
USCA1 Opinion

	











          September 16, 1996    [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 96-1270

                                  JOHN J. SULLIVAN,

                                Plaintiff, Appellant,

                                          v.

                               CORRECTIONS, ME. WARDEN,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                   [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]
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                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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            John J. Sullivan on brief pro se.
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            Andrew Ketterer, Attorney General, Diane Sleek and Thomas  Warren,
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        Assistant Attorneys General, on brief for appellee.


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                 Per Curiam.   John J.  Sullivan, a  New Hampshire  state
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            prisoner, appeals pro  se from the grant of  summary judgment
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            in favor of defendant Martin  Magnusson, former Warden of the

            Maine State Prison.  We affirm.  

                 On October 12, 1995,  Sullivan filed a 42 U.S.C.    1983

            complaint seeking damages against  Magnusson for violation of

            his rights under  the First Amendment.  The complaint alleges

            that  Sullivan was housed  at the Maine  State Prison between

            September 30,  1988 and  December 16,  1993.   The  complaint

            further  alleges  that  on  the  latter  date,  Sullivan  was

            transferred from  the  Maine State  Prison  back to  the  New

            Hampshire State  Prison in retaliation for Sullivan's writing

            a newspaper column for the Maine Times.  
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                 On  February  1,  1996,   Magnusson  moved  for  summary

            judgment.   The  motion  was  supported by  an  affidavit  of

            Magnusson  attesting that  he  transferred  Sullivan  because

            Sullivan's complaints  that  he deserved  certain  employment

            positions  (held by  other  prisoners) due  to what  Sullivan

            considered to be his superior abilities had resulted in staff

            becoming increasingly unwilling to  employ Sullivan and other

            prisoners becoming  increasingly unwilling to work  with him.

            Magnusson further  attested that he began  to receive reports

            that  the  situation  had  deteriorated  to  the  point  that

            Sullivan's personal safety was  at risk from other prisoners.

            Sullivan  filed  an opposition  supported  by  his own  sworn



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            statement  and by  various documents.   An  additional cross-

            round of  filings followed.   On February  20, 1996,  summary

            judgment  entered  in favor  of  defendant  Magnusson.   This

            appeal followed.

                 Appellees do not dispute, and we assume, that Sullivan's

            writing  a newspaper column for the  Maine Times enjoys First
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            Amendment  protection.   Cf. Nolan  v. Fitzpatrick,  451 F.2d
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            545, 547  (1st  Cir. 1971)  (striking  down ban  on  prisoner

            letters to news media insofar as the letters concerned prison

            matters).   It is well established that a prisoner may not be

            transferred from  one institution to another  for engaging in

            constitutionally protected activity.   See McDonald v.  Hall,
                                                   ___ ________     ____

            610 F.2d 16, 18 (1st Cir. 1979).  However, if  taken for both

            permissible and  impermissible reasons,  state action  may be

            upheld  if  the  action  would  have  been  taken   based  on
                                
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               1The  parties devote  much of  their respective  briefs to
               1
            permissible reasons alone.   See Graham v. Henderson, 89 F.3d
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            arguing  that  the other  side's  evidence  should have  been
            stricken  from the record or disregarded.  Since it would not
            75, 79 (2d Cir. 1996);  Goff v. Burton, 7 F.3d 734,  737 (8th
                                    ____    ______
            alter  our disposition,  we  need not  resolve  all of  these
            disputes.   In  our disposition,  we assume  without deciding
            Cir. 1993); Ponchik  v. Bogan,  929 F.2d 419,  420 (8th  Cir.
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            that  all  of the  evidence  Sullivan filed  in  the district
            court--though not  the evidence submitted for  the first time
            1991); see also McDonald,  610 F.2d at 18 (observing  that to
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            on appeal--should  be  considered.    Sullivan's  claim  that
            Magnusson's affidavit is too  conclusory is waived because it
            succeed  on a  retaliatory  transfer claim,  a prisoner  must
            was  never presented  to  the district  court.   However,  we
            assume  for the sake of argument that his last-minute filing,
            prove that he would  not have been transferred "but  for" the
            on February  20, 1996, preserved his  remaining objections to
            Magnusson's   affidavit  (hearsay   and   lack  of   personal
            alleged improper reason).
            knowledge).  This  latter  assumption  gains   Sullivan  very
            little.   To  the extent  that Magnusson's  affidavit reports
                 Upon de novo review of the district court record, we are
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            statements made by others, they may be considered as evidence
            of what Magnusson heard or was told about Sullivan.  See Fed.
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            persuaded  that   judgment  properly  entered   in  favor  of
            R. Evid. 801(c); Lane v. Griffin, 834 F.2d 403, 407 (4th Cir.
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            1987).  Magnusson, at the very least, had  personal knowledge
            defendant Magnusson.1  Arguably, the chronology of events and
                                1
            of what was said  to him if not the underlying  facts.  It is
            the former which is most relevant to the issue of his motive.

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            the fact that Sullivan's  writings were sometimes critical of

            prison officials support  an inference that his column  was a

            motivating  factor  in  the  transfer  decision.     However,

            Magnusson submitted evidence that he had a proper motive  for

            the  transfer (namely,  concern for  Sullivan's  safety), and

            that Sullivan  would have been  transferred anyway.   None of

            the evidence submitted by  Sullivan controverts this evidence

            of a  legitimate motive.  Indeed,  Sullivan's admissions that

            he considers  himself  to have  "superior ability[]  compared

            with  most inmates and staff,"  and that at  least some staff

            members  at the Maine  State Prison were  unwilling to employ

            him (though  Sullivan suggests  this was  due to  jealousy on

            their part) are consistent with Magnusson's claims. Under the

            circumstances, we do not think there is a genuine issue as to

            the fact that Sullivan would have been transferred regardless

            of his newspaper column.

                 We add that if Sullivan needed additional information to

            adequately   respond  to   Magnusson's  motion   for  summary

            judgment,  he could  have requested  a continuance  to permit

            further discovery.  See Fed.  R. Civ. P. 56(f).  His  failure
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            to  do  so  precludes any  argument  on  appeal  that he  was

            "railroaded."   See de la  Torre v. Continental  Ins. Co., 15
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            F.3d 12, 15 (1st Cir. 1994).  

                 Affirmed.
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