Robert Kern v. Scott Francik, et al, No. 09-1710 (8th Cir. 2010)
Annotate this CaseCourt Description: Prisoner Case - civil rights. Record did not support a claim for retaliatory transfer and district court's grant of summary judgment is affirmed. No merit to claim of ineffective assistance of counsel.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1710 ___________ Robert L. Kern, * * Appellant, * * v. * * Scott Francik, Employed as * Correctional Counselor at Anamosa * State Penitentiary; John Ault, * Employed as Warden (now ex-warden) * at Anamosa State Penitentiary; John * Fayram, Employed as Deputy Warden * at Anamosa State Penitentiary; Jerry * Connolly, Hospital Administrative * Director of Nursing at Anamosa State * Penitentiary; Christopher Meeks, was * Employed as Deputy Director of * Corrections, Central Office, 510 East * 12th Street, Suite 3, Des Moines, IA * 50319; William Sperfslage, Employed * as Deputy Warden at Iowa State * Penitentiary; Dennis W. Brumbaugh, * Employed as a Unit Manager in * Cellhouse 419 at the Iowa State * Penitentiary; Richard Larkin, Employed * as a Correctional Counselor at * Cellhouse 419 at the Iowa State * Penitentiary, * * Appellees. * Appeal from the United States District Court for the Southern District of Iowa. [UNPUBLISHED] ___________ Submitted: January 28, 2010 Filed: February 4, 2010 ___________ Before BYE, RILEY, and SHEPHERD, Circuit Judges. ___________ PER CURIAM. Iowa inmate Robert Lee Kern appeals the district court s1 adverse grant of summary judgment in his 42 U.S.C. ยง 1983 action alleging retaliatory transfer. Reviewing de novo, see Anderson v. Larson, 327 F.3d 762, 767 (8th Cir. 2003) (standard of review), we agree with the district court that the summary judgment record did not support a claim of retaliatory transfer, see Sisneros v. Nix, 95 F.3d 749, 752 (8th Cir. 1996) ( In a retaliatory transfer case, the burden is on the prisoner to prove that but for an unconstitutional, retaliatory motive the transfer would not have occurred. (citation omitted)). Additionally, we find no merit to Kern s appellate arguments that his counsel was ineffective, see Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980) (per curiam) (no right to effective assistance of counsel in civil case), and that he was not afforded sufficient discovery, see Pony Computer, Inc. v. Equus Computer Sys. of Mo., 162 F.3d 991, 996 (8th Cir. 1998) (where plaintiff moved to compel but failed to explain how additional discovery would provide support for any of its claims, district court did not abuse its discretion in granting summary judgment on record without further discovery). Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________ 1 The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa. -2-
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