Ben Yehudah Whitfield, Ii v. Betsy Spiller

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1747
BEN Y EHUDAH WHITFIELD, II,
Plaintiff-Appellant,
v.
BETSY S PILLER , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois
No. 3:13-cv-00653-SMY — Staci M. Yandle, Judge.
____________________
A RGUED J ANUARY 5, 2022
R E-A RGUED JANUARY 11, 20231 — DECIDED A UGUST 7, 2023
____________________
Before WOOD, BRENNAN , and S CUDDER , Circuit Judges.
WOOD, Circuit Judge. BenYehudah Whitfield was sched-
uled for discharge from Menard Correctional Center on
1 This appeal was initially argued before a panel consisting of Judges
Kanne, Wood, and Brennan. After Judge Kanne passed away on June 16,
2022, the panel was reconstituted to include Judges Wood, Brennan, and
Scudder. The case was then re-argued before the new panel.

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2 No. 20-1747
January 7, 2010, at which point he was to begin a term of man-
datory supervised release. But things went badly off the
tracks that day. The problems began when prison officials
handed Whitfield only the signature page of a document
called the “Electronic Detention Program Agreement” (the
Agreement). That page stated in boldface that “the following
conditions of the Program apply only to sex offender cases.”
Whitfield was (and is) not a sex offender, and so he reasonably
thought that the signature requirement on the provided form
should not apply to him. Furthermore, he objected to signing
the Agreement without an explanation from a prison official
clarifying why he, a non-sex offender, had to sign a form de-
signed exclusively for sex offenders.
Whitfield’s objections were brushed aside. Four times,
clinical services supervisor Betsy Spiller directed Whitfield to
sign the form. After his continued refusal, she ordered a dis-
ciplinary ticket to be issued against Whitfield for failure to fol-
low a direct order. The disciplinary ticket triggered a cascade
of unfortunate events: Whitfield was transferred to discipli-
nary segregation; the Illinois Prisoner Review Board (the
Board) held a hearing on whether he had violated the terms
of his supervised release; he was declared a violator of the re-
lease conditions; and finally, his eligibility for supervised re-
lease was revoked. In the end, Whitfield remained in custody
for another 18 months.
In response to his prolonged incarceration, Whitfield sued
Spiller, other Menard officials, and certain members of the
Board, alleging several constitutional violations under 42
U.S.C. § 1983. By now, the case has boiled down to Whitfield’s
claims against Spiller and then-warden William Gaetz for vi-
olations of his First and Eighth Amendment rights. We

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No. 20-1747 3
conclude that the district court correctly granted summary
judgment to defendants on some of these claims, but that
Whitfield has adduced sufficient evidence that Spiller’s con-
duct violated his First Amendment rights to move forward.
We therefore affirm in part and reverse in part.
I. Factual Background
A. The Revocation of Whitfield’s Supervised Release
Whitfield was sentenced by a state court to a 28-year term
of imprisonment for home invasion and aggravated battery—
crimes he committed in December 1994. He was transferred
to Menard on September 10, 2008. On September 16, 2009, the
Board approved Whitfield for mandatory supervised release
under several conditions, including electronic monitoring.
Whitfield’s release date was calculated as January 7, 2010; he
was to live at an approved host site called “Henry House.”
When January 7 arrived, Whitfield was taken to Menard’s
reception center to meet with Vickie Howie, a Clinical Ser-
vices Counselor. Howie instructed him to sign five or six re-
lease documents, one of which was the signature page of the
Agreement we mentioned earlier. No one showed Whitfield
the rest of the Agreement, and he refused to sign it. Whitfield
later testified that he was aware of the dangers of signing
one’s rights away, thanks to his long involvement in litigation
against officials from the Illinois Department of Corrections
(IDOC). Whitfield’s concern was reinforced by the fact that
the signature page’s header read “The following conditions
of the Program Agreement apply only to sex offender cases.”
After Whitfield’s initial refusal, Spiller stepped in. Whit-
field asked her for a legal justification for the signature re-
quirement. But she told him that she did not know the legal

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4 No. 20-1747
basis for the signature requirement. During this exchange,
Whitfield tried to explain that he should not have been subject
to electronic monitoring and that he wanted to preserve his
ability to contest it as a condition of his supervised release.
Whitfield also contended that the statute governing partici-
pant consent requirements for electronic monitoring, 730
ILCS 5/5-8A-5, did not require his signature in any event. He
was concerned that, by signing the Agreement, he would be
consenting to improper release conditions and would thus be
at risk of being returned to custody for “bogus” infractions.
Though Whitfield likely was mistaken about his eligibility
for any exemption from electronic monitoring, it was true that
Illinois law did not require his signature on the Agreement.
Under 730 ILCS 5/5-8A-5, signed consent is not required for
“persons subject to electronic monitoring or home detention
as a term or condition of parole, aftercare release, or manda-
tory supervised release.” This carve-out applied to Whitfield
and meant that his signature was not a legal requirement of
his discharge that day. The electronic monitoring was going
to happen, signature or no signature.
Spiller did not request guidance from a supervisor or con-
sult with a legal authority such as a lawyer from the Attorney
General’s Office. Nor does the record reflect any prison policy
or rule that might have controlled Spiller’s response. Instead,
she warned Whitfield that failure to sign the Agreement
would be considered a violation of his supervised release con-
ditions and would warrant a disciplinary ticket. Sure enough,
when Whitfield continued to withhold his signature after
Spiller ordered him four times to sign the Agreement, Spiller
directed Howie to write and file a disciplinary ticket.

