Sullivan v. ME Warden

Procedural entryThis page is a short order in Sullivan v. ME Warden. Read the opinion of the Court — 96 F.3d 1430 →

Court of Appeals for the First Circuit·Decided September 16, 1996·No. 96-1270·Published

Opinion

USCA1 Opinion

September 16, 1996 [NOT FOR PUBLICATION]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.

____________________

____________________

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

-2-

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.

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USCA1 Opinion




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.


____________________


____________________



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.



                                         -3-



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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Sullivan v. ME Warden, (1st Cir. 1996).

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Anthony F. McDonald v. Frank A. Hall

610 F.2d 16 (First Circuit, 1979)

Lloyd Steven Lane v. J.H. Griffin, and Muhammad Nubee, Chaplain, Rae McNamara Director of Prisons, James Woodard, Secretary of Corrections

834 F.2d 403 (Fourth Circuit, 1987)

George Goff v. James Burton, John Henry, and Crispus C. Nix

7 F.3d 734 (Eighth Circuit, 1994)

Ponchik v. Bogan

929 F.2d 419 (Eighth Circuit, 1991)

Opinion

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