The First Amendment protects inmates from official retaliation for filing a grievance against a prison employee. In litigating such a First Amendment claim, must the inmate prove that his grievance was a “but-for” cause of the adverse official action? Yes and no, ruled the Seventh Circuit earlier this week in Greene v. Doruff (No. 10-3497).
Answering the question led the court to distinguish between two different types of causation.
The court observed:
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 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. (5-6)
With that distinction in mind, the court then made clear that the plaintiff-inmate must prove that retaliation was a necessary (but-for) cause of the adverse action suffered. However, determining whether the plaintiff has carried the burden involves a burden-shifting analysis. As an initial matter, the plaintiff must merely show that retaliation was a sufficient cause; the plaintiff need not rule out the possibility that he would have suffered the adverse action even without the presence of a retaliatory motive.
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 [the adverse action]; the harm . . . would have occurred anyway. . . .
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. (8)
The significance of all of this is nicely illustrated by the facts of Greene. The inmate, Greene, worked as a clerk in the prison library, but was fired by Doruff, allegedly for misappropriating library property. Greene filed a grievance, contending that the allegations against him were baseless. After the filing, Doruff initiated disciplinary proceedings against Greene for the alleged misappropriation, resulting in Greene’s confinement to his cell for 14 days and the destruction of certain of his papers. Greene later succeeded in having the disciplinary decision overturned by a state court.
He then initiated his federal lawsuit, claiming that the disciplinary process was a way of punishing him for filing the grievance. The district court granted summary judgment to Doruff because Greene did not have evidence to prove that the filing of the grievance was a but-for cause of the disciplinary process; after all, Doruff had already fired Greene at that point and might well have reported Greene even without the grievance.
On appeal, the Seventh Circuit reversed. Although Greene could not directly prove but-for causation, his evidence was enough to survive summary judgment on sufficiency-type causation. The timing of Doruff’s conduct report, coupled with its “threadbare nature,” created a triable issue on causation.