### The Honorable Howard F. Sachs, United States District Judge 1 

### for the Western District of Missouri. ___________ No. 96-2164

___________ Oren Gene Gamble, Sr., * * Appellant, * * v. * Appeal from the United States * District Court for the Mike Kemna; Tony Gammon; Ellis * Western District of Missouri. McSwain; Dean Minor; Darrin * [UNPUBLISHED] Morgan, * * Appellees. *

___________ Submitted: January 31, 1997 Filed: February 5, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________ PER CURIAM.

Former Missouri inmate Oren Gene Gam ble, Sr., appeals from the final order ente red in the district court granting defendants summary judgment 1 in his 42 U.S.C. § 1983 action. We affirm.

Gambl e filed this action while he was an inmate at the Wester n Missouri Correctional Center (WMCC) against WMCC Superintendent Mike Kemna , WMCC officials Ellis McSwain and Darrin Morgan, Moberly Correctional Cente r (MCC ) Superintendent Tony Gammon, and MCC caseworker Dean Minor. A s releva nt, Gamble claimed that defendants retaliated against him for hi s past legal actions against them by failing to pr ocess and then denying his fur lough request. Gamble also claimed that Gammon and Minor retaliate d against him by refusi ng to submit his request for transfer to the minimum security

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unit (MSU) at MCC, and instead transferring him to WMCC.
In support of his furlough claim, Ga mble submitted a memorandum from
casewo rker Douglas Prudden to Kemna justifying furlough for Gamble bu t stating that Gamble was "fond of filing grievances and lawsuits . . . in an attempt to intimid ate staff into giving him" the privileges he sought. As to his transfer cl aim, Gamble asserted that Gammon told him he was not going to allow Gamble to transfer to MSU because Gammon did not need peopl e there who would "buck the system" as Gamble did. Gamble submitted his own affidavits attesting that defendants' motive was retaliation, that Gammon made the statement to him, and that WMCC and MCC officials told him h e might get more privileges if he had not filed lawsuits and grievances.

Defendants submitted a memorandum Kemna wrote when he denied Ga mble's fur lough stating that the denial was based on Gamble's previous conduc t violation for Inciting to Riot. They also submitted Kemna's affidavi t stating that he did not retaliate against Gamble for his litigatio n activities and that the conduct violation was the reason for the denial. Defendants argued that Gamble's custody classifi cation made him ineligible for transfer to MSU, and they submitted documents showing that Centra l Transf er Authority (CTA) official Jill McGuire made the decision t o reclassify Gamble as a C-3 and transfer him to WMCC.
Upon learning that McGuire made the decision to transfer him, Gamble requested that McGuir e be added as a defendant, in that she was part of a conspi racy with defendants. He also requested additional discovery o n fur lough-denial statistics and departmental policy regarding inmat e classification following conduct violations, including deposition testimon y of certain individuals.

The di strict court granted defendants summary judgment on bot h claims, denied Gamble's motion to add McGuire as a defendant, and

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denied his motion for additional discovery.

We rev iew a grant of summary judgment de novo, applying the sam e standa rd as the district court; summary judgment is appropriate when , viewi ng the record in the light most favorable to the nonmoving party , there is no genuine issue of material fact and the moving party is entitle d to judgment as a matter of law. See Earnest v. Courtney , 64 F.3d 365, 366

- 67 (8th Cir. 1995) (per curiam).

Gamble do es not argue on appeal that any defendant other than Kemna
was responsible for the denial of his furlough. Gamble did not meet his substantial burden of proving that retaliation was the actual motivating factor merely by attesting that Kemna acted with a retaliatory motive. Se e Goff v. Burton , 7 F.3d 734, 737 (8th Cir. 1993) (retaliation must be the motivating factor), cert. denied , 114 S. Ct. 268 4 (1994); Miller v. Solem , 728 F.2d 1020, 1025-26 (8th Cir.) (conclusory allegations of defendant's motive insufficient to withstand summary judgmen t), cert. denied , 469 U.S. 841 (19 84). Kemna's memorandum and affidavit, stating that he denie d Gamble's furlough because Gamble had received a major conduct violation, provided a legitimate reason for the denial. See Ponchick v. Bogan , 929 F.2d 419, 420 (8th Cir. 1991) (finding that retaliatory motive was a facto r is insufficient if adverse action would have occurred anyway for serious and re petitive misconduct). As for Prudden's memorandum stating tha t Gamble was fond of fi ling grievances, Prudden was not a defendant in this act ion, and Kemna cannot be held vicariously liable for his statements

. See B oyd v. Knox , 47 F.3d 966, 968 (8th Cir. 1995). Thus, the distric t court properly granted defendants summary judgment on this claim.

The district court also properly granted summary judgment t o defendants on Gamble's transfer claim, because he did not show tha t defendants made the decision to transfer him. We see no abuse of

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discretion in the court's denial of leave to add McGuire as a defendant. See Thompson-El v. Jones , 876 F.2d 66, 67 (8th Cir. 1989) (standard o f review); Wald v. Southwestern Bell Corp. Customcare Med. Plan , 83 F.3 d 1002, 1005 (8th Cir. 1996) (leave to amend properly denied if summar y judgment would be granted even with amendment). Even assuming that McGuir e incorr ectly decided to reclassify Gamble, Gamble made no showing o f reta liatory motive for her actions and made only bare allegations o f conspiracy. See Garza v. Carson , 877 F.2d 14, 17 (8th Cir. 1989); Anderso n v. Douglas County , 4 F.3d 574, 578 (8th Cir. 199 3), cert. denied , 510 U.S. 1113 (1994).
Finally, we conclude the district co urt did not abuse its discretion in denying Gamble's discovery request. See Miner v. United States , 94 F.3 d 1127, 1130 (8th Cir. 1996).
The judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.