HAGOPIAN, United States Magistrate Judge.
Plaintiff John R. Bartolomeo has filed this action pursuant to 42 U.S.C. § 1983 against employees of the Donald Wyatt Detention Facility, Central Falls, Rhode Island, alleging a violation of his federally protected rights. The Wyatt Facility housed the plaintiff from September 5, 1996 until January 13, 1998, while the plaintiff was a federal pretrial detainee.
Presently before the Court is the motion of the defendants, Victor Liburdi, Jennifer Egan, Patrick Toolin and Michael Coie, for summary judgement pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has opposed the motion. This matter has be referred to me pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that the defendants' motion be granted.
The court notes that defendants' motion for summary judgement has been filed out of time. However, considering that the plaintiff never actually filed an Amended Complaint, the Court will entertain defendants' summary judgement motion.
I. Jurisdiction
Plaintiff in this action has filed a Complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his First Amendment rights. Accordingly, this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
Title 28, Section 1331, of the United States Code provides "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
II. Background
The following are the undisputed facts, viewed in a light most favorable to the plaintiffs the nonmoving party.
The Court directs the parties attention to Local Rule 12.1 (a). Neither party has complied with this Rule. Notwithstanding, the court has gleaned the undisputed facts from the totality of the record.
Plaintiff began his confinement at the Donald Wyatt Detention Center ("Wyatt") in Central Falls, Rhode Island, on September 5, 1996, as a federal pretrial detainee. During the times relevant in the complaint, Victor Liburdi served as the Director of Wyatt and Jennifer Egan as the Deputy Director, while Michael Coie and Patrick Toolin served as Correctional Officers at the facility.
Wyatt is a operated by Cornell Corrections, a non-governmental corporation. Cornell Corrections employs the staff at Wyatt, including the named defendants. The United States Marshals Service provides inmates to house at Wyatt. Only the U.S. Marshals Service has the authority to transfer an inmate from Wyatt to another correctional facility.
"The defendants do not challenge the authority for the relief sought by the plaintiff pursuant to 42 U.S.C. § 1983. Considering that the plaintiff was in the custody of the U.S. Marshal at the time and that Wyatt is a privately operated facility, it may be more appropriate to categorize this action as one pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Nevertheless, the legal analysis and the outcome would be the same in this case whether under Section 1983 or Bivens.
During plaintiffs confinement at Wyatt, plaintiff submitted numerous grievances and complaints to local governmental agencies, newspapers, and Wyatt itself, concerning alleged conditions at the facility. Particularly, plaintiff filed complaints concerning the following the mail delivery, the commissary, alleged overcrowding conditions, a correctional officer, medical staff at the facility, and procedures employed to screen visitors upon entering the facility. Additionally, plaintiff assisted other inmates in filing lawsuits and grievances against Wyatt and its staff. Plaintiff also has been a party to litigation against Wyatt and its staff in this court. These facts are undisputed.
However, what is also undisputed is plaintiffs numerous infractions of the Wyatt facility's rules during his incarceration there. During plaintiffs sixteen months of pretrial detention at Wyatt, plaintiff was charged on ten occasions with disciplinary infractions, which defendants aver is the reason for his transfer to another facility. An brief overview of those infractions is as follows.
Plaintiff was first charged with violating facility rules, conduct which disrupts the operation of the facility, and fighting with another inmate on November 20, 1996. Plaintiff pled guilty at a administrative hearing on those charges. Plaintiffs next infraction of the Wyatt Center's rules occurred on March 26, 1997. At that time, plaintiff was charged with insolence towards a member of the medical staff. The plaintiff was found guilty after an administrative hearing on those charges. Then on April 23, 1997, the plaintiff was charged with disobeying orders, violating facility rules, being out of place, conduct which disrupts the facility and participation in a group demonstration. The plaintiff was found guilty after an administrative hearing on those charges.
Following plaintiffs infractions on the 23rd of April, 1997, Deputy Director Egan made her first request to the U.S. Marshals Service to have the plaintiff transferred to another facility. This request was not acted upon, and plaintiff remained at the facility.
Plaintiffs next infraction of Wyatt's rules occurred on May 3, 1997. Then, the plaintiff was charged with willfully destroying property and disobeying an order as a result of tearing his bed sheets to pass material from one cell to another. The plaintiff pled guilty at an administrative hearing on those charges. On May 4, 1997, the plaintiff was charged with violating a facility rule, disobeying orders, failing to keep his quarters clean and conduct which disrupts the facility for throwing trash out in front of his cell. Plaintiff pled guilty at an administrative hearing on those charges. Plaintiffs next infraction occurred on May 23, 1997. At that time, the plaintiff was charged with disobeying an order and conduct which disrupts the facility due to his refusal to follow an order of a correctional officer. The plaintiff pled guilty at an administrative hearing on those charges.
