From an outsider’s perspective, almost anyone with basic legal knowledge can answer that inmate retaliation claims are litigated in Section 1983 civil rights lawsuits. But what are the events proceeding the court action? To find out, it’s best to get an insider’s (inmate) perspective. So, here is an interview with a prisoner incarcerated in the Arizona Department of Corrections. Stephen K. has two Section 1983 civil rights lawsuits currently before a court alleging some form of First Amendment retaliation.

[Q] Could you tell me a little about yourself?

[A] I am currently incarcerated by the Arizona Department of Corrections and housed in Florence, Arizona. I have been incarcerated since 2008 by the Department of Corrections. Prior to prison, I was self employed in the mechanical and structural engineering field and never envisioned a life as I have it now.

[Q] What surprises you most about life inside a prison?

[A]That isn’t easy to answer. Whenever I think I’ve seen it all, something new emerges. I would probably say nothing surprises me anymore. That goes for both the behavior of inmates as well as staff.

[Q] What have you observed regarding the medical care or treatment of inmates while in prison?

[A]I can tell you inmate medical care has been extremely lacking in the Arizona prison system for years. That would be why there is currently the class action lawsuit of Parsons v. Shinn (formally Parsons v. Ryan). The case’s stipulation agreement to improve medical care wasn’t being adhered to by the Department and now the case is progressing towards a civil trial.

In addition to the class action lawsuit, there are numerous individual prisoners here who have active civil cases regarding their lack of medical care.

Because of poor care, I have observed one prisoner wait months to receive skin cancer treatment. His delay caused the loss of his whole ear. I have seen instances where denied hernia surgery causes needless pain and suffering. Teeth are frequently extracted rather than repaired. I suspect it’s cheaper and faster. At night, we don’t even have a medical person on site. Prisoner’s medications lapse. Right now I am without a rescue inhaler for my asthma. I have been waiting over two weeks for a refill. I have a saying regarding inmate medical emergencies. It is: First Responders are the last to arrive on scene here in the prison.

[Q] Do you know if there is ever retaliation towards inmates who complain about the poor medical care?

[A]Certainly, there’s retaliation. A few years ago, the judge called upon inmates from my facility to testify regarding the Parsons class action case. Those who went to court and testified were retaliated against by the unit’s staff. It was so bad for those inmates, when the court learned what had happened, the judge issued an order identifying the staff’s behavior and forbidding further retaliation. The judge’s order even identified the facility’s Deputy Warden by name. Even with what happened and having been so public, and known to the judge, there were no employee consequences that I’m aware of.

[Q] Have you ever experienced any type of retaliation or harassment by prison officials?

[A]Yes. One time was right after I was quoted in a newspaper article published in the “Arizona Republic.” I had filed prison grievances about how the fire detection and suppression system didn’t work at my facility. When those grievances failed to change anything, I wrote a letter to the local Fire Marshal. A portion of that letter was quoted in the newspaper article, with my full name disclosed. Exactly one week after publication, my prisoner phase status was reduced from level 3 to level 2. The reduction reduced the prison privileges I had earned through good behavior. My phase reduction was blamed on poor work evaluations. I didn’t even have a job and I had never been employed for any job at that facility.

I have also been the recipient of a false disciplinary report after I complained to an officer regarding her conduct. I actually have a lawsuit pending regarding that issue. I experienced further retaliation after I submitted a written grievance regarding the officer who submitted the false disciplinary report. For the written grievance, I was relocated to another facility. I also have another ongoing lawsuit regarding the disciplinary process and prison transfer as well.

[Q] Are those two separate lawsuits?

[A]Yes. In one lawsuit I have a First Amendment retaliation claim against the officer for writing a false disciplinary report. In the second lawsuit, I have multiple claims. For one count, I have a First Amendment retaliation claim against the Deputy Warden who orchestrated my prison transfer. In another count, I have a due process claim against the officer who conducted the disciplinary hearing. The lawsuit against the officer who wrote the false disciplinary report is currently scheduled for trial in December in the Arizona District Court. My second lawsuit was dismissed at the summary judgment stage. It is currently under appeal to the Ninth Circuit Court of Appeals.

[Q] Were you appointed legal representation in either case?

[A]For the case advancing to trial I have an appointed a lawyer. The court recruited a pro bono lawyer only for the trial process. I did not have an appointed lawyer until after I made it past the summary judgment phase and had I declined to accept a settlement offer. For the second case under appeal, I have never had counsel.

[Q] What are the events which led up to the filing of the disciplinary report?

[A]I was in the prison visitation area sitting at a square table with my wife. The visitation officer came to where we were and told us we were not permitted to sit as we were. And, this wasn’t the first time I felt like we were being targeted by this individual. After visitation was complete and my wife had left, I asked the officer what we had been doing wrong. She proceeded to tell me we had been in violation of prison policy. I then pressed her further and challenged her to show me anything in policy that we had done wrong. And, she couldn’t. The next thing I knew, I was being notified I was receiving a disciplinary charge for violating a prison rule. The disciplinary report alleged my left thigh was pressed against my wife’s right thigh. To accomplish this, we needed to be sitting on the same side of the table. We weren’t. We always sat on different sides of the table.

