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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[NOT FOR PUBLICATION]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. Corde
_______________

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).


_______________________________

was convicted

He

of being a

is serving

Center

in

prisons,

his sentence

Guaynabo,

previously

felon in possession of

Puerto

served time on

but he

was

at

moved

("MDC

MDC

Guaynabo

attacked by inmates associated with the

Detention

Guaynabo");

this conviction in

to

a firearm.

the Metropolitan

Rico

Dodson

he

three federal

after

being

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.

Dodson claims that officials at MDC Guaynabo and

First,

the federal

Bureau

of

Prisons plan

Penitentiary in Marion,

the

Eighth

to

have

retaliate

against him

Second,

deliberately

he

claims

kept him

and his

at

family

letters protesting

the conditions

discuss

claims first

these two

to

United States

Illinois ("Marion") in violation

Amendment.

officials

transfer him

MDC

the same

Guaynabo to

for writing

of his

and

that

of

various

confinement.

then address

We

Dodson's

remaining constitutional claims.

1.

Dodson's Eighth Amendment claim regarding a transfer

to Marion

has two

branches.

officials

at Marion would

First,

he claims

place him in

-2-

that prison

segregation for the

remainder of

his prison

term in order

assaults by the numerous AB

segregation would violate

claims that

him from

members at Marion, and that such

the Eighth Amendment.

even in segregation,

probably killed

to protect

by AB members.

he would be

Dodson

Second, he

assaulted and

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

the

Bureau of

Prisons transfer

facility, an order

and federal

States, an order that

to a

Washington state

to federal officials to

prosecute prison

officials for

him

violating his

civil rights,

and

monetary damages for violations of civil rights.

We

are

troubled

by

the

allegations

in

this

although the record is admittedly underdeveloped.

that prison officials did seek to transfer

even

though

serious

Marion

records

require unusually

apparently

of

houses

institutional

meet.

prisoners

violence

The government

transfer when it became clear

It appears

Dodson to Marion,

or

heightened security, criteria

does not

abandoned the

typically

case,

who

have

otherwise

that Dodson

argues that

it

that Marion was

not an appropriate setting for Dodson, but the timing of this

abandonment

raises

abandoned only

Dodson

has

the possibility

upon

also

that

Dodson's initiation

made

plausible

the

of

albeit

transfer was

this

lawsuit.

unsubstantiated

-3-

allegations

that

efforts

to transfer

him

to

Marion will

resume

could

when this

case concludes.

add substance

to

these

Dodson

allegations

alleges that

if

allowed

he

to

undertake discovery.

The district court

Marion were mooted

held that Dodson's

by the abandonment of the

government has represented

that there are no

claims regarding

transfer.

The

existing plans

to transfer Dodson to Marion or

to any other facility in the

United States, and

substantial evidence to

contrary.

Dodson

has

there is no

We therefore

no

live

agree with the

claim for

an

the

district court that

injunction,

let

alone

monetary damages, regarding a transfer to Marion that did not

materialize,

Eighth

and we

do

not reach

Amendment challenges.

The

the

merits of

district

abuse its discretion in denying discovery.

Dodson's

court did

not

Dodson is

free to initiate

if the

his lawsuit again to

transfer

to Marion

government

effort.

We note that we would view

renews its

bar a

transfer

it as bad faith for the

government to resume its attempt to transfer Dodson to Marion

without giving him

an injunction.

The

notice and an opportunity

district court's

to reapply for

dismissal is

plainly

without prejudice to a new lawsuit if the threat is renewed.

2.

Dodson's

retaliation claim

factual

predicate.

Dodson claims

Prisons

officials

have

been

-4-

rests

that

retaliating

on a

different

federal Bureau

against

of

him for

writing letters

complaining of his treatment

incarceration.

in

He

the form of

form of

claims this retaliation has

the proposed transfer

continued detention at

Dodson

transferred to

near his family.

has

a facility

occurred not

to Marion

but in the

MDC Guaynabo and

refusal to

transfer him to a facility in the continental

Specifically,

throughout his

United States.

repeatedly requested

in Washington so

that

that he

he be

can be

The

district

retaliation

claim

court

not

directly

address

the

claim and apparently treated it as a due process

unsoundly premised

right to

did

on the

notion that

choose his place of incarceration.