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No. 20-1747 5
Spiller knew that the issuance of a disciplinary ticket
would result in Whitfield’s immediate placement in segrega-
tion under “temporary confinement” status, and that is just
what happened. Spiller understood that this placement in
segregation was intended as punishment for Whitfield’s re-
fusal to sign. She explained in discovery that Whitfield “had
already committed an offense or violation of the rules for dis-
obeying a direct order,” and so “punishment was meted out.”
That same day, Whitfield’s sentence was recalculated to in-
clude an additional 18 months of imprisonment based on an
alleged violation of his supervised-release conditions.
On January 11, after four days in segregation, Whitfield
filed a grievance addressed to Warden Gaetz. He expressed a
willingness to sign the Agreement if someone explained the
legal authority for requiring his signature. He restated his
contention that Illinois law did not require him to be placed
on electronic monitoring. He also questioned the legal author-
ity to detain him on his release date and declare him a violator
of his supervised-release conditions without a hearing.
Whitfield did not mark the grievance as an emergency fil-
ing, and so under Menard policy it was redirected to Spiller,
who generally handled non-emergency grievances about the
conduct of a member of the counseling staff. Spiller summar-
ily denied the grievance. She did not investigate the relevant
Illinois law, nor did she respond to Whitfield’s requests for
legal authority or provide him another opportunity to sign
the Agreement. Instead, she told Whitfield that his “[super-
vised-release] term was violated in accordance with IDOC di-
rectives. Inmate was afforded 4 opportunities to sign his [su-
pervised-release] agreement and refused to do so.”

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6 No. 20-1747
On January 12, Menard’s Adjustment Committee held a
hearing on Whitfield’s disciplinary ticket. Whitfield was in-
formed of the hearing the same day, but he was not allowed
to attend, ostensibly because his braids violated the Adjust-
ment Committee’s dress code. He was not given sufficient
time to remove them. The Adjustment Committee found
Whitfield guilty of disobeying a direct order and recom-
mended three months of disciplinary segregation as a punish-
ment. Whitfield ultimately spent more than four months in
segregation.
On January 20, 2010, not quite two weeks after his initial
encounter, Whitfield finally signed the Agreement, even
though he never was given a full copy of the document. But
because the Adjustment Committee had already recom-
mended three months of disciplinary segregation, Whitfield’s
efforts to comply with Spiller’s orders were judged insuffi-
cient to warrant removal from segregation or discharge from
Menard. Shortly thereafter, Whitfield was deemed to have re-
fused his spot at Henry House and lost his host-site place-
ment. This made him ineligible for supervised release until
another host site could be located.
About a month later, on February 24, Whitfield attended a
release revocation hearing before the Board. Whitfield ex-
plained in a letter why he withheld his signature, restating his
contention that his signature was not required, explaining
that no one answered his request for legal authority, and add-
ing that one of the reasons he refused to sign the Agreement
was because officials would not allow him to read a full copy
of the document. But the Board found that his failure to sign
the Agreement was a violation of his supervised-release con-
ditions. Because Whitfield had signed the Agreement in the

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No. 20-1747 7
meantime, the Board did not revoke his eligibility for parole.
Whitfield attended a second release revocation hearing on
May 19, which resulted in the same outcome: a confirmed vi-
olation but no revocation of release eligibility. Nevertheless,
Whitfield was still trapped at Menard because no new host
site had been confirmed. No IDOC official ever discussed his
release plan or a new host site with him. In fact, Whitfield as-
serted, he heard that the officials were intentionally delaying
approval of his release plan because he had refused to sign
the Agreement. Spiller recalled having trouble locating a new
host site for Whitfield but did not remember any other details.
On September 15, Whitfield (without a lawyer) attended
yet another release revocation hearing before the Board. At
that hearing, the Board again decided that Whitfield had vio-
lated the terms of his release because of his refusal to sign the
Agreement. This time, however, the Board revoked his eligi-
bility for release. Whitfield was then transferred to Western
Illinois Correctional Center, where he remained until his final
release on July 7, 2011.
B. Procedural History
Whitfield initiated this lawsuit against Spiller, Gaetz, other
Menard employees, and certain Board members in 2013; in it,
he contended that the defendants had violated his rights un-
der the First, Eighth, and Fourteenth Amendments to the Con-
stitution. All of the defendants moved for summary judg-
ment. The Menard defendants, including Spiller and Gaetz,
were successful: the district court concluded that there was
insufficient evidence of their personal involvement in the dep-
rivations of Whitfield’s rights.

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8 No. 20-1747
But the district court denied the Board members’ motion
for summary judgment. It found that there was a question of
fact whether the Board members violated Whitfield’s Four-
teenth and Eighth Amendment rights by denying Whitfield
access to legal counsel at his revocation release hearing and
by revoking his supervised release eligibility for no readily
apparent reason, particularly since Whitfield’s eligibility had
been confirmed in the two prior hearings. The court also de-
cided that the evidence would permit a trier of fact to find that
the Board members had retaliated against Whitfield for his re-
fusal to sign the Agreement. Finally, the court denied the
Board members’ request for qualified immunity.
At that point, the claims against the Board defendants pro-
ceeded to trial. Whitfield prevailed, winning a jury award of
$50,000. He eventually settled with the Board members. With
all claims against all parties resolved, Whitfield was ready for
an appeal. He filed a timely notice of appeal from the sum-
mary judgment rulings in favor of the Menard defendants.2
In this court, Whitfield has asked that we reverse with respect
to all Menard defendants. His arguments, however, address
only his First and Eighth Amendment claims against Spiller
and Gaetz. He has thus forfeited his claims against the other
Menard officials (Jeannette Cowan, Tara Goins, and David
Rednour), and so we do not address them further.
2 To be clear, the court entered its judgment against the Board defend-
ants on January 12, 2018. They filed a timely renewed motion for judgment
as a matter of law or for new trial on February 8, 2018. The district court
denied those motions on March 23, 2020. With the final judgment secure,
Whitfield filed a notice of appeal from the adverse summary judgment
decisions on April 22, 2020 (the postmark date, pursuant to Southern Dis-
trict of Illinois Admin. Order No. 261).

