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March 16, 1984


The opinion of the court was delivered by: KEENAN

JOHN F. KEENAN, United States District Judge:

This dispute arises out of plaintiff's August, 1982 transfer from the Mid-Orange Correctional Facility ("MOCF"), a medium security prison, to Clinton Correctional Facility ("Clinton"), a maximum security prison. Plaintiff filed this action under Title 42, Section 1983 of the United States Code, alleging that such transfer was in retaliation for the exercise of his First Amendment right to free speech. Plaintiff seeks actual and punitive damages, an injunction transferring him to a penal institution having a security grading no greater than medium B* and requiring defendants to expunge all records of, or reference to, plaintiff's transfer to Clinton, the events leading up to the transfer and the existence of this lawsuit, and a declaration that plaintiff's transfer from MOCF to Clinton was unconstitutional.*

 Plaintiff now moves, pursuant to rule 56(a) of the Federal Rules of Civil Procedure, for partial summary judgment on the issue of liability. Defendants cross-move for summary judgment dismissing the action.

 For the reasons discussed hereafter, plaintiff's motion is denied and defendants' cross-motions are granted.

 The following facts underly the current dispute.

 Plaintiff was confined at MOCF from February, 1982 through August, 1982. During the period of his confinement at MOCF, plaintiff incurred a total of four disciplinary charges. As a result of the first three, a Superintendent's Proceeding was brought against plaintiff. That resulted in his confinement to the special housing unit at MOCF for 16 days.*1 After the Superintendent's Proceeding, plaintiff began writing letters to officials at the Department of Correctional Services criticizing various policies and practices at MOCF. Copies of all such letters were sent to defendant Snow who at all relevant times was the Superintendent of MOCF and responsible for the implementation of all applicable rules, regulations and policies at MOCF, as well as for the welfare of all its inmates. On August 4, 1982 plaintiff sent a letter to defendant Snow which defendants construe as falsely accusing Snow of misappropriating funds from the prison commissary.*1

 On August 9, 1982, Snow telephoned Michael Hitchen, a Classification Analyst in the New York States Department of Correctional Services' Division of Classification and Movement. That division makes all transfer decisions relating to inmates. Snow asked Hitchen to transfer plaintiff to a more structured facility. Snow based his request on (1) the August 4th letter; and (2) a report Snow had received approximately three weeks earlier that plaintiff and another inmate had begun and spread a rumor relative to Snow and other prison officials to the effect that they had been charged with misappropriation of prison funds and arrested.** Subsequent to the telephone conversation, Hitchen had plaintiff placed in detention in preparation for transfer. He was transferred to Clinton two days later, on August 11, 1982.

 Prior to plaintiff's transfer to Clinton, he and another inmate had filed a civil rights complaint in this District challenging the conditions of their confinement at MOCF. Following plaintiff's transfer to Clinton, on August 17th and again on September 7, 1982, plaintiff moved in that action for an order transferring him back to MOCF, alleging that his transfer to Clinton had been in retaliation for the filing of the then pending complaint. Judge Gagliardi found that plaintiff's transfer appeared to be for disciplinary reasons and denied the motions on September 28, 1982.*2 In August of 1982, one month prior to Judge Gagliardi's denial of the motions to transfer plaintiff to MOCF, the instant action ensued.


 It is well settled that state prison officials are afforded broad discretion to transfer prisoners for any reason or no reason at all. Montanye v. Haymes, 427 U.S. 236, 243, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976); Meachum v. Fano, 427 U.S. 215, 228, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976). (Holding that the Due Process Clause of the Fourteenth Amendment does not entitle a state prisoner to a factfinding hearing when he is transferred from one prison to another where conditions are less favorable.) This is not to say, however, that prisoners may be transferred for unconstitutional reasons. Prisoners may not be transferred solely in retaliation for the exercise of their constitutional rights.

 Incarceration necessitates the withdrawal of those First Amendment rights which are inconsistent with an inmate's "status as a prisoner or with legitimate penological objectives of the corrections system." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 129, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977) citing Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974). In determining the extent to which constitutional rights are withdrawn upon incarceration, the Supreme Court has mandated that wide-ranging deference is to be accorded the operational considerations of prison administrators. Id., at 129-30. Recognized legitimate considerations include the ability of prison officials to ensure prison security against escape, maintain internal order and discipline, and further rehabilitation of prisoners. Procunier v. Martinez, 416 U.S. 396, 412, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974).

 It follows, therefore, that to the extent that a prisoner's exercise of his rights would conflict with the capacity of prison officials to accomplish such legitimate prison objectives, the rights implicated do not survive incarceration. Absent such conflict, prisoners retain their pre-incarceration constitutional rights, the exercise of which may not lawfully be punished by retaliatory transfer. Montanye, 427 U.S. at 244; n. *(Stevens, J. dissenting); Haymes v. Montanye, 547 F.2d 188, 190 (2d Cir. 1976) (on remand), cert. denied, 431 U.S. 967, 53 L. Ed. 2d 1063, 97 S. Ct. 2925 (1977).

 The ultimate issue in this case is whether plaintiff's transfer was reasonably motivated to further legitimate prison objectives. If not, it was ...

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