IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTHONY DeFRANCO, )

)

Plaintiff, )

)

v. ) Civ. No. 04-0230 Erie

)

WILLIAM WOLFE, et al., )

)

Defendants. )

ORDER

This matter has been referred to United States Magistrate Judge Susan Paradise Baxter

in accordance with the Magistrates Act, 28 U.S.C. §§ 636 (b)(1)(A) and (B), and Rules 72.1.3

and 72.1.4 of the Local Rules for Magistrates.

Presently before the Court are Mr. DeFranco’s Motion for Reconsideration (Doc. 133)

and Amended Motion for Reconsideration (Doc. 135) of this Court’s November 2, 2005

Opinion and Order (Doc. 132) denying his Petition for Temporary Restraining Order. 

Background

The magistrate judge’s report and recommendation filed on September 29, 2005 (Doc.

123), recommended that Plaintiff Anthony DeFranco’s Petition for Temporary Restraining

Order (Doc. 107) be denied. Service was made on all parties. Plaintiff filed Objections to

Magistrate’s Report and Recommendation (Doc. 129) on October 12, 2005. 

Mr. DeFranco requested that the Court issue a temporary restraining order and

preliminary injunction prohibiting the Defendants from transferring him to another prison

again. The Magistrate Judge denied the petition because Mr. DeFranco could not

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“demonstrate a likelihood of success on the merits to warrant the issuance of a preliminary

injunction.” (Report and Recommendation, at 3.) Specifically, the Magistrate Judge

explained that Mr. DeFranco “has no federal liberty interest guaranteeing that he remain in a

particular prison, or preventing his transfer to another correctional facility, either within the

same state or interstate.” (Id. citing Olim v. Wakinekona, 461 U.S. 238, 247 (U.S. 1983); and

Beshaw v. Fenton, 635 F.2d 239 (3d Cir. 1980), cert. denied, 453 U.S. 912 (1981).) She

further explained that “‘[t]hrough the authorization conferred by 18 U.S.C. § 4082, the

Attorney General may transfer a prisoner from one place of confinement to any available and

appropriate facility.’” (Id. quoting Ingraham v. Federal Bureau of Prisons, 1987 WL 16886,

at *1 (E.D.Pa. 1987).

After de novo review of the documents in the case, together with the report and

recommendation (Doc. 123) and Plaintiff’s Objections to Magistrate Judge’s Report and

Recommendation (Doc. 129), we denied Mr. DeFranco’s Petition for Temporary Restraining

Order stating that Mr. DeFranco cannot show a likelihood of success on the merits of his

claim since he cannot identify an injury to a constitutionally protected interest. 

Motion for Reconsideration

Mr. DeFranco has now filed a Motion for Reconsideration (Doc. 133) and Amended

Motion for Reconsideration (Doc. 135), arguing that he can show a likelihood of success on

the merits. He argues that although he has no constitutionally protected liberty interest

guaranteeing that he will not be transferred, a prison is prohibited from transferring an inmate

for exercising a constitutionally protected right. (Motion for Reconsideration, at 2 & 3 (citing

,inter alia, Owens v. Shannon, 808 A.2d 607 (Pa. Commw. Ct. 2002).)

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In Owens, the Pennsylvania Commonwealth Court stated as follows:

"a transfer in retaliation for an inmate's exercises of his First Amendment right to free

speech states a cause of action under 42 U.S.C. § 1983," Castle v. Clymer, 15 F.

Supp. 2d 640 (E.D. Pa. 1998), and the state can order officials to take corrective

action to remedy a violation of a constitutional or federal right. Therefore, the trial

court could order that an inmate be transferred to another prison if it determined that

the demotional transfer was retaliatory in violation of the prisoner's constitutional

rights. 

Owens v. Shannon, 808 A.2d 607, 610-611 (Pa. Commw. Ct. 2002). Here, Mr. DeFranco

claims that he was transferred in retaliation for exercising his First Amendment right to

meaningful access to the courts by filing a lawsuit and for filing internal grievances. 