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No. 20-1747 9
When we first heard this appeal, the parties focused on
whether Spiller or Gaetz was sufficiently involved in the deci-
sions Whitfield is challenging to support section 1983 liability.
They also raised a qualified immunity defense to the Eighth
Amendment count, but not to the First Amendment theory.
Before re-argument, in the supplemental briefs we requested,
the parties addressed two additional questions: “[w]hat role,
if any, do considerations of ‘false speech’ have in the analysis
of a First Amendment retaliation claim by a prisoner?”; and
“[w]hat role, if any, does a defendant’s good faith have in an
analysis of a First Amendment retaliation claim?”
II. First Amendment Retaliation
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). We evaluate a grant of summary judgment inde-
pendently, drawing all reasonable inferences and interpreting
the facts in the light most favorable to the non-moving party.
Moran v. Calumet City, 54 F.4th 483, 491 (7th Cir. 2022).
Whitfield’s First Amendment theory hinges on three cen-
tral determinations: first, whether the defendants were suffi-
ciently involved in the actions taken against Whitfield to sat-
isfy the personal involvement requirement of section 1983;
second, whether Whitfield’s refusal to sign the Agreement
was protected activity; and third, whether the defendants’ as-
serted defenses and their alleged good faith exonerate them
from liability as a matter of law.
Again, we note that the scope of Whitfield’s lawsuit has
narrowed a great deal at this point. While many of Whitfield’s
legal arguments sound in the language of a due process

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10 No. 20-1747
violation, he has already prevailed on his claims under the
Due Process Clause against the defendants who denied him
adequate procedural protections during the revocation of his
release eligibility. Whitfield does not argue in this appeal that
Spiller was responsible for those deprivations. The focus is in-
stead on her involvement in different penological decisions,
such as issuing a disciplinary ticket and placing him in segre-
gation. These kinds of decisions typically do not trigger due-
process protections. See Montanye v. Haymes, 427 U.S. 236, 242
(1976) (“The [Due Process] Clause does not require hearings
in connection with transfers whether or not they are the result
of the inmate’s misbehavior or may be labeled as disciplinary
or punitive.”). But they can implicate the First Amendment.
See Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (explain-
ing that confinement in segregation can violate First Amend-
ment rights when done in retaliation, even if the confinement
does not “independently violate the Constitution”).
A. Defendants’ Personal Involvement
“To recover damages under § 1983, a plaintiff must estab-
lish that a defendant was personally responsible for the dep-
rivation of a constitutional right.” Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995). For this purpose, we must consider
each defendant independently.
Whitfield’s evidence of Warden Gaetz’s personal involve-
ment is thin to nonexistent. Gaetz testified that he did not re-
call being told that Whitfield was placed into segregation.
Moreover, Whitfield has proffered no evidence that would al-
low a factfinder to impute knowledge of this incident to
Gaetz. All he has is Gaetz’s admission that a person who re-
fused to sign their release paperwork “would be sent to seg-
regation and housed separately due to the fact that there’s an

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No. 20-1747 11
indiscretion with his failure to sign his parole plan.” That is
far too vague to suffice; it is just a generic description of insti-
tutional practice. It is not enough to show that Gaetz was war-
den while Whitfield was sent to segregation and kept in
prison for an extra 18 months. The district court properly
granted summary judgment in Gaetz’s favor on this theory
because he lacked the requisite personal involvement in the
events at issue.
The case against Spiller is another matter. Whitfield con-
tends that Spiller was personally involved in four punitive
acts directed against him for his refusal to sign: 1) Whitfield’s
placement in segregation; 2) the disciplinary ticket issued
against Whitfield; 3) Whitfield being declared a supervised-
release violator; and 4) the delay of Whitfield’s release plan.
We can be brief about the third and fourth actions. It was the
Board, not Spiller, that decided to declare Whitfield a super-
vised-release violator. There is no evidence that suggests that
Spiller was personally involved in the Board’s hearing pro-
cess. The fourth fails because it is a newcomer in this court.
Whitfield waived any argument about alleged delays in find-
ing a new release site by failing to raise it before the district
court. But we conclude that Whitfield has created a triable is-
sue of fact regarding Spiller’s involvement in his placement in
segregation and the disciplinary ticket that prompted it.
As we now detail, a jury reasonably could find that during
the time that Spiller and Whitfield met in Menard’s reception
center, Spiller pushed Whitfield to sign the Agreement by
threatening him with placement in segregation. Her deposi-
tion testimony admitted as much. Throughout, Spiller knew
that Whitfield was withholding his signature because he
feared signing away certain post-release rights. Spiller

