Prisoners have a constitutionally protected 1st Amendment right to file grievances regarding the conditions inside their prisons. Not all prison staff are supportive of this constitutional right. Some individuals in positions of power, like former Deputy Warden, Vivian Baltierra, utilize retaliation as a means to silence the voices of vulnerable prison inmates when they speak out. In this blog post, we will delve into the legal foundation of a prisoner’s First Amendment retaliation claim, analyze a prisoner’s real-life retaliation lawsuit, and uncover the recourse available to inmates who experience First Amendment Retaliation.
The Legal Foundation of the 1st Amendment Right
Contrary to popular belief, prisoners do not entirely forfeit their constitutional rights upon incarceration. Instead, the courts have established a delicate balance between upholding the principles of the First Amendment and maintaining order and security within correctional facilities. What individuals do not loose, simply because of incarceration, is their First Amendment right to petition the government (or prison officials) for a redress of their grievances.
When an inmate initiates a grievance, either in writing or verbally, and a prison official subsequently takes an “adverse action” against the inmate, “because of” that grievance, the official commits First Amendment retaliation. Rhodes v. Robinson, 408 F.3d 559 (9th Cir 2005). Retaliation against an inmate for grieving a prison related issue becomes a violation of the inmate’s civil rights. And, State Prison inmates who have their civil rights violated by prison officials, can file a 42 U.S.C. §1983 civil rights lawsuit.
Real-Life 1st Amendment Retaliation
For a real-life example of an inmate’s First Amendment retaliation lawsuit, let’s examine the case of Karban v. Baltierra, case number: CV-19-04377-PHX-DWL. The Plaintiff, Stephen Karban, is incarcerated by the Arizona Department of Corrections Rehabilitation and Reentry (“ADCRR”), and the author of Arizona Department of Corrections: An Insider’s Look at Chaos and Corruption. The Defendant, Vivian Baltierra, was a Deputy Warden employed by the ADCRR. After Mr. Karban, submitted a grievance regarding the abusive behavior of Corrections Officer, Jacqueline Ostrander, Deputy Warden Baltierra transferred Mr. Karban out of the prison facility under her control, because he “likes paperwork.” Mr. Karban thereafter filed a Section 1983 lawsuit against Ms. Baltierra for the violation of his First Amendment right.
What makes this case unique is that Mr. Karban was denied legal representation for his lawsuit. Unlike criminal cases, there’s no constitutional right to the appointment of counsel for indigent individuals in a civil lawsuit. Consequently, Mr. Karban was required to select a jury, give his opening statement, call and cross-examine witness, introduce evidence, and give a closing statement. Opposite to Mr. Karban, Ms. Baltierra, a state official, had a team of lawyers appointed to her by the State of Arizona.
Relevant Case History
Before getting into Ms. Baltierra’s retaliatory action, some relevant history is essential:
Prison Visitation Event
On September 2, 2017, Corrections Officer, Jacqueline Ostrander, was working in the Eyman Complex, Cook Unit Prison visitation area, where Mr. Karban was having a visit. At 3:15 in the afternoon, Ms. Ostrander approached Mr. Karban’s table and issued a “verbal warning” that he was not permitted to “be seated that way,” and ordered a separation between Mr. Karban and his visitor. After visitation was over, and believing he had done nothing contrary to prison rules, Mr. Karban addressed the interaction with Ms. Ostrander by “speaking” to her. Possibly upset that her authority and lack of knowledge regarding prison rules had been challenged, Ms. Ostrander wrote a prison disciplinary report against Mr. Karban after their discussion.
In the inmate disciplinary report, Ms. Ostrander alleged that Mr. Karban had his “left thigh” pressed against his visitor’s “right thigh.” Knowing the report was untrue, and anatomically impossible to accomplish given the seating arrangement, Mr. Karban wrote an informal grievance against Ms. Ostrander. In his grievance, Mr. Karban alleged being the recipient of retaliation, and that Officer Jacqueline Ostrander had admitted her retaliation. Mr. Karban detailed that the prison’s grievance policy required him to speak with Officer Ostrander about the event, and that retaliation for using the prison’s grievance process was forbidden. Mr. Karban also requested a formal investigation into Ms. Ostrander’s action. Each submitted document directed prison administrators to review surveillance footage (view footage here: https://youtu.be/RydikCMKpOQ) taken that day.
