923 F. 2d 863 - Simmons v. Sumner Scott L

MEMORANDUM**

Simmons, Scott and Douglas appeal from the district court's denial of their request for a preliminary injunction (No. 88-15696) while Scott and Douglas appeal from the district court's order and judgment dismissing the remaining defendants1 (No. 89-15107). By order dated July 10, 1990, we consolidated the two appeals. For the reasons set forth below, we affirm the district court's rulings on both the denial of injunctive relief and the dismissal of the action.

We review a district court's dismissal of an action for failure to state a claim upon which relief can be granted de novo. Rothman v. Vedder Park Mgt., 912 F.2d 315, 316 (9th Cir.1990). In doing so,

[Our] review is limited to the contents of the complaint. To affirm this type of dismissal, it must appear to a certainty that the plaintiff[s] would not be entitled to relief under any set of facts that could be proved. All allegations of material fact are taken as true and construed in the light most favorable to the non-moving party.

Id. (quoting Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056 (1986)).

The appellants' first problem is one of standing. Of the three, only Scott alleges that he was affected in any way by the conduct complained of by virtue of his being involved in a 1976 racially inspired prison fight. Even then, Scott fails to allege that he was harmed, or that he continues to face a risk of harm as a consequence. In the absence of some allegation or showing of at least minimal personal harm connected with such conduct on the part of the appellants, no legally cognizable injury may be said to exist from which they can derive standing to assert what are essentially third-party constitutional challenges. See City of Los Angeles v. Lyons, 461 U.S. 95, 105-10 (1982).

Second, there is no allegation or showing that the appellees Nevada Board of Prison Commissioners and Nevada Department of Prisons have waived their sovereign immunity. See Nev.Rev.Stat. Sec. 41.031(3). In the absence of such a waiver, they are entitled to Eleventh Amendment immunity from damages in this action. See Bair v. Krug, 853 F.2d 672, 674-75 (9th Cir.1988).

Third, and finally, nothing in the record supports the appellants' contention that the district judge, much less the entire district court bench, should have been recused. See 28 U.S.C. Secs. 144, 455.

In light of the above considerations, it cannot be said that the district court abused its discretion by denying the appellants' request for a preliminary injunction, see United States v. Orr Water Ditch Co., 914 F.2d 1302, 1307 (9th Cir.1990), nor that it erred by dismissing the action for failing to state a claim upon which relief could be granted.

AFFIRMED.