Opinion · Court of Appeals for the First Circuit
Anthony F. McDonald v. Frank A. Hall
610 F.2d 16
- Type
- Opinion
- Court
- Court of Appeals for the First Circuit
- Jurisdiction
- Federal
- Date
- 1979-11-29
- Topic
- general
How later courts describe this case
- holding that ____ complaint alleging that prison transfer was in retaliation for prisoner's exercise of a fundamental right states cause of action
- holding that prisoner who alleged he was transferred in retaliation for filing legal actions against prison officials made out a claim under § 1983 for the violation of First Amendment rights
- stating that the court need not “conjure up unpled allegations” notwithstanding its duty to be less stringent with pro se complaints
- noting that a court’s duty to be less stringent with pro se litigants does not require it to “conjure up” something from nothing
- observing that to succeed on a retaliatory transfer claim, a prisoner must prove that he would not have been transferred "but for" the alleged improper reason
- noting that “the requirement of a ‘but for’ showing together with the wide latitude afforded prison officials . . . may make summary judgment particularly appropriate.”
- finding plaintiff “did aver a chronology of events which may be read as providing some support for an inference of retaliation”
- demonstrating a legitimate penological purpose for actions of correction officials means that an inmate cannot show that the adverse actions would not have occurred “but for” the alleged wrongful conduct
Citator
Anthony F. McDonald v. Frank A. Hall has been questioned or limited by later authorities: relies on overruled authority: 50 L. Ed. 2d 471 (superseded by Marrero-Saez v. Municipality of Aibonito). Read them before relying on it. 1,208 later decisions cite it.
- Authority status
- caution
- Cited by
- 1208 opinions
McDONALD v. HALL,610 F.2d 16(1st Cir. 1979)
ANTHONY F. McDONALD, PLAINTIFF, APPELLANT, v. FRANK A. HALL ET AL.,
DEFENDANTS, APPELLEES.
No. 79-1239.
United States Court of Appeals, First Circuit.
Submitted September 14, 1979.
Decided November 29, 1979.
Page 17
Lee Carl Bromberg, Sp. Asst. Atty. Gen., Dept. of Correction, Boston, Mass., on brief, for defendants, appellees.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
[2] Appellant's pro se complaint, which we construe liberally as we must,Estelle v. Gamble,429 U.S. 97,106,97 S.Ct. 285,50 L.Ed.2d 251(1976), relates a series of events surrounding the transfer of appellant and ten other inmates from MCI-Walpole to Norfolk. Appellant states that he resisted the transfer on the grounds that it was motivated by a desire to punish him for his efforts in filing legal actions against prison officials, as well as his attempts to render legal assistance to other inmates. He further alleges that the transfer was made without a hearing, that a disciplinary action against him for his resistance was tainted by the refusal to provide him with either counsel or a tape recording of the proceedings, and that he had been denied access to the prison law library.
[3] On this appeal, McDonald correctly concedes that he had no right to counsel at his disciplinary hearing,McDonald v. Hall,595 F.2d 1206(1st Cir. 1979). Furthermore, he does not now press his claim that he hadPage 18a constitutional right to have tape recordings of his hearing. Instead, he argues on appeal that the gravamen of his complaint is that his transfer was ordered in retaliation for the exercise of constitutionally protected rights and as such was itself unconstitutional. He also argues that the complaint sets forth a claim that he has been denied access to the prison library.
[4] We are faced therefore with two main questions. First, does this pro se complaint sufficiently set forth the claims that appellant argues it does? Second, if these claims are sufficiently set forth, do they state a cause of action? In order to decide these questions, we address separately each of the claims appellant asserts are set forth in the complaint.
[5]Retaliation Claim
[6] With regard to the retaliation claim, the complaint contains three pertinent allegations. Appellant alleges that he filed actions against prison officials and assisted other inmates in doing so, that he along with 10 other prisoners were subsequently transferred, and that the decision to transfer him was made in retaliation for his litigation activities.[7] These allegations without more may arguably appear conclusory, alleging barely more than the ultimate fact of retaliation. However, such an ultimate fact concerns the defendants' states of mind. While it may be possible in some cases to support such an ultimate fact with clear evidence which can be averred in the complaint,see Buise v. Hudkins,584 F.2d 223(7th Cir. 1978) (direct written evidence of intent), we cannot presume that this will often be the case,see Garland v. Polley,594 F.2d 1220(8th Cir. 1979). Moreover, appellant in his complaint did aver a chronology of events which may be read as providing some support for an inference of retaliation. Thus, to say that this complaint is insufficient would require us to invoke a standard more stringent than called for in a pro se action.Estelle v. Gamble,supra.
