Tolliver v. Jordan

Background

Eric Tolliver, who was incarcerated and represented himself, sued Lieutenant Jordan, C.O. DePaolo, C.O. E. Bonnell, Gabriela Vega, and Richard Houck under 42 U.S.C. § 1983. He alleged that correctional officials transferred him from Sullivan Correctional Facility to Attica Correctional Facility, and later to Five Points Correctional Facility, in retaliation for grievances, lawsuits, and a criminal complaint. He also alleged that officials threatened to send him far from his family if he did not withdraw his complaints. Tolliver asserted First Amendment retaliation and Fourteenth Amendment due-process claims and sought damages, declaratory relief, and an order requiring a transfer back to Sullivan.

The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Separately, Tolliver asked the court to reconsider its earlier denial of his request for a preliminary injunction requiring a transfer from Shawangunk Correctional Facility back to Sing Sing Correctional Facility. Tolliver also sought sanctions and a stay in his opposition papers. The court denied those sanctions and stay requests without prejudice because they were procedurally improper requests made in an opposition rather than separate motions.

Subject-Matter Jurisdiction

The court held that Tolliver’s requests for injunctive and declaratory relief against Jordan, DePaolo, and Bonnell were moot because Tolliver was no longer housed at the facility where the alleged conduct occurred. The court held that the claims against Vega and Houck were not moot, and that Tolliver’s claims for damages based on the alleged retaliatory transfer also were not moot.

First Amendment Retaliation Claims

The court concluded that filing grievances and lawsuits is protected activity and that a prison transfer can qualify as an adverse action. At the motion-to-dismiss stage, the court found that the close timing between Tolliver’s grievances at Sullivan and his transfer to Attica adequately supported a possible causal connection. It also found that Tolliver sufficiently alleged the personal involvement of Jordan, DePaolo, and Bonnell for purposes of the transfer-to-Attica claim. The court therefore denied the motion to dismiss that retaliation claim as to those three defendants, but the claim survived only insofar as Tolliver sought money damages; its injunctive and declaratory relief portion was dismissed with prejudice.

The court found Tolliver’s allegations about retaliation for his complaints at Attica insufficient because the records showed that he requested and received approval for a transfer. The court also found that Jordan, DePaolo, and Bonnell, who worked at Sullivan, could not plausibly be responsible for alleged conduct at later facilities. The retaliation claim concerning the transfer from Attica to Five Points and alleged conduct at Attica and Five Points was dismissed.

The court separately dismissed the retaliation claims against Vega and Houck because Tolliver alleged only that they were movement and control analysts who approved transfers and did not plausibly connect them to his grievances against Jordan. Those claims were dismissed without prejudice. The court allowed Tolliver to file a second amended complaint limited to correcting the deficiencies in those claims within thirty days. The order stated that failure to comply, or making unauthorized amendments, would result in dismissal with prejudice.

Fourteenth Amendment Due Process Claims

The court dismissed Tolliver’s due-process claims with prejudice. It held that prisoners do not have a protected liberty interest in being housed at a particular correctional facility or in being transferred to a facility of their choice. The court also stated that Tolliver had no protected liberty interest in the work assignment involved in his allegations. Because amendment would be futile, the court did not grant leave to amend these claims.

Motion for Reconsideration

The court treated Tolliver’s request as a motion for reconsideration of the earlier denial of his request for a preliminary injunction. It denied reconsideration because Tolliver did not identify controlling authority or information the court had overlooked and instead repeated arguments previously considered. The court added that, even if it reconsidered the earlier order, Tolliver’s concern about a possible future leg injury at Shawangunk was speculative and did not establish the immediate, irreparable harm required for preliminary relief. The court also reiterated that prisoners generally have no liberty interest in remaining at a particular correctional facility.

Disposition

The court granted the defendants’ motion to dismiss in part. The damages portion of Tolliver’s First Amendment retaliation claim concerning his transfer from Sullivan to Attica survived against Jordan, DePaolo, and Bonnell. The injunctive and declaratory portion of that claim was dismissed with prejudice. The claims against Vega and Houck were dismissed without prejudice, subject to the opportunity to file a limited second amended complaint. The Fourteenth Amendment due-process claims were dismissed with prejudice. Tolliver’s motion for reconsideration was denied. The clerk was directed to terminate the motions, close the case, and mail Tolliver a copy of the order.