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12 No. 20-1747
testified that this was the first time she had seen a prisoner
raise concerns about the release paperwork and refuse to sign.
Nonetheless, Spiller did not inform Warden Gaetz of the situ-
ation or seek legal clarification from another authority inside
or outside Menard.
Instead, Spiller personally directed Howie to write and file
a disciplinary ticket against Whitfield.3 Shortly after Howie
issued that ticket, security staff escorted Whitfield from the
reception center to the segregation unit. Spiller admitted that
she knew that the issuance of a disciplinary ticket would
block Whitfield from leaving the prison that day. She recog-
nized that the consequence of the ticket for Whitfield would
be placement in segregation on “temporary confinement” sta-
tus until the Adjustment Committee could hear his case. Cru-
cially, as Whitfield pointed out at oral argument, even if
Spiller was not authorized to permit him to leave Menard un-
der supervised release until he signed all his release paper-
work, she still had the option of returning him to general pop-
ulation until his legal questions could be answered. Spiller
chose not to take this non-punitive route. And she doubled
down on this position in her response to Whitfield’s January
11th grievance, which she summarily denied. The record thus
supports the inference that Spiller responded to Whitfield’s
refusal to sign by threatening him with placement in segrega-
tion.
3 The dissent takes issue with this characterization of Spiller’s action,
see post at 35–36, but in so doing, it is not taking the facts in the record in
the light most favorable to Whitfield. We are reviewing a grant of sum-
mary judgment, and so that is the perspective we must take. We freely
concede that at trial, a jury might adopt the dissent’s view of these events.

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No. 20-1747 13
Note that we are not saying that the record would permit
a finding that Spiller was personally responsible for the entire
18 months of Whitfield’s reincarceration. Her role in these
events was overtaken by other actors in the Illinois prison sys-
tem, to whom the baton had been passed. The Adjustment
Committee, for example, assigned Whitfield to segregation
for another three months. And the Board then held a hearing
and declared Whitfield in violation of his supervised release
conditions. As a result, the Adjustment Committee function-
ally ended Spiller’s personal involvement in Whitfield’s case
on January 12, 2010, when the Committee held its first hearing
on Whitfield’s disciplinary ticket. But this was the sixth day
of Whitfield’s reincarceration in the segregation unit. We do
not shrug off six days as a meaningless time, nor does our dis-
senting colleague, post at 35. Even a brief period of incarcera-
tion—not to mention time in segregation—is severe enough
to support a prima facie case of First Amendment retaliation.
See, e.g., Pieczynski v. Duffy, 875 F.2d 1331, 1333 (7th Cir. 1989)
(explaining that a deprivation in response to protected con-
duct is cognizable under the First Amendment unless it is “so
trivial that a person of ordinary firmness would not be de-
terred”). On this record, the evidence of Spiller’s responsibil-
ity for that initial phase of reincarceration is more than suffi-
cient to survive summary judgment.
B. Prima Facie Case of First Amendment Retaliation
Having proffered evidence of Spiller’s personal involve-
ment, Whitfield’s next hurdle is to establish a prima facie case
of retaliation in violation of the First Amendment. This re-
quires a plaintiff to show that “(1) he engaged in activity pro-
tected by the First Amendment; (2) he suffered a deprivation
that would likely deter First Amendment activity in the

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14 No. 20-1747
future; and (3) the First Amendment activity was ‘at least a
motivating factor’ in the Defendants’ decision to take the re-
taliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir.
2008)).
The summary judgment record easily raises a triable issue
of fact with respect to the second and third of these criteria.
As we just noted, Whitfield’s first six days of disciplinary seg-
regation qualify as a serious enough deprivation to deter the
exercise of First Amendment rights (as it apparently did—
Whitfield gave up on his effort to see the full document he
was signing). And, for element three, Whitfield has furnished
evidence to suggest that he was sent to segregation because
he refused to sign the Agreement, meaning that his refusal
was a motivating factor in the deprivation. Spiller admitted
“that Plaintiff was issued a disciplinary report on January 7,
2010 for refusing to sign his release papers.” Though there re-
main some questions about Spiller’s state of mind and
whether her conduct towards Whitfield was reasonable in
light of her understanding of the governing law, we consider
those matters more fully below, where we examine whether
Spiller was able conclusively to rebut Whitfield’s prima facie
case.
The only element requiring a more thorough discussion is
the first one: whether Whitfield’s communications were pro-
tected by the First Amendment. The district court assumed
that his refusal to sign was protected. And though the parties
conceded that point in the initial round of briefing, the de-
fendants backtracked in their supplemental briefs and at oral
argument, newly taking the position that his refusal to sign
was not protected. Having invited the supplemental briefs,

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No. 20-1747 15
we think it proper to engage in this issue. We look first at to
what extent (if at all) the penological context limits Whitfield’s
First Amendment rights, and then we examine whether Whit-
field’s allegedly mistaken motivations for refusing to sign un-
dercut his theory of liability.
1. The Scope of First Amendment Protection
To determine whether Whitfield’s speech was protected,
we ask whether “he engaged in this speech in a manner con-
sistent with legitimate penological interests.” Watkins v.
Kasper, 599 F.3d 791, 796 (7th Cir. 2010). The prison setting is
distinctive, and it affects many constitutional rights. Relevant
here, we have held that an inmate’s speech is not protected
where it is “disruptive” and “confrontational.” Id. at 798, 799.
Similarly, “speech that violates prison [disciplinary policies],”
like “backtalk,” is unprotected. Kervin v. Barnes, 787 F.3d 833,
835 (7th Cir. 2015). But unlike public employee speech, inmate
speech “can be protected even when it does not involve a mat-
ter of public concern.” Bridges, 557 F.3d at 551.
Taking the facts in the light most favorable to Whitfield,
this record does not indicate that he was hostile or disruptive
in his interactions with Menard officials, or otherwise crossed
those lines. We are not dealing with a case in which an inmate
threatened to encourage other inmates to thwart the prison’s
ordinary practice with respect to forms and signature require-
ments. Something like that potentially would have interfered
with Menard’s legitimate penological interests. But Spiller’s
own testimony indicated that actions were taken against
Whitfield because he refused to sign the Agreement and not
for any other disciplinary infraction. Although Whitfield’s
ticket shows that he was disciplined for disobeying a direct
order, that order was for Whitfield to sign the Agreement.

