Opinion
C.A. No. 01-137 T
March 14, 2002
Report and Recommendation
Plaintiff Bernardo Figueroa, pro se, has filed a complaint pursuant to 42 U.S.C. § 1983, alleging a violation of his First Amendment rights. Plaintiff contends that the defendant, Joseph DiNitto, the Associate Director/Chief of Classification at the Rhode Island Department of Corrections ("RI DOC"), violated the First Amendment by transferring the plaintiff to a confinement facility in Virginia, and not one in New Jersey, for filing legal complaints against officials and personnel at the RI DOC. Plaintiff also contends that once in the Virginia prison system, he was transferred to a more restrictive confinement facility, for complaining to the Federal Bureau of Investigation about the conditions in the Virginia prisons.
This matter is currently before the Court on the following motions: (1) defendant Joseph DiNitto's motion for summary judgement, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and (2) plaintiffs motion for a temporary restraining order/preliminary injunction, pursuant to Fed.R.Civ.P. 65. These matters has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that defendant's motion be granted, and plaintiffs motion be denied.
I. Defendant's Motion for Summary Judgement
Undisputed Facts
Plaintiff Bernardo Figueroa is serving a sentence from a Rhode Island state criminal conviction. From 1992 through August 1999, plaintiff was confined in the High Security Center and the Maximum Security Facility at the Adult Correctional Institution ("ACI"), Cranston, Rhode Island. Defendant Joseph DiNitto, the Associate Director/Chief of Classification at the RI DOC, is responsible for inmate transfers at the ACI.During the course of his incarceration at the ACI, plaintiff requested to be transferred to a confinement facility located in New Jersey to serve out his sentence. Also, during the course of his incarceration at the ACI, plaintiff brought a civil rights lawsuit against officials and personnel at the RI DOC. To settle the litigation, the RI DOC agreed to transfer the plaintiff to a confinement facility "outside of the New England area." See Defendant's Exhibit A.
In an effort to accommodate the plaintiff, and to comply with the dismissal stipulation, DiNitto contacted the appropriate authorities in New Jersey in an attempt to arrange for such a transfer. The authorities in New Jersey, however, refused to accept the plaintiff Accordingly, DiNitto contacted other jurisdictions to secure plaintiffs removal from the New England area. The only state contacted which would accept the plaintiff as an inmate was Virginia. In August 1999, plaintiff was transferred to the Virginia authorities for placement in their prison system.
Discussion
A. Summary Judgment Standard
Summary judgement's role in civil litigation is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial". Garside v. Osco Drug, Inc., 895 F.2d 46, 47 (1st Cir. 1990). Summary judgment can only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56.
Rule 56 has a distinctive set of steps. When requesting summary judgment, the moving party must "put the ball in play, averring `an absence of evidence to support a nonmoving party's case.'" Garside, 895 F.2d at 47 (quoting Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554 (1986)). The nonmovant then must document some factual disagreement sufficient to deflect brevis disposition. Not every discrepancy in the proof is enough to forestall summary judgment; the disagreement must relate to some issue of material fact. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2509-2510 (1986).
On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion. See id. at 256-257. This evidence "can not be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a fact finder must resolve at an ensuing trial." Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 181 (1St Cir. 1989). Evidence that is merely colorable or is not significantly probative cannot deter summary judgment. Anderson, 477 U.S. at 256-257.
Plaintiff has brought suit under 42 U.S.C. § 1983. Section 1983 provides, in pertinent part:
Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and law, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983.
In order to maintain a section 1983 action, the conduct complained must be committed by a "person" acting under color of state law and the conduct must have deprived the plaintiff of a constitutional right or a federal statutory right. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923 (1980); see also Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689 (1979) (constitutional deprivations); Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502 (1980) (statutory deprivations). Here, there is no dispute that the named defendant acted under the color of law. However, the defendant asserts that the undisputed facts demonstrate that plaintiffs First Amendment rights were not were offended. I agree.
C. First Amendment Retaliation Claims
A prisoner may establish a claim under section 1983 if the decision to transfer him to another institution was made by reason of his exercise of his constitutionally protected first amendment freedoms. McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979). While prison officials have extremely broad discretion in the transfer of inmates to other prisons, this broad discretion "does not swallow the inmate's fundamental right to access the courts." Id. (quoting Laaman v. Perrin, 435 F. Supp. 319 (D.N.H. 1977)). Otherwise, prison administrators would be free to transfer successful or troublesome litigants for no other reason than their legal activities.
In order to establish a claim for a retaliatory' transfer, the plaintiff must demonstrate that the actual motivating factor for his transfer was because of his constitutionally protected activity.McDonald at 18. In other words, plaintiff must demonstrate that he would not have been transferred "but for" his constitutionally protected activity. Id. This is a substantial burden. Id. "The requirement for a but for showing together with the wide latitude afforded prison officials in ordering transfers may make summary judgement particularly appropriate." Id.
