The case is Smith v. Levine, a summary order decided on January 31. Smith filed a grievance complaining that several guards had beaten up a Muslim inmate because of his religion. Smith was then shipped off to another prison and placed in confinement. He says this transfer happened because the guards wanted to prevent someone from the New York Inspector General's office from interviewing him. He sues under the First Amendment.
The district court threw out the case, but the State Attorney General's office now concedes that Smith properly alleges a First Amendment claim. You don't see concessions like that very often, particularly when the district court ruled the other way. So, a tip of the hat to the AG's office for picking and choosing their battles.
But the State argues that Smith has no clear right to be free from a retaliatory prison transfer. The Court of Appeals (Cabranes, Wesley and Livingston) notes, however, that the Second Circuit has recognized such a right since 1998. And, the Court notes, Smith can show that conditions at the new jail were worse than the old jail. He can take this case to a jury.
Smith also goes after two guards who, he says, retaliated against him. The evidence against these guys is thin, so thin that the Court of Appeals wonders if Smith can win the case at trial. The Second Circuit views the evidence in the light most favorable to Smith in reversing summary judgment. This legal reasoning represents summary judgment logic at its most pro-plaintiff:
Although Smith’s amended complaint may not contain the specificity desired in all contexts, given the “special solicitude” accorded to pro se complaints, we hold that the District Court erred in dismissing the amended complaint against Kelly and Levine. In particular, Smith alleges that it was Kelly who instructed the guards to place him on the 72 hour investigation, one day prior to his transfer. The obvious inference to be drawn from the sequence of Smith’s allegations is that the investigation was a precursor to his transfer and that, inasmuch as Kelly ordered the investigation, he had a direct role in the transfer. As for Levine, Smith alleges that he was the guard who actually removed him from his cell and put him on his way to Auburn. Smith further alleges that Levine told the guards at Auburn that the transfer was executed as punishment for his written complaints to NYSIG, and that, as a direct result, the guards at Auburn placed him in the SHU. We find that these allegations are sufficient to “suggest” Kelly and Levine’s direct involvement in the alleged retaliation.