USCA1 Opinion
September 16, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1270
JOHN J. SULLIVAN,
Plaintiff, Appellant,
v.
CORRECTIONS, ME. WARDEN,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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John J. Sullivan on brief pro se.
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Andrew Ketterer, Attorney General, Diane Sleek and Thomas Warren,
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Assistant Attorneys General, on brief for appellee.
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Per Curiam. John J. Sullivan, a New Hampshire state
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prisoner, appeals pro se from the grant of summary judgment
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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.
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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
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Amendment protection. Cf. Nolan v. Fitzpatrick, 451 F.2d
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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,
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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
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1The parties devote much of their respective briefs to
1
permissible reasons alone. See Graham v. Henderson, 89 F.3d
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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
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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.
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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
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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
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statements made by others, they may be considered as evidence
of what Magnusson heard or was told about Sullivan. See Fed.
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persuaded that judgment properly entered in favor of
R. Evid. 801(c); Lane v. Griffin, 834 F.2d 403, 407 (4th Cir.
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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
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to do so precludes any argument on appeal that he was
"railroaded." See de la Torre v. Continental Ins. Co., 15
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F.3d 12, 15 (1st Cir. 1994).
Affirmed.
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