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Larson v. Cooper (05/27/2005) sp-5897
Larson v. Cooper (05/27/2005) sp-5897
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LOREN J. LARSON, JR., )
) Supreme Court No. S-10708
Appellant, )
) Superior Court No. 3AN-00-3607
CI
v. )
)
ALLEN COOPER, former Director, ) O P I N I O N
State of Alaska, Department of )
Corrections, Division of ) [No. 5897 - May 27,
2005]
Institutions, and THOMAS REIMER, )
Assistant Superintendent, Spring )
Creek Correctional Center, )
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: Loren J. Larson, Jr., pro se,
Seward. Timothy W. Terrell, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Loren J. Larson, Jr., a state prisoner, appeals the
superior courts summary judgment order dismissing his
constitutional tort claim against two Department of Corrections
officials for depriving him of contact visits in retaliation for
his exercise of free speech, religion, and due process. Because
Larson failed to offer evidence raising an inference of
retaliatory conduct and the prisons uncontroverted evidence
indicates that the visitation restrictions were taken for
legitimate reasons, we affirm the superior courts order.
II. FACTS AND PROCEEDINGS
Loren J. Larson, Jr., is an inmate at the maximum-
security Spring Creek Correctional Center in Seward. On
September 20, 1999, Larson and his wife held hands during a
contact visit. Correctional Officer Larry Davis twice ordered
Larson to release his wifes hand, and Larson twice replied, I
cant do that. As a result of the incident, Officer Davis filed a
disciplinary report against Larson for refusing to obey a direct
order of a staff member. In addition, acting Superintendent
Thomas Reimer issued an administrative order (an Individual
Determination Restriction), restricting Larson to secure (no-
contact) visitation.
On October 4, 1999, Reimer conducted his monthly review
of inmates administrative restrictions and decided to continue
Larsons contact-visitation restriction. That same day,
Disciplinary Hearing Officer Harold Faust conducted a hearing and
found Larson not guilty of disobeying a direct order. Fausts
written finding did not explain the decision, and his reasons
were not established during the proceedings below.
The following day, October 5, Larson sent Reimer a
written request for reinstatement to contact-visit status,
informing Reimer that he had been found not guilty on the
disciplinary charge. Reimer responded on October 6, stating, The
Individual Determination Restriction is an administrative action
as a direct result of you failing to follow the direction of the
officer in the visiting room. Your situation will be reviewed
every 30 days.
On October 19 Larson submitted a formal prisoner
grievance, which detailed the circumstances surrounding his
contact-visit restriction, emphasized that he had been found not
guilty in the disciplinary proceeding, and asked to have his
visiting privileges reinstated.
A week later, on October 26, Larson sent Reimer another
written request concerning the status of his administrative
restriction, asking whether Reimer had return[ed] to me my
Contact Visits on 10-20-99 the 30 day Review? Reimer responded a
day later, saying The review has not been done yet. Larson
immediately sent another memo, requesting a detailed explanation
as to why my individual determination has not been reviewed yet.
Reimer wrote back, Because I have not reviewed them yet this
month.
On October 31 Larson submitted a second prisoner
grievance, accusing Reimer of retaliating against Larson for
having filed his October 19 grievance:
On 10-19-99 I filed a Grievance for the
wrongful[] termination of a contact visit
between my family and my self. My contact
visits are now being held hostage by
assistant superintendent T. Reimer in
retaliation to my Grievance.
On November 1 Reimer conducted his next monthly review
of administrative restrictions and left Larsons no-contact
restriction intact. Larson sent Reimer another request on
November 7, inquiring whether Reimer had restored Larsons contact
visits on November 1. Reimer replied the next day, Not at this
time. Should be return[ed] at the end of Nov.
Meanwhile, Larsons grievances had been investigated by
separate corrections officers, who both recommended that no
further action was needed; Reimer approved these recommendations
on November 5. Larson appealed the denial of his grievances to
the Director of Institutions, Allen Cooper. Cooper denied
Larsons appeals on November 16. Addressing the first grievance,
in which Larson complained about his treatment in connection with
the original hand-holding incident, Cooper found: You were warned
about holding hands. When you failed to stop, your visit was
terminated. The incident happened. The fact you were found not
guilty does not change that. The visiting restrictions are
appropriate. In rejecting the second grievance, which complained
of retaliation by Reimer, Cooper simply found that no retaliation
had occurred, further noting: Your restrictions are being
reviewed every 30 days. No further action is necessary.
After conducting his next monthly review of
administrative restrictions on December 1, 1999, Reimer restored
Larsons contact visiting privileges. Larsons contact visits were
thus suspended for a total of seventy-three days.
In August 2000 Larson filed a superior court complaint
against Reimer and Cooper, alleging that they had violated his
constitutional rights by suspending his contact visits to
retaliate against him for holding hands with his wife in
furtherance of his religious rights, for contesting his
disciplinary charges and being acquitted, and for pursuing his
ensuing grievances.
