Davis v. Kelly

Citation160 F.3d 917
Decision Date23 November 1998
Docket NumberDocket No. 97-2575
PartiesRobert DAVIS, Plaintiff-Appellant, v. Walter R. KELLY, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Thomas I. Sheridan, III, New York, N.Y. (Linda M. Baldwin, Haythe & Curley, New York, N.Y., on the brief), for plaintiff-appellant.

Dennis C. Vacco, N.Y. State Atty. Gen., Peter H. Schiff, Deputy Solicitor Gen., Peter C. Crary, Victor Paladino, Asst. Attys. Gen., Albany, N.Y., submitted a brief for defendant-appellee.

Before: NEWMAN, McLAUGHLIN and PARKER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal by a prisoner challenging what he alleges is a retaliatory transfer primarily concerns the appropriate disposition of a complaint asserting what appears to be a meritless claim against a warden where other corrections officials with potential liability have not yet been identified. Robert Davis, an inmate at Green Haven Correctional Facility, appeals from the August 7, 1997 judgment of the United States District Court for the Western District of New York (Richard J. Arcara, Judge), granting the motion of defendant Walter R. Kelly, Superintendent and Warden of Attica Prison, for summary judgment, and dismissing the complaint. We conclude that, because this plaintiff was acting pro se and could not have been expected to have known which parties were personally involved in his transfer, he should have been granted an additional opportunity for discovery to ascertain the identities of such parties, and his suit was therefore prematurely dismissed. Accordingly, we reverse and remand.

Background

Davis was incarcerated in 1981 to serve a sentence of twenty-five years to life. In 1982, he was transferred to the Attica Correctional Facility. Over the years, his relatively positive disciplinary record gradually won him increased privileges, such as a position as a commissary clerk and an assignment to the Honor Block. In 1988, he began repeatedly to request a transfer to the Wende Correctional Facility, which he believed would be both more rehabilitative and less violent. The transfer request was approved by officials at both Attica and the New York State Department of Correctional Services, Division of Classification and Movement ("DOCS-DCM") by October 1991, but never carried out.

In February 1992, Davis filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, against Warden Kelly and others, alleging that Kelly improperly administered a prison election relating to television and package privileges and that Kelly improperly supervised certain corrections officers and counselors, who had allegedly abused or cheated Davis. The disposition of this suit does not appear in the record.

The sequence of subsequent events is not entirely clear. On July 2, 1992, an entry in Davis's records reads "TRANSFERRED THIS DATE TO WENDE CORRECTIONAL FACILITY," but the transfer never took place; the typed words were struck through some time later by unknown officials at an unknown time, and the word "CANCELLED" was typed next to them. In the "Inmate Transfer System" records of DOCS-DCM and Attica, it appears that the pending transfer order to Wende was cancelled on February 17, 1993. On February 25, 1993, an unidentified official at Attica requested DOCS-DCM to transfer Davis to "any suitable maximum security facility." In March 1993, Davis was transferred to the Clinton Correctional Facility, which Davis alleged was a "disciplinary problem prison," plagued by violence and unsuited to rehabilitation. He was demoted from commissary clerk to janitor, a job that paid substantially lower wages.

In December 1994, Davis brought the instant section 1983 action in the District Court, naming only Warden Kelly as a defendant. The complaint alleged that Davis's transfer to Clinton was retaliation for his earlier section 1983 suit. Davis sought damages and injunctive relief to restore him to the Attica Honor Block unit and to his commissary job assignment. In his answer, Kelly denied that the transfer was retaliatory and invoked qualified immunity.

In response to Judge Arcara's order inviting proposed scheduling orders, see Fed.R.Civ.P. 16, Davis moved for appointment of counsel. Judge Arcara denied the motion, relying on the "Court's policy to appoint counsel in civil rights cases filed by inmates, but only after the plaintiff's allegations have withstood a motion to dismiss or for summary judgment." That policy has since been changed, see Hendricks v. Coughlin, 114 F.3d 390, 391 n. 2 (2d Cir.1997), and we have ruled that a denial based on the prior policy is error, see id. at 393.

