Leslie Stephen Brannum v. George Wilson ( 1985 )

782 F.2d 1041

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
LESLIE STEPHEN BRANNUM, Plaintiff-Appellant
v.
GEORGE WILSON, Defendant-Appellee.

85-5803

United States Court of Appeals, Sixth Circuit.

12/5/85

ORDER

BEFORE: KENNEDY and KRUPANSKY, Circuit Judges; and BROWN, Senior Circuit Judge.

1

This matter is before the Court for consideration of plaintiff's motion for injunction pending his appeal from the district court's order denying a temporary restraining order or preliminary injunction. The case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon consideration of the motion, defendant's response, plaintiff's brief and the certified record, the panel unanimously agrees that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

To sustain an action brought under 42 U.S.C. Sec. 1983, plaintiff must factually plead and demonstrate that he has been deprived of a constitutional right and that the deprivation occurred under color of state law. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978).

3

Plaintiff fails to state a claim upon which relief can be granted. There is no constitutional right for a prisoner to be confined in or transferred to a particular prison facility. See Meachum v. Fano, 427 U.S. 215 (1976). The constitution does not require that a state have more than one prison for convicted felons. Fano, supra. The conviction extinguishes the prisoner's liberty interest and empowers the state to confine him in any of its prisons. Fano, supra. Moreover, the consent decree in Kendrick v. Bland, 541 F. Supp. 21 (W.D. Ky. 1981) did not create a liberty interest. Olim v. Wakinekona, 461 U.S. 238 (1983). Defendants still retain the discretion to determine how the ordered plan should be developed, and implemented. Plaintiff's appeal fails on its merits. See North Avondale Neighborhood Association v. Cincinnati Metropolitan Housing Authority, 464 F.2d 486 (6th Cir. 1972).

4

It is therefore ORDERED that plaintiff's motion for an injunction be and hereby is denied and the district court's order affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.