Hannon v. Beard

• Decision Date: 08 June 2011
• Docket Number: No. 10–1792.,10–1792.
• Citation: 645 F.3d 45
• Parties: Francis HANNON, Plaintiff, Appellant,v.Jeffrey BEARD, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

645 F.3d 45

Francis HANNON, Plaintiff, Appellant,

v.Jeffrey BEARD, Defendant, Appellee.

No. 10–1792.

United States Court of Appeals, First Circuit.

Heard May 5, 2011.Decided June 8, 2011.

Matthew J. Matule, with whom David S. Clancy and Christopher G. Clark were on brief, for appellant.Claudia M. Tesoro, Senior Deputy Attorney General, Commonwealth of Pennsylvania, with whom William H. Ryan, Jr., Acting Attorney General, and John G. Knorr, III, Chief Deputy Attorney General, were on brief, for appellee.

Before HOWARD, SELYA and THOMPSON, Circuit Judges.SELYA, Circuit Judge.

Plaintiff-appellantFrancis Hannon, a convict serving a sentence imposed by a Pennsylvania state court, characterizes his transfer to a Massachusetts penitentiary as an unlawful retaliatory response to his vigorous exercise of First Amendment rights.In his ensuing suit for damages, the district court entered summary judgment in favor of defendant-appelleeJeffrey Beard, Secretary of the Pennsylvania Department of Corrections(PDOC).Concluding that the plaintiff has not made out a prima facie case of retaliation, we affirm.

I.BACKGROUND

The relevant facts are catalogued in considerable detail in an earlier opinion in this case, seeHannon v. Beard,524 F.3d 275, 278–79(1st Cir.2008), and we assume the reader's familiarity with that account.We rehearse here, in the light most favorable to the plaintiff, those facts needed to bring the challenged transfer into perspective.

In 1978, a Pennsylvania jury convicted the plaintiff of murder.Approximately three years later, the trial judge sentenced him to life imprisonment.The plaintiff has been incarcerated continuously since that time.During the years, he has acquired a reputation as a “jailhouse lawyer.”As such, he has filed numerous grievances both on behalf of other inmates and to his own behoof, organized fellow inmates, and served as an inmate advocate in a myriad of disciplinary proceedings.After initially committing some disciplinary infractions, he has compiled an unblemished disciplinary record over more than two decades.

For many years, the PDOC housed the plaintiff in various in-state correctional facilities.During that span, the plaintiff developed a number of “separations”—a term used to indicate the existence of a placement conflict counseling against assignment of one inmate to the same institution as another inmate or staff member.See, e.g., Hoover v. Beard,248 Fed.Appx. 393, 395(3d Cir.2007).Faced with these accumulated separations, the PDOC moved the plaintiff out of Pennsylvania in 1997, billeting him in other states' prisons pursuant to the Interstate Corrections Compact (ICC).See61 Pa. Cons.Stat. § 7101–7103;Mass. Gen. Lawsch. 125, App. § 2–1;see generallyOlim v. Wakinekona,461 U.S. 238, 246–47, 103 S.Ct. 1741, 75 L.Ed.2d 813(1983)(describing operations of the ICC).

The plaintiff's ICC assignments included stops at two different correctional facilities operated by the District of Columbia and, after a brief return to Pennsylvania, stops at a pair of Maryland penitentiaries.His exile lasted for nearly four years.Then, in May of 2001, the PDOC, at the request of the Federal Bureau of Investigation, temporarily repatriated him and placed him in a Pennsylvania prison.

The plaintiff's return to Pennsylvania proved to be short-lived.In December of 2001, the PDOC informed him that he was again being transferred out of state—this time to Massachusetts.This transfer is the focal point of the present appeal.¹

This brings us to the defendant, Beard, whose appointment as Secretary of the PDOC was confirmed in February of 2001.Maryland returned the plaintiff to Pennsylvania that May, and the defendant, in October of 2001, instructed a subordinate to once again transfer the plaintiff out of state and to “[k]eep [the defendant] updated on the matter.”As part of the groundwork for this move, the subordinate sent an ICC referral letter (the Letter) to her Massachusetts counterpart.The Letter described the plaintiff's penological history and limned the reasons for the request:

[The plaintiff] was sent to the District of Columbia in March 1997 but was returned to Pennsylvania on April 5, 2001 when they closed their facilities.He was transferred to Maryland on 4–13–2001 as an ICC transfer.He was brought back to Pennsylvania on 5–31–2001 for temporary purposes to conduct an investigation.It is now concluded and we need to find placement for him in another state.

He has only incurred eight (8) misconducts with the last one being in 1987.Therefore, he is not what you would call a management problem nor does he appear to be a threat to staff or other inmates.He is more of what you call a nuisance.

