[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1501
CAMERON JENNINGS DODSON,
Plaintiff, Appellant,
v.
JANET RENO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl,
Circuit Judges.
Cameron Jennings Dodson on brief pro se.
Guillermo Gil, United States Attorney, and Agnes I. Cordero,
Assistant U.S. Attorney, on brief for appellees.
September 11, 1997
Per Curiam. Appellant Cameron Dodson ("Dodson") brought
this action pursuant to Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Dodson
was convicted of being a felon in possession of a firearm.
He is serving his sentence at the Metropolitan Detention
Center in Guaynabo, Puerto Rico ("MDC Guaynabo"); he
previously served time on this conviction in three federal
prisons, but he was moved to MDC Guaynabo after being
attacked by inmates associated with the prison gang known as
the "Aryan Brotherhood" ("AB").
Dodson has alleged several constitutional claims
pertaining to his incarceration, but for the purposes of this
appeal, we are mainly concerned with two of them. First,
Dodson claims that officials at MDC Guaynabo and the federal
Bureau of Prisons plan to transfer him to United States
Penitentiary in Marion, Illinois ("Marion") in violation of
the Eighth Amendment. Second, he claims that the same
officials have deliberately kept him at MDC Guaynabo to
retaliate against him and his family for writing various
letters protesting the conditions of his confinement. We
discuss these two claims first and then address Dodson's
remaining constitutional claims.
1. Dodson's Eighth Amendment claim regarding a transfer
to Marion has two branches. First, he claims that prison
officials at Marion would place him in segregation for the
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remainder of his prison term in order to protect him from
assaults by the numerous AB members at Marion, and that such
segregation would violate the Eighth Amendment. Second, he
claims that even in segregation, he would be assaulted and
probably killed by AB members. Dodson has sought various
remedies based on this claim, including an injunction against
a transfer to Marion, monetary damages from the officials who
planned to transfer him, an injunction against a transfer to
any federal penitentiary in the United States, an order that
the Bureau of Prisons transfer him to a Washington state
facility, an order to federal officials to prosecute prison
and federal officials for violating his civil rights, and
monetary damages for violations of civil rights.
We are troubled by the allegations in this case,
although the record is admittedly underdeveloped. It appears
that prison officials did seek to transfer Dodson to Marion,
even though Marion typically houses prisoners who have
serious records of institutional violence or otherwise
require unusually heightened security, criteria that Dodson
apparently does not meet. The government argues that it
abandoned the transfer when it became clear that Marion was
not an appropriate setting for Dodson, but the timing of this
abandonment raises the possibility that the transfer was
abandoned only upon Dodson's initiation of this lawsuit.
Dodson has also made plausible albeit unsubstantiated
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allegations that efforts to transfer him to Marion will
resume when this case concludes. Dodson alleges that he
could add substance to these allegations if allowed to
undertake discovery.
The district court held that Dodson's claims regarding
Marion were mooted by the abandonment of the transfer. The
government has represented that there are no existing plans
to transfer Dodson to Marion or to any other facility in the
United States, and there is no substantial evidence to the
contrary. We therefore agree with the district court that
Dodson has no live claim for an injunction, let alone
monetary damages, regarding a transfer to Marion that did not
materialize, and we do not reach the merits of Dodson's
Eighth Amendment challenges. The district court did not
abuse its discretion in denying discovery.
Dodson is free to initiate his lawsuit again to bar a
transfer to Marion if the government renews its transfer
effort. We note that we would view it as bad faith for the
government to resume its attempt to transfer Dodson to Marion
without giving him notice and an opportunity to reapply for
an injunction. The district court's dismissal is plainly
without prejudice to a new lawsuit if the threat is renewed.
2. Dodson's retaliation claim rests on a different
factual predicate. Dodson claims that federal Bureau of
Prisons officials have been retaliating against him for
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writing letters complaining of his treatment throughout his
incarceration. He claims this retaliation has occurred not
in the form of the proposed transfer to Marion but in the
form of continued detention at MDC Guaynabo and refusal to
transfer him to a facility in the continental United States.
Specifically, Dodson has repeatedly requested that he be
transferred to a facility in Washington so that he can be
near his family.
