Markun v . Hillsborough, et a l . CV-97-208-M 09/17/99 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Paul R. Markun, Plaintiff v. Civil N o . 97-208-M Hillsborough County Department of Corrections, et a l . , Defendants

O R D E R

Plaintiff’s claims, as allowed by the Magistrate Judge and approved by the court consist of two basic causes of action: 1 ) a claim against Superintendent James O’Mara, Jr., in his individual capacity, brought pursuant to 42 U.S.C. § 1983, alleging deprivation of plaintiff’s clearly established constitutional right not to be punitively transferred from the Hillsborough County House of Corrections in retaliation for his having exercised his legitimate constitutional right to file grievances and/or assert tort or other claims against the state agency, and 2 ) a claim against the Hillsborough County House of Corrections based upon that agency’s alleged violation of the federal Privacy Act, 5 U.S.C. § 552a.

Defendants move for summary judgment and plaintiff moves for partial summary judgment.

Privacy Act Claims

Defendants are entitled to judgment as a matter of law on plaintiff’s Privacy Act claims because the Privacy Act simply does not apply to state agencies, and it cannot be disputed that the Hillsborough County Department of Corrections is a state, not a federal, agency. See 5 U.S.C. §§ 551(1), 552(f), and 552a(a)(1); Ferguson v . Alabama Criminal Justice Information Center, 962 F.Supp. 1446 (M.D.Ala., 1997) (citing cases). Accordingly, summary judgment is granted in favor of defendants on plaintiff’s Privacy Act claims.

Section 1983 Claim

This claim gives rise to some troubling concerns.

First, the Court of Appeals for this circuit has explained that while a prisoner can be transferred for no reason at all, and has no right to a hearing before being transferred, “ . . . he may nevertheless establish a claim under § 1983 if the decision to transfer him was made by reason of his exercise of constitutionally protected First Amendment freedoms [citations omitted].” McDonald v . Hall, 610 F.2d 1 6 , 18 (1st Cir. 1979).

“While the discretion afforded prison administrators in transfer decisions is extremely broad, it ‘does not swallow the inmate’s fundamental right of access to the courts. Otherwise, prison administrators would be free to accomplish exactly what plaintiff alleges here, the transfer of successful, and therefore, troublesome litigants for no reason other than their legal activities.” [citation omitted] Since appellant does have a constitutional right to petition the courts, Bounds v . Smith, 430 U.S. 8 1 7 , 821-22, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Furtado v . Bishop, 604 F.2d 80 (1st Cir. 1979), and since he alleges that the transfer was ordered in retaliation for his exercise of that right, he properly stated a cause of action.

Id.

Here, plaintiff alleges that he was transferred by defendant because he exercised his First Amendment rights to file grievances, seek compensation from the Department of Corrections in a tort action for injuries suffered while held in defendant’s custody, and because he voiced his intent to bring appropriate litigation to vindicate what he perceived to be his rights. S o , he states a cause of action based upon an alleged retaliatory transfer.

Of course, plaintiff faces a heavy burden of proof. He must prove that the actual motivating factor for his transfer was retaliation for activity protected by the First Amendment. He will have to demonstrate that he “would not have been transferred ‘but for’ his exercise of protected speech or activity.” Id.

Defendant (Superintendent O’Mara is the only remaining individual defendant)1 moves for summary judgment based in substantial part upon his affidavit. Fairly read, that affidavit says O’Mara had nothing to do with plaintiff’s transfer; that “[the] Department of Corrections had no control over or input into Paul Markun’s classification upon transfer to the New Hampshire State Prison and did not bring about his transfer in order to retaliate against him for indicating his intention to file a personal injury action against the [Department];” and that to the best of his knowledge, “the transfer of Paul Markun from the Hillsborough County Department of Corrections to the New Hampshire State Prison on or about February 1 2 , 1996, was promulgated (sic) on a request by the United States Marshal’s Office, as is the customary procedure for transfer.” Affidavit of James O’Mara, Exhibit 3 to Defendant’s Motion for Summary Judgment (document n o . 30) (emphasis added).

Lest there by any mistake as to the point being made in the affidavit, O’Mara stresses in paragraph 7 that “[t]ypically, an official from the United States Marshal’s Office will arrive at the facility, often with no warning, to pick up an inmate.” Id. And, that such official “has control over where inmates such as Paul Markun are detained and rarely offers any explanation for a transfer . . . .” Finally, O’Mara says under oath, “In M r . motion for leave to file accompanied the complaint. It is therefore stricken.

Markun’s case, the Hillsborough County Department of Corrections has no documents or other information in its possession which demonstrates the reason for his transfer by the United States Marshal’s Office.” Id. (emphasis added).

The troubling thing about the affidavit is that it is obviously intended to give the impression that neither O’Mara nor the Department had anything to do with Markun’s transfer – that the United States Marshal initiated and executed his transfer for reasons known only to the Marshal’s office. But plaintiff has filed excerpts from sworn interrogatory answers by O’Mara and a Captain Cusson (O’Mara’s Chief of Security) that seemingly directly contradict O’Mara’s affidavit. (A sworn and complete copy of the interrogatory answers has been filed by defendants.)

The troubling interrogatories and answers read as follows (emphasis is the court’s):

reasonably be construed as an effort to mislead, will be forthcoming.

In the meantime, it is clear that genuine disputes as to material facts exist precluding summary judgment, that i s , facts related to O’Mara’s intent and motivation in effecting plaintiff’s transfer from the Hillsborough County House of Corrections. Given pro se plaintiff’s proffer in opposition to summary judgment, it is not at all clear that a jury must necessarily find for defendant – indeed, if the alleged answers to interrogatories are what they purport to b e , a verdict for plaintiff would seem reasonably plausible.

Defendant’s motion for summary judgment on the § 1983 claim is denied.

Plaintiff’s motion for partial summary judgment is also necessarily denied, but without prejudice, since it appears, for now, that disputes as to material facts related to O’Mara’s motivation and intent exist (albeit created largely by O’Mara’s own apparently contradictory statements).

Other possible issues related to the “acting under color of state law” element; whether a state agency “transfers” a prisoner when it declines to house him under a contract permitting his return to federal authorities, and the precise nature of the constitutionally protected activity at issue here; as well as what the potential damages might b e , lurk behind the scenes in the case, but have not been addressed. The parties are urged to fully consider the relative risks posed to each side by such potential issues and to discuss an amicable settlement in good faith.

Conclusion

Defendant’s Motion for Summary Judgment (document n o . 30) is granted in part and denied in part. Plaintiff’s Motion for Partial Summary Judgment (document n o . 52) is denied, without prejudice.