Jeremy Greene v. John Doruff, et al
Filing
Filed opinion of the court by Judge Posner. The judgment dismissing the claim against Doruff is REVERSED and the case is REMANDED for further proceedings consistent with this opinion. Richard A. Posner, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane P. Wood, Circuit Judge. [6344197-3] [6344197] [10-3497]
Case: 10-3497
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In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3497
JEREMY T. G REENE,
Plaintiff-Appellant,
v.
JOHN D ORUFF, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09 CV 291—J.P. Stadtmueller, Judge.
S UBMITTED A UGUST 31, 2011—D ECIDED O CTOBER 11, 2011
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, a state prison inmate, worked as a clerk in the prison library. Defendant
Doruff, the prison’s director of education, ordered the
plaintiff fired on the ground that while on the job he
had highlighted photocopies of judicial opinions for his
personal use (a case he was working on with another
inmate) and had stolen a judicial opinion from the
library (the Anders opinion, no less). The plaintiff re-
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sponded by filing a complaint in the prison grievance
system against Doruff, charging that Doruff had had no
cause for firing him. A month later, but apparently just
a day after the plaintiff had told the librarian that he
had filed a grievance against Doruff, Doruff filed a
conduct report attempting to justify his ordering the
plaintiff fired.
The plaintiff produced the library receipt showing that
he had checked out the Anders opinion properly, whereupon the charge of theft was dropped. But the charge
relating to the photocopies triggered a disciplinary
hearing. The hearing officer upheld the charge and
ordered the plaintiff confined to his cell for 14 days and
the copies destroyed as “contraband.” The plaintiff challenged the discipline in state court, and succeeded in
persuading the court to order a new disciplinary hearing,
on the ground that the hearing officer should have considered evidence that the library allowed its clerks to
have (and therefore presumably to highlight or otherwise
mark) copies of materials for their personal use. Greene
v. Raemisch, 791 N.W.2d 405 (Wis. App. 2010). There was
no further hearing; the prison simply expunged the
disciplinary order from the plaintiff’s record; the order
itself, however, had already been carried out.
The plaintiff then filed this suit. It charges that he had
been punished not for violating any prison rules but
instead for having exercised his freedom of speech by
filing a grievance against Doruff. The district judge
granted summary judgment for the defendants (Doruff
and three other prison officials) on the ground that the
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plaintiff had failed to establish “that the challenged
action would not have occurred but for the constitutionally protected conduct.” For support the judge
quoted from Fairley v. Andrews, 578 F.3d 518, 525-26
(7th Cir. 2009), that “plaintiffs must show that their
potential testimony, not their internal complaints,
caused the assaults and threats. This means but-for causation. See Gross v. FBL Financial Services, Inc., 129 S. Ct.
2343 (2009); Mt. Healthy Board of Education v. Doyle, 429
U.S. 274 (1977). Some decisions (Matrisciano v. Randle,
569 F.3d 723 (7th Cir. 2009), is the latest) say that a plaintiff just needs to show that his speech was a motivating
factor in defendant’s decision. These decisions do not
survive Gross, which holds that, unless a statute (such as
the Civil Rights Act of 1991) provides otherwise, demonstrating but-for causation is part of the plaintiff’s burden
in all suits under federal law.” (Neither the plaintiff nor
the defendants in this case argues that the decision of
the Wisconsin court has a preclusive effect.)
Fairley had not mentioned Spiegla v. Hall, 371 F.3d 928,
941-43 (7th Cir. 2004), a decision that had been circulated
to the full court in advance of publication and that after
a lengthy discussion of case law had held that a
plaintiff need only show that a violation of his First
Amendment rights was a “motivating factor” of the
harm he’s complaining of, and that if he shows this the
burden shifts to the defendant to show that the harm
would have occurred anyway—that is, even if there
hadn’t been a violation of the First Amendment—and
thus that the violation had not been a “but for” cause of
the harm for which he is seeking redress.
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That holding was not a Seventh Circuit innovation; it
followed directly from the Supreme Court’s decision in
Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 287 (1977), also a First Amendment
case and not overruled by Gross, which held rather that
Mt. Healthy is inapplicable to suits under the Age Discrimination in Employment Act. Gross v. FBL Financial
Services, Inc., supra, 129 S. Ct. at 2352 n. 6. Gross may have
implications for suits under other statutes as well, see
Serafinn v. Local 722, International Brotherhood of Teamsters,
597 F.3d 908, 915 (7th Cir. 2010); Serwatka v. Rockwell
Automation Services, Inc., 591 F.3d 957, 961-62 (7th Cir.