Then on May 29, 1997, plaintiff was charged with insolence towards a staff member, violating the confinement facility rules, disobeying an order, conduct which disrupts the facility and participating in and encouraging a group demonstration due to his refusal to "lock in" his cell and his efforts to encourage other inmates to similarly refuse to "lock in". Plaintiff was also charged on May 29, 1997, with insolence towards a staff member, violating a facility rule, and conduct which disrupts the facility due to the plaintiffs flooding of his cell. The plaintiff was found guilty after a hearing on these charges.
Following plaintiffs infractions on the 29th of May, Deputy Director Egan made a second request to the U.S. Marshals Service to have the plaintiff removed from Wyatt, particularly for his conduct in attempting to organize a group demonstration. This request was not granted, and plaintiff remained at Wyatt.
On June 18, 1997, plaintiff was charged with violating facility rules, failing to keep his quarters clean, conduct which disrupts the facility, participating in, or encouraging a riot or unauthorized group demonstration and willfully destroying or damaging facility property after flooding his cell. The plaintiff was found guilty after an administrative hearing on those charges.
Following these infractions of the Wyatt Center's rules, Deputy Director Egan made a third request to have the plaintiff removed from the facility. Again, this request was not granted, and plaintiff remained at the facility for seven months, without incident.
Then on December 19, 1997, the plaintiff was charged with misconduct after kicking his door on his cell, a confrontational exchange with a correctional officer, and a refusal to be handcuffed. Plaintiff then, on January 8, 1998, "was believed to have joined in with other inmates in intimidating inmates in his pod to join in his refusal to eat the dinner meal". Liburdi Affidavit ¶ 22, Egan Affidavit ¶ 25.
Following these last two incidents, Deputy Director Egan made her fourth, and final request to the U.S. Marshals Service to have the plaintiff removed from Wyatt. This request was answered in the affirmative, and the plaintiff was transferred to the Plymouth County Correctional Facility on January 13, 1998.
Plaintiffs infraction of December 19, 1997 and the incident on January 8, 1998 were not adjudicated via the prison's disciplinary procedures.
Remaining unexplained is the inactivity on the part of the U.S. Marshals Service to take corrective action in transferring an inmate who sought to run the Wyatt Center. Over a period of sixteen months, the plaintiff was involved in 10 disciplinary infractions which disrupted the safety and the security of the facility.
Plaintiff initially filed suit in this Court on November 5, 1997, seeking relief for an alleged disruption in his mail delivery. He subsequently amended his complaint to add a claim for a retaliatory transfer. Plaintiffs mail delivery claim was dismissed by order of this court on July 23, 1999. His retaliatory transfer claim is the only claim remaining. Specifically, plaintiff alleges that the defendants transferred him to another facility in retaliation for complaining about the Wyatt facility and its staff to government agencies and to the federal courts.
Defendants have moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgement. Plaintiff has opposed the motion.
III. Discussion
A. Summary Judgement 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, 50 (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 of the Federal Rules of Civil Procedure has a distinctive set of steps. When requesting summary judgement, 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 48 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554 (1986)). The nonmovant then must document some factual disagreement sufficient to overcome 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, 247-48, 106 S.Ct. 2505, 2509-10 (1986).
On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion. See id., 477 U.S. at 256-257, 106 S.Ct. at 2514-15. This evidence "cannot 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 248, 106 S.Ct at 2510. At the summary judgement stage, there is no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, no room for the judge to superimpose his own ideas of probability and likelihood." Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir. 1987).
B. The Undisputed Facts Demonstrate that Defendants' Motion for Summary Judgement Should be Granted.
Plaintiff in this action asserts that he was transferred from Wyatt to the Plymouth County Correctional Facility in retaliation for complaining about the Wyatt facility to local government agencies and to the courts. Defendants have moved for summary judgement on plaintiffs claim. For the reasons that follow, I recommend that defendants' motion be granted.
It is well settled that the decision on where to place prisoners within the correctional system is a matter of discretion for prison administrators invoked for varied reasons such as security, convenience, or rehabilitation. Lombardo v. Meachum, 548 F.2d 13, 14-15 (151 Cir. 1979). It is also well settled that a prisoner has no right to a hearing before he is transferred. McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979). A prisoner can be transferred for any reason, or for no reason at all. Id. This rule is applicable to those convicted as well as pretrial detainees. Feeley v. Sampson, 570 F.2d 364, 376-77 (1st Cir. 1978).
A prisoner can, however, establish a retaliatory transfer claim if the decision to transfer him was made by reason of his constitutionally protected First Amendment freedoms. McDonald, 610 F.2d at 18. While the discretion afforded to prison officials to transfer an inmate is extremely broad, it does not "swallow" an inmate's fundamental First Amendment rights. Id.
In order to establish a claim for a retaliatory transfer, the plaintiff must make a showing that the actual motivating factor for his transfer was because of his constitutionally protected activity. Id. 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 of 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 defendants had an impermissible reason for transferring the plaintiff, if a separate, permissible reason exists, the defendants still would not be liable. See Graham v. Henderson, 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).
