Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1988)

MEMORANDUM^** 

William Roger Jones, a Washington state prisoner, appeals pro se the district court's denial of his motion for a preliminary injunction to prevent prison officials from enforcing an order they issued as a result of problems Jones was experiencing with other inmates. We affirm.

On November 4, 1986, Jones filed a 42 U.S.C. § 1983 complaint against Larry Kincheloe, the Superintendent of the Washington State Penitentiary and Sgt. Vinyard, alleging that Sgt. Vinyard had ordered him to remain in view of corrections officers at all times and that this order was infringing on his ability to visit the prison chapel, law library and education department. On November 18, 1986, Jones filed a motion for a temporary restraining order or, in the alternative, a preliminary injunction seeking to enjoin the enforcement of Sgt. Vinyard's order. On December 19, 1986, the district court issued an order in which it denied Jones's motion for a temporary restraining order, and directed the defendants to respond to the motion for a preliminary injunction. On September 15, 1988, after considering the responses filed by the defendants, the district court denied Jones's motion for a preliminary injunction. Jones timely appeals.

* Mootness

Jones has stated in his brief that on June 2, 1987, he was transferred from the Washington State Penitentiary where he was subjected to the order in question, to the Washington State Reformatory. He contends that his transfer does not render this appeal moot because there is no reason to suggest that he will not be returned to the Washington State Penitentiary and again be subjected to similar treatment. Appellees contend that the appeal is moot, stating simply that Jones "is unlikely to ever again be subject to the alleged oral order of Sgt. Vinyard."

A claim for injunctive relief against prison officials, seeking to enjoin them from enforcing an order that they have promulgated, is rendered moot if the prisoner is transferred to a different institution and "there is neither a 'reasonable expectation' nor 'demonstrated possibility' " that the prisoner will be returned to the institution and ever subject to the order again. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

Here, neither party has provided the court with any evidence showing why Jones was transferred or whether or not he might ever be returned to the Washington State Penitentiary.

If a case is moot, this court lacks jurisdiction to hear it. Enrico's Inc. v. Rice, 730 F.2d 1250, 1253 (9th Cir. 1984). However, where an appeal presents a complex jurisdictional question, but the appeal itself is clearly without merit, we need not decide the jurisdictional question, but may proceed directly to the merits of the case. Cf. Wolder v. United States, 807 F.2d 1506, 1507 (9th Cir. 1987). This is such a case.

II

Merits

Jones contends that the district court erred in denying his motion for a preliminary injunction because the court failed to consider the public's interest in enjoining the prison officials' conduct. This contention lacks merit.

This court will only reverse a district court's denial of a preliminary injunction where there has been an abuse of discretion. Hunt v. Nat'l Broadcasting Co., 872 F.2d 289, 292 (9th Cir. 1989). The district court has abused its discretion if it (1) applies an incorrect legal standard or substantive law; (2) rests its decision on an erroneous finding of material fact, or (3) although applying the proper legal standard, does so " 'in a manner that results in an abuse of discretion.' " Id. (quoting Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 724 (9th Cir. 1983)). However, this court will not reverse the district court's decision simply because we would have reached a different result. Id.

In reviewing a request for a preliminary injunction, the factors this court traditionally considers are "(1) the likelihood of plaintiff's success on the merits; (2) the possibility of plaintiff's suffering irreparable injury if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by the provision of preliminary relief." United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987).

A party seeking a preliminary injunction must demonstrate either a combination of probable success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips in its favor." Hunt, at 293 (citing Odessa Union Warehouse Co-op, 833 F.2d at 174). The district court must also "consider the public interest in balancing the hardships when the public interest may be affected." Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).

The district court denied Jones's motion for a preliminary injunction based on its determination that Jones was not in danger of suffering irreparable injury and that the balance of hardships did not tip in his favor. The court relied in part on Sgt. Vinyard's affidavit in which Vinyard advised the court that the order merely directed Jones to either stay in view of correctional officers or to be aware of the location of correctional officers at all times so that he could easily call for help. We note that Sgt. Vinyard further stated in his affidavit that the order did not require Jones to refrain from any activities enjoyed by other inmates and did not require him to avoid the law library, chapel or educational facilities. Therefore, we agree with the district court that there is no threat of irreparable injury.

On appeal, Jones does not challenge the court's determination that there was no threat of irreparable injury. He only argues that the district court should have considered the public's interest in enjoining the conduct of which he complains. The public interest that he identifies is in promoting a prison system that treats prisoners fairly. He claims that interest is affected by the order to which he was subjected because the order was not in writing and affected his rights without containing defined and objective criteria for doing so. He contends that such an order "mock [s] rules and breed [s] contempt for authority."

In Bell v. Wolfish, 441 U.S. 520, 547 (1979), the Supreme Court commented that prison administrators must be accorded wide-ranging deference in their adoption of policies and practices to maintain prison discipline. It would seem that the public's interest in allowing prison officials to use their judgment in issuing orders to protect an individual prisoner, as they did in this case, far outweighs its interest in having the court step in where one oral order is ambiguous. Particularly, in light of the fact that Jones has conceded to this court that he has been transferred to a different institution and is no longer subject to the order, we cannot say that the balance of hardships weighs in favor of issuing a preliminary injunction. Nor do we think the district court abused its discretion in denying Jones's motion.

AFFIRMED.