2010), but it does not affect suits to enforce First Amendment rights, such as Spiegla. The Mt. Healthy standard
continues to govern such suits, see, e.g., Valentino v. Village
of South Chicago Heights, 575 F.3d 664, 670 (7th Cir. 2009);
O’Bryant v. Finch, 637 F.3d 1207, 1217 (11th Cir. 2011)
(per curiam); Brightwell v. Lehman, 637 F.3d 187, 194 (3d
Cir. 2011); Eckerman v. Tennessee Dep’t of Safety, 636 F.3d
202, 207-08 (6th Cir. 2010); Decotiis v. Whittemore, 635 F.3d
22, 29-30 (1st Cir. 2011); Anemone v. Metropolitan Transportation Authority, 629 F.3d 97, 114 (2d Cir. 2011); Anthoine
v. North Central Counties Consortium, 605 F.3d 740, 752
(9th Cir. 2010), and will do so until and unless the
Supreme Court alters the standard.
It is true that two of our decisions, relying on the language we quoted from the Fairley opinion, suggest that
Gross has superseded Mt. Healthy with respect to First
Amendment rights, Gunville v. Walker, 583 F.3d 979, 984
n. 1 (7th Cir. 2009); Kodish v. Oakbrook Terrace Fire Protec-
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tion District, 604 F.3d 490, 500-01 (7th Cir. 2010)—for which
we’ve been criticized. See Smith v. Xerox Corp., 602 F.3d
320, 328-30 (5th Cir. 2010). And it is also true that the
district courts of this circuit have been puzzled by what
they believe to be an unresolved conflict between
Fairley and Spiegla. See, e.g., Hanners v. Trent, No. 09-3111,
2011 WL 777910, at *9 (C.D. Ill. 2011); Nichols v. Schilling,
No. 10-CV-64, 2011 WL 1630981, at *12 (E.D. Wis. 2011);
Collins-Bey v. Hulick, No. 3:09-cv-00921, 2011 WL 2116456,
at *2 (S.D. Ill. 2011); Sarlo v. Wojcik, No. 08 C 2194, 2010
WL 3824161, at *5 (N.D. Ill. 2010). But the “conflict” is
superficial and reflects merely the difficulty, remarked in
Maxwell v. KPMG LLP, 520 F.3d 713, 716 (7th Cir. 2008) and
United States v. Dyer, 216 F.3d 568, 570 (7th Cir. 2000), that
judges have in writing clearly about causation. Nevertheless there is a tension in our cases, which we seek in
this opinion to dispel; and so we have thought it appropriate to circulate the opinion, in advance of publication,
to the entire court, under Rule 40(e) of our rules, for
consideration of whether to hear the case en banc.
No judge in regular active service voted to hear it.
Causation is a subject on which philosophers speak
more clearly than lawyers. Philosophers make a useful
distinction between what they call “necessary” and
“sufficient” conditions. A necessary condition is something that has to happen for something else to happen.
Being human is a necessary condition of going to college,
because colleges do not admit other animals. A sufficient
condition is something that, if it is present, something
else is bound to happen; so being human is not a
sufficient condition of going to college, because not all
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human beings go to college. In contrast, dropping a
lighted match into a bucket of gasoline is a sufficient
condition for starting a fire, but it is not a necessary
condition, because there are many other ways of starting
a fire, such as by rubbing two sticks together. Notice
that dropping a lighted match into an empty bucket
would be neither a sufficient nor a necessary condition
of starting a fire; usually many conditions must concur
for an act to have specific causal consequences.
A “motivating factor,” as the term is used in the cases,
is a sufficient condition, but never a necessary one; if
it were necessary, and thus a “but for” cause (as in “but
for X, Y would not have occurred”: X is a necessary
condition of Y), the inquiry into causation would be at an
end. But suppose Doruff had decided that he would
seek to discipline any inmate who filed a grievance
against him no matter how justified the grievance was,
in order to deter the filing of grievances. That decision
would be a sufficient condition of a violation of the
First Amendment rights of someone like the plaintiff in
this case, who filed a grievance. But it might not be a
necessary condition. For suppose that the prison did
have a rule that a library clerk can’t use photocopies
of library materials for his personal use and that if he
does he will be confined to his cell and the photocopies destroyed. Then the clerk would have suffered
the identical harm that he would have suffered had the
discipline been intended as a reprisal for his exercise
of First Amendment rights. In such a case the defendant’s
improper motive would have done no work, had no
effect, left the world unchanged. Without an injury,
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there is no tort, including a constitutional tort such as
infringing a person’s freedom of speech, so he would
lose his case even though he had proved not only that his
rights had been violated but also that the violation had
been a sufficient condition for the imposition of the
discipline.
Mt. Healthy allows a plaintiff (in that case a teacher
who claimed that the school district’s refusal to rehire
him had been caused by his exercising his First Amendment right of free speech) to satisfy his burden of production on the issue of causation by showing that a
violation of his rights was a sufficient condition of the
harm for which he seeks redress; he need not show it was
a necessary condition. But that isn’t the end of the
inquiry into causation. Relief for the violation of a constitutional right is inappropriate, the Court explained, “in
cases where a dramatic and perhaps abrasive incident
is inevitably on the minds of those responsible for the
decision to rehire, and does indeed play a part in that
decision even if the same decision would have been
reached had the incident not occurred. The constitutional
principle at stake is sufficiently vindicated if such an
employee is placed in no worse a position than if he
had not engaged in the conduct.” 429 U.S. at 285-86.