The district court did not directly address the
retaliation claim and apparently treated it as a due process
claim unsoundly premised on the notion that Dodson had a
right to choose his place of incarceration. This confusion
is understandable because Dodson's original complaint did not
expressly state a claim of retaliation. However, given that
Dodson apparently argued the retaliation claim below in
detail and in light of our obligation to construe pro se
pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520
(1972), we will treat Dodson's complaint as amended and
address the retaliation claim here.
As the district court stated, there is no constitutional
right to be incarcerated in a particular facility. However,
Dodson may state a constitutional claim if his requests for
transfers were denied in retaliation for activity protected
by the First Amendment. See Sandin v. Conner, 115 S. Ct.
2293, 2302 n.11 (1995); McDonald v. Hall, 610 F.2d 16, 17-18
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(1st Cir. 1979). In order to defeat summary judgment, Dodson
must produce some admissible evidence that indicates that he
is being kept in Puerto Rico in retaliation for his letter-
writing.
Here, Dodson has made factual allegations that, if true,
would certainly prove that prison officials harbor animosity
toward him. However, Dodson has made no showing that
suggests that this animosity is what is keeping him at MDC
Guaynabo. Dodson's strongest evidence is an alleged
statement by MDC Guaynabo's Assistant Warden Tombone that, if
he did not stop writing letters, the Bureau of Prisons would
"spin" him (i.e., transfer him through several prisons in
rapid succession). There is no indication that this ever
happened. The connection between this hearsay expression of
retaliatory motive and Dodson's continued incarceration at
Guaynabo is tenuous at best.
Dodson's further allegations that MDC Guaynabo is a
pretrial facility and that no other long-term prisoners have
remained there over a year are, in this case, largely
irrelevant to the issue of retaliatory motive. Given the
prior attacks on Dodson elsewhere in the prison system,
unusual measures were obviously necessary. Indeed, it is
quite plausible to conclude that Dodson has been kept at MDC
Guaynabo in order to protect him from AB attacks.
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Of course, Dodson's lack of evidence of retaliatory
motive is partly due to the district court's refusal to allow
Dodson to undertake discovery. Although this is a close
issue, we hold that the district court did not abuse its
discretion in denying further discovery on the retaliation
claim. See Mattoon v. City of Pittsfield, 980 F.2d 1, 8 (1st
Cir. 1992). We therefore affirm the district court, but in
view of his pro se status modify the judgment to reflect that
the dismissal is without prejudice.
3. Dodson also raises certain other claims, which the
district court correctly dismissed with prejudice. Dodson
claims that keeping him at MDC Guaynabo violates due process
and equal protection principles because most inmates are
Spanish-speaking, there are few programs that are relevant to
his rehabilitation, and it is located thousands of miles from
his family in Washington State. However, Eighth Amendment
limitations aside, an inmate has no general right to demand
that his incarceration meet particular conditions. See
Meachum v. Fano, 427 U.S. 215, 224-25 (1976).
Dodson also seeks monetary damages from federal
officials for failing to protect him from previous assaults
by AB members while he was in federal custody. However, he
has not named any defendants who would have been responsible
for his placement in the general population of prisons where
these assaults took place. Dodson cannot sue supervisory
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officials of the Bureau of Prisons on a theory of respondeat
superior. See Gutierrez-Rodriguez v. Cartagena, 882 F.2d
553, 562 (1st Cir. 1989).
Finally, Dodson claims the right to physical access to
the MDC Guaynabo prison law library. It appears that Dodson
has access to the library through written requests for law
books; the prison has security regulations barring inmates
from physical access at will. An inmate does not have a
right to access a law library unless restrictions on access
impair his ability to assert legal challenges. See Lewis v.
Casey, 116 S. Ct. 2174, 2182 (1996). Similarly, this court
has no authority to appoint counsel in this civil suit. See
Mallard v. United States District Court, 490 U.S. 296 (1989).
To conclude: the dismissal as moot of Dodson's Eighth
Amendment claim for injunctive relief against a transfer to
Marion is affirmed on the understanding that the dismissal is
without prejudice as to reassertion of the claim in the event
of a new threat to transfer him. Dismissal of Dodson's
retaliation claim is also affirmed without prejudice as to
reassertion if Dodson obtains evidence of a retaliatory
motive for keeping him at MDC Guaynabo. In all other
respects the district court's judgment of dismissal with
prejudice is affirmed.
It is so ordered.
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