[8] A prisoner does not have a right to a hearing before being transferred; indeed he can be transferred for no reason at all,Montanye v. Haymes,427 U.S. 236,96 S.Ct. 2543,49 L.Ed.2d 466(1976). However, he may nevertheless establish a claim under § 1983 if the decision to transfer him was made by reason of his exercise of constitutionally protected First Amendment freedoms,Garland v. Polley, supra; Buise v. Hudkins, supra; Haymes v.Montanye,547 F.2d 188(2d Cir. 1976);Laaman v. Perrin,435 F. Supp. 319(D.N.H. 1977);cf. Mount Healthy City Board of Ed. v.Doyle,429 U.S. 274,97 S.Ct. 568,50 L.Ed.2d 471(1977) (teacher without entitlement to reinstatement may nevertheless establish a claim if decision not to rehire was made in retaliation for his exercise of First Amendment rights).
[9] While the discretion afforded prison administrators in transfer decisions is extremely broad, it "does not swallow the inmate's fundamental right of access to the courts. Otherwise, prison administrators would be free to accomplish exactly what plaintiff alleges here, the transfer of successful and, therefore, troublesome litigants for no reason other than their legal activities."Laaman v. Perrin, supra,at 319. Since appellant does have a constitutional right to petition the courts,Boundsv. Smith,430 U.S. 817,821-22,97 S.Ct. 1491,52 L.Ed.2d 72(1977);Furtado v. Bishop,604 F.2d 80(1st Cir. 1979), and since he alleges that the transfer was ordered in retaliation for his exercise of that right, he properly stated a cause of action.
[10] Our ruling on this issue is by no means an expression of our opinion on the merits of the claim. We note that on remand, the appellant will face a substantial burden in attempting to prove that the actual motivating factor for his transfer was as he alleges.See Laaman v. Perrin,435 F. Supp. 319,328(D.N.H. 1977). Plaintiff must prove that he would not have been transferred "but for" the alleged reason.See Mount Healthy CityBoard of Ed. v. Doyle,429 U.S. 274,97 S.Ct. 568,50 L.Ed.2d 471(1977). Moreover, the requirement of a "but for" showing together with the wide latitude afforded prison officials inPage 19ordering transfers may make summary judgment particularly appropriate.
[11] Appellant also alleged that he was transferred for providing legal assistance to the other prisoners. It is not clear in the complaint whether the asserted right whose exercise appellant claims motivated the transfer was his own supposed right to provide such assistance, or rather the other inmates' right of access to the courts. The district court interpreted the complaint as raising the latter assertion, and held that the appellant lacked standing to raise what is in effect the right of the other prisoners. Since the appellant does have standing to vindicate this right,see Johnson v. Avery,393 U.S. 483,89 S.Ct. 747,21 L.Ed.2d 718(1969);Haymes v. Montanye,547 F.2d 188(2d Cir. 1976), we reverse this holding as well.
[12]Library Access Claim
[13] With regard to the library access claim, appellant argues on appeal that he was denied access to the prison law library following his transfer. The complaint, however, avers only that he requested permission to gain access to the library and received no answer. Appellant did not allege that access was ever denied. Furthermore, in the complaint appellant did not claim that the refusal to answer his request resulted in an infringement on his ability to gain access to the courts, indeed, the complaint indicates that he still had adequate access to the courts, as demonstrated by his previous appeal to this court,McDonald v. Hall,595 F.2d 1206(1st Cir. 1979). There was no suggestion that "alternative means to achieve that goal" were lacking.Bounds v. Smith, supra,430 U.S. at 830,97 S.Ct. at 1499.[14] Therefore, while we strain to read the complaint liberally, on the facts presented to us concerning this particular appellant, whose brief clearly seems to be the product of more than minimum competence, we cannot say that the trial court erred in finding that the complaint did not set forth the cause of action which appellant now claims it does. Our duty to be "less stringent" with pro se complaints does not require us to conjure up unpled allegations.Hurney v. Carver,602 F.2d 993(1st Cir. 1979).
[15]Reversed in part and remanded.
[18] The first amendment claim presented, or perhaps more accurately, suggested by McDonald in the present case is itself so attenuated as to be virtually unrecognizable as such. This complaint shows only a transfer between comparable,fn*nearby institutions. There is no allegation that McDonald was subject to a prison rule prohibiting the counseling of inmates,cf. Johnsonv. Avery,393 U.S. 483,89 S.Ct. 747,21 L.Ed.2d 718Page 20(1969);Haymes v. Montanye,547 F.2d 188(2d Cir. 1976), or that he was threatened or reprimanded for engaging in such activity. Moreover, the state now informs us that McDonald has been returned to Walpole, the institution in which he was initially housed. Whilepro secomplainants may be excused for demonstrating a lack of legal expertise and knowledge, I see no reason to bend over backwards to excuse the omission of allegations of the basic facts needed to make out a plausible claim.See Palmigiano v. Mullen,491 F.2d 978(1st Cir. 1974);cf. Aubut v. Maine,431 F.2d 688(1st Cir. 1970). I would affirm the judgment of the district court.
- Nowhere does McDonald allege that the institution to which he was transferred (Norfolk) was harsher than the one in which he had initially been housed (Walpole). Among those who reside in Massachusetts, Walpole is commonly supposed to be a more severe institution. ↩