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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


LOREN J. LARSON, JR.,              )
                              )    Supreme Court No. S-10708
               Appellant,          )
                              )    Superior Court No. 3AN-00-3607
     v.                       )
ALLEN COOPER, former Director, )        O P I N I O N
State of Alaska, Department of          )
Corrections,   Division of              )    [No. 5897 - May  27,
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

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.


          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.


          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


          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


          Larson appeals.1


          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


          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


          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


          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
                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


          We thus conclude that the grant of summary judgment was



            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.

     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

     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

     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.