[Q] Was the disciplinary charge dismissed?

[A]Not at first. The visitation area was under video surveillance, but the disciplinary officer denied me access to the camera footage for my disciplinary hearing. So, without any ability to defend myself, I was found guilty. The ticket was eventually reversed by the Deputy Warden through the disciplinary appellate process. A few days after the ticket’s reversal, the Deputy Warden had me transferred out of the unit. The behavior of the disciplinary officer and the deputy warden form the basis of the claims currently under review by the Ninth Circuit Court of Appeals.

[Q] How did filing a disciplinary report become a First Amendment retaliation claim?

[A]In the Arizona Department of Corrections, prison policy mandates that I attempt to informally resolve my grievance by speaking with the appropriate staff member. So, by following policy, I was engaging in protected conduct when I spoke to the officer. Speech is First Amendment protected. When the officer apparently didn’t like that I questioned her authority, she retaliated with a disciplinary ticket. By writing a completely false report only reinforces her retaliatory intent. The acquired video surveillance substantiates that we were never sitting beside one another.

[Q] How did you acquire the prison’s video surveillance footage?

[A]As soon as I knew I had the forthcoming disciplinary charge, I requested that all the visitation camera video footage be preserved. I did it through email notification, the written grievance process and the pre-disciplinary hearing paperwork. I never acquired the video until after I filed my lawsuit and I requested its production through the discovery process. That was the first time I was able to see the video. Once I reviewed its contents and understood how it would have aided during my disciplinary hearing, I filed the second lawsuit arguing the denial of Due Process and the refusal to produce exculpatory evidence. I had also acquired evidence specifically implicating the Deputy Warden’s involvement in my prison transfer. So, she was also added into the second lawsuit.

[Q] When you made it past the summary judgment proceedings, you said a settlement was offered. Why didn’t you take the offer?

[A]Principle. This was a state officer with a sworn duty to be truthful, and she wasn’t. Now, my goal is to have this officer demonstrate to a jury the absurdity of what she alleged my wife and I supposedly did. But there is one more reason. If I accepted the settlement, it would be the taxpayers who financially paid for her lies. If I am awarded punitive damages after a trial, I believe it’s her money I will collect, not innocent taxpayer money.

[Q] Do you ever worry about more retaliation?

[A]Yes, it’s always a possibility. I actually have written an entire book regarding my prison experience. However, because of what I have already endured at the hands of prison employees, my friends and family have requested that I don’t publish it. So, that project has been shelved for fear of reprisal.

[Q] Do you see ever witness prison events which should be reported but aren’t because of retaliation being a factor?

[A]Sadly, yes. Prison officials always have the upper hand. Prisoners know if they report an officer sleeping on the job, smoking in a building or refusing to wear a face mask, that officer will eventually learn who made the report. So, such events are seldom reported. On occasion, an inmate may submit an anonymous letter detailing the misconduct. But a complaint without the reporter’s identification prohibits any follow-up investigation even if it were to be looked into.

[Q] What other forms of retaliation have you witnessed occur in prison?

[A]I have seen inmates being moving from one bed to another on a weekly basis. I have seen inmates who have been on a lower bunk for years suddenly moved to an upper bunk. I know of inmates who have been beaten up at the behest of an officer and others forced to request protective custody. Like I said earlier, I have seen nearly everything inside the prison walls.

[Q] Why do you think retaliation occurs?

[A]It’s a method of control and an ever present psychological reminder not to make waves for staff members. When I know a prisoner is needing to file a grievance regarding a prison issue, I suggest that it be done. However, I estimate that in eighty to ninety percent of the conversations, I hear “no,” because the prisoner fears retaliation. The history of knowing retaliation is a possibility prohibits countless opportunities to enact prison change.

[Q] Do you believe retaliation will ever cease to exist?

[A]I don’t. Until there is more transparency regarding prison operations, bad behavior will be permitted to remain secret. Cell phone video has captured a lot of police officer behavior forcing accountability and change. There are no recording methods to capturing bad behavior of staff inside a prison, so change and accountability is impeded.

Here in Arizona, there have been prison telephone hotlines established to report officer retaliation, but it’s other prison staff (coworkers) who conduct the investigation. It’s the same principle as having the wolf guarding the chickens. It isn’t going to successfully work.

What is the legal recourse for inmate retaliation?

Inmates who are retaliated against have the ability to pursue Section 1983 actions against those who abuse their authority and retaliate against prisoners for engaging in constitutionally protected conduct. For more information, I encourage you to read my postings titled: How can retaliation happen to inmates? and Section 1983 and inmate rights.