Marion Franklyn Miller, Jr., Plaintiff-appellant, v. Robert G. Borg; John Dupue; Ed Alameda; Sgt. O'brian; D.r. Jude; Dr. Milliman; Giatonde; Defendants-appellees, 73 F.3d 369 (9th Cir. 1995)

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U.S. Court of Appeals for the Ninth Circuit - 73 F.3d 369 (9th Cir. 1995) Submitted Dec. 19, 1995. *Decided Dec. 27, 1995

Before: SNEED, TROTT, and HAWKINS, Circuit Judges.


Marion Franklyn Miller, Jr., a California state prisoner, appeals pro se the district court's denial of his motions for preliminary injunction and for appointment of counsel. We dismiss Miller's appeal for lack of jurisdiction.

Miller contends that the district court abused its discretion by denying his request for a preliminary injunction because Miller failed to establish a threat of irreparable injury. Miller requested a preliminary injunction prohibiting defendant prison officials from transferring his former co-plaintiff, Steven Derrick Irvin, to another institution and from interfering with communications between Miller and Irvin about this action. After reviewing pleadings in support of and in opposition to the request for preliminary injunction, the district court denied Miller's request. Subsequently, the district court severed Irvin from Miller's action. Miller's appeal from the district court's denial of his preliminary injunction is moot because Miller and Irvin are no longer co-plaintiffs in this action. See American Casualty Co. v. Baker, 22 F.3d 880, 896 (9th Cir. 1994) (stating that a case is moot if there is no "present controversy as to which effective relief can be granted"). Accordingly, we dismiss Miller's appeal of the denial of injunctive relief for lack of jurisdiction. See Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985) (holding that federal courts lack jurisdiction to decide moot issues), cert. denied, 475 U.S. 1019 (1986).

This court lacks jurisdiction over Miller's appeal of the denial of his motion for appointment of counsel because it is not a final, appealable order. See Kuster v. Block, 773 F.2d 1048, 1048 (9th Cir. 1985).



The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Miller's request for oral argument and for appointment of counsel for the purpose of conducting oral argument is denied


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