Unpublished Disposition, 899 F.2d 19 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1990)

Thomas Ray McKEE, Plaintiff-Appellant,v.Kurt PETERSON, Superintendent; Lt. Watkins; Sgt. Deanes,Defendants-Appellees.

No. 89-35095.

United States Court of Appeals, Ninth Circuit.

Submitted March 16, 1990.* Decided March 21, 1990.

Before JAMES R. BROWNING, ALARCON and POOLE, Circuit Judges.


Thomas Ray McKee, a Washington state prisoner filed a 42 U.S.C. § 1983 civil rights action alleging that his fifth amendment right against double jeopardy was violated when he was disciplined by receiving a "section 657" infraction.1  Shortly thereafter, McKee filed for a temporary restraining order and preliminary injunction raising a variety of issues regarding his ability to prosecute his Sec. 1983 action. The district court denied McKee's motion concluding that he made no showing that he would sustain an irreparable injury. We affirm the denial of injunctive relief.

Our review of the denial of a preliminary injunction is limited. We will reverse only if the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Religious Technology Center, Church of Scientology International, Inc. v. Scott, 869 F.2d 1306, 1309 (9th Cir. 1989). A preliminary injunction may issue only if the moving party can demonstrate either "(1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of the hardships tipping in [the moving party's] favor." Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir. 1985) (quotation omitted). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success on the merits decreases. Under any formulation of the test, [the moving party] must demonstrate that there exists a significant threat of irreparable injury." Id. McKee raises three issues on appeal. We address each in turn.

* McKee contends that he was denied adequate access to the library at the Washington Corrections Center in Shelton, Washington. However, before the district court considered McKee's motion, he had been relocated to the McNeil Island Corrections Center in Washington.2  He now seeks an injunction forbidding interference with his access to the prison law library at McNeil Island.

The prison officials at McNeil Island are not parties to this suit and there is no allegation the named defendants are still capable of interfering with McKee's ability to prosecute his civil rights action. Because the district court could not grant effective relief, McKee's motion was moot. See United States v. State of Oregon, 718 F.2d 299, 302 (9th Cir. 1983). It therefore lacked jurisdiction over this aspect of McKee's motion. See Enrico's Inc. v. Rice, 730 F.2d 1250, 1253 (9th Cir. 1984). McKee is therefore not entitled to relief on this aspect of his claim.


McKee contends that the district court erred in refusing to issue an injunction ordering the defendants to produce three legal files that were removed from his prison cell. The district court found that a preliminary injunction was inappropriate because McKee could not demonstrate the possibility of irreparable harm.

Even if it is true, as McKee alleges, that the prison officials are responsible for removing the files from his prison cell, there is no indication that the missing files are irreplaceable or that their absence will have any effect on the present litigation. To the extent that McKee argues that the files contain evidence relevant to the merits of his section 1983 action, the district court is endowed with a plethora of remedies to ascertain whether the prison officials are in possession of McKee's files and to remedy any injustice that may occur as a result. This court will not reverse a district court's decision simply because it would have reached a different result. Hunt v. Nat'l Broadcasting Co., 872 F.2d 289, 292 (9th Cir. 1989). Because the district court did not abuse its discretion in denying the relief sought by McKee, we affirm the denial of the motion requesting an injunction. See Religious Technology Center, 869 F.2d at 1309.


Finally, McKee contends that the district court should have issued an injunction preventing the prison officials from issuing any further section 657 infractions pending the outcome of his section 1983 action. McKee fails to show how he will be irreparably harmed if his section 657 infraction is not immediately rescinded. Further, he lacks standing to prevent the prison officials from issuing infractions to other inmates at Washington Corrections Center. See Fors v. Lehman, 741 F.2d 1130, 1133 (9th Cir. 1984) (distinct personal injury required).3 

The district court's order is



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Prisoners at the Washington Corrections Center may be issued a "major" infraction under Sec. 657 for receiving too many minor infractions within a certain period of time. See Wash.Admin.Code Sec. 137-028-025-657


In his original motion, McKee also sought to prevent being transferred to McNeil Island. On appeal, however, he abandons his argument that the transfer would in any way impair his ability to prosecute his Sec. 1983 action. We therefore need not consider this issue. See Thompson v. C.I.R., 631 F.2d 642, 649 (9th Cir. 1980), cert. denied, 452 U.S. 961 (1981)


McKee did not file an opening brief in this appeal. We are not unaware of his assertions that he failed to do so because of the confiscation of his files. However, we feel he has more than adequately presented the issues in his reply brief


We have discretion to award attorneys fees and costs to the prevailing party for defending a frivolous appeal. Fed. R. App. P. 38. We decline to do so