
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -2-            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                                         -3-            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                                         -4-            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                                    ________     ____                                         -5-            (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.                                 _______                                         -6-                 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                                         -7-            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.                  ________________                                         -8-
