To prevail on his § 1983 claim of First Amendment retaliation, Watkins had to prove that "(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future"; and (3) a causal connection between the two. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citation omitted). At issue in this case is the first requirement, that Watkins engaged in speech protected by the First Amendment.
A rational jury could also find for Defendant, but that only underscores that a jury is needed. Defendant also quotes Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009), in which the Seventh Circuit stated, "a single retaliatory disciplinary charge that is later dismissed is insufficient to serve as the basis of a § 1983 action." That statement was premised upon the fact that no actionable injury was inflicted as a result of the disciplinary charge alone.
To establish a prima facie case of First Amendment retaliation, a plaintiff must show that (1) he engaged in activity that was constitutionally protected; (2) but for the protected speech, the defendants would not have taken the same action; and (3) he suffered a deprivation likely to deter First Amendment activity in the future. Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 501 (7th Cir.2010); Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir.2010); Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.2009). A. Constitutionally Protected Activity
To prevail on his claim of First Amendment retaliation, plaintiff must prove that (1) his speech or activity in question was protected by the First Amendment; (2) he suffered a deprivation or injury that likely would deter First Amendment activity in the future; and (3) there was a causal connection between the two. Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010); Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). To defeat defendants' motion for summary judgment, plaintiff must present enough evidence to allow a reasonable jury to find in his favor on each of these three elements.
"An act taken in retaliation for the exercise of a constitutionally protected right violates the Constitution."DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). Petitioner must plead three elements in order to state a claim for retaliation: he must (1) identify a constitutionally protected activity in which he was engaged; (2) identify one or more retaliatory actions taken by each respondent that would deter a person of "ordinary firmness" from engaging in the protected activity in the future; and (3) allege sufficient facts that would make it plausible to infer that petitioner's protected activity was one of the reasons respondents took the action they did against him. Bridges v. Gilbert, 557 F.3d 541, 555-56 (7th Cir. 2009); Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005). Petitioner's claims for retaliation are as follows: respondents Heisz and Wolfgram retaliated against him because he reported their misconduct to their superiors; respondent Ashworth retaliated against him because he cooperated in a criminal prosecution of Evans and Essex; and respondents Heisz, Wolfgram, Ashworth, Morris, Nickel, Winslow-Stanley and Grams retaliated against him because he intended to seek legal assistance against them or others.
To adequately plead a First Amendment retaliation claim, a plaintiff must allege: "(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was 'at least a motivating factor' in the Defendants' decision to take the retaliatory action." Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)). At this stage in the proceedings, Plaintiff's allegations suffice under this standard.
A claim of First Amendment retaliation under § 1983 involves a three-step inquiry: (1) whether the plaintiff engaged in an activity protected by the First Amendment; (2) whether the plaintiff suffered an adverse act that would likely deter First Amendment activity in the future; and (3) whether the protected speech was “a causal connection between the two.” Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir.2010) (citing Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.2009)); see also Greene v. Doruff, 660 F.3d 975, 977–80 (7th Cir.2011) (clarifying the causation issue in First Amendment cases). In the public employee context, whether an employee has a First Amendment right depends on: (1) whether the plaintiff spoke as a citizen on a matter of public concern, and (2) if so, whether the “relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”
Having proffered evidence of Spiller's personal involvement, Whitfield's next hurdle is to establish a prima facie case of retaliation in violation of the First Amendment. This requires a plaintiff to show that "(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was 'at least a motivating factor' in the Defendants' decision to take the retaliatory action." Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)).
A successful claim for First Amendment retaliation requires that a plaintiff show, “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment Activity in the future; and (3) the First Amendment activity was ‘at least a motivating factor' in the Defendants' decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)). “Once the Plaintiff proves that an improper purpose was a motivating factor, the burden shifts to the defendant . . . to prove by a preponderance of the evidence that the same actions would have occurred in the absence of the protected conduct.” Spiegla v. Hull, 371 F.3d 928, 943 (7th Cir. 2004); Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996).
To plead a retaliation claim, the plaintiff needs to allege that “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the defendants' decision to take the retaliatory action.” Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015) (quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)).