                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                            OCT 31 1997
                                     TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 DAVID LESLIE BROWN, JR.,

           Plaintiff-Appellant,
 vs.                                                      No. 97-6097
                                                   (D.C. No. CIV-95-1010-L)
 CHERIE MILLER SALES; DEWEY                               (W.D.Okla.)
 PATTERSON; BETH MCGUIZ,

           Defendants-Appellees.


                                  ORDER AND JUDGMENT *


Before BRORBY, EBEL, and KELLY, Circuit Judges. **


       Mr. Brown, an inmate appearing pro se and in forma pauperis, appeals from

summary judgment granted in favor of defendant prison officials on his civil

rights claim, 42 U.S.C. § 1983. In his amended complaint, Mr. Brown claimed

that he was transferred to a facility with a higher level of security in retaliation

for filing various civil rights actions and administrative grievances. On appeal,

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
he submits the following issues for review: (1) whether the district court applied

the correct legal standard in granting summary judgment, (2) whether the district

court applied the substantive law correctly, specifically, that retaliatory transfers

for the exercise of constitutional rights are impermissible, and (3) whether the

evidence of a conspiracy was sufficient to preclude summary judgment. See Aplt.

Br. (Form A-12). Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm. 1

      We review a grant of summary judgment de novo, applying the same

standard as the district court. Eastman Kodak Co. v. Image Technical Servs.,

Inc., 504 U.S. 451, 465 n.10 (1992). Summary judgment is appropriate if “there

is no genuine issue as to any material fact and . . . the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). The court considers all

evidence and the reasonable inferences therefrom in the light most favorable to

the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587-88 (1986). The nonmoving party, however, may not rely upon

unsupported allegations without “‘any significant probative evidence tending to

support the complaint.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249



      1
            A similar claim by Mr. Brown was made against Defendant Sales in
Brown v. Sales, No. 96-6068, 117 F.3d 1428, 1997 WL 375347 (10th Cir. July 8,
1997). This court affirmed a grant of summary judgment against Mr. Brown in
that case.



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(1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290

(1968)). The content or the substance of the evidence, if not the form, must be

admissible at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Factual

disputes about immaterial matters will not preclude summary judgment.

Anderson, 477 U.S. at 248.

      Retaliation against an inmate for the exercise of constitutionally protected

rights is prohibited, notwithstanding that an action would have been otherwise

permissible. Smith v. Maschner, 899 F.2d 940, 948 (10th Cir. 1990). Although

an inmate has no constitutional right to remain in a particular institution, he may

not be punished for exercising constitutional rights with a transfer to a different

institution. Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir. 1990).

      The difficulty in this case is that Mr. Brown has failed to produce evidence

in response to the Defendants’ motions for summary judgment that suggests

Defendants retaliated against him or conspired against him. If anything, the

Martinez report suggests that Mr. Brown used the threat of grievances and

lawsuits to leverage his demands for a typewriter, work-release status and a

transfer. See 1 Supp. R. att. C at 4-6, 10-11. Facts about other negative

encounters Mr. Brown has had with prison officials are too general to support an

inference of retaliation, absent a link to the transfer in question. See Hall v.

Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (affidavits or other material


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provided by a pro se litigant must create a genuine issue for trial that could lead a

trier of fact to find in the non-movant’s favor). Likewise, Mr. Brown’s statement

that he was informed by a case manager that Defendant Sales would eventually

have him transferred for filing lawsuits, I R. doc. 29, (Brown aff.), would be

inadmissible at trial and is not sufficient to avoid summary judgment. See Gross

v. Burggraf Constr. Co., 53 F.3d 1531, 1541-42 (10th Cir. 1995). Reliance on the

verified amended complaint, I R. doc. 13, while permissible, Jaxon v. Circle K

Corp., 773 F.2d 1138, 1139 n.1 (10th Cir. 1985), does not cure this problem given

the conclusory statements of opinion contained therein.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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