The superior court granted the states motion for
summary judgment, ruling that Larsons claims failed as a matter
of law because Larson had no liberty interest in contact
visitation and had failed to make a prima facie showing of
retaliation.
Larson appeals.1
III. DISCUSSION
We review a grant of summary judgment de novo.2
Summary judgment is appropriate only when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law.3 To determine whether the moving
party has a right to judgment as a matter of law, we draw all
reasonable factual inferences in favor of the non-moving party.4
Because Larson asserts federal rights, we look to the
United States Supreme Court for guidance. Although the Court has
yet to determine the proper standard for adjudicating claims that
a prison official has retaliated against a prisoner for
constitutionally protected conduct, the Court has addressed
retaliation claims in the employment context.5 In Mt. Healthy
City School District Board of Education v. Doyle, the Court
evaluated a plaintiffs claim that his employer, a municipal
school district, fired him in retaliation for the exercise of his
first amendment rights. The Court determined that when adverse
action by the state is influenced by both proper and improper
motives, the action may be sustained upon a showing that the
state would have taken the same action, even in the absence of
the improper reason.6 When alleging a retaliatory employment
action, the plaintiff carries the initial burden of showing that
an improper motive played a substantial part in the states
action. If the plaintiff makes this showing, the burden shifts,
and the defendant must show that the state would have taken the
same adverse action against the claimant regardless of the
improper motive.7
In adjudicating retaliation claims in the prison
context, the federal courts of appeals have recognized that
courts must approach prisoner claims of retaliation with
skepticism and particular care . . . because virtually any
adverse action taken against a prisoner by a prison official
even those otherwise not rising to the level of a constitutional
violation can be characterized as a constitutionally proscribed
retaliatory act.8 As a result, where an inmate alleges
retaliation, the federal courts have looked to Mt. Healthy for
direction but have typically placed a more demanding burden on
the claimant.9
Although the elements of a prison retaliation claim
differ slightly from circuit to circuit, the federal courts
generally require proof: (a) that the inmate engaged in
constitutionally protected conduct; (b) that prison officials
took adverse action; (c) that these actions served a retaliatory
purpose;10 and usually in most circuits (d) that the adverse
action would not have been taken in the absence of the protected
conduct.11
But the circuits differ in allocating the burden of
proving these elements. Some circuits (the Second, the Third,
and the Sixth) follow the Mt. Healthy approach and, once the
prisoner has raised an inference that the protected conduct was a
substantial factor motivating the adverse action, shift the
burden to the prison to show that the officials would have taken
the action absent the protected conduct.12 Other circuits (the
First, Fifth, Eighth, and Tenth), noting the increasingly urgent
problems of prison administration and that great deference must
be accorded to the administrative determinations of prison
officials,13 have declined to adopt the burden-shifting approach.
In these circuits, the inmate bears the burden of showing that
the prison officials would not have taken the adverse action but
for the protected conduct.14 Finally, some circuits (the Seventh,
Ninth, and Eleventh) have taken neither approach, analyzing
retaliation claims in a more ad hoc manner.15
We assume for purposes of discussion that suspending
Larsons contact visits impaired his liberty, amounting to adverse
action.16 Our inquiry thus centers on whether Larson offered
admissible evidence raising a reasonable inference that he
engaged in constitutionally protected conduct and that his
contact visits were curtailed because of that conduct. In
response to the defendants motions for summary judgment, Larson
asserted that he lost his right to contact visits for holding
hands with his wife, declining to stop upon Officer Daviss
command, successfully defending against Daviss ensuing
disciplinary charges, and filing grievances against Reimer and
Cooper all of which, Larson asserts, involved constitutionally
protected conduct.
But only two of these activities implicate
constitutionally protected rights. While Larson insists that
holding his wifes hand and refusing to let go qualified as
protected conduct because it involved an exercise of his
religious freedom, we recently rejected a similar argument by
Larson in a related appeal involving the same conduct.17 Our
decision there is binding. Accordingly, we find no persuasive
ground to support Larsons claim that these actions amounted to
constitutionally protected conduct.18 In contrast, Larsons
conduct in defending himself against the disciplinary charges and
pursuing his grievances against Reimer and Cooper undisputedly
involved protected activities.19
In addition to showing that he engaged in
constitutionally protected conduct, Larson was also required to
offer evidence showing adverse action prompted by a retaliatory
motive. The superior court ruled that Larson failed to make this
showing and therefore granted summary judgment for the
defendants. The state agrees and urges us to affirm the superior
courts decision. Alternatively, the state argues that even if
Larson raised an inference of a retaliatory motive, the prison
has offered unrebutted evidence that it also had legitimate
reasons for continuing to restrict Larsons contact visits.