Moreover, even if the defendant had an impermissible reason for transferring the plaintiff, if a separate, permissible reason exists, the defendant will not be liable. See Graham v. Hendeson, 89 F.3d 75, 79 (2nd Cir. 1996); Goff v. Burton, 7 F.3d 734, 737 (8th Cir. 1993); Ponchik v. Bogan, 929 F.2d 419, 420 (8th Cir. 1991); See also Scarpa v. Ponte, 638 F. Supp. 1019, 1027 (D.Mass. 1986).
1. Plaintiff's Transfer to Virginia.
Plaintiff contends that he was transferred to Virginia, and not New Jersey, in retaliation for filing a civil rights complaint against officials at the RI DOC. DiNitto asserts that plaintiff can not demonstrate the burden required to maintain such a claim. Moreover, DiNitto asserts that he had a permissible reason for transferring the plaintiff to Virginia, namely, a settlement agreement reached in another case. I agree with both of defendant's contentions.
Here, the undisputed facts show that DiNitto attempted to secure a transfer of the plaintiff to New Jersey. However, New Jersey refused to accept the plaintiff Accordingly, to comply with the dismissal stipulation, DiNitto, transferred the plaintiff to Virginia. No evidence, by way of exhibits, affidavits or otherwise, demonstrates that DiNitto transferred the plaintiff to Virginia, and not New Jersey, due to plaintiffs activities as a jailhouse lawyer. In other words, plaintiff has failed to show that "but for" his filing of lawsuits against prison administrators, he would not have been transferred to Virginia.
Moreover, DiNitto had a permissible, legitimate, reason for transferring the plaintiff to Virginia. New Jersey would not accept the plaintiff Thus, to comply with the dismissal stipulation, DiNitto sought plaintiffs transfer to other locations, outside of the New England area. DiNitto secured a transfer of the plaintiff to Virginia, which, by last accounts, was outside the New England area. Plaintiff can not legitimately seek to hold DiNitto responsible for a retaliatory transfer where, as here, plaintiff agreed in the stipulation to be confined at a prison outside of the New England area, and the only jurisdiction contacted that would accept him was Virginia. Accordingly, I find plaintiffs claim of a retaliatory transfer frivolous, and wholly without merit. Defendant's motion for summary judgement should be granted. I so recommend.
2. Plaintiff's Transfer Within the Virginia Prison System.
Plaintiff also asserts in his complaint that he has been transferred to a more harsh prison within the Virginia prison system following his complaints to the Federal Bureau of Investigation concerning the conditions in the Virginia prisons. Defendant contends that he is entitled to summary judgement on this claim as well. I agree.
In order to be held liable in a Section 1983 action, a defendant must have some connection to the alleged wrongdoing. See Lopez Morales v. Otero de Ramos, 725 F. Supp. 106 (D.P.R. 1989). Here, the undisputed facts show that DiNitto transferred the plaintiff into the Virginia prison system. But no where does plaintiff allege, let alone demonstrate, that DiNitto is in any way responsible for his movement between the Virginia prisons. Accordingly, since plaintiff does not allege, nor demonstrate, that DiNitto had any involvement with plaintiffs transfer within the Virginia prison system, defendant's motion for summary judgement should be granted on this claim as well. I so recommend.
II. Plaintiff's Motion for a Temporary Restraining Order and/or Preliminary Injunction.
Finally, plaintiff has filed with this Court a motion for temporary restraining order and/or a preliminary injunction, pursuant to Fed.R.Civ.P. 65. In considering whether to grant or deny such a motion, this circuit employs a quadripartite test, taking into account (1) the likelihood of the movant's success on the merits; (2) the potential for irreparable injury; (3) the relevant balance of hardships if the restrainer does not issue; and (4) the effect on the public interest of a grant or denial of the motion. Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991). A failure to demonstrate all four factors results in a denial of the motion. See Jackson v. Fair, 846 F.2d 811, 814 (1st Cir. 1988)
Here, the District Court has already dismissed a majority of plaintiffs claims. See Order, Granting, in Part, and Denying in Part, Defendant's Motion to Dismiss, Chief Judge Ernest C. Torres, January 8, 2002. The only claims remaining are plaintiffs First Amendment retaliation claims. And, as stated above, those claims are without merit. Accordingly, plaintiff has failed to demonstrate the likelihood of success on the merits, and his motion for a temporary restraining order/preliminary injunction should be denied. I so recommend.
Conclusion
Accordingly, for the reasons stated above, I recommend that defendant's motion for summary judgement be granted, and plaintiffs motion for a temporary restraining order and/or preliminary injunction should be denied. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).