Davis then requested a number of documents from Kelly. He asked for reports concerning inmate assaults at both Clinton and Wende, presumably to compare the relative levels of violence at the two facilities. He also asked for print-outs of all prisoner transfers from Attica during July 1992, a list of all honor block inmates who had been transferred to Clinton between 1987 and 1993, and all evaluations and disciplinary reports concerning Davis that had been filed between 1981 and 1994. He did not, however, request any documents pertaining to the administration of the transfer process, or the officials who normally carry out such transfers.

Davis's requests for production of documents were met by the Defendant's objections except as to two documents: (1) a summary of Davis's transfer record, which gave as a reason for Davis's transfer, "Transfer recommended as it is felt inmate has become too familiar with facility as inmate has been here since 9/82," and (2) Davis's "service unit" records from Attica. Magistrate Judge Heckman, to whom discovery matters had been referred, denied Davis's motion to compel all other requested documents.

The Defendant moved for summary judgment on the basis of his own affidavit and that of Gerald E. Morrissey, a classification and movement analyst in DOCS-DCM. Kelly denied any personal knowledge of the transfer orders, but offered a chronology of events, presumably relying on prison records. He acknowledged the approval of Davis's transfer request in May 1991, noted that it had remained unfulfilled for two years, and stated, "[C]onsequently ... Attica requested that [DOCS-DCM] cancel the outstanding T.O. [transfer order] and consider inmate Davis for transfer to any suitable maximum security facility." He then asserted that in February 1993 Attica requested DOCS-DCM to transfer Davis to "any suitable facility" because "Davis, who had been incarcerated at Attica in excess of ten years, had become too familiar with the facility and, consequently, posed a threat to the maintenance of order and discipline within the facility." Kelly further asserted that he did not participate in the initial transfer order, its cancellation, or the subsequent transfer order, and that the transfer orders were processed by unnamed other individuals "in the ordinary course of business" at Attica and reviewed by DOCS-DCM.

Morrissey, relying on "familiar[ity] with the policies and procedures used" stated that transfer requests do not require a superintendent's participation, and that such requests and their cancellation must be reviewed and approved by his office, DOCS-DCM. He explained the long pendency of Davis's original transfer order by asserting that the Wende facility is much smaller than Clinton and transfers to Wende are difficult to obtain. Davis's 1991 transfer order to Wende was cancelled in 1993, he averred, "for the valid and objective basis that the T.O. had been outstanding for nearly two years." He further asserted that "[t]ransferring inmates who have become familiar with facility staff and procedures is an accepted rationale" for prisoner transfer, and that the 1993 request for a new transfer request for Davis was submitted by Attica staff who had determined that "his long stay at Attica had made him too familiar with the facility and, thus, posed a threat to the maintenance of order and discipline within the facility."

In his Statement of Undisputed Facts, Kelly included a number of assertions that Davis contested. For example, the date of the transfer cancellation is claimed "undisputably" to be February 17, 1993; however, from the records thus far produced, this date is not clear, and Davis alleges that the date was July 1992, much closer to the date of his first lawsuit.

Magistrate Judge Heckman filed a report recommending the grant of Kelly's summary judgment motion on the grounds that (1) Davis had failed to state a claim of retaliation because his allegations were conclusory and he had failed to show that he would not have been transferred even if he had not filed his 1992 lawsuit; (2) Kelly had shown that he was not personally involved in the transfer; and (3) Kelly was entitled to qualified immunity. The District Court adopted the Report and entered a judgment dismissing the complaint. Upon Davis's appeal, this Court appointed counsel.

Discussion

Some aspects of this appeal are not in dispute. A prisoner has no liberty interest in remaining at a particular correctional facility, see Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Meriwether v. Coughlin, 879 F.2d 1037, 1047 (2d Cir.1989), but prison authorities may not transfer an inmate in retaliation for the exercise of constitutionally protected rights, see Hendricks v. Coughlin, 114 F.3d 390, 393-94 (2d Cir.1997); Gill v. Mooney, 824 F.2d 192, 194 (2d Cir.1987), and Davis had a constitutionally protected right to petition the court for redress of grievances, see Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995). The primary disputed issue is whether the cancellation of Davis's requested transfer to Wende and the subsequent ordering of a transfer to Clinton were done in retaliation for Davis's 1992 lawsuit. The District Court, acting on the Magistrate Judge's report, resolved this issue in favor...

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