Hannon v. Beard

United States Court of Appeals
For the First Circuit

No. 10-1792

FRANCIS HANNON,

Plaintiff, Appellant,

v.

JEFFREY BEARD,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Howard, Selya and Thompson, Circuit Judges.

Matthew J. Matule, by appointment of the court, 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.

June 8, 2011
 SELYA, Circuit Judge. Plaintiff-appellant Francis

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-appellee Jeffrey 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, see Hannon 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

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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 F. App'x 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). See 61 Pa. Cons. Stat. § 7101-7103; Mass. Gen. Laws ch.

125, App. § 2-1; see generally Olim v. Wakinekona, 461 U.S. 238,

246-47 (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

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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

1
The plaintiff has since been relocated to a New Jersey
prison. That transfer is not in issue here.

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 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, see

Hannon, 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-

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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

appointed counsel, contends that the district court failed to

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consider the evidence in the light most favorable to him2 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 (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.

2
In this regard, the plaintiff faults the district court for
ignoring First Circuit precedent. To support this remonstrance, he
cites Ferranti v. Moran, 618 F.2d 888 (1st Cir. 1980) and McDonald
v. Hall, 610 F.2d 16 (1st Cir. 1979). These cases are readily
distinguishable. Each involved the reinstatement on appeal of a
pro se complaint dismissed for failure to state a claim. See
Ferranti, 618 F.2d at 892; McDonald, 610 F.2d at 18. The posture
of this case is materially different. At summary judgment, we
cannot credit "conclusory allegations, improbable inferences, and
unsupported speculation." Medina-Muñoz v. R.J. Reynolds Tobacco
Co., 896 F.2d 5, 8 (1st Cir. 1990).

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 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.3 See Bounds v. Smith, 430 U.S. 817, 821 (1977); Ferranti

v. Moran, 618 F.2d 888, 891 (1st Cir. 1980). Moreover, the

plaintiff's transfer from a medium-security prison in Pennsylvania

to a maximum-security prison in Massachusetts constituted an

3
The plaintiff also engaged in other activities, such as
organizing his fellow inmates and providing legal assistance to
them, that are accorded a lesser degree of constitutional
protection. See, e.g., Shaw v. Murphy, 532 U.S. 223, 231 (2001);
Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 132-33
(1977). This case does not require us to probe the nature of that
distinction.

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adverse action. See, e.g., Davis v. Kelly, 160 F.3d 917, 920 (2d

Cir. 1998); McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979); see

also Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) (concluding

that prisoners have a liberty interest in avoiding assignment to a

maximum-security penitentiary). The heart of the matter,

therefore, is the third element of the prima facie case: the

presence or absence of a causal link between the protected activity

undertaken by the plaintiff and the adverse action that he

experienced.

The plaintiff makes only a feeble effort to show

retaliatory motive through direct evidence. He points to his

affidavit, which tracked his deposition testimony and declared that

two different PDOC officers told him that the defendant had ordered

the transfer because of his litigiousness. He added that

Massachusetts corrections officers informed him that he was in a

maximum-security institution at the defendant's direction.

Those statements are hearsay, pure and simple. The

plaintiff did not proffer affidavits from any of his supposed

informants, nor has he attempted to show the origins of whatever

knowledge they may have had. "It is black-letter law that hearsay

evidence cannot be considered on summary judgment" for the truth of

the matter asserted. Dávila v. Corporación de P.R. para la

Difusión Pública, 498 F.3d 9, 17 (1st Cir. 2007). A genuine issue

of material fact can be created only by materials of evidentiary

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quality. See Morelli v. Webster, 552 F.3d 12, 18-19 (1st Cir.

2009); Garside, 895 F.2d at 49. Thus, both affidavits and

deposition testimony are effective in opposing summary judgment

only when they are given on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant or

deponent (as the case may be) is competent to testify about the

matter in question. See Fed. R. Civ. P. 56(e)(1). The plaintiff's

statements about what he was told lack these attributes.

Consequently, they must be disregarded.

Of course, direct proof of a retaliatory motive is not

essential to make out a prima facie case. See Harbin-Bey v.

Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Murphy v. Lane, 833 F.2d

106, 108 (7th Cir. 1987) (per curiam). In some instances,

circumstantial evidence (say, temporal proximity between a

protected act and an adverse action, falsification of institutional

records, or deviation from standard operating procedures) may

suffice. See, e.g., Westefer v. Snyder, 422 F.3d 570, 584 (7th

Cir. 2005); Bennett, 343 F.3d at 138; Thaddeus-X, 175 F.3d at 399.

The plaintiff labors to fit his case within this mold.

He claims that the chronology of events gives rise to an inference

of retaliation. The premise on which this claim rests is sound:

"temporal proximity . . . may serve as circumstantial evidence of

retaliation." Gayle v. Gonyea, 313 F.3d 677, 683 (2d Cir. 2002).

