On remand from the Supreme Court reversing the judgment of this court, 505 F.2d 977 (2d Cir. 1974), that plaintiff's transfer from New York's Attica Correctional Facility to New York's Clinton Correctional Facility without an institutional hearing violated the fourteenth amendment. We reverse the dismissal of plaintiff's complaint by the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, and remand for a court hearing on whether plaintiff's transfer violated either his first amendment rights or his federally protected rights to help prisoners prepare habeas corpus petitions.
Kaufman, Chief Judge, Smith and Timbers, Circuit Judges.
This case is here on remand from the Supreme Court, Montanye, Correctional Superintendent v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466, 44 U.S.L.W. 5051 (1976). This court had held that the transfer of Haymes from New York's Attica Correctional Facility ("Attica") to New York's Clinton Correctional Facility ("Clinton") without a hearing violated the fourteenth amendment, and we had therefore reversed the dismissal of Haymes' complaint, pursuant to defendants' motion, by the United States District Court for the Western District of New York, John T. Curtin, Chief Judge. 505 F.2d 977 (1974). The Supreme Court reversed and held that the fourteenth amendment does not require an institutional hearing in connection with Haymes' transfer.
We now deal with those issues which it was not necessary to reach in our previous decision. We hold that there are genuine issues of material fact as to whether Haymes' transfer violated either his first amendment rights or his federally protected right to help prisoners prepare habeas corpus petitions. We therefore reverse the district court's dismissal of the complaint and remand for a hearing on the circumstances of the transfer.
As the facts are more fully set out in our previous opinion, we summarize them here. On the morning of June 7, 1972 Haymes was discharged as prison librarian at Attica. In the afternoon of June 7 prison authorities took from Haymes a document protesting Haymes' discharge which he had been circulating among the other inmates. It was addressed to Judge Curtin and at the time of its confiscation had 83 signatures. On June 9, 1972 Haymes was transferred to Clinton.
On August 3, 1972 Haymes filed a pro se complaint which Judge Curtin correctly characterized as invoking 42 U.S.C. § 1983 and 28 U.S.C. § 1343. In response to Judge Curtin's show cause order, the defendants filed three affidavits. Haymes then filed an affidavit and amended his complaint. On June 4, 1973 Judge Curtin granted the defendants' motion and dismissed the complaint.
In his complaint, after reciting in some detail the events outline above, Haymes alleged that "all of the above actions already set forth . . . was [sic] the direct result of administrational [sic] reprisals against your petitioner for assisting those inmates contained in Civ. 1972-230 and Civ. 1972-249; for assisting Attica inmate Louis Martinize # 23379 in submitting his application to this court in May, 1972; and from petitioner himself, along with those other inmates similarly aggreived [sic], attempting to petition this court for the redress of greivances [sic]."
The affidavit of Edward Brady, Correction Officer at Attica, says Haymes was "relieved of his assignment as law clerk because of his continual disregard for the rules governing inmates and the use of the law library." The affidavit of Harold Smith, Deputy Superintendent at Attica, says "the attached petition . . . was confiscated from inmate Rodney R. Haymes because of the rules and regulations in effect. . . . His circulating the attached petition was in direct disregard of the above rule forbidding legal assistance except with the approval of the Superintendent." The affidavit of Douglas S. Cream, Assistant Attorney General of the State of New York, says the affidavits of Brady and Smith "adequately and fairly answer the claims herein made by the petitioner." We note that none of these affidavits explicitly states why Haymes was transferred to Clinton.
In his affidavit Haymes denied in great detail the statements made in the affidavits by Brady and Smith. Interpreting Haymes' pro se complaint and affidavit liberally, Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1971) (per curiam), and Morgan v. Montanye, 516 F.2d 1367, 1370 (2d Cir. 1975), cert. denied, 424 U.S. 973, 47 L. Ed. 2d 743, 96 S. Ct. 1476 (1976), we conclude that there is a genuine issue of material fact as to the reasons for Haymes' transfer. Haymes claims that his transfer was in reprisal for exercising his first amendment rights and his right to help prisoners prepare habeas corpus petitions. "On this claim, the reason for the defendants' action is critical." Montanye v. Haymes, supra, dissenting opinion, 427 U.S. 236 at 244, 96 S. Ct. at 2543, 49 L. Ed. 2d 466, 44 U.S.L.W. at 5053. We hold that it was error for the district court to dismiss the complaint without giving all parties the opportunity to present evidence on the reasons for Haymes' transfer. Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975), and Judge v. City of Buffalo, 524 F.2d 1321 (2d Cir. 1975).
On appeal the defendants now argue that Haymes has no standing to assert either a first amendment claim or a claim to help prisoners prepare habeas corpus petitions. Defendants further argue that, even if Haymes has ...