
USCA1 Opinion

	




          September 16, 1996    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1270                                  JOHN J. SULLIVAN,                                Plaintiff, Appellant,                                          v.                               CORRECTIONS, ME. WARDEN,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                   [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            John J. Sullivan on brief pro se.            ________________            Andrew Ketterer, Attorney General, Diane Sleek and Thomas  Warren,            _______________                    ___________     ______________        Assistant Attorneys General, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.   John J.  Sullivan, a  New Hampshire  state                 __________            prisoner, appeals pro  se from the grant of  summary judgment                              ___  __            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.                                         ___________                 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                                         -2-            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                                                 ___________            Amendment  protection.   Cf. Nolan  v. Fitzpatrick,  451 F.2d                                     ___ _____     ___________            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                                            ____________________               1The  parties devote  much of  their respective  briefs to               1            permissible reasons alone.   See Graham v. Henderson, 89 F.3d                                         ___ ______    _________            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.                        _______     _____            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                   ___ ____ ________            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                      __ ____            statements made by others, they may be considered as evidence            of what Magnusson heard or was told about Sullivan.  See Fed.                                                                 ___            persuaded  that   judgment  properly  entered   in  favor  of            R. Evid. 801(c); Lane v. Griffin, 834 F.2d 403, 407 (4th Cir.                             ____    _______            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.                                         -3-            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                                ___            to  do  so  precludes any  argument  on  appeal  that he  was            "railroaded."   See de la  Torre v. Continental  Ins. Co., 15                            ___ ____________    _____________________            F.3d 12, 15 (1st Cir. 1994).                   Affirmed.                 ________                                         -4-
