Oct. 14, 2011 – A panel for the U.S Court of Appeals for the Seventh Circuit recently explained the correct analysis to apply in First Amendment tort cases, while reversing in favor of a Wisconsin prison inmate.
John Doruff is the director of education at a Wisconsin prison. He fired inmate Jeremy Greene, a library clerk, on the ground that Greene photocopied judicial opinions for personal use while on the job, and stole a judicial opinion, Anders v. California, 386 U.S. 738 (1967), from the library.
Greene filed a grievance against Doruff, who then filed a conduct report to justify the termination. A hearings officer upheld the charge that Greene was using library resources for personal use while on the job. The allegation of theft was dropped because Greene had a receipt for the opinion.
Greene was confined to his cell for 14 days and his photocopies were destroyed.
The state court ordered a new disciplinary hearing on the ground that the hearing officer did not consider evidence that library clerks were actually allowed to photocopy for personal use while on the job. No new hearing was held. The charge was simply expunged from Greene’s record.
Greene then filed a federal suit, arguing Doruff filed a conduct report (which led to punishment), not for violating prison rules, but for exercising his freedom of speech (filing the grievance against Doruff).
Causation at issue
The U.S. District Court for the Eastern District of Wisconsin ruled against Greene, concluding he failed to establish the punishment would not have occurred “but for” the filing of a grievance. In other words, Greene could not prove Doruff filed a conduct report only because he filed the grievance.
The district court followed the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), followed by Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009), which held that a plaintiff must demonstrate but-for causation in all suits under federal law, unless a federal statute provides otherwise.
But in Greene v. Doruff, No. 10-3497 (Oct. 11, 2011), a Seventh Circuit appeals panel – in an opinion by Richard Posner – explained that Gross and Fairley do not apply to suits enforcing First Amendment rights.
First Amendment cases are governed by Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), followed directly in Spiegla v. Hall, 371 F.3d 928 (7th Cir. 2004), the panel explained. Spiegla held that a plaintiff need only show the exercise of a First Amendment right was a “motivating factor” in the government’s decision to punish or otherwise harm the plaintiff, not the only factor.
However, the panel explained that a motivating factor could be so weak that it has no causal force, that is, the same result would have occurred without the incident, here the grievance, in mind.
Thus, if a plaintiff overcomes the burden of proving that exercising a constitutional right was a motivating factor in a defendant’s decision to harm the plaintiff, the defendant can rebut with evidence that absent the “motivating factor,” the decision would have been the same. If the defendant does not meet its burden, "but for" causation is inferred.
The panel reversed the district court decision and remanded the case to determine whether Greene presented enough evidence to show the filing of a grievance was a motivating factor in Doruff’s decision to file a conduct report, and whether Doruff can rebut that evidence.
