States Attorney for the Eastern District of New York. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Because Wiideman cannot state a claim under section 1985, his section 1986 claim must also fail. See Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 626 (9th Cir. 1988).

Moreover, Wiideman can state no cognizable claim under section 1983. Nevada transferred Wiideman to New York pursuant to a writ of habeas corpus ad testificandum issued by a federal district court in order to secure Wiideman's testimony before a federal grand jury. Nev.Rev.Stat. Sec. 209.273(1) (b) (1983) permits transfer of prisoners to other governmental agencies in accordance with the prisoner's classification evaluations and other needs. Unless a prisoner can show "particularized standards or criteria" which limit the discretion of the prison officials in making transfers, he cannot establish violation of a constitutionally protected liberty interest. Olim v. Wakinekona, 461 U.S. 238, 243 (1983). Since the broad language of the Nevada statute has no such limiting criteria, Wiideman's section 1983 claim fails. Wiideman was not entitled to a pretransfer hearing or to appointed counsel. Id. at 251.

Finally, Wiideman cannot state a claim under 18 U.S.C. §§ 241 and 242 because these are criminal statutes which "provide no basis for civil liability." Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).


Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4