The federal courts have recognized a presumption that a
prison officials acts to maintain order are done for a proper
purpose.20 Where a prison can show that legitimate reasons
existed for taking an adverse act, the courts presume, absent
persuasive evidence to the contrary, that officials in fact took
the action for the offered reasons.21 The standard of proof for
showing the existence of legitimate reasons differs from circuit
to circuit. In the Eighth Circuit, for example, the prison need
merely introduce some evidence that the adverse action was
justified.22 In contrast, the Second Circuit has held that where
the state claims a legitimate reason based on the inmates
conduct, the inmate offers a conflicting account of the conduct,
and the official action would not have been justified under the
inmates account, there are material facts in dispute, so summary
judgment is not appropriate.23 The Ninth Circuit has similarly
ruled that some evidence of a legitimate reason will not warrant
summary judgment when the inmates evidence raises a genuine issue
of material fact as to whether the action was taken in
retaliation for the exercise of a constitutional right.24
Larson insists that the prison did not have a
legitimate reason for extending the visiting restrictions,
pointing to his acquittal at the disciplinary hearing, the
alleged inadequacy of the defendants explanations for failing to
reinstate his contact visitation privileges after the acquittal,
and his clean record at the correctional center before the hand-
holding incident. The prison contends that the disciplinary
acquittal is irrelevant and that the prisons reasons for
continuing the restrictions were legitimate. The prison notes
that Larson repeatedly admitted that he failed to obey the order
to stop holding his wifes hand, and that nothing in the
disciplinary ruling included a finding that Larson did not in
fact disobey an order.25 Reimer and Officer Davis submitted
affidavits disclaiming any retaliatory motive and averring that
Larsons contact visits were suspended as a routine administrative
matter because he had disobeyed a direct order to stop holding
hands with his wife. In particular, the state maintains that
Reimer continued the restrictions because of a concern that
Larsons demonstrated unwillingness to follow staff orders related
to the contact visiting rules showed that Larsons continued
retention of contact visiting privileges posed a security threat
so long as Larson maintained this unwillingness. In other words,
the prison argues that the reasons motivating the initial
restriction the officials concern that Larson was unwilling to
follow orders regarding visiting rules still existed when the
restrictions were continued and that those reasons remained
legitimate. The prison thus maintains that its uncontradicted
evidence establishing that Larson actually did refuse to obey a
guards order meets its burden of proving that it would have taken
the same action even in the absence of the alleged retaliatory
motives and that Larson failed to show that this explanation was
pretextual.
The states argument on this point is persuasive: our
survey of federal case law convinces us that the state would
prevail on its motion for summary judgment in any circuit.
Although we find it unnecessary to consider the facts of the
present case in light of the idiosyncracies of each of the
circuits, the approaches of the Second, Ninth, and Tenth Circuits
cast particular light on the problems with Larsons claim, so we
will consider them in greater detail.
The Second Circuit follows the Mt. Healthy burden-
shifting approach, a relatively inmate-friendly approach; but on
our reading of the Second Circuits rulings, the state would still
prevail here under that approach. In the Second Circuit, the
state can meet its burden of showing that it would have taken the
adverse action absent the protected conduct by establishing the
claimants actual participation in prohibited conduct.26 When
undisputed proof of an inmates actual participation in prohibited
conduct appears in the record, these cases hold that summary
judgment may properly be granted for the state.27
The Second Circuits ruling in Lowrance v. Achtyl aptly
illustrates this line of authority.28 There, a prison guard,
Achtyl, had stopped an inmate, Shamsid-Deen, for bringing
improper food items into a mess hall.29 Achtyl commanded Shamsid-
Deen to hand over his prohibited food.30 Shamsid-Deen refused.31
Achtyl placed Shamsid-Deen in administrative confinement.32
Shamsid-Deen then repeatedly complained to various officials, but
received no response and remained in confinement.33 Achtyl
subsequently filed a behavior report charging Shamsid-Deen with
disobeying his order.34 A disciplinary officer eventually
dismissed Shamsid-Deens charge of disobeying Achtyls order,
finding that the food rule that prompted Achtyl to direct
Shamsid-Deen to surrender his plate had not been properly
publicized.35
After being acquitted of disciplinary charges for
disobeying Achtyls order, Shamsid-Deen filed a civil action
against Achtyl, accusing him of retaliation. In support of his
claim, Shamsid-Deen submitted an affidavit establishing that,
before filing the misbehavior charges against Shamsid-Deen,
Achtyl had been overheard to say that he could write better
misbehavior tickets than Shamsid-Deen could write grievances.36
Despite this evidence, a federal magistrate-judge dismissed the
retaliation claim on summary judgment.37
In affirming this summary judgment order, the Second
Circuit held that even though Shamsid-Deens disciplinary charges
had been dismissed Achtyl met his burden of showing that the
misbehavior report would have been filed and Shamsid-Deen would
have been administratively confined, because it was undisputed
that Shamsid-Deen had in fact engaged in prohibited conduct by
disobeying Achtyls direct order.38 Under this rule, then, the
undisputed evidence of Shamsid-Deens prohibited conduct (the
states legitimate reason for adverse action) required the court
to presume that the state would have acted as it was legitimately
entitled to act even though there was ample evidence suggesting
that impermissible motives also might have prompted the state to
take adverse action.
