United States District Court, D. Arizona
Dominic W. Lanza, United Slates District Judge.
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.) As explained below, both motions will be
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.)
Summary Judgment Standard
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.
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).
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).
their respective motions, the parties agree 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)).
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.)
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.) 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).
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