From Casetext: Smarter Legal Research

Ponchik v. Bogan

United States Court of Appeals, Eighth Circuit
Apr 1, 1991
929 F.2d 419 (8th Cir. 1991)

Summary

holding that prisoner could not meet the but-for test based on his repetitive misconduct, even where the filing of his lawsuits was a factor in his transfer

Summary of this case from Munt v. Roy

Opinion

No. 90-5317.

Submitted November 6, 1990.

Decided April 1, 1991.

Thomas Ponchik, pro se.

Lonnie F. Bryan, Asst. U.S. Atty., Minneapolis, Minn., for appellees.

Appeal from the United States District Court for the District of Minnesota.

Before JOHN R. GIBSON and FAGG, Circuit Judges, and HEANEY, Senior Circuit Judge.


Thomas Ponchik, a federal inmate, appeals from the district court's order dismissing several defendants and granting summary judgment to the remaining defendants in Ponchik's Bivens-type action. Ponchik's main argument for reversal is that he was entitled to a trial on his claim that he was transferred from the Federal Medical Center (FMC) in Rochester, Minnesota in retaliation for the exercise of his first amendment rights. We affirm.

A prisoner may not be transferred in retaliation for the exercise of a constitutional right. Murphy v. Missouri Dep't of Correction, 769 F.2d 502 (8th Cir. 1985) (per curiam). Here, the fact that Ponchik had filed two lawsuits against prison officials was clearly a factor in requesting his transfer; this matter was underlined in the transfer request form. Nevertheless, upon review of the record, we conclude that the district court correctly applied the "but for" test in determining that Ponchik's transfer would have been requested, even had he not filed the lawsuits, because of his serious and repetitive misconduct. See McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979), cited with approval in Murphy, 769 F.2d at 503 n. 1.

Furthermore, Ponchik's due process right to a disciplinary hearing before the transfer was not violated. This right was created by the Bureau of Prisons regulation set forth at 28 C.F.R. § 541.13, Table 4, (1987), which clearly mandated such a hearing before a nonemergency disciplinary transfer. See Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976) (right to hearing prior to disciplinary transfer may be created by regulations imposing conditions on discretionary power of officials to transfer prisoners). We find the reasoning of Castaneda v. Henman, 914 F.2d 981, 983-84 (7th Cir. 1990), that section 541.13 did not create such an interest because of the lack of criteria to distinguish between disciplinary and nondisciplinary transfers, unpersuasive. Here, as the magistrate judge found, Ponchik was afforded procedurally sound disciplinary hearings prior to the transfer.

This regulation provided

1. Sanctions of the Institution Discipline Committee: (upon finding the inmate committed the prohibited act)

. . . .
(c) Recommend disciplinary transfer. The IDC may recommend that an inmate be transferred to another institution for disciplinary reasons. Where a present or impending emergency requires immediate action, the Warden may recommend for approval of the receiving Regional Director the transfer of an inmate prior to either a UDC [Unit Discipline Committee] or IDC hearing. Transfers for disciplinary reasons prior to a hearing before the UDC or IDC may be used only in emergency situations and only with approval of the receiving Regional Director. When an inmate is transferred under these circumstances, the sending institution shall forward copies of incident reports and other relevant materials with completed investigation to the receiving Institution's Institution Discipline Committee. The inmate shall receive a hearing at the receiving institution as soon as practicable under the circumstances to consider the factual basis of the charge of misconduct and the reasons for the emergency transfer. All procedural requirements applicable to UDC and IDC hearings contained in this rule are appropriate, except that written statements of unavailable witnesses are liberally accepted instead of live testimony.

Accordingly we affirm.


Summaries of

Ponchik v. Bogan

United States Court of Appeals, Eighth Circuit
Apr 1, 1991
929 F.2d 419 (8th Cir. 1991)

holding that prisoner could not meet the but-for test based on his repetitive misconduct, even where the filing of his lawsuits was a factor in his transfer

Summary of this case from Munt v. Roy

affirming summary judgment where district court applied the "but for" test to an alleged retaliatory transfer

Summary of this case from Alexander v. Steele Cnty. Jail

rejecting retaliatory-transfer claim even where retaliation was clearly factor in transfer

Summary of this case from Beaulieu v. Linkert

rejecting retaliatory-transfer claim even where retaliation was clearly factor in transfer

Summary of this case from Webb v. Hedrick

rejecting a retaliation claim where there were legitimate reasons for the inmate's transfer, even though retaliation was also a factor

Summary of this case from Palton v. Gibson

rejecting retaliation claim when retaliation was only one of the factors leading to prisoner's transfer

Summary of this case from Davis v. Sherrill

rejecting inmate's retaliatory transfer claim even where retaliation was clearly a factor in transfer

Summary of this case from Davis v. Jomp

rejecting a retaliation claim where retaliation was only one of the factors leading to the inmate's transfer

Summary of this case from McCauley v. Fields

rejecting a retaliation claim when retaliation was only one of the factors leading to the inmate's transfer

Summary of this case from Pinder v. McDowell

rejecting a retaliation claim when retaliation was only one of the factors leading to the inmate's transfer

Summary of this case from Goodman v. Chism

rejecting a retaliatory-transfer claim, even where retaliation was a factor in the transfer, because the transfer would still have occurred based on the inmate's misconduct

Summary of this case from Seenyur v. Coolidge

rejecting a retaliation claim even when retaliation was only one of the factors leading to the inmate's transfer

Summary of this case from Scott v. Tally

rejecting a retaliation claim even when retaliation was only one of the factors leading to the inmate's transfer

Summary of this case from Winston v. Clark
Case details for

Ponchik v. Bogan

Case Details

Full title:THOMAS PONCHIK, APPELLANT, v. JOE BOGAN, WARDEN; G.C. WILKINSON; PHILL…

Court:United States Court of Appeals, Eighth Circuit

Date published: Apr 1, 1991

Citations

929 F.2d 419 (8th Cir. 1991)

Citing Cases

Goff v. Burton

Prison officials may not retaliate against an inmate for filing legal actions in the exercise of his…

Sisneros v. Nix

It is now well settled law that "[p]rison officials may not retaliate against an inmate for filing legal…