The situation in the present case is similar to the one
addressed in Lowrance. Larsons visitation privileges were
administratively restricted, and this restriction was twice
extended, for disobeying a correctional officers direct order.
Larson freely admits that he refused to heed Officer Daviss
direct orders to stop holding hands with his wife. As happened in
Lowrance, Larsons disciplinary charge was ultimately dismissed.
Relying on this acquittal, Larson now questions whether his
conduct amounted to disobedience of a direct order. Asserting
that handholding was permissible under the regulations in effect
at the time, he challenges the underlying basis for Officer
Daviss order to stop holding hands.
But Officer Daviss basis for issuing his order has no
bearing on Larsons legal duty to comply with that order; nor does
Larsons acquittal in the disciplinary proceeding alter the fact
of his repeated admissions that he disobeyed Daviss direct order.39
As recognized in Lowrance, neither the underlying basis for a
prison guards order nor a disciplinary acquittal will alter the
significance of a prisoners reliable admission of conduct
amounting to disobedience of an order.40 Or as Cooper more
bluntly put it in denying Larsons grievance appeal, The incident
happened. The fact you were found not guilty does not change
that. The visiting restrictions are appropriate.
Under Second Circuit law, Larsons admitted disobedience
of an officers direct order would establish a legitimate reason
for his administrative restriction. In the absence of case-
specific evidence indicating that Reimer would have lifted the
visitation restrictions if Larson had not been charged and
acquitted of the disciplinary violation, or if he had not pursued
his grievances, the strong presumption that a prison officials
acts to maintain order are done for a proper purpose41 would
compel the conclusion that the reasons cited by the officials in
fact motivated their actions and that Larson would have received
the same treatment even if he had not engaged in protected
conduct. Since Larson offered no admissible evidence to rebut
this presumption that is, evidence tending to show that Reimer
would not have extended the no-contact restrictions in the
absence of Larsons acquittal and subsequent grievances42 he has
failed to raise a genuine dispute as to any material fact, and,
under the Second Circuits test, his retaliation claim would be
vulnerable to dismissal on summary judgment.43
The Ninth Circuits case of Bruce v. Ylst44 and the Tenth
Circuits case of Smith v. Maschner45 provide examples of the sort
of evidence an inmate must offer to rebut the presumption that
the legitimate reasons cited by a prison official actually
motivated his action.
The prison in Bruce had a policy of housing gang
members in a Security Housing Unit.46 In order to determine
whether an inmate was a gang member, the Institutional Gang
Investigator would investigate alleged gang members.47 If the
investigator found sufficient evidence, he would validate the
prisoner as a gang member. In 1995 and 1996 Bruce was
investigated to determine whether he should be validated as a
member of the Black Guerrilla Family. In both cases the gang
investigator determined that although there was evidence in his
file linking him to the Family, the evidence was insufficient to
conclude that he was a member of the gang.48
In 1998, while in administrative segregation for an
unrelated incident, Bruce filed a series of grievances.49 Soon
after, Bruce met with the gang investigator, who informed Bruce
that he was being validated as a gang member.50 Bruce alleged
that the investigator told Bruce that he was being validated on
the orders of higher-ups in retaliation for his having filed the
grievances and that the evidence relied upon was the evidence
that had already been in his file.51 As a result of his
validation as a gang member, the Institutional Classification
Committee placed Bruce in indeterminate confinement at the
Pelican Bay Security Housing Unit.52
Bruce brought both a due process and a retaliation
claim against the prison, alleging that he had been validated as
a gang member in retaliation for grievances he had filed against
prison officials.
The Ninth Circuit affirmed the lower courts grant of
summary judgment on the due process challenge. The court held
that as long as the prison could present some evidence in support
of Bruces validation as a gang member, the due process claim
failed. It concluded that the evidence in Bruces file, though
admittedly stale and previously deemed insufficient,53 was some
evidence that Bruce had ties to the Black Guerrilla Family.54
But the Ninth Circuit reversed the grant of summary
judgment on the retaliation claim. The court held that in a
retaliation claim, the prison was required to offer more than
some evidence that it had legitimate reasons for its action.55
Even if there was some evidence to support the conclusion that
Bruce was a gang member,
if . . . the defendants abused the gang
validation procedure as a cover or a ruse to
silence and punish Bruce because he filed
grievances, they cannot assert that Bruces
validation served a valid penological
purpose, even though he may have arguably
ended up where he belonged.[56]
The court noted the timing of the validation, the fact that the
evidence relied upon was previously determined to be insufficient
to conclude that [Bruce] was a BGF member,57 and that Bruce
asserted facts . . . that, if true, show that [the IGIs]
accusation of gang activity was improperly motivated.58 The court
held that in light of the evidence and the allegations, the
prisons presentation of some evidence supporting the charges was
insufficient to justify the grant of summary judgment. Because
Bruce raised a jury issue that the stated penological goals were
not legitimate, summary judgment was not appropriate on the
retaliation claim.59
As in Bruce, the inmate in Smith v. Maschner presented
sufficient evidence to overcome the substantial deference that
is to be accorded to the prison authorities.60 Smith was a
jailhouse lawyer.
