Opinion

Anthony F. McDonald v. Frank A. Hall

  • 610 F.2d 16
  • 1979 U.S. App. LEXIS 10089
Court
Court of Appeals for the First Circuit
Filed
Nov 29, 1979
Status
Published
Author
Campbell
On the bench
Coffin, Campbell, Bownes
Cited by
1,191 cases
Authority
More cited than 25.2%

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

How later courts described this case

  • 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
  • finding that complaint alleging transfer to another facility in retaliation for prisoner’s exercise of right to petition courts stated cause of action under 42 U.S.C. § 1983.
  • holding that ________ ____ complaint alleging that prison transfer was in retaliation for prisoner's exercise of a fundamental right states cause of action
  • stating that prisoner claiming retaliatory transfer must prove that he would not have been transferred “but for” the alleged retaliatory reason

Written by the judges who cited it.

The opinion

LEVIN H. CAMPBELL, Circuit Judge

(dissenting).

The so-called first amendment claim raised by McDonald seems to me to be so sparse in its statement of underlying facts and circumstances as not to deserve the further lease on life accorded by the court. Claims involving proof of intent do not, to be sure, lend themselves easily to summary disposition (a generalization which applies to summary judgment as well as to Rule 12(b)(6) dismissals. See Ferguson v. Omnimedia, 469 F.2d 194, 198 (1st Cir. 1972)). On the other hand, as the right to transfer is a clearly established part of prison officials’ authority, Montanye v. Haymes, 427 U.S. 236 , 96 S.Ct. 2543 , 49 L.Ed.2d 466 (1976), I think it only reasonable to require that sufficient factual background be provided to support a claim that a transfer was unconstitutionally motivated. Requiring the allegation of facts and circumstances giving at least minimal shape and credibility to the first amendment claim would appear necessary to overcome the usual presumption that inmate transfer is a rightful exercise of prison officials’ broad discretion to relocate prisoners at will.

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, * nearby institutions. There is no allegation that McDonald was subject to a prison rule prohibiting the counseling of inmates, cf. Johnson v. Avery, 393 U.S. 483 , 89 S.Ct. 747 , 21 L.Ed.2d 718 *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. While pro se complainants 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 Palmigi-ano v. Mullen, 491 F.2d 978 (1st Cir. 1974); of. 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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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