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16 No. 20-1747
Thus, there is no basis for a distinct disciplinary infraction,
separate and apart from Whitfield’s refusal to sign.
Spiller encourages us to look to the Supreme Court’s test
from Turner v. Safley, which directs courts to evaluate whether
a prison regulation imposes a reasonable restraint on the con-
stitutional rights of those who are incarcerated. 482 U.S. 78,
89–91 (1987). Spiller asserts that “[r]equiring inmates to sign
the electronic monitoring document serves the legitimate pe-
nological interest of confirming the inmate’s understanding
of, and guaranteeing their compliance with, the rules and reg-
ulations of electronic monitoring prior to their release.”
But these considerations do not leave Whitfield’s conduct
completely unprotected by the First Amendment. Spiller has
offered a reason why Menard has an interest in requiring a
signature before release. Contrary to our dissenting colleague,
we do not think that this penological interest directly impli-
cates the First Amendment, because it explains only why
Menard officials could not release Whitfield. And indeed,
Whitfield has conceded that Menard could have held him in
custody and delayed his supervised release until officials re-
ceived his signed consent to all the terms and conditions of
his release.
For Whitfield’s speech to lack all protection under the First
Amendment, it must be inconsistent with legitimate penolog-
ical interests. Watkins met that standard because the speech at
issue undermined the authority of prison officials and their
ability to implement policy and maintain discipline. See 599
F.3d at 797–98. This case is different because the record (again
in the light most favorable to Whitfield) does not compel the
conclusion that Whitfield’s refusal to sign threatened the pe-
nological setting. Spiller has not explained what penological

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No. 20-1747 17
interests were served by punishing Whitfield’s refusal to sign
or why Menard has an interest in forcing an inmate to sign
release paperwork when he has not received a complete copy
of the document. Nor does it appear that there is any legiti-
mate penological interest that forbids an inmate from clarify-
ing whether a release document properly applies to him, es-
pecially when he is not a sex offender yet the document pur-
ports to apply only to that group. This distinguishes Whit-
field’s appeal from cases where prison officials provided evi-
dence that permitting certain speech would have a negative
effect on prison security or inmate wellbeing. Compare Garner
v. Brown, 752 F. App’x 354, 357 (7th Cir. 2018) (permitting a
prison to forbid group petitions because prison officials testi-
fied that such petitions could cause riots, disrespect, and vio-
lent confrontations). The Menard defendants have supplied
no analogous evidence here, and we find the dissent’s efforts
to supply that evidence on their behalf speculative. Whit-
field’s refusal to sign the Agreement (and thereby to endorse
its contents) was protected by the First Amendment.
2. The Effect of “False Speech”
Spiller’s next argument is a surprising one: she contends
that Whitfield had no First Amendment rights because his as-
sertions about his exemption from electronic monitoring were
false or mistaken. But we do not live in a country in which the
only speech that is protected is speech that a Board of Censors
deems true and accurate. The Supreme Court has made this
clear: even false speech enjoys some First Amendment protec-
tion. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974)
(“The First Amendment requires that we protect some false-
hood in order to protect speech that matters.”). Closer to
Whitfield’s case, neither the Supreme Court nor we have ever

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18 No. 20-1747
suggested that incorrect legal claims—whether made inside
or outside the prison—are categorically unprotected speech.
Such a proposition is inconsistent with the Supreme Court’s
robust protection of speech. See, e.g., United States v. Alvarez,
567 U.S. 709 (2012) (holding that the First Amendment pro-
hibits prosecution for a false claim that the speaker held a con-
gressional medal of honor); Eastern R.R. Presidents Conference
v. Noerr Motor Freight, Inc., 365 U.S. 127, 129, 137–38 (1961)
(holding that a lobbying campaign replete with “vicious, cor-
rupt, and fraudulent” statements fell outside the scope of the
antitrust laws, and noting that a contrary interpretation
would raise serious constitutional problems because the
speech was presumably protected).
Though the penological setting changes the calculus some-
what, there is no reason to characterize Whitfield’s allegedly
mistaken view of the law as being inconsistent with legitimate
penological interests, where his beliefs were communicated
through appropriate grievance channels, without hostility,
and without insubordination. Cf. Watkins, 599 F.3d at 798
(holding that the First Amendment did not protect the plain-
tiff’s complaint because, rather than rely on a “formal, written
grievance or a courteous, oral conversation,” the plaintiff
complained in a “confrontational, disorderly manner”); Smith
v. Mosley, 532 F.3d 1270, 1277 (11th Cir. 2008) (deciding that
“false and insubordinate remarks” were not protected by the
First Amendment and violated a “legitimate prison regula-
tion”). If it did not produce the kind of unprotected conduct
we just identified, why should it matter if Whitfield mistak-
enly believed that he was exempt from electronic monitoring
while on supervised release? If he had resisted monitoring or
tried to defeat it, he would have faced revocation of his parole.

