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Karban v. J. Ostrander

United States District Court, D. Arizona

May 14, 2019

Stephen Frank Karban, Plaintiff,
v.
J. Ostrander, et al., Defendants.

          ORDER

          Dominic W. Lanza, United Slates District Judge.

         Plaintiff Stephen Frank Karban (“Karban”), who is currently confined at the Arizona State Prison Complex in Florence, Arizona, brought this civil rights action pursuant to 42 U.S.C. § 1983 against Arizona Department of Corrections (“ADC”) Officer Jacqueline Ostrander (“Officer Ostrander”). (Doc. 1.) Before the Court are the parties' cross-motions for summary judgment. (Docs. 104, 106.)[1] As explained below, both motions will be denied.

         I. Background

         In his complaint, Karban alleges a First Amendment retaliation claim against Officer Ostrander. (Doc. 1.) Specifically, Karban alleges that, on September 2, 2017, he was sitting at a table in the ADC's meeting room, meeting with a female visitor, when Officer Ostrander “approached the plaintiff and his visitor . . . [and] made a statement, ‘Policy does not let you sit like that.'” (Id. at 8.) Karban alleges this statement was confusing and inaccurate because he and his visitor weren't violating any of the prison's no-contact rules at the time. (Id.) Thus, Karban alleges that, as soon as his visitor left, he met with Officer Ostrander in an attempt “to have an on-going problem resolved.” (Id.) According to Karban, the prison's grievance policy required him to engage in such a verbal discussion with Officer Ostrander as the first step in pursuing a grievance. (Id.) Karban alleges that, during this discussion, he asked Officer Ostrander “to show me in the rules of visitation conduct the rule I had violated. She could not identify any rule.” (Id. at 9.) Karban alleges that Officer Ostrander filed a “false” disciplinary report against him following this meeting, in an attempt to retaliate against him for invoking “the informal verbal resolution portion of the grievance system.” (Id. at 9-10.) Finally, Karban alleges that, although he was eventually able to secure the dismissal of the disciplinary report through the prison's appeal process, he suffered various adverse consequences as a result of the report being filed. (Id. at 12.)

         II. Summary Judgment Standard

         A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

         If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden then shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

         At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court does not make credibility determinations; it must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3). Where the nonmovant is a pro se litigant, the court must consider as evidence in opposition to summary judgment all of the nonmovant's contentions set forth in a verified complaint or motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).

         III. Karban's Motion

         In their respective motions, the parties agree[2] that Karban must establish the following five elements to prevail on his claim: (1) he engaged in protected conduct, (2) a state actor took some adverse action against him, (3) causation (i.e., the state actor took the adverse action because he had engaged in protected conduct), (4) chilling effect on First Amendment rights, and (5) the adverse action did not reasonably advance a legitimate correctional goal. Entler v. Gregoire, 872 F.3d 1031, 1040 (9th Cir. 2017) (citing Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)).

         Karban isn't entitled to summary judgment because, among other things, there is a disputed issue of material fact as to the causation element. A key issue in this case is whether Officer Ostrander's report was accurate. The report states, in the “Statement of Violation” section, that Officer Ostrander “observed inmate Karban #234332 with his outer thigh pressed up against his visitor['s] . . . right thigh.” (Doc. 107-7 at 2.) In his motion, Karban argues the report was “false or pretextual” because the video footage from the meeting room, which is part of the summary judgment record, “reveals the plaintiff could not, and did not, engage in the conduct described by Defendant Ostrander.” (Doc. 104 at 9-11.) In response, Officer Ostrander contends a jury could “easily conclude, ” after watching the video, that Karban's outer left thigh was pressed up against the right thigh of his visitor in the manner described in the report. (Doc. 140 at 2-3.)

         Where video footage is part of the summary judgment record, the Court must consider the facts in the light depicted by the video. Scott v. Harris, 550 U.S. 372, 380-81 (2007). Here, the video footage is inconclusive. In the single angle provided in the video, Karban's and his visitor's legs cannot be seen-the camera angle is from behind Karban's head and his upper body blocks a view of their legs. (Doc. 93, Ex. G.)[3] Nevertheless, the Court agrees with Officer Ostrander that the jury could conclude, after reviewing the video, that some thigh-touching occurred. If the jury reached such a conclusion, this would undermine Karban's theory that Officer Ostrander's filed a “false” report in an effort to retaliate against him. See generally Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (“To prevail on a retaliation claim, a plaintiff must show that his protected conduct was the substantial or motivating factor behind the defendant's conduct.”) (citations and internal quotation marks omitted).[4]

         It is also relevant that the incident on September 2, 2017 was not the first time Karban was suspected of engaging in improper conduct in the prison's visitation room. Karban is a convicted sex offender with a long history of violating the prison's visitation and contact rules, with many of those violations stemming from visits by the same female visitor whose thigh he allegedly touched during the incident at issue in this case. (See generally Doc. 106 at 2-3.) This prior history is not, as Karban argues (Doc. 144 at 5), irrelevant or improper character evidence. To the contrary, it bears upon Officer Ostrander's state of mind-a jury could conclude it helped prompt Officer Ostrander to honestly (even if mistakenly) perceive Karban to be touching the thigh of his visitor during the September 2, 2017 visit. Such a determination could also defeat Karban's retaliation claim. Cf. Redd v. Nolan, 663 F.3d 287, 295 (7th Cir. 2011) (“[E]ven if Velez's conclusions were wrong, that would not support an inference that he or other DOC officials intended to retaliate against Redd for exercising her rights under the First Amendment . . . .”); Davis v. Haines, 2008 WL 2610144, *1 (W.D. Wis. 2008) (“Plaintiff does not point to any evidence suggesting that defendants did not honestly believe plaintiff was a gang member, which is all that matters for the purpose of countering plaintiff's claim of unlawful retaliation. A genuine mistake is not a constitutional violation.”).

         IV. Officer ...


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