In September 2023, Arizona reached a $5,000 settlement to resolve a state prisoner’s retaliation claim that former correctional officer Jacqueline McCowan (Ostrander) issued a False Disciplinary Citation after being questioned regarding her knowledge of the prison’s visitation rules.

Stephen Karban, the author of Arizona Department of Corrections: An Insider’s Look at Chaos and Corruption, was incarcerated at the Eyman Complex, Cook Unit prison, in Florence, Arizona on September 2, 2017, when Officer Ostrander approached his visitation table and warned Karban and his visitor that they could not be seated as they were. Karban and his visitor were seated at adjacent corners of a square visitation table, exactly as they had sat for hundreds of times previously.

After visitation ended on September 2, Karban asked Officer Ostrander what prison policy had been violated to merit a warning that they were seated improperly. When questioned, Ostrander was unable to produce or identify any violated prison policy. Karban then questioned whether or not she had a personal vendetta against him or his visitor due to prior interactions with Ostrander. After having this discussion, Karban returned to his housing location, where he was informed he was on report, a precursor informing Karban that disciplinary action was forthcoming.

The ADCRR Disciplinary Hearing

Three days later, on September 5, Karban was formally issued the disciplinary citation written by Ostrander. In her report, Ostrander claims to have witnessed Karban seated with his left thigh pressed against his visitor’s right thigh. After receiving the disciplinary report, and in accordance with Arizona Department of Corrections Rehabilitation and Reentry (ADCRR) policy, Karban was afforded a disciplinary hearing.

During the disciplinary hearing, Karban argued that no rule had been violated and the allegation of pressing thighs together while seated at a square table was impossible. Karban requested that the visitation room’s video surveillance be reviewed to support his argument. However, his request was denied. The ADCRR disciplinary hearing report verifies that no video surveillance from within the visitation room was reviewed or considered during the disciplinary hearing. Following this impossible-to-win disciplinary hearing, Karban was found guilty by ADCRR Captain Steven Brennan. For punishment, the disciplinary hearing report indicates Karban was issued 30 days loss of good time, 30 hours of extra duty, 30 days loss of visits and privileges.

The ADCRR Grievance Policy

The ADCRR grievance policy, Department Order 802, mandates prisoners must first attempt to informally resolve their grievance with a staff member in the area most responsible for the complaint. On September 2, that staff member was Officer Ostrander. By speaking with Ostrander, Karban was doing exactly what the prison’s grievance policy mandated, attempting to resolve his issue with the officer most responsible for his complaint.

However, following this mandated policy interaction, Ostrander wrote her false disciplinary citation. As the disciplinary report alleges, Karban and his visitor needed to be seated side-by-side, not at adjacent table corners, as video surveillance reveals, for Karban and his visitor to have their thighs pressed together.

After being issued the false disciplinary citation, Karban submitted a written grievance alleging Officer Ostrander had retaliated against him. In his prison grievance, Karban claimed Ostrander wrote the false disciplinary citation out of retaliation for questioning her knowledge regarding the prison’s visitation rules. Separately, Karban also submitted an inmate letter to the Unit’s Deputy Warden, Vivian Baltierra, requesting that Ostrander be placed under administrative investigation and reprimanded in accordance with ADCRR policy.

After exhausting his administrative remedies through the prison’s grievance process, Karban filed a pro-se lawsuit in the Federal District Court of Arizona, Case Number 2:17-cv-03618-DWL, raising a First Amendment Retaliation claim against Officer Ostrander. After delays related to the Covid-19 pandemic, Karban’s case against Ostrander proceeded to trial in May 2023. The jury failed to reach a unanimous verdict and a new trial was ordered. Days before the second trial was set to start in September 2023, the State agreed to settle the case at Arizona taxpayer’s expense. Attorney Elizabeth Tate of Phoenix, Arizona represented Karban.

Further ADCRR Retaliation

Sadly, the false disciplinary citation wasn’t the only retaliation Karban experienced while incarcerated at Cook Unit. After submitting his grievance and requesting the formal investigation of Ostrander, the ADCRR Cook Unit’s Deputy Warden, Vivian Baltierra, subsequently transferred Karban to another prison unit because he like[d] paperwork. This retaliatory transfer also resulted in another lawsuit, Karban v. Baltierra, case number: 2:19-cv-19-04377-DWL, costing Arizona taxpayers even more money. See: D.W. Loses 1st Amendment Lawsuit to Prisoner.

A Prisoner’s Right to File Grievances

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. Because of incarceration, individuals do not lose their First Amendment right to petition the government (or prison officials) to redress 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. State prison inmates who have their civil rights violated by prison officials can file a 42 U.S.C. §1983 civil rights lawsuit.

My Final Thoughts

I encourage everyone to download and read Karban’s eBook, available only on Amazon and reasonably priced ($3.99). It contains his observations and experiences regarding staff and the conditions related to prison life within the ADCRR.

In a modern society, it’s hard to comprehend that First Amendment retaliation against a prisoner still happens. However, as the two cases leveled against ADCRR correctional staff and resolved in Karban’s favor reveal, retaliation against prison inmates is still a modern-day occurrence. As for the defendant in this case, Jacqueline McCowan (Ostrander), she wasn’t personally held liable for her behavior. Instead, Arizona’s taxpayers paid all the damages awarded to Karban. While the ADCRR no longer employs Ms. McCowan, 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.

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