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No. 20-1747 19
It is also debatable whether Whitfield’s speech can be
characterized as false. His refusal to sign the last page of the
Agreement without seeing the rest of the text is not a “state-
ment” that can be shown to be true or false. Since we have
decided that the refusal to sign is itself protected, it is an im-
possible task at summary judgment to ferret out what pre-
cisely motivated Whitfield’s refusal and then use those moti-
vations as a reason to constrict First Amendment protections.
In addition to Whitfield’s belief about his exemption from
electronic monitoring, what about his desire to read a full
copy of the Agreement? Or his questions about why the form
he had been given was designated exclusively for sex offend-
ers? Or his unanswered request that a Menard official provide
him with the legal basis for requiring his signature? (Forms
issued by the U.S. government routinely include, in the fine
print, the statutory basis for the government’s right to request
the specified information.) Whitfield had several overlapping
reasons for withholding his signature; not every reason was
premised on a mistake.
The state suggests that Spiller properly disciplined Whit-
field for his allegedly false speech because his “incorrect” as-
sertion that he was exempt from electronic monitoring raised
concerns that he was trying to avoid his rightfully imposed
supervised release conditions. But that is pure speculation.
And there is no contemporaneous support for that hypothe-
sis. The evidence in the record indicates that Spiller was re-
sponding to Whitfield’s refusal to sign and not to his state-
ments about Illinois law. She testified that she told Whitfield
that a failure to sign was a discipline-worthy infraction; and
she wrote in response to his grievance that his failure to sign
was a violation of his supervised release conditions. Nowhere
does Spiller even hint that Whitfield’s mistaken contentions

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20 No. 20-1747
about 730 ILCS 5/5-8A-5 were what motivated her. At the very
least, there are questions of fact about what motivated both
Whitfield and Spiller to do and say what they did. We cannot
resolve them on summary judgment.
Spiller’s next gambit takes us to a different line of Supreme
Court cases, all from the public employment context. Under
Pickering v. Board of Education of Township High School District
205, courts must balance the interests of the government
against the interests of the speaker to determine whether the
speech is protected. 391 U.S. 563, 573 (1968). Applying Picker-
ing, we have explained that “if an employer takes action
against an employee for speech that the employer, based on an
adequate investigation, reasonably believes to be false, the em-
ployer’s interests outweigh the speaker’s interests.” Swetlik v.
Crawford, 738 F.3d 818, 825 (7th Cir. 2013) (emphasis added).
Spiller asks us to extend this rule to the present setting, and
then to find that, because she reasonably believed Whitfield’s
speech to be false, his speech cannot be protected.
We need not decide here how well the Pickering frame-
work maps onto the prison context, because the reasonable-
ness of Spiller’s beliefs is contested. Construed favorably to
Whitfield, the facts here show that Spiller did not conduct an
adequate investigation into Whitfield’s objections. Nor do the
facts suggest that Whitfield was doing anything beyond seek-
ing an explanation for the demands that were being placed
upon him. Without a reasonable belief that Whitfield’s speech
was unprotected, Pickering does not help her. See also Snyder
v. Phelps, 562 U.S. 443, 458 (2011) (rejecting lawsuit by father
of deceased military service member against anti-LGBTQ+
demonstrators because the offensive picketing at service

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No. 20-1747 21
member’s funeral was protected by the First Amendment, re-
gardless of perceived falsity).
C. Spiller’s Defense
Finally, we must decide whether defendants have pointed
to any legal reason that would require a judgment now for
Spiller. Spiller has not raised qualified immunity as a defense
to the alleged First Amendment violations and so we consider
only her defenses on the merits. The central question is cau-
sation: can Spiller show beyond dispute that something other
than Whitfield’s protected activity motivated her actions
against him? And what evidence is she allowed to marshal to
prove the absence of causation as a matter of law?
Spiller argues first that Whitfield cannot prevail because
Spiller subjectively lacked any retaliatory intent—a type of
“clean heart” defense. Related to this, she contends that she
sincerely believed that Illinois law and Menard policy prohib-
ited Whitfield’s discharge without a signature on the Agree-
ment and mandated his punishment for refusing to sign, and
that is enough to defeat the causation element of Whitfield’s
case. We will refer to the latter as her good faith defense.
The Supreme Court has instructed that, when rebutting a
plaintiff’s prima facie case, a defendant must show “by a pre-
ponderance of the evidence that [she] would have reached the
same decision … even in the absence of the protected con-
duct.” Mt. Healthy City School District Board of Educ. v. Doyle,
429 U.S. 274, 287 (1977). Mt. Healthy establishes that the ques-
tion in First Amendment retaliation cases is about cause, not
intent: did the officer impose the adverse action in response
to the protected activity? We must ensure that “the protected
activity and the adverse action are not wholly unrelated.”

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22 No. 20-1747
Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012) (quoting
Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir.
2000)).
At times, it is necessary to determine what exactly moti-
vated a defendant. But the relevant evidence must shed light
on causation, not on subjective intent. For instance, when a
prisoner alleged that a search of his cell was conducted as re-
taliation for grievances he previously had filed, we examined
whether the officers sought to punish the prisoner for having
filed grievances or were instead motivated by their belief that
the cell contained contraband. See Manuel v. Nalley, 966 F.3d
678, 680–81 (7th Cir. 2020). We asked these questions not to
establish the mens rea of the officer, but to ensure that there
was in fact a causal connection between the constitutionally
protected conduct and the adverse action. If it turns out that
an officer imposed the adverse action in response to the pro-
tected conduct, then that is the end of the “retaliatory motive”
analysis. Whether the officer liked or disliked the prisoner,
had a history of hostility with the prisoner, sought to impress
a superior, or sincerely misread the law is beside the point.
Turning first to Spiller’s “clean heart” argument, we note
that this idea seems to have arisen from various cases in which
we have interchangeably used the phrases “retaliatory ani-
mus,” “retaliatory intent,” and “motivating factor” to evalu-
ate the causal relationship between the plaintiff’s protected
speech and the defendant’s harmful action. See, e.g., Thayer v.
Chiczewski, 705 F.3d 237, 253 (7th Cir. 2012) (“[T]he record is
void of evidence showing that the officers acted with retalia-
tory animus in arresting [the plaintiff].” (emphasis added));
Wallscetti v. Fox, 258 F.3d 662, 667–68 (7th Cir. 2001) (“[I]n or-
der to create a triable issue on whether her protected

