Mays v. Springborn

• Decision Date: 11 June 2013
• Docket Number: No. 11–2218.,11–2218.
• Citation: 719 F.3d 631
• Parties: Tiberius MAYS, Plaintiff–Appellant, v. Jerome SPRINGBORN, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

719 F.3d 631

Tiberius MAYS, Plaintiff–Appellant,

v.Jerome SPRINGBORN, et al., Defendants–Appellees.

No. 11–2218.

United States Court of Appeals, Seventh Circuit.

Submitted April 30, 2013.

Decided June 11, 2013.

Logan Ann Steiner (submitted), Attorney, Mayer Brown LLP, Chicago, IL, for Plaintiff–Appellant.

Evan Siegel, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants–Appellees.

Before CUDAHY, POSNER, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff a former inmate of the Illinois state prison at Stateville, brought this suit in 2001 under 42 U.S.C. § 1983 against prison officials who he claims violated his constitutional rights in a variety of ways. The violations alleged included subjecting him to improper strip searches intended to humiliate him, thus violating his Eighth Amendment right against being subjected to cruel and unusual punishments, see Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir.2003), and subjecting him to an especially protracted, gratuitous, and humiliating strip search in retaliation for his having filed grievances complaining about the earlier searches, thus violating his First Amendment right to petition government for the redress of grievances. Dobbey v. Illinois Department of Corrections, 574 F.3d 443, 446–47 (7th Cir.2009). The district court granted judgment as a matter of law in favor of the defendants We reversed and remanded. Mays v. Springborn, 575 F.3d 643 (7th Cir.2009) (per curiam).

The case went to trial and the jury returned a verdict in favor of the defendants. The plaintiff again appeals, this time complaining about the jury instructions and about special interrogatories that the judge submitted to the jury. Because the plaintiff's lawyer failed to object to the instructions and interrogatories, we can reverse only if we find a “plain” error, meaning an error at once indisputable and likely to have influenced the outcome. United States v. Olano, 507 U.S. 725, 734–35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Lewis v. City of Chicago Police Dep't, 590 F.3d 427, 434 (7th Cir.2009); Fed.R.Civ.P. 51(d)(2). The state says in its brief that even if the judge “plainly erred ... any such error does not entitle [the plaintiff] to a new trial because [he] agreed with the instruction and has not shown that the outcome probably would have been different if the jury had been properly instructed.” That is equating “plain error” to “clear error”—a usage that can lead to confusion because it suggests that not all “plain errors” allow plain error review (that is, allow reversal even if the error was not objected to in the trial court). To align the phrase “plain error” with the doctrine of plain error requires defining “plain error” to mean a clear error that is prejudicial, which is the usage found in cases such as United States v. Paladino, 401 F.3d 471, 481–82 (7th Cir.2005), and United States v. Driver, 242 F.3d 767, 770 (7th Cir.2001).

The state denies that any clear errors had a prejudicial effect in this case, arguing that the jury probably would have found for the defendants even under a proper instruction because they “testified that they were not aware of [the plaintiff's] grievances about the strip search procedures.” But this assumes that the jury would have believed the defendants' testimony, which was contrary to that of the plaintiff and the other prisoners who testified. The jury may, for all we know, have believed the prisoners' testimony yet ruled in favor of the defendants because of the judge's errors—to which we now turn.

With respect to the Eighth Amendment issues, the judge submitted to the jury a special interrogatory that asked it to state regarding each defendant whether he did or did not “have a valid penologic reason for the group search conducted [in a specified month or on a specified date].” The interrogatory was misleading. There may have been a valid penological reason for the search, yet it may not have been the reason or a reason; the reason may have been to humiliate the plaintiff. And as explained in our previous opinion yet unaccountably overlooked by the district judge, even if there was a valid penological reason “the manner in which the searches were conducted must itself pass constitutional muster.” Mays v. Springborn, supra, 575 F.3d at 649. The plaintiff's evidence was that the searches were group searches that gratuitously exposed to other prisoners the nudity of each prisoner being searched and that the guards conducted the searches wearing dirty gloves in a freezing basement and uttering demeaning comments to the prisoners being searched, for example comments about their private parts.

While acknowledging backhandedly that the judge had erred in instructing the jury that “in order to prevail on his claim of retaliation, the plaintiff must prove that the grievances filed by the plaintiff were the sole cause of the particular strip search” that he contends was retaliatory, the state argues that it is not enough for him to prove that his filing of grievances was a “motivating factor” in the defendants' deciding to retaliate. Citing Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), the state argues that the plaintiff had the further burden of proving that the search he claims was retaliatory would not have been conducted had it not been for his grieving the previous searches. In so arguing the state ignores (failing even to cite) our opinion in Greene v. Doruff, 660 F.3d 975, 977 (7th Cir.2011), in which we held, distinguishing both Gross and Fairley v. Andrews, 578 F.3d 518, 525–26 (7th...