Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1014 (9th Cir. 1991)

Raymond D. JACKSON, Sr., Plaintiff-Appellant,v.Duncan A. McINTOSH, et al., Defendants-Appellees.

No. 90-16679.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1991.* Decided May 13, 1991.

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


MEMORANDUM** 

Raymond Jackson, a California state prisoner, appeals pro se the district court's denial of his request for a temporary restraining order (TRO). We dismiss the appeal for lack of a final appealable order.

This court may hear appeals from interlocutory orders of the district court which grant, continue, modify, refuse, or dissolve injunctions. 28 U.S.C. § 1292(a) (1). Ordinarily, an appeal does not lie from the denial of an application for a temporary restraining order; such appeals are considered premature and are disallowed " [i]n the interests of avoiding uneconomical piecemeal appellate review." Religious Tech. Center, Church of Scientology v. Scott, 869 F.2d 1306, 1308 (9th Cir. 1989) (citing Kimball v. Commandant Twelfth Naval Dist., 423 F.2d 88, 89 (9th Cir. 1970)). In addition, the denial of a TRO is not generally appealable unless it effectively decides the merits of the case. Graham v. Teledyne-Continental Motors, 805 F.2d 1386, 1388 (9th Cir. 1986), cert. denied, 484 U.S. 815 (1987).

We have recognized, however, that a denial of a TRO may be appealed if the circumstances render the denial "tantamount to the denial of a preliminary injunction." Religious Tech. Center, 869 F.2d at 1308 (citing Environmental Defense Fund, Inc. v. Andrus, 625 F.2d 861, 862 (9th Cir. 1980)). In Andrus, we held the denial of a TRO was tantamount to the denial of a preliminary injunction because of the presence of two factors: the denial of the TRO followed a "full adversary hearing" and "in the absence of review, the appellants would be effectively foreclosed from pursuing further interlocutory relief." Id.

Here, Jackson's request for a TRO was contained in his section 1983 complaint as part of his requested relief. The district court, after granting Jackson in forma pauperis status, ordered immediate service on the defendants and advised them they could respond to the TRO request. The state attorney general, on behalf of the defendants, filed an informal letter advising the court that there were no plans to transfer Jackson until the appropriate facility was found for him. Jackson filed a reply to the defendants' letter. The district court did not hold an adversary hearing before denying Jackson a TRO. Moreover, Jackson is not precluded from pursuing further interlocutory relief if the defendants attempt to transfer him to what he considers to be an inappropriate facility to treat his medical condition. Finally, the district court's denial of the TRO did not effectively decide the merits of Jackson's section 1983 action. The merits of his case are proceeding before the district court. Therefore, the denial of the TRO was not tantamount to the denial of a preliminary injunction, and this appeal is premature.

DISMISSED.

 *

The panel unanimously finds this case suitable for decision 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. Accordingly, Jackson's request for oral argument is denied