F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 31 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID LESLIE BROWN, JR.,
Plaintiff-Appellant,
vs. No. 97-6097
(D.C. No. CIV-95-1010-L)
CHERIE MILLER SALES; DEWEY (W.D.Okla.)
PATTERSON; BETH MCGUIZ,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges. **
Mr. Brown, an inmate appearing pro se and in forma pauperis, appeals from
summary judgment granted in favor of defendant prison officials on his civil
rights claim, 42 U.S.C. § 1983. In his amended complaint, Mr. Brown claimed
that he was transferred to a facility with a higher level of security in retaliation
for filing various civil rights actions and administrative grievances. On appeal,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
he submits the following issues for review: (1) whether the district court applied
the correct legal standard in granting summary judgment, (2) whether the district
court applied the substantive law correctly, specifically, that retaliatory transfers
for the exercise of constitutional rights are impermissible, and (3) whether the
evidence of a conspiracy was sufficient to preclude summary judgment. See Aplt.
Br. (Form A-12). Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm. 1
We review a grant of summary judgment de novo, applying the same
standard as the district court. Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 465 n.10 (1992). Summary judgment is appropriate if “there
is no genuine issue as to any material fact and . . . the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The court considers all
evidence and the reasonable inferences therefrom in the light most favorable to
the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986). The nonmoving party, however, may not rely upon
unsupported allegations without “‘any significant probative evidence tending to
support the complaint.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
1
A similar claim by Mr. Brown was made against Defendant Sales in
Brown v. Sales, No. 96-6068, 117 F.3d 1428, 1997 WL 375347 (10th Cir. July 8,
1997). This court affirmed a grant of summary judgment against Mr. Brown in
that case.
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(1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290
(1968)). The content or the substance of the evidence, if not the form, must be
admissible at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Factual
disputes about immaterial matters will not preclude summary judgment.
Anderson, 477 U.S. at 248.
Retaliation against an inmate for the exercise of constitutionally protected
rights is prohibited, notwithstanding that an action would have been otherwise
permissible. Smith v. Maschner, 899 F.2d 940, 948 (10th Cir. 1990). Although
an inmate has no constitutional right to remain in a particular institution, he may
not be punished for exercising constitutional rights with a transfer to a different
institution. Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir. 1990).
The difficulty in this case is that Mr. Brown has failed to produce evidence
in response to the Defendants’ motions for summary judgment that suggests
Defendants retaliated against him or conspired against him. If anything, the
Martinez report suggests that Mr. Brown used the threat of grievances and
lawsuits to leverage his demands for a typewriter, work-release status and a
transfer. See 1 Supp. R. att. C at 4-6, 10-11. Facts about other negative
encounters Mr. Brown has had with prison officials are too general to support an
inference of retaliation, absent a link to the transfer in question. See Hall v.
Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (affidavits or other material
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provided by a pro se litigant must create a genuine issue for trial that could lead a
trier of fact to find in the non-movant’s favor). Likewise, Mr. Brown’s statement
that he was informed by a case manager that Defendant Sales would eventually
have him transferred for filing lawsuits, I R. doc. 29, (Brown aff.), would be
inadmissible at trial and is not sufficient to avoid summary judgment. See Gross
v. Burggraf Constr. Co., 53 F.3d 1531, 1541-42 (10th Cir. 1995). Reliance on the
verified amended complaint, I R. doc. 13, while permissible, Jaxon v. Circle K
Corp., 773 F.2d 1138, 1139 n.1 (10th Cir. 1985), does not cure this problem given
the conclusory statements of opinion contained therein.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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