The Disciplinary Hearing Event
After Ms. Ostrander wrote her disciplinary report, Mr. Karban had what the prison refers to as a “disciplinary hearing.” At this hearing, inmates are suppose to be given an opportunity to present evidence to defend against the officer’s disciplinary report. As the disciplinary hearing documentation indicates, Mr. Karban was prohibited from presenting the video surveillance evidence. Instead, the disciplinary hearing officer only considered “reports” written by his fellow coworkers. Consequently, Mr. Karban was found “guilty” of the disciplinary citation initiated by Ms. Ostrander. For punishment, Mr. Karban received 30 days loss of good time, 30 hours of extra duty, 30 days loss of visits and privileges, all detailed in the disciplinary hearing documentation.
Not content with the outcome, Mr. Karban appealed the “guilty” determination using the prison’s disciplinary process. Ironically, prior to Mr. Karban’s disciplinary hearing, the disciplinary report was ordered “dismissed” by Ms. Baltierra’s superior, Warden Thompson. However, she refused to follow his order and permitted the sham disciplinary hearing to proceed. During the appellate process, Mr. Karban specifically noted that Mr. Thompson had ordered the disciplinary report to be dismissed prior to the disciplinary hearing. Recognizing that Mr. Karban wasn’t letting the issue rest, on September 25, 2017, Ms. Baltierra dismissed the disciplinary report wrote by Officer Ostrander. The decision of the appeal acknowledges that Warden Thompson “did state that your disciplinary was dismissed.”
Vivian Baltierra’s 1st Amendment Retaliation
Rather than address a subordinate correctional officer’s bad behavior, Ms. Baltierra chose to exacerbate the retaliation of Mr. Karban. The day after reversing Mr. Karban’s disciplinary action, Ms. Baltierra wrote an email to a Deputy Warden at another facility, requesting the unit’s Deputy Warden to take “custody and control” of Mr. Karban, because he “likes paperwork.” On September 28, 2017, Mr. Karban was transferred by Ms. Baltierra to the new prison unit. Shortly after the prison transfer, Mr. Karban filed his Section 1983 lawsuit against Ms. Baltierra for her retaliatory action.
Vivian Baltierra’s Trial for 1st Amendment Retaliation
Due to covid delays, Mr. Karban’s Section 1983 lawsuit began trial on May 22, 2023. After presenting his entire case Pro Se, on May 24, 2023, the jury returned a “liable” verdict against Defendant Baltierra, and awarded Mr. Karban compensatory damages. In addition to the compensatory award, Mr. Karban was awarded costs for bringing his lawsuit against Vivian Baltierra. On August 11, 2023 the State of Arizona’s taxpayers paid Mr. Karban for the retaliation he suffered as a result of Vivian Baltierra’s First Amendment Retaliation.
Following Vivian Baltierras trial loss, in September 2023, the State of Arizona chose to settle the retaliation case of Karban v. Ostrander, Case Number 2:17-cv-03618-DWL, involving the actions of former correctional officer, Jacqueline Ostrander. See: Arizona Settles Prisoner’s Retaliation Claim.
My Final Thoughts
In a modern society, it’s hard to comprehend that First Amendment retaliation against a prisoner would still happen. However, as the real-life experience of Stephen Karban reveals, retaliation against inmates is a modern day reality. As for the defendant in this case, Vivian Baltierra wasn’t personally held liable for her action. Instead, taxpayers were called upon to pay the damages awarded to Mr. Karban. While Ms. Baltierra enjoys her retirement freedom, Mr. Karban remains incarcerated awaiting the next retaliatory action of another prison official who doesn’t believe the First Amendment right should apply to those incarcerated.
Our book, The Colossal Book of Civil Citations, has a section dedicated to the topic of Retaliation. If you have an incarcerated friend or loved one considering a Section 1983 lawsuit regarding First Amendment retaliation, order a copy of our book today. Our books are softcover, in stock, institutional friendly, and ready for immediate shipping.