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No. 20-1747 23
statements were a motivating factor in her discharge, [the
plaintiff] must produce sufficient evidence for a reasonable
factfinder to decide that [the defendant] harbored a retalia-
tory intent.” (emphasis added)). Given that the Supreme Court
has described retaliatory animus as “a subjective condition,”
see Hartman v. Moore, 547 U.S. 250, 257 (2006), one might think
that we have created a “clean heart” exception to First
Amendment violations.
Our decision in Holleman v. Zatecky could lend further sup-
port to this “clean heart” exception. 951 F.3d 873 (7th Cir.
2020). There, a prisoner was transferred from one Indiana
prison to another in response to several grievances and com-
plaints he filed. Though we acknowledged that “the transfer
was caused by [] protected activity,” we explained that the
transfer would violate his rights if it was “initiated to punish
a prisoner for engaging in protected activity” rather than “in-
itiated as a rational, justifiable response to the substance of the
prisoner’s complaints.” Id. at 878–79. Because uncontroverted
evidence showed that the warden initiated the transfer in the
hopes that the new facility might address and assuage some
of the prisoner’s complaints, we held that summary judgment
was proper. Id. at 880.
What Holleman ultimately turned on, therefore, was a find-
ing that the reason for the transfer was a permissible one—
better treatment for the prisoner. No mind-reading was nec-
essary; just a determination about the true cause of the trans-
fer decision. Spiller can insist that she bore no ill will towards
Whitfield, but that does not answer the question whether she
can identify a permissible justification for her action. It is en-
tirely possible that, at trial, Spiller might convince a jury that
she permissibly relied on prison policy or was motivated by

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24 No. 20-1747
something other than Whitfield’s refusal to sign. If Spiller
makes such a showing, she can undermine the causal link be-
tween Whitfield’s protected conduct and her decision to dis-
cipline him. The dissent believes that she already has estab-
lished this as a matter of law by pointing to her asserted belief
that Whitfield violated the terms of his supervised release. But
Whitfield has created a material dispute of fact on this front
by showing that his disciplinary ticket was issued for diso-
beying a direct order (i.e., for refusing to sign) and by demon-
strating that Illinois law did not require his signature on the
Agreement prior to release. This dispute makes summary
judgment improper. We note as well that even if Holleman de-
mands punitive intent, that demand is met in Whitfield’s case.
Spiller literally arranged for Whitfield to be punished. She
had a disciplinary ticket issued, knowing that the result of
that ticket would be Whitfield’s transfer to disciplinary segre-
gation as punishment for his refusal to sign. She has never
suggested that Whitfield was sent to segregation for his own
good.
Turning next to Spiller’s alleged good faith, she insists that
her commitment to enforcing her mistaken view of 730 ILCS
5/5-8A-5 provides an independent reason for Whitfield’s pun-
ishment, distinct from his refusal to sign. There are two prob-
lems with this line of argument. First, Spiller’s mistaken un-
derstanding of the law does not explain why Whitfield had to
be punished; there is no text in 730 ILCS 5/5-8A-5 suggesting
that failure to sign the Agreement is a punishable offense, nor
has Spiller pointed to any Menard policy that mandated a dis-
ciplinary ticket. Second, an officer’s misunderstanding of the
law is not a legal defense to a First Amendment claim. Just as
the officials in Reed v. Town of Gilbert, 576 U.S. 155 (2015), could
not excuse their sign policy by explaining that they did not

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No. 20-1747 25
realize that it was content-based, so too a retaliating officer
cannot cast their legal misunderstanding as an excuse.
Spiller is no better off if we were to analogize this situation
to other contexts that permit a good-faith defense. Take the
Eighth Amendment, for example. For those purposes, “prison
officials are permitted to rely upon ‘a reasonable interpretation
of a state statute,’ even if they are ultimately mistaken.” Ar-
mato v. Grounds, 766 F.3d 713, 721 (7th Cir. 2014) (emphasis
added) (quoting Campbell v. Peters, 256 F.3d 695, 701 (7th Cir.
2001)). Even where this concept applies, the mistaken inter-
pretation must be reasonable, based on the text of the statute
and the investigation of the prison official. In Armato, for ex-
ample, we determined that the officers’ legal interpretation
was supported by the state statute; we also emphasized that
“[t]he record amply demonstrate[d] that IDOC officials were
actively pursuing assistance from the AG’s Office from the
moment they discovered that [the prisoner’s] release ap-
peared contrary to state law.” Id. By contrast, Spiller made no
attempt to clarify her legal obligations. She failed to seek legal
advice from other staff or from authorities outside the prison
and even failed to inform the Warden of the situation.
If we needed more, we find it in 730 ILCS 5/5-8A-5, which
states that it “does not apply to persons subject to electronic
monitoring or home detention as a term or condition of …
mandatory supervised release.” That language exempts
Whitfield from the signature requirement. Even on the as-
sumption that there is some room for a good-faith exception
in First Amendment cases, a jury could find that Spiller’s in-
terpretation and investigation were not objectively reasona-
ble, given the way the encounter unfolded. As a result,

