

                    [NOT FOR PUBLICATION]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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