Officials searched Smiths briefcase
before he left his cell for a trip to state
court for a hearing. Smith then walked in
shackles to the bus taking him to court, at
which point officials ordered him to submit
to another search of his briefcase.
According to Smith, he had never before been
required to submit to a second search under
these circumstances. Smith disobeyed two
orders to open his briefcase, and officers
then told him he would have to leave his
briefcase at the prison if he did not submit
to the search. Once in court, Smith informed
the judge that he could not proceed without
the papers in his briefcase. The judge
ordered prison officials to retrieve the case
from the prison. When the briefcase arrived,
it was opened in court and the hearing
proceeded.
Officials placed Smith in segregation
immediately upon his arrival back at the
prison. That same day, they informed him of
the disciplinary charges against him,
including two charges of disobeying an order,
one charge of disrespect, and one charge of
possession of unregistered personal property.
He was also charged later with violating
prison mail regulations and with misuse of
state property.[61]
Hearings were held on the charges, and Smith was found guilty of
all charges.62
Smith brought suit against the prison alleging that the
hearings violated his right to due process and that the
proceedings were initiated against him in retaliation for his
prior lawsuits against prison officials.63
The district court granted summary judgment for the
defendants on both claims, but the Tenth Circuit reversed. In
his appeal Smith alleged that the prison refused to allow him to
call a prison official as a witness and that the disciplinary
board was motivated by a desire to retaliate.64 The court found
that prohibiting Smith from calling the witness effectively
denied [Smith] any defense other than his own testimony about the
events, and therefore violated his right to due process.65 The
court also found that Smiths allegation that the board was
motivated by a desire to retaliate, if believed, call[s] into
doubt whether Smith was given a meaningful opportunity to be
heard.66 The court therefore reversed the grant of summary
judgment on the due process claim.
The court similarly reversed the order granting summary
judgment on the retaliation claim. Although it was undisputed
that Smith had disobeyed the order to open his briefcase,67 the
court noted that Smiths appearance in court . . . and the
prisons disciplinary action, taken immediately upon his return
from court, were indisputably in close temporal proximity.68 More
important, as the court recognized in addressing Smiths due
process argument, under the specific circumstances at issue, the
disobeyed order itself was evidence of the states effort to
impede Smiths access to the courts although Smith frequently
made court appearances, he had never previously been ordered to
open his briefcase.69 Furthermore, the officials explanations of
their actions were internally inconsistent: although the charges
specified that the incidents occurred before Smith left for
court, one guard reported that the disciplinary action was taken
in response to Smiths conduct at court.70 Finally, Smith
presented evidence that an inmate who intended to testify in
another of Smiths pending lawsuits had been transferred and that
a law clerk who had assisted him had been removed from library
employment.71 This evidence, coupled with the fact that the
hearings on the underlying conduct had been tainted,72 led the
court to conclude that a jury could reasonably find that
defendants retaliated against Smith for the exercise of his right
of access to the courts.73
In Maschner as in Bruce, the inmate presented evidence
showing more than a chronological link between the states adverse
action and the inmates engagement in constitutionally protected
conduct. In both cases, the inmates offered substantial and
specific evidence tending to negate the legitimate reasons
offered by the prison officials, thereby raising a genuine
factual dispute as to whether the purportedly legitimate reasons
were merely pretextual.
Evidence of this kind is crucial in prison cases.
Under the rule applied in Mt. Healthy, the mere existence of a
retaliatory motive will not warrant relief if the state actors
can show that they would have taken the same action absent the
retaliatory motive. When combined with the presumption in prison
cases that the states claimed reasons in fact motivated the
action, this rule means that an inmate faced with undisputed
evidence of a legitimate state reason for adverse action cannot
rest his case on mere evidence that a retaliatory motive also
existed. If the improper and proper motives might have existed
concurrently, the inmate must offer evidence to negate the proper
motive evidence tending to show that, despite the undeniable
existence of a legitimate motive, the states reliance on the
motive is merely a pretext.
Both Maschner and Bruce illustrate this proposition.
