929 F.2d 419 (8th Cir. 1991), 90-5317, Ponchik v. Bogan

• Docket Nº: 90-5317.
• Citation: 929 F.2d 419
• Party Name: Thomas PONCHIK, Appellant, v. Joe BOGAN, Warden; G.C. Wilkinson; Phill Wise; C. Thesing; M. Bell; Edward Cartwright; D. Olazaba; J. Loftness; R. Church; J. Nelson; Tony Calabrese; Joe Lawless; R. Laabs; Capt. Graham; E. Burgeson; J. Fuller; D. Steffens; Mr. Gustafson; R. Kahn; K. Farrell; G. Carmona; Larry Schatte; P. Schultz; John Doe; and Jane Do
• Case Date: April 01, 1991
• Court: United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 419

929 F.2d 419 (8th Cir. 1991)

Thomas PONCHIK, Appellant,

v.

Joe BOGAN, Warden; G.C. Wilkinson; Phill Wise; C.

Thesing; M. Bell; Edward Cartwright; D. Olazaba; J.

Loftness; R. Church; J. Nelson; Tony Calabrese; Joe

Lawless; R. Laabs; Capt. Graham; E. Burgeson; J. Fuller;

D. Steffens; Mr. Gustafson; R. Kahn; K. Farrell; G.

Carmona; Larry Schatte; P. Schultz; John Doe; and Jane

Doe, Appellees.

No. 90-5317.

United States Court of Appeals, Eighth Circuit

April 1, 1991

Submitted Nov. 6, 1990.

Thomas Ponchik, pro se.

Page 420

Lonnie F. Bryan, Asst. U.S. Atty., Minneapolis, Minn., for appellees.

Before JOHN R. GIBSON and FAGG, Circuit Judges, and HEANEY, Senior Circuit Judge.

HEANEY, Senior Circuit Judge.

Thomas Ponchik, a federal inmate, appeals from the district court's order dismissing several defendants and granting summary judgment to the remaining defendants in Ponchik's Bivens-type action. Ponchik's main argument for reversal is that he was entitled to a trial on his claim that he was transferred from the Federal Medical Center (FMC) in Rochester, Minnesota in retaliation for the exercise of his first amendment rights. We affirm.

A prisoner may not be transferred in retaliation for the exercise of a constitutional right. Murphy v. Missouri Dep't of Correction, 769 F.2d 502 (8th Cir.1985) (per curiam). Here, the fact that Ponchik had filed two lawsuits against prison officials was clearly a factor in requesting his transfer; this matter was underlined in the transfer request form. Nevertheless, upon review of the record, we conclude that the district court correctly applied the "but for" test in determining that Ponchik's transfer would have been requested, even had he not filed the lawsuits, because of his serious and repetitive misconduct. See McDonald v. Hall, 610 F.2d 16, 18 (1st Cir.1979), cited with approval in Murphy, 769 F.2d at 503 n. 1.

Furthermore, Ponchik's due process right to a disciplinary hearing before the transfer was not violated. This right was created by the Bureau of Prisons regulation set forth at 28 C.F.R. Sec. 541.13, Table 4, (1987) ¹, which clearly mandated such a hearing before a nonemergency disciplinary transfer. See Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976) (right to hearing prior to disciplinary transfer may be created by regulations imposing...