But nothing about the timing of the plaintiff's transfer to

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Massachusetts supports the application of the premise here. In

point of fact, the decision to remove the plaintiff from the

Pennsylvania prison system was made in 1997, more than three years

before the defendant became Secretary of the PDOC. The plaintiff's

first out-of-state placement was effected in that same time frame.

This sequence of events is important because the plaintiff does not

offer any evidence to counter the inescapable conclusion that his

seven-month stay in Pennsylvania, four years later, was — as the

Letter says — merely a temporary break in the continuum of out-of-

state placements. We hold, therefore, that the timing of the

disputed transfer, without more, does not justify the conclusory

allegation of retaliation. See Bridges v. Gilbert, 557 F.3d 541,

554 (7th Cir. 2009); Smith v. Campbell, 250 F.3d 1032, 1038 (6th

Cir. 2001).

This holding is reinforced by the uncontradicted evidence

that the plaintiff had accumulated a large number of legitimate

separations while incarcerated in the Pennsylvania prison system.

These separations, mentioned prominently in the Letter, constituted

the stated reason for the PDOC's initial decision to invoke the

ICC. That reason remained, unabated, in 2001.

In an effort to change the trajectory of the debate, the

plaintiff observes that the Letter acknowledges the absence of any

misconduct reports after 1987 and the fact that he posed no threat

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to staff or other inmates. Those observations are true as far as

they go, but they do not go very far.

The Letter made clear that the separations formed the

basis for the serial transfer decisions. Separations are not the

same thing as misconduct, and the plaintiff has not shown (or even

alleged) that any of his separations were either capriciously

imposed or unnecessary. Nor has the plaintiff shown (or even

alleged) that the PDOC violated standard prison policies or

procedures in using the ICC as an antidote for a lengthy list of

separations. Seen in this light, the absence of recent misconduct

reports and potential threats to others is of no moment.

We add that being called a "nuisance" — a term used in

the Letter — is not, in context, proof of retaliation. The

plaintiff's activities in organizing other inmates and manipulating

them clearly justified this dysphemism. Furthermore, the plaintiff

offers no competent evidence to show that this term referred to his

First Amendment activities. Without such evidence, he cannot

establish the missing causal connection. See O'Bryant v. Finch,

637 F.3d 1207, 1219-20 (11th Cir. 2011); Harbin-Bey, 420 F.3d at

579-80.

Taking a different tack, the plaintiff makes much of the

defendant's statement, contained in an affidavit supporting the

summary judgment motion, that he (the defendant) was not involved

in "any matters concerning [the plaintiff] subsequent to his

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transfer to Massachusetts." The plaintiff says that this statement

is contradicted by an e-mail exchange that occurred some six months

after the transfer, in which a subordinate inquired about payment

for shipment of the plaintiff's legal materials to Massachusetts

and received a negative reply from the defendant.

This does not assist the plaintiff's cause for two

reasons. First, there is no contradiction; the e-mail exchange

relates to a residual detail of the original transfer, not to some

new matter. Second, even if a discrepancy does exist, that

discrepancy has nothing to do with the reason for the transfer. It

is, therefore, not significantly probative. See, e.g., Chiang v.

Verizon New Engl. Inc., 595 F.3d 26, 39 (1st Cir. 2010) (concluding

that disputes over immaterial matters cannot defeat grant of

summary judgment); Hoyos v. Telecorp Commc'ns, Inc., 488 F.3d 1, 10

(1st Cir. 2007) (similar).

The short of it is that the plaintiff has failed to

furnish a factual basis sturdy enough to support a reasonable

inference of retaliatory animus.4 The record contains insufficient

evidence, direct or circumstantial, to contradict the defendant's

stated (non-retaliatory) reason for the transfer. Without such

4
At one point, the plaintiff alludes to deposition testimony
from a Massachusetts correctional officer to the effect that the
decision to keep the plaintiff in a "higher security" institution
was made by Pennsylvania officials. There is, however, nothing in
the record to show that the deponent had personal knowledge about
either the decision or how it was made. The testimony is,
therefore, irrelevant. See Dávila, 498 F.3d at 17.

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evidence, we cannot accept the plaintiff's invitation to speculate

about a hidden motive. See Nat'l Amusements, Inc. v. Town of

Dedham, 43 F.3d 731, 735 (1st Cir. 1995); Layne v. Vinzant, 657

F.2d 468, 476 (1st Cir. 1981); see also Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249-50 (1986) (holding that, on summary

judgment, nonmovant must produce "significantly probative" evidence

in order to create a genuine issue of material fact).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we conclude that the district court appropriately granted summary

judgment for the defendant.5

Affirmed.

5
This determination effectively disposes of the plaintiff's
claim that the district court abused its discretion in refusing to
reconsider the summary judgment order. A trial court acts well
within its discretion in declining to reconsider a legally correct
order. See Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir.
2006); Rodríguez v. Fullerton Tires Corp., 115 F.3d 81, 86 (1st
Cir. 1997).

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