Sullivan v. ME Warden ( 1996 )


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    September 16, 1996 [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    ____________________


    No. 96-1270

    JOHN J. SULLIVAN,

    Plaintiff, Appellant,

    v.

    CORRECTIONS, ME. WARDEN,

    Defendant, Appellee.

    ____________________


    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge] _____________________

    ____________________

    Before

    Selya, Cyr and Boudin,
    Circuit Judges. ______________

    ____________________

    John J. Sullivan on brief pro se. ________________
    Andrew Ketterer, Attorney General, Diane Sleek and Thomas Warren, _______________ ___________ ______________
    Assistant Attorneys General, on brief for appellee.


    ____________________


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    Per Curiam. John J. Sullivan, a New Hampshire state __________

    prisoner, appeals pro se from the grant of summary judgment ___ __

    in favor of defendant Martin Magnusson, former Warden of the

    Maine State Prison. We affirm.

    On October 12, 1995, Sullivan filed a 42 U.S.C. 1983

    complaint seeking damages against Magnusson for violation of

    his rights under the First Amendment. The complaint alleges

    that Sullivan was housed at the Maine State Prison between

    September 30, 1988 and December 16, 1993. The complaint

    further alleges that on the latter date, Sullivan was

    transferred from the Maine State Prison back to the New

    Hampshire State Prison in retaliation for Sullivan's writing

    a newspaper column for the Maine Times. ___________

    On February 1, 1996, Magnusson moved for summary

    judgment. The motion was supported by an affidavit of

    Magnusson attesting that he transferred Sullivan because

    Sullivan's complaints that he deserved certain employment

    positions (held by other prisoners) due to what Sullivan

    considered to be his superior abilities had resulted in staff

    becoming increasingly unwilling to employ Sullivan and other

    prisoners becoming increasingly unwilling to work with him.

    Magnusson further attested that he began to receive reports

    that the situation had deteriorated to the point that

    Sullivan's personal safety was at risk from other prisoners.

    Sullivan filed an opposition supported by his own sworn



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    statement and by various documents. An additional cross-

    round of filings followed. On February 20, 1996, summary

    judgment entered in favor of defendant Magnusson. This

    appeal followed.

    Appellees do not dispute, and we assume, that Sullivan's

    writing a newspaper column for the Maine Times enjoys First ___________

    Amendment protection. Cf. Nolan v. Fitzpatrick, 451 F.2d ___ _____ ___________

    545, 547 (1st Cir. 1971) (striking down ban on prisoner

    letters to news media insofar as the letters concerned prison

    matters). It is well established that a prisoner may not be

    transferred from one institution to another for engaging in

    constitutionally protected activity. See McDonald v. Hall, ___ ________ ____

    610 F.2d 16, 18 (1st Cir. 1979). However, if taken for both

    permissible and impermissible reasons, state action may be

    upheld if the action would have been taken based on ____________________

    1The parties devote much of their respective briefs to 1 permissible reasons alone. See Graham v. Henderson, 89 F.3d ___ ______ _________
    arguing that the other side's evidence should have been
    stricken from the record or disregarded. Since it would not 75, 79 (2d Cir. 1996); Goff v. Burton, 7 F.3d 734, 737 (8th ____ ______
    alter our disposition, we need not resolve all of these
    disputes. In our disposition, we assume without deciding Cir. 1993); Ponchik v. Bogan, 929 F.2d 419, 420 (8th Cir. _______ _____
    that all of the evidence Sullivan filed in the district
    court--though not the evidence submitted for the first time 1991); see also McDonald, 610 F.2d at 18 (observing that to ___ ____ ________
    on appeal--should be considered. Sullivan's claim that
    Magnusson's affidavit is too conclusory is waived because it succeed on a retaliatory transfer claim, a prisoner must
    was never presented to the district court. However, we
    assume for the sake of argument that his last-minute filing, prove that he would not have been transferred "but for" the
    on February 20, 1996, preserved his remaining objections to
    Magnusson's affidavit (hearsay and lack of personal alleged improper reason).
    knowledge). This latter assumption gains Sullivan very
    little. To the extent that Magnusson's affidavit reports Upon de novo review of the district court record, we are __ ____
    statements made by others, they may be considered as evidence
    of what Magnusson heard or was told about Sullivan. See Fed. ___ persuaded that judgment properly entered in favor of
    R. Evid. 801(c); Lane v. Griffin, 834 F.2d 403, 407 (4th Cir. ____ _______
    1987). Magnusson, at the very least, had personal knowledge defendant Magnusson.1 Arguably, the chronology of events and 1
    of what was said to him if not the underlying facts. It is
    the former which is most relevant to the issue of his motive.

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    the fact that Sullivan's writings were sometimes critical of

    prison officials support an inference that his column was a

    motivating factor in the transfer decision. However,

    Magnusson submitted evidence that he had a proper motive for

    the transfer (namely, concern for Sullivan's safety), and

    that Sullivan would have been transferred anyway. None of

    the evidence submitted by Sullivan controverts this evidence

    of a legitimate motive. Indeed, Sullivan's admissions that

    he considers himself to have "superior ability[] compared

    with most inmates and staff," and that at least some staff

    members at the Maine State Prison were unwilling to employ

    him (though Sullivan suggests this was due to jealousy on

    their part) are consistent with Magnusson's claims. Under the

    circumstances, we do not think there is a genuine issue as to

    the fact that Sullivan would have been transferred regardless

    of his newspaper column.

    We add that if Sullivan needed additional information to

    adequately respond to Magnusson's motion for summary

    judgment, he could have requested a continuance to permit

    further discovery. See Fed. R. Civ. P. 56(f). His failure ___

    to do so precludes any argument on appeal that he was

    "railroaded." See de la Torre v. Continental Ins. Co., 15 ___ ____________ _____________________

    F.3d 12, 15 (1st Cir. 1994).

    Affirmed. ________





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