First Amendment; retaliation; prisons
Where there is evidence that a prison conduct report was filed in retaliation for filing a grievance, summary judgment was improperly granted to the defendant.
“[T]here 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 rights—was proper. But the judgment dismissing the claim against Doruff is reversed and the case remanded for further proceedings consistent with this opinion.”
Affirmed in part and Reversed in part.
10-3497 Greene v. Doruff
Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Posner, J.