                          In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-2218

T IBERIUS M AYS,
                                           Plaintiff-Appellant,
                              v.

JEROME S PRINGBORN, et al.,
                                         Defendants-Appellees.


            Appeal from the United States District Court
                  for the Central District of Illinois.
       No. 1:01-cv-01254-HAB-JAG—Harold A. Baker, Judge.



      S UBMITTED A PRIL 30, 2013—D ECIDED JUNE 11, 2013




  Before C UDAHY, P OSNER, and R OVNER, Circuit Judges.
  P OSNER, 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 sub-
jecting him to improper strip searches intended to humili-
ate him, thus violating his Eighth Amendment right
against being subjected to cruel and unusual punishments,
2                                                No. 11-2218

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 (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
No. 11-2218                                               3

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
4                                                 No. 11-2218

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 demean-
ing comments to the prisoners being searched, for ex-
ample 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 con-
tends 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 (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 Cir. 2009)—a deci-
sion, applying Gross, on which the state in this case
heavily relies—that the rule of Gross and Fairley is inap-
plicable to First Amendment cases. They remain con-
trolled by Mt. Healthy Board of Education v. Doyle, 429
U.S. 274 (1977), under which “the burden of proof
No. 11-2218                                                5

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 [that is, sufficient to cause it]. 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.” Greene v. Doruff,
supra, 660 F.3d at 980; see also Spiegla v. Hull, 371 F.3d
928, 941-43 (7th Cir. 2004).
  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 plain-
tiff 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
6                                               No. 11-2218

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).
  The district judge’s failure to give a correct instruction
is difficult to understand, since our previous opinion
in this case had clearly set forth the applicable
standard: “To establish a prima facie case of retaliation,
a prisoner must show that a protected activity—appellees
concede that his complaint about the searches quali-
fies—was ‘at least a motivating factor’ in retaliatory
action taken against him, i.e., action that would likely
deter protected activity in the future. The burden then
shifts to the defendants to show that they would
have taken the action despite the bad motive.” Mays v.
Springborn, supra, 575 F.3d at 650 (citation omitted).
The Seventh Circuit Pattern Civil Jury Instructions 6.01
and 6.02 (2005) say the same thing in slightly different
words. The judge forgot to shift the burden, and
the parties failed to catch his error.
   The judgment is reversed with instructions to con-
duct a new trial. Circuit Rule 36 shall apply on remand.
                                 R EVERSED AND R EMANDED.



                           6-11-13