We should for completeness consider the case, perhaps
suggested by the Court’s example of an incident “on the
minds of those responsible for the decision to rehire,” in
which the motivating factor is so weak that, while in
the picture, it had no actual causal force; present or
absent, the result would have been the same. In such a
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case the motivating factor would not have been a
decision factor; it would have played no role. That is
why we think it clarifies analysis to define a motivating
factor as a sufficient (whether or not also a necessary)
condition.
If the plaintiff satisfies his burden of proving a “motivating factor” in the sense just defined (which we think
is what the cases mean by the term), the defendant
is entitled to rebut with evidence that the plaintiff’s
exercise of his constitutional rights though a sufficient
condition was not a necessary condition of his not
being rehired; the harm (the refusal to rehire) would
have occurred anyway. As the Court explained in
Mt. Healthy, “the burden was properly placed upon
[the plaintiff] to show that his conduct was constitutionally protected, and that this conduct was a
‘substantial factor’ or to put it in other words, that it was
a ‘motivating factor’ in the Board’s decision not to
rehire him. [The plaintiff] having carried that burden,
however, the District Court should have gone on
to determine whether the Board had shown by a preponderance of the evidence that it would have reached
the same decision as to respondent’s reemployment
even in the absence of the protected conduct.” Id. at 287
(footnote omitted).
If the defendant fails to carry that burden, the inference
is that “but for” causation (that is, a necessary condition)
has been shown: the plaintiff would not have been
harmed had his rights not been violated by the defendant. Thus Fairley is correct that “but for” causation must
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be shown, though there are exceptions, as to most legal
generalizations. Consider the exotic example of multiple
fires of negligent origin. If each fire would have destroyed
the plaintiff’s property, so that all the fires were sufficient conditions of the harm but none was a necessary
condition, nevertheless the firemakers would be jointly
liable whether or not they were acting in concert.
United States v. Johnson, 380 F.3d 1013, 1016 (7th Cir. 2004);
Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Ry., 179
N.W. 45, 49 (Minn. 1920); Cook v. Minneapolis, St. Paul &
Sault Ste. Marie Ry., 74 N.W. 561, 564 (Wis. 1898); W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 41,
pp. 266-67 (5th ed. 1984). (There are also cases in which
unresolvable causal ambiguity is held sufficient for
the imposition of tort liability, as in Summers v. Tice,
199 P.2d 1 (Cal. 1948).)
But Spiegla is also right: the burden of proof relating to
causation is divided between the parties in First Amendment tort cases. To make a prima facie showing of causation the plaintiff must show only that the defendant’s
conduct was a sufficient condition of the plaintiff’s
injury. The defendant can rebut, but only by showing
that his conduct was not a necessary condition of the
harm—the harm would have occurred anyway.
So did the plaintiff in this case—a case governed by
Mt. Healthy—present enough evidence to shift the
burden of rebutting the causal inference to the defendant?
The district judge was skeptical that Doruff knew about
the plaintiff’s grievance before he filed the conduct
report that triggered the disciplinary hearing; and if
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Doruff didn’t know, the filing of the report could not have
been a reprisal for the plaintiff’s filing the grievance.
But the plaintiff’s testimony that he told the librarian
about his grievance the day before Doruff filed the
conduct report is telling contrary evidence; the librarian
reports to Doruff and would be likely to pass along
such information to him.
But there was also evidence that Doruff had borne
“animus” (the judge’s term, meaning hostility) against the
plaintiff before the filing of the grievance (and hence
before the conduct report) and that this was the real
reason for the conduct report and a reason that, while
possibly establishing a violation of state law, or even
being a basis for a “class of one” equal protection case,
Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per
curiam), would be unrelated to the First Amendment.
But the judge did not say that Doruff had proved that his
hostility toward the plaintiff would have triggered the
conduct report regardless. An argument for the approach
of Mt. Healthy is that it avoids putting a plaintiff to the
burden of disproving a host of alternative hypotheses
concerning possible causes of his harm.
The timing of Doruff’s action, if we credit the plaintiff’s
testimony (as we must on this record) that he told the
librarian about his grievance the day before Doruff
filed the conduct report, together with the rather threadbare nature of the report, was sufficient under Mt. Healthy
to create a triable issue. Summary judgment in favor
of the other three defendants—prison officials not implicated in Doruff’s alleged violation of the plaintiff’s
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rights—was proper. But the judgment dismissing the
claim against Doruff is reversed and the case remanded
for further proceedings consistent with this opinion.
R EVERSED AND R EMANDED.
10-11-11
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