As shown above, in addition to adducing evidence of a
chronological link which allows an inference of a potentially
concurrent retaliatory motive the inmates in both cases
presented substantial, case-specific evidence tending to show
that the proper motive claimed by prison officials was
pretextual. By presenting this evidence, the inmates overcame
the presumption that the proper reasons were the states actual
reasons for taking adverse action.
In Larsons case, in contrast, the only evidence
supporting his retaliation claim is the chronology of events.
Although this evidence allows an inference that the state had a
retaliatory motive, it does not, standing alone, negate or tend
to negate the possibility that the state might have
simultaneously acted for the legitimate reason asserted by
Reimer, namely Larsons actual and admitted disobedience of an
order. Nor does any other record evidence tend to rule out this
possibility. To be sure, after Reimer became aware that Larson
had successfully defended his disciplinary charges and filed his
grievances, the visitation restrictions were extended. But, as
the prison points out, they were also extended on October 4th,
before Reimer was aware that Larson had been found not guilty on
the disciplinary charge and before he filed his grievances.
Moreover, Reimer lifted the restrictions at the beginning of
December after Larson had filed . . . several grievance appeals.
(Emphasis in original.)
Aside from the chronology of events, Larson presents no
evidence indicating that the prisons articulated reasons are
pretextual. Larson admits that he disobeyed the guards order, an
admission that would ordinarily serve to justify the visitation
restrictions. Further, Larson presented no evidence that he was
treated differently from similarly situated inmates. Neither did
he offer evidence suggesting either that prison officials were
not concerned that he would violate visiting rules or that those
concerns were unfounded.
Unlike the inmate in Bruce, the evidence used against
Larson was not stale, and he does not claim that a prison
official told him the visitation restrictions were retaliatory.
Unlike the inmate in Maschner, officer Reimers explanations were
consistent, no witnesses were transferred, and Larson does not
allege that his due process rights were infringed at the
disciplinary hearing. Given the prisons legitimate reasons for
extending the visitation restrictions Larsons disobedience of an
order and the officials concern that Larson did not intend to
respect visitation rules and the fact that Larson has offered no
evidence suggesting that these reasons were pretextual or that
the prisons actions were determined or dominated by a retaliatory
motive, the strong presumption of regularity has not been
overcome.
We thus conclude that the grant of summary judgment was
proper.74
IV. CONCLUSION
We AFFIRM the superior courts judgment dismissing
Larsons claim.
_______________________________
1 This is Larsons third appeal arising from the hand-
holding incident and the resulting suspension of his contact
visits. We resolved the first two appeals in Larson v. Cooper,
90 P.3d 125 (Alaska 2004).
2 E.g., Lincoln v. Interior Regl Hous. Auth., 30 P.3d
582, 585 (Alaska 2001).
3 E.g., id. at 585-86.
4 E.g., id. at 586.
5 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274 (1977).
6 Id. at 287.
7 Id.
8 Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001)
(partially overruled on other grounds); see also Smith v.
Campbell, 250 F.3d 1032, 1039 (6th Cir. 2001) (Courts afford
prison administrators wide ranging deference in their judgments
needed to preserve internal order and discipline and to maintain
institutional security.).
9 See, e.g., Goff v. Burton, 7 F.3d 734, 737-38 (8th Cir.
1993).
10 (Listed in order by circuit) See, e.g., McDonald v.
Hall, 610 F.2d 16, 18 (1st Cir. 1979); Gayle v. Gonyea, 313 F.3d
677, 682 (2d Cir. 2000); Mitchell v. Horn, 318 F.3d 523, 530 (3d
Cir. 2003); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994);
Freeman v. Texas Dept of Criminal Justice, 369 F.3d 854, 863 (5th
Cir. 2004); Thaddeus X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999); Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996); Moore
v. Plaster, 266 F.3d 928, 931 (8th Cir. 2001); Rhodes v.
Robinson, 380 F.3d 1123, 1130 (9th Cir. 2004); Smith v. Maschner,
899 F.2d 940, 949-50 (10th Cir. 1990).
11 (Listed in order by circuit) See, e.g., Layne v.
Vinzant, 657 F.2d 468, 475 (1st Cir. 1981); Gayle, 313 F.3d at
682 (2d Cir. 2000); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001); Clarke v. Stalder, 121 F.3d 222, 231 (5th Cir. 1997),
opinion vacated and relevant parts reinstated in, 154 F.3d 186,
191 (5th Cir. 1998); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.
1995); Thaddeus-X, 175 F.3d at 399 (6th Cir. 1999); Babcock, 102
F.3d at 275 (7th Cir. 1996); Cornell v. Woods, 69 F.3d 1383, 1388
(8th Cir. 1995); Peterson v. Shanks, 149 F.3d 1140, 1144 (10th
Cir. 1998).
