Unpublished Disposition, 912 F.2d 468 (9th Cir. 1990)

No. 89-15547.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding.

D. Ariz.

AFFIRMED.

Before WIGGINS and LEAVY, Circuit Judges, and ALBERT LEE STEPHENS^** , Jr., District Judge.

MEMORANDUM^*** 

James Cello-Whitney Jr. appeals the district court's order denying: (1) his motion for a temporary restraining order/preliminary injunction forcing appellees to transfer Cello-Whitney to a Washington state prison; (2) his motion to dismiss his action pursuant to Federal Rule of Civil Procedure 41(a); (3) his motion for a temporary restraining order/preliminary injunction forcing appellees to comply with its rules for allowing inmates to copy documents; (4) his motion for a temporary restraining order/preliminary injunction restraining appellees from putting Cello-Whitney into the general inmate population; and (5) his motion to take oral depositions.

We do not have jurisdiction over Cello-Whitney's last four claims because they are not final judgments of the district court. Nor do they fall under the "collateral order" exception to the final judgment rule as set forth in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

We do, however, have jurisdiction over Cello-Whitney's claim that the district court erred in denying his motion for a temporary restraining order/preliminary injunction forcing prison officials to transfer him to a Washington state prison because it constitutes an interlocutory decision subject to appeal under 28 U.S.C. § 1292 (1982).

We reject Cello-Whitney's claim that the district court should have granted his motion for an order forcing appellees to transfer him to the State of Washington. In October 1988, the district court had already denied a similar request by Cello-Whitney. In that order, the court correctly concluded that Cello-Whitney has no right to request or protest his transfer from one penal institution to another simply because life in one institution may be more disagreeable than in another. See Meachum v. Fano, 427 U.S. 215, 225 (1976) (due process does not protect a duly convicted prisoner against transfer from one state institution to another).

Appellees' motion for attorney's fees to deter Cello-Whitney from refiling the same or similar claims is denied. If Cello-Whitney does attempt to file such claims, appellees should request that the district court award fees or such relief as is proper. See Wood v. Santa Barbara Chamber of Commerce, 705 F.2d 1515, 1524 (9th Cir. 1983) (district courts have power to reinforce the effects of collateral estoppel and res judicata by issuing an injunction against repetitive litigation), cert. denied, 465 U.S. 1081 (1984).

The district court's denial of Cello-Whitney's motion for a temporary restraining order/preliminary injunction forcing appellees to transfer Cello-Whitney to a Washington state prison is affirmed. The balance of the appeal is dismissed.

AFFIRMED.