Summary
stating "[s]afety concerns about individual prisoners would have a rational relation[ship] to a legitimate penological purpose" and finding the plaintiff did not sufficiently allege he was transferred because he was part of a protected class
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No. 09-15418.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed May 3, 2011.
Wade Thornton, Represa, CA, pro se.
Appeal from the United States District Court for the Eastern District of California, William B. Shubb, District Judge, Presiding. D.C. No. 2:08-cv-01260-WBSCMK.
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
California state prisoner Wade Thornton appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action seeking to prevent his transfer to an out-of-state prison. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Thornton's claim that California Penal Code § 11191 vests him with a state-created liberty interest in avoiding an involuntary transfer to an out-of-state prison because the statute has been revised to delete the requirement that such transfers be voluntary. See Toussaint v. McCarthy, 801 F.2d 1080, 1092 (9th Cir. 1986) (a state-created liberty interest ceases to exist if the state repeals the statute or eliminates the regulation creating the liberty interest), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).
Thornton's remaining contentions are unpersuasive.