12 (Listed in order by circuit) Gayle, 313 F.3d at 682 (2d
Cir. 2000); Graham v. Henderson, 89 F.3d 75, 79 (2d. Cir. 1996);
Rauser, 241 F.3d at 333 (3d Cir. 2001); Thaddeus-X, 175 F.3d at
399 (6th Cir. 1999).
13 Frazier v. Dubois, 922 F.2d 560, 562 (10th Cir. 1991).
14 (Listed in order by circuit) Layne, 657 F.2d at 475
(1st Cir. 1981); McDonald, 610 F.2d at 18 (1st Cir. 1979);
Clarke, 121 F.3d at 231 (5th Cir. 1997); Woods, 60 F.3d at 1166
(5th Cir. 1995); Cornell, 69 F.3d at 1388 (8th Cir. 1995); Goff,
7 F.3d at 738 (8th Cir. 1993); Ponchik v. Bogan, 929 F.2d 419,420
(8th Cir. 1991); Peterson, 149 F.3d at 1144 (10th Cir. 1998);
Smith, 899 F.2d at 949 (10th Cir. 1990).
15 (Listed in order by circuit) See, e.g., Babcock, 102
F.3d 267 (7th Cir. 1996); Howland v. Kilquist, 833 F.2d 639 (7th
Cir. 1987); Bruce v. Ylst, 351 F.3d 1283 (9th Cir. 2003); Hines
v. Gomez, 108 F.3d 265 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d
802 (9th Cir. 1995); Farrow v. West, 320 F.3d 1235 (11th Cir.
2003); Adams v. Wainwright, 875 F.2d 1536 (11th Cir. 1989).
16 Cf. Mendoza v. Blodgett, 960 F.2d 1425, 1432 (9th Cir.
1992) (visiting rights provided for by regulation can give rise
to liberty interest in visitation).
17 See Larson, 90 P.3d at 128.
18 Thaddeus-X, 175 F.3d at 395 ([B]ecause prison
regulations are allowed to infringe on prisoners rights as long
as they are rationally related to a legitimate penalogical
concern . . . if a prisoner violates a legitimate prison
regulation, he is not engaged in protected conduct[.] ).
19 Both entailed an exercise of the right to petition the
government for the redress of grievances guaranteed by the First
and Fourteenth Amendments. Dawes, 239 F.3d at 492; Herron v.
Harrison, 203 F.3d 410, 415 (6th Cir. 2000) (An inmate has an
undisputed First Amendment right to file grievances against
prison officials on his own behalf.); Graham, 89 F.3d at 80
([R]etaliation against a prisoner for pursuing a grievance
violates the right to petition government for the redress of
grievances.).
20 Hynes, 143 F.3d at 657 (quoting Rivera v. Senkowski, 62
F.3d 80, 86 (2d Cir. 1995)).
21 See, e.g.,Vance v. Barrett, 345 F.3d 1083, 1093 (9th
Cir. 2003) (noting that courts should afford appropriate
deference and flexibility to prison officials in the evaluation
of proffered legitimate penological reasons for conduct alleged
to be retaliatory) (citation omitted).
22 Goff, 7 F.3d at 739. See also Moore, 266 F.3d at 931
([A] defendant may successfully defend a retaliatory-discipline
claim by showing some evidence that the inmate actually committed
a rule violation.); Henderson v. Baird, 29 F.3d 464, 469 (8th
Cir. 1994) (The critical inquiry . . . is whether the prison
disciplinary committee ultimately found based upon some evidence
that the prisoner committed the charged violation of the prisoner
regulations.).
23 Gayle, 313 F.3d at 684 (It is therefore disputed
whether [the inmate] committed all of the prohibited conduct,
and, more important, whether he committed the most serious of the
conduct . . . . The defendants therefore at this stage of the
proceeding have not met their burden of establishing as a matter
of law that [the inmate] would have been punished to the same
extent . . . in the absence of a retaliatory motive.).
24 Bruce v. Ylst, 351 F.3d at 1289.
25 The prison argues that the hearing officers Summary
Finding that Larson was not guilty of the infraction of
disobeying an order did not amount to a finding that Larson had
not in fact disobeyed the order. The prison argues that a
summary finding is akin to a Criminal Rule 43(a) dismissal which
does not mean that the defendant did not commit the crime the
case may have been dismissed for any number of different reasons
not related to the accuracy of the underlying factual assertions,
such as an invalid search. . . . The not guilty language on the
summary finding form does not provide clear evidence of any
particular findings of historical fact made by [the hearing
officer], and in light of Larsons repeated admissions that he did
not follow [the] order, there is no basis to presume that [the
hearing officer] made such a finding.
26 See, e.g., Hynes v. Squillace, 143 F.3d 653, 657 (2d
Cir. 1998), cert. denied, 525 U.S. 907 (1998) (noting that
defendants could meet their burden of showing that they would
have disciplined the plaintiff even in the absence of the
protected conduct by showing that it was undisputed that [the
inmate plaintiff] had in fact committed the prohibited conduct
for which he had been cited in a misbehavior report) (internal
citations omitted).