Dodson had

This confusion

is understandable because Dodson's original complaint did not

expressly state a claim of retaliation.

Dodson

apparently

detail

and in

argued

light of

pleadings liberally,

(1972),

we

will

However,

the retaliation

our obligation

claim

given that

below

to construe

in

pro se
______

see Haines v. Kerner, 404 U.S. 519, 520


___ ______
______

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

transfers were denied

by the First

his requests for

in retaliation for activity

Amendment.

See Sandin v.
___ ______

2293, 2302 n.11 (1995); McDonald


________

protected

Conner, 115 S.
______

Ct.

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

toward

him.

However,

suggests that

Guaynabo.

prove that prison officials harbor animosity

Dodson

this animosity is

Dodson's

strongest

has

made no

showing

what is keeping him

evidence

is

an

that

at MDC

alleged

statement by MDC Guaynabo's Assistant Warden Tombone that, if

he did not stop writing

"spin" him

(i.e., transfer
____

rapid succession).

happened.

letters, the Bureau of Prisons would

There

him through

is no

several prisons

indication that

in

this ever

The connection between this hearsay expression of

retaliatory motive

and Dodson's

continued incarceration

at

Guaynabo is tenuous at best.

Dodson's further

pretrial

that MDC

Guaynabo

is

facility and that no other long-term prisoners have

remained there

irrelevant to

prior

allegations

over

the issue

attacks

unusual measures

on

year

are,

in

of retaliatory

Dodson elsewhere

were obviously

quite plausible to conclude that

in

this

case,

motive.

the

necessary.

Given the

prison system,

Indeed, it

is

Dodson has been kept at MDC

Guaynabo in order to protect him from AB attacks.


_______

-6-

largely

Of

course, Dodson's

lack

of

evidence of

retaliatory

motive is partly due to the district court's refusal to allow

Dodson to

issue,

we hold

discretion

claim.

undertake discovery.

that the

in denying

Although this

district court

is a

did not

further discovery on

close

abuse its

the retaliation

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

district court

also raises certain other claims,

prejudice.

Dodson

claims that keeping him at MDC Guaynabo violates due

process

and

equal

correctly dismissed with

which the

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.

limitations aside, an inmate

that

his

incarceration

meet

However,

Eighth Amendment

has no general right to

particular

demand

conditions.

See
___

Meachum v. Fano, 427 U.S. 215, 224-25 (1976).


_______
____

Dodson

also

seeks

monetary

damages

from

federal

officials for failing

by AB members while

to protect him from

he was in federal custody.

has not named any defendants who would have

for his placement

these assaults

previous assaults

However, he

been responsible

in the general population of prisons where

took place.

Dodson

-7-

cannot sue

supervisory

officials of the Bureau of

superior.

Prisons on a theory of respondeat

See Gutierrez-Rodriguez
___ ___________________

v. Cartagena,
_________

882 F.2d

553, 562 (1st Cir. 1989).

Finally, Dodson claims

the MDC Guaynabo prison law

has access to

books; the

access at

right to access a

will.

access to

It appears that Dodson

written requests for

security regulations

An inmate

does not

legal challenges.

Ct. 2174, 2182 (1996).

law

barring inmates

law library unless restrictions

impair his ability to assert

Casey, 116 S.
_____

library.

the library through

prison has

from physical

the right to physical

have a

on access

See Lewis v.
___ _____

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:

Amendment claim for

the dismissal as

moot of Dodson's Eighth

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

retaliation

claim is also

reassertion

if Dodson

motive

keeping him

respects

for

the district

prejudice is affirmed.
________

It is so ordered.
________________

him.

Dismissal of

Dodson's

affirmed without prejudice


________

obtains

at

MDC

court's

evidence

of

Guaynabo.

judgment

In

as to

retaliatory

all

of dismissal

other

with

-8-

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