To overcome defendants' motion for summary judgement, plaintiff must make a showing demonstrating that the motivating factor behind his transfer was his constitutionally protected activity. In other words, plaintiff must demonstrate that "but for" his constitutionally protected activity, he would not have been transferred. Defendants assert that plaintiff can not demonstrate such a substantial burden. Moreover, defendants assert that they had a permissible reason for transferring the plaintiff to another facility, namely to maintain the safety and security of their facility. This court agrees with both of defendants' assertions.
Here, the only evidence plaintiff offers to this court is to point to, what plaintiff suggests are lenient sanctions given to him for his violations of rules at Wyatt. In his brief, plaintiff explains each and every infraction that he was charged with and the sanctions imposed. What plaintiff fails to accomplish, however, via his brief or other submissions, is to demonstrate that the actual motivating factor to transfer him from Wyatt to Plymouth was because of his constitutionally protected activity.See McDonald, 610 F.2d at 18.
On the contrary, the record indicates that his transfer was caused by his numerous infractions of Wyatt's rules. Plaintiffs own exhibits demonstrate this. See Plaintiffs Exhibits 1, 2, 6-14; See also Liburdi Affidavit, ¶¶ 10-22, Egan Affidavit ¶¶ 10-26. The undisputed facts indicate that plaintiff was involved in nine disciplinary infractions which resulted in a plea of guilty by the plaintiff or a finding of guilty by a hearing officer. Following the most serious infractions, those of April 23, 1997 — encouraging a group demonstration, May 29, 1998 — a group demonstration and a refusal to "lock in", June 18, 1997 — participation in or encouraging a riot or group demonstration, Deputy Director Egan made three separate requests to the U.S. Marshal to have the plaintiff removed from Wyatt.
The final request to remove plaintiff from Wyatt came on the heels of a seven month period of "clear conduct," a period in which plaintiff received no disciplinary violations. Plaintiff then was charged on December 19 after an alleged confrontational exchange with a correctional officer and a refusal to be handcuffed. Plaintiff then, on January 8, was believed to have joined with other inmates "in intimidating other inmates in his pod to join in his refusal to eat the dinner meal. He also yelled at correctional officers after he was instructed to return to his cell." Egan affidavit, ¶ 25.
Even considering plaintiffs "clear conduct" period, given plaintiffs history of infractions, particularly his "group demonstrations" or attempted "riots", it is perfectly legitimate for Wyatt officials to transfer the plaintiff to another facility for disciplinary, security, and safety reasons. These are permissible reasons that offend no constitutional provisions.
Here, plaintiff faced a challenging burden to overcome. Plaintiff, however, failed to make a showing that the motivating factor behind his transfer was his constitutionally protected activity. Moreover, defendants have articulated and substantiated a valid, permissible reason for transferring the plaintiff, namely maintaining the security and safety of their facility.
Accordingly, since plaintiff has failed to produce evidence demonstrating that he would not have been transferred "but for" his constitutionally protected activity, no genuine issue of material fact exists, and summary judgement should be granted for the defendants.
C. Alternatively, Summary Judgement Should be Granted for Defendants Toolin and Coie Since No Evidence Demonstrates That They Were Personally Involved in Plaintiff's Transfer.
Alternatively, if plaintiff had surpassed the hurdle of establishing a "but for" showing as discussed above, summary judgement should still be entered for defendants Toolin and Coie. Plaintiff here has failed to demonstrate that Toolin and Coie, Correctional Officers, were involved in the decision to transfer the plaintiff.
In order to be held liable for a violation under Section 1983, a defendant must be personally involved in the conduct which gives rise to the Constitutional claim. See Monell v. Department of Social Services, 436 U.S. 658, 692, 98 S.Ct. 2018, 2036 (1978); Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir. 1982). There must be an affirmative link between the constitutional violation and the action of the defendant. Voutour, 761 F.2d at 819. Thus, plaintiff must demonstrate that each defendant was personally involved in the decision to transfer the plaintiff to Plymouth.
Here, plaintiff can not make such a demonstration with respect to defendants Toolin and Coie. The undisputed facts indicate that neither had a part in the decision to transfer the-plaintiff to the Plymouth County Correctional Facility. See Liburdi Affidavit, ¶ 23, which states "Neither Michael Coie nor Patrick Toolin had any involvement with the requests made to the United States Marshals Service to transfer the Plaintiff to another correctional facility or plaintiffs eventual transfer to another correctional facility." The undisputed facts indicate that the transfer was requested by the administration at Wyatt. See Egan affidavit ¶¶ 10, 15, 20, 23, 26.
Accordingly, since the undisputed facts indicate that defendants Toolin and Coie had no personal involvement in the decision to transfer the plaintiff to the Plymouth County Correctional Facility, they can not be held liable for a § 1983 violation. Accordingly, summary judgement should be entered in their favor. I so recommend.
IV. Conclusion
For the reasons set forth above, I recommend that defendants Liburdi, Egan, Toolin and Coie's motion for summary judgement be granted. 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).
Jacob Hagopian United States Magistrate Judge
April 10, 2000