27 See, e.g., Hynes, 143 F.3d at 657; Lowrance v. Achtyl,
20 F.3d 529, 535 (2d Cir. 1994).
28 20 F.3d 529.
29 Id. at 531.
30 Id.
31 Id.
32 Id.
33 Id. at 531-32.
34 Id. at 532.
35 Id.
36 Id.
37 Id.
38 Id. at 535.
39 Although Larson denies disobeying Officer Daviss order,
his stance is premised on the notion that he had no duty to obey,
because he was engaging in constitutionally protected conduct.
Yet Larson cites no authority suggesting that a prisoners
obligation to obey a prison guards order depends on the validity
of that order. And we have found no authority suggesting that an
inmates duty to obey is limited or conditional. We assume that
disobedience might be excused on constitutional grounds in
certain truly extraordinary situations. But the circumstances of
the present case make it unnecessary to decide that issue. As
already noted, Larsons act of holding hands with his wife did not
amount to a constitutionally protected exercise of his religious
freedom. Furthermore, neither the order at issue here to stop
holding hands nor the nature of the potential disciplinary and
administrative consequences of disobedience fall close to the
limits of constitutionally permissible punishment. See, e.g.,
Green v. State, 390 P.2d 433, 435 (Alaska 1964) (Only those
punishments which are cruel and unusual in the sense that they
are inhuman and barbarous, or so disproportionate to the offense
committed as to be completely arbitrary and shocking to the sense
of justice may be stricken as violating the due process clauses
of the state and federal constitutions.); see also State v.
Niedermeyer, 14 P.3d 264, 268 (Alaska 2000); Thomas v. State, 566
P.2d 630, 635 (Alaska 1977).
40 Lowrance, 20 F.3d at 532-35.
41 Hynes, 143 F.3d at 657 (quoting Rivera v. Senkowski, 62
F.3d 80, 86 (2d Cir. 1995)).
42 Because Reimer suspended Larsons contact visits before
his disciplinary hearing and thereafter extended this restriction
in the course of his regularly established monthly review, his
periodic renewal of the restrictions does not in itself negate
the presumption that Reimer would have imposed the same
administrative restrictions in the absence of protected conduct.
Nor does Larsons disciplinary acquittal negate the presumption of
regularity. We have never ruled that an acquittal in a prison
disciplinary proceeding has binding effect in the context of a
correctional facilitys routine administrative treatment of
inmates. Cases elsewhere establish no clear guidance on this
point. And we find nothing suggesting that the Department of
Corrections has historically viewed disciplinary rulings as
binding in the administrative context. Under these
circumstances, and given Larsons unequivocal admission of conduct
amounting to disobedience, the naked fact of Larsons acquittal in
the disciplinary hearing does not, in our view, create a
reasonable inference that he might have been given more lenient
administrative treatment had he not been acquitted in the
disciplinary proceeding.
43 Larson separately argues that Reimers and Coopers
actions violated his constitutional right to substantive due
process. We need not address these arguments here, since we
recently rejected similar claims in Larson, 90 P.3d at 135-36.
44 351 F.3d 1283 (9th Cir. 2003).
45 899 F.2d 940 (10th Cir. 1990).
46 Bruce, 351 F.3d at 1287.
47 Id. at 1286.
48 Id.
49 Id.
50 Id. at 1287.
51 Id. at 1287, 1289.
52 Id. at 1287.
53 Id. at 1289.
54 Id. at 1287.
55 Id. at 1289.
56 Id. (emphasis in original).
57 Id. at 1288.
58 Id.
59 Id. at 1289-90.
60 Frazier v. Dubois, 922 F.2d 560, 562 (10th Cir. 1991).
61 Smith v. Maschner, 899 F.2d 940, 945 (10th Cir. 1990).
62 Id.
63 Id.
64 Id. at 946-47.
65 Id. at 947.
66 Id.
67 Id. at 945.
68 Id. at 948.
69 Id.
70 Id. at 948 n.5.
71 Id. at 948.
72 Id. at 945 n.2 ([T]he fairness of the disciplinary
proceeding [is] relevant to this case insofar as Smith has relied
on this event to substantiate his claim that prison officials
acted in retaliation rather than in pursuit of any legitimate
penological purpose.).
73 Id. at 949.
74 For this reason, we need not decide here whether to
adopt the Mt. Healthy burden shifting approach or instead to
leave the burden on the claimant at all times. Similarly, we
need not determine the standard of proof a prison must meet to
show that it had legitimate reasons for its actions. Under any
potentially applicable standard, the prison introduced sufficient
evidence to show that it had a legitimate reason for continuing
to restrict Larsons contact visits.
