Unpublished Disposition, 917 F.2d 27 (9th Cir. 1990)

MEMORANDUM^** 

Edward Diamontiney, a California state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915(d). Diamontiney contends that his constitutional rights were violated when a hearing to determine his suitability for an out-of-state transfer was held in his absence. We have jurisdiction under 28 U.S.C. § 1291 and review de novo. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). We affirm.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis in law or in fact." Id. A district court must afford a pro se plaintiff notice of the deficiencies and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

A prisoner has no due process right to be housed in the institution or state of his choice unless state regulations impose substantive limitations on the exercise of official discretion such that "particularized standards or criteria" limit the discretion of prison officials in making transfers. Olim v. Wakinekona, 461 U.S. 238, 245-49 (1983); Meachum v. Fano, 427 U.S. 215, 225 (1976). Under Cal. Penal Code Sec. 11191, the decision as to whether a prison transfer should be granted lies completely within the discretion of prison officials, and thus no liberty interest is created. See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (California state prisoner has no liberty interest in not being transferred to another state prison).

Because Diamontiney has no protected liberty interest in being transferred, the district court properly dismissed his complaint as frivolous. See Olim, 461 U.S. at 245-49; Rizzo, 778 F.2d at 530.¹ 

AFFIRMED.