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April 1, 1997

ROBERT DAVIS, Plaintiff,
WALTER R. KELLY, Defendant.

The opinion of the court was delivered by: HECKMAN

 This case has been referred to the undersigned by the Hon. Richard J. Arcara for pretrial matters and to hear and report on dispositive motions, pursuant to 28 U.S.C. § 636(b)(1). Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, it is recommended that defendant's motion be granted.


 Plaintiff alleges that his civil rights were violated when he was transferred from Attica Correctional Facility to Clinton Correctional Facility in retaliation for initiating a lawsuit against defendant. The following facts are not disputed.

 On April 9, 1991, Attica Correctional Facility submitted a transfer request to the New York State Department of Correctional Services (DOCS), Division of Classification and Movement, for permission to transfer plaintiff to Wende Correctional Facility (Items 27; & 30, Ex. A). Upon review, the Division of Classification and Movement approved the transfer order on May 20, 1991. *fn1"

 On February 5, 1992, plaintiff filed an action under 42 U.S.C. § 1983 against defendant Kelly and other Attica staff alleging that plaintiff was prevented from participating in a prison vote involving inmate privileges, that a corrections officer "tore plaintiff's cell apart" in retaliation for plaintiff having filed a complaint against her, and that a program coordinator forced plaintiff to engage in a work assignment without pay (Items 1, Ex. B-1 & 6).

 As of February 17, 1993, plaintiff had not yet been transferred to Wende Correctional Facility. *fn2" Attica Correctional Facility requested that the outstanding transfer order be canceled at that time (Items 1, Ex. A; & 27).

 On February 25, 1993, Attica submitted a new request to the Division of Classification and Movement asking that plaintiff be transferred to any suitable maximum security facility (Id.). The stated reason for the request was that "it is felt inmate has become too familiar with facility as inmate has been here since 9/82" (Item 14, p. 4). The request was approved on March 30, 1993, and plaintiff was transferred to Clinton Correctional Facility on May 4, 1993.

 On December 30, 1994, plaintiff filed this action under 42 U.S.C. § 1983, claiming that he was transferred in retaliation for commencing a civil rights action against defendant on February 5, 1992 (Item 1).

 Defendant filed a motion for summary judgment on March 11, 1996, on the grounds that plaintiff's transfer was pursuant to a legitimate penological purpose, defendant was not personally involved in the alleged violation, and defendant is entitled to qualified immunity.


 I. Summary Judgment.

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986); Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991), and must give extra latitude to a pro se plaintiff. McDonald v. Doe, 650 F. Supp. 858, 861 (S.D.N.Y. 1986).

 Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Bryant v. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)).

 II. Retaliation.

 It is well established that New York law "imposes no conditions on the discretionary power to transfer" prisoners, Montanye v. Haymes, 427 U.S. 236, 243, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976), and that transfer from one facility to another does not invoke the protection of the Due Process Clause. Meachum v. Fano, 427 U.S. 215, 225, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976); Meriwether v. Coughlin, 879 F.2d 1037, 1047 (2d Cir. 1989). Nor do the laws of New York place any conditions on inter-prison transfers that give rise to a liberty interest in remaining at a particular facility. Matiyn v. Henderson, 841 F.2d 31, 34 (2d Cir.), cert. denied, 487 U.S. 1220 (1988); see also N.Y. Correct. Law § 23(1) (McKinney 1987) ("The commissioner of correction shall have the power to transfer inmates from one correctional facility to another.").

 It is equally well established, however, that transfers may not be undertaken in retaliation for a prisoner's exercise of constitutional rights. Meriwether, supra, 879 F.2d at 1046; Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987); Hohman v. Hogan, 597 F.2d 490, 492-93 (2d Cir. 1979) (per curiam).

 In order to succeed on his § 1983 claim of retaliatory transfer, plaintiff bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the defendants' decision to transfer him. Graham v. Henderson, 89 F.3d 75, 79-80 (2d Cir. 1995) (citing Mount Healthy ...

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