United States Court of Appeals For the Seventh Circuit
Civil Rights – retaliation — jury instructions
Where a prisoner alleged retaliation for filing a complaint, the jury instructions improperly placed the burden of proof on the issue of causation on the plaintiff.
“In instructing the jury, the judge put the burden of proof regarding causation on the wrong party, as is plain from our decision in Greene, by requiring the plaintiff to negate the possibility that the retaliatory strip search would have occurred even if there had been no retaliatory motive. We have trouble understanding how the state’s lawyers could have overlooked Greene—a decision squarely on point that has been cited in 54 judicial opinions, a decision that a check of citations to Fairley (which as we said the state relied on heavily in this case) in Westlaw’s ‘citing references’ program would have revealed, and a decision that the plaintiff cited multiple times in his opening brief—and that the state still ignored. This was ostrich conduct. The jury should have been instructed that the plaintiff had the burden of proving that retaliation was a motivating factor in the strip search, but that, even if he proved this, the defendants could still prevail if they persuaded the jury that it was more likely than not that the strip search would have taken place even if there had been no retaliatory motive. The failure to give such an instruction was—in light of Greene and the fact that if the testimony of the plaintiff and the other inmates who testified was believed retaliation had indeed been a motivating factor—plain error. The judge compounded the error in his special interrogatories, which four times asked the jury to determine whether retaliation was “the sole motivating factor for the” strip search that Mays contends was retaliatory (emphasis added).”
Reversed and Remanded.
Appeal from the United States District Court for the Central District of Illinois, Baker, J., Posner, J.