He has a history of being suspected of being the force behind a number of untrue accusations about staff and institutional operations.He also has a history of manipulating other inmates to champion his cause, rather than taking responsibility for his false accusations.He consistently functions as a “jailhouse lawyer” and spends the majority of his time working on personal legal matters and acting as an inmate representative for other inmates at misconduct hearings.

Due to his history of “using other inmates,”he has developed considerable separations within our system and therefore, we need to move him to another jurisdiction where he does not have separations.We have exhausted the remedies available to us within our system.

Massachusetts honored the request, and the PDOC effected the transfer in December, sending the plaintiff from a Pennsylvania medium-security prison to a Massachusetts maximum-security prison.

After his relocation, the plaintiff invoked 42 U.S.C. § 1983 and brought suit against Beard, individually, in the United States District Court for the District of Massachusetts.The gravamen of his complaint is an allegation that the defendant ordered his transfer in retaliation for the exercise of his First Amendment rights, that is, his advocacy on behalf of himself and other convicts.After we resolved a jurisdictional challenge, seeHannon,524 F.3d at 285–86, the parties engaged in pretrial discovery.In due season, the defendant moved for summary judgment.The district court obliged, discerning “no affirmative evidence that [the defendant] was motivated by an intent to retaliate” against the plaintiff.Cook v. Maloney,No. 03–cv–12138, 2010 WL 1381731, at *3(D.Mass.Mar. 30, 2010).Following the denial of his motion for reconsideration, the plaintiff filed a timely notice of appeal.

II.ANALYSIS

We review the entry of summary judgment de novo.Garside v. Osco Drug, Inc.,895 F.2d 46, 48(1st Cir.1990).We may affirm the decision only if the record, viewed in the light most favorable to the summary judgment loser, discloses no genuine issue as to any material fact and confirms that the moving party is entitled to judgment as a matter of law.Vineberg v. Bissonnette,548 F.3d 50, 55(1st Cir.2008).In conducting this tamisage, we draw all reasonable inferences in the nonmovant's favor.Houlton Citizens' Coal. v. Town of Houlton,175 F.3d 178, 184(1st Cir.1999).

This standard is favorable to the nonmoving party, but it does not give him a free pass to trial.He must carry “the burden of producing specific facts sufficient to deflect the swing of the summary judgment scythe.”Mulvihill v. Top–Flite Golf Co.,335 F.3d 15, 19(1st Cir.2003).Conclusory allegations and rank speculation, even if couched in pejorative language, will not suffice to defeat a properly supported summary judgment motion.Ahern v. Shinseki,629 F.3d 49, 54(1st Cir.2010);Pagano v. Frank,983 F.2d 343, 347(1st Cir.1993).

In this venue the plaintiff, ably represented by counsel, contends that the district court failed to consider the evidence in the light most favorable to him ² and that the record, correctly assayed, establishes a chronology of events from which a reasonable jury could infer retaliation.We examine this contention.

We appreciate that running a prison system is a difficult enterprise, fraught with security concerns.Given that reality, courts must defer broadly to correctional officials' managerial decisions.Turner v. Safley,482 U.S. 78, 84–85, 107 S.Ct. 2254, 96 L.Ed.2d 64(1987).

This dynamic calls for a delicate balance between the flexibility needed to operate prisons and the constitutional rights that prisoners retain.In constructing that balance, courts have held that, despite the deference owing to the decisions of prison officials, retaliation against a prisoner's exercise of constitutional rights is actionable.See, e.g., Espinal v. Goord,558 F.3d 119, 128(2d Cir.2009);Allah v. Seiverling,229 F.3d 220, 224–25(3d Cir.2000);Thaddeus–X v. Blatter,175 F.3d 378, 386(6th Cir.1999)(en banc).But this principle cannot be applied in a vacuum.

Because prisoner retaliation claims are “easily fabricated[ ] and ... pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration,”courts must insist that such claims are bound up in facts, not in the gossamer strands of speculation and surmise.Bennett v. Goord,343 F.3d 133, 137(2d Cir.2003)(internal quotation marks omitted).Thus, in order to survive summary judgment on a retaliation claim, a prisoner must make out a prima facie case by adducing facts sufficient to show that he engaged in a protected activity, that the state took an adverse action against him, and that there is a causal link between the former and the latter.George v. Walker,535 F.3d 535, 538(7th Cir.2008);Thaddeus–X,175 F.3d at 394.

Here, neither of the first two elements of the prima facie case poses a problem.The plaintiff, in filing his own grievances and legal actions, plainly engaged in protected activity.³SeeBounds v. Smith,430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72(1977);Ferranti v. Moran,618 F.2d 888, 891(1st Cir.1980).Moreover, the plaintiff's...