Relevant History

On November 1, 2004, this Court issued a Temporary Restraining Order (Doc. 13)

adopting the Report and Recommendation of the Magistrate Judge (Doc. 11). In part, the

TRO ordered Defendants to refrain from transferring Plaintiff to another correctional

institution in retaliation for Mr. DeFranco’s “continued exercise of his First Amendment right

to file grievances and to petition this Court for reinstatement of his z-code status.” (Report

and Recommendation Dated October 29, 2004, at 6.) The TRO eventually expired and the

Magistrate Judge held a preliminary injunction hearing on December 17, 2004. 

On January 19, 2005, the Magistrate Judge issued a Report and Recommendation

recommending that Mr. DeFranco’s several motions for a temporary restraining order and for

a preliminary injunction be denied. (Doc. 41.) The Magistrate Judge stated in part as

follows:

Plaintiff also seeks a preliminary injunction to stop any retaliatory transfer to another

institution, and specifically to SCI Dallas, where Plaintiff claims Defendant Barr

threatened to send him following his successful TRO motion. The Court accepted

Defendant Barr’s testimony that no such transfer is planned: . . .”

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(Report and Recommendation dated January 19, 2005, at n.2 (citing Affidavit of Williams

Barr, November 8, 2004, at ¶ 12).) On February 28, 2005, we issued a Memorandum Order

adopting the Magistrate Judge’s Report and Recommendation as our own and denied

Plaintiff’s motions. (Doc. 62.) 

On March 7, 2005, one week after our Order denying the motion for preliminary

injunction, Mr. DeFranco was transferred from SCI-Albion to SCI-Smithfield. (Plaintiff’s

Motion for Temporary Restraining Order, Doc. 68, at ¶ 4; Plaintiff’s Objections to

Magistrate’s Report and Recommendation, Doc. 129, at ¶ 8.) 

A hearing on Plaintiff’s motions for a TRO (Doc. 68) and preliminary injunction (Doc.

74) was held before the Magistrate Judge on April 22, 2005. (Doc. 83.) Plaintiff’s motion for

a TRO was orally denied as moot, and his motion for preliminary injunction was denied in a

Report an Recommendation dated April 26, 2005 (Doc. 85) and adopted by this Court on June

28, 2005 (Doc. 96). 

Mr. DeFranco filed a grievance regarding his transfer, and was eventually returned to

SCI-Albion on August 2, 2005. On August 15, 2005, he filed his motion for a TRO to

prohibit Defendants from any future retaliatory transfers. 

Discussion

If Mr. DeFranco’s allegations are true it appears that he would be able to show a

likelihood of success on the merits since the prison cannot transfer a prisoner solely in

retaliation for exercising his constitutionally protected right. (See Castle, 15 F. Supp. 2d at

661(“there is widespread agreement among the Courts of Appeals as to the unconstitutionality

of transfers based upon inmates’ exercise of substantive constitutional rights -- such as the

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right of freedom of speech”).) Thus, we will grant Mr. DeFranco’s motion for reconsideration

since in our Order we did not consider this aspect of his motion.

However, we cannot properly consider Mr. DeFranco’s petition for a TRO and

determine whether he has met the requirements for a TRO or preliminary injunction without

the relevant transcripts. In this regard, we must inquire into whether Mr. DeFranco actually

does have a likelihood of success on the merits by examining whether he was transferred in

retaliation for the exercise of his constitutionally protected rights. Castle, 15 F. Supp. 2d at

661-662.

In addition, we must consider whether there exists a clear showing of immediate

irreparable injury to Mr. DeFranco if relief is not granted. Ecri v. McGraw-Hill, Inc., 809

F.2d 223, 226 (3d Cir. 1987). We note that given that Mr. DeFranco has not been transferred

at all since he was returned to SCI-Albion on August 2, 2005. Mr. DeFranco has a heavy

burden to show that he suffers from an immediate risk of being transferred in retaliation for

exercising his First Amendment rights. Moreover, it is not “enough for the harm to be

serious or substantial, rather, it must be so peculiar in nature that money cannot compensate

for the harm.” Id.

Finally, we must also consider the possible harm to Defendants if relief is granted, and

any affect on the public interest. In this regard we note that even if a TRO were to be issued it

would be narrowly tailored to prohibit only retaliatory transfers for the exercise of the

constitutionally protected right; it would not prohibit Defendants from transferring Mr. 

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