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26 No. 20-1747
Spiller’s defenses are not sufficient to defeat Whitfield’s the-
ory of First Amendment retaliation as a matter of law.
Finally, it is worth considering whether this case impli-
cates Edwards v. Balisok, which holds that money damages un-
der section 1983 are not available to inmates when the alleged
constitutional violations “necessarily imply the invalidity of
the punishment imposed.” 520 U.S. 641, 648 (1997). Balisok
was premised on the holding in Heck v. Humphrey, 512 U.S.
477, 486–87 (1994), which said that “in order to recover dam-
ages for allegedly unconstitutional conviction or imprison-
ment, or for other harm caused by actions whose unlawful-
ness would render a conviction or sentence inva-
lid, a § 1983 plaintiff must prove that the conviction or sen-
tence has been [overturned].” Balisok reasoned that, if an in-
mate wanted to challenge the procedural protections at a
hearing where good-time credits were revoked, then the in-
mate would have to procure a ruling invalidating the hear-
ing’s outcome because the due-process allegations implicated
the validity of the sentence extension. 520 U.S. at 646.
Here, the defendants never argued that Whitfield’s law-
suit might be barred by Balisok. Any argument based on it is
therefore, at a minimum, forfeited, if not waived. And it is by
no means clear that Balisok applies to Whitfield’s claims under
the First Amendment. Under our narrowed view of Whit-
field’s theory of retaliation, he is not questioning his length of
time in custody (though that may have been part of his suc-
cessful claims against the Board defendants under the Due
Process Clause). Instead, Whitfield is challenging only the re-
taliatory use of disciplinary segregation. This makes our case
more like Muhammad v. Close, where an inmate alleged that he
was charged with violations of prison rules in retaliation for

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No. 20-1747 27
lawsuits and grievances he had filed. 540 U.S. 749, 753 (2004)
(per curiam). The Supreme Court explained that the inmate
was not trying “to expunge the misconduct charge from his
prison record” or “seek[] a judgment at odds with his convic-
tion or with the State’s calculation of time to be served.” Id. at
754–55. Therefore, as in Muhammad, “Heck’s favorable termi-
nation requirement [is] inapplicable.” Id. at 755.
III. Eighth Amendment
Whitfield also alleges that his prolonged incarceration vi-
olated his rights under the Eighth Amendment. Prison offi-
cials may not act with deliberate indifference toward a known
risk that a prisoner is being held beyond his term of incarcer-
ation without penological justification. See Armato, 766 F.3d at
721. Deliberate indifference requires more than negligence or
even gross negligence; instead, Whitfield must show that each
defendant was “subjectively aware of the risk” of Whitfield’s
unjustified incarceration, which amounts to a standard of
criminal recklessness. See Farmer v. Brennan, 511 U.S. 825, 829
(1994).
There are a few ways in which Whitfield’s theories under
the Eighth Amendment might fall short, but we focus on two.
Gaetz’s lack of involvement and lack of knowledge regarding
the actions taken against Whitfield mean that the claims
against him must fail as a matter of law. As to Spiller, Whit-
field’s evidence ultimately falters against this heightened
state-of-mind requirement. Spiller testified that she believed
Whitfield was required to sign the release agreement and that
failure to sign was a punishable infraction. Unlike the First
Amendment analysis above, these subjective and genuine be-
liefs do exculpate Spiller from liability under the Eighth
Amendment. Whitfield has not proffered evidence that

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28 No. 20-1747
would call into question Spiller’s avowedly genuine beliefs.
As a result, her interpretation of 730 ILCS 5/5-8A-5 and her
refusal to seek further guidance may have been unreasonable
but those actions were not criminally reckless. Summary
judgment in Spiller’s favor with respect to Whitfield’s Eighth
Amendment theory was therefore proper.
IV. Conclusion
For these reasons, we AFFIRM IN PART and REVERSE IN PART.
We affirm the district court’s grant of summary judgment
with respect to all claims against Gaetz. We also affirm its
judgment with respect to the Eighth Amendment theory
against Spiller. We reverse on Whitfield’s claim against Spiller
under the First Amendment. The case is remanded for further
proceedings. Each side is to bear its own costs.

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No. 20-1747 29
BRENNAN , Circuit Judge, concurring in part and dissenting
in part. I agree with the majority opinion’s resolution of the
claims against Gaetz and the Eighth Amendment claim
against Spiller. But I part ways with my colleagues on the First
Amendment retaliation claim against Spiller. She did not per-
sonally participate in placing Whitfield in segregation, and,
even if she did, Whitfield did not engage in protected activity
when he refused to sign the Agreement. So, I would affirm the
district court’s grant of summary judgment in Spiller’s favor.
I. Background
My review of the record differs in some ways from that
relayed in the majority opinion, so I recount what I under-
stand to be the relevant factual and procedural background.
A. Whitfield’s Incarceration
In 1996, following a jury trial on charges arising from a
home invasion, Whitfield was convicted and sentenced in Il-
linois state court to 40 years’ imprisonment. His prison term
was later reduced to 25 years, and the Circuit Court of Cook
County amended Whitfield’s sentencing order to include
three years of mandatory supervised release (“MSR”). Begin-
ning in September 2008, Whitfield was incarcerated at
Menard Correctional Center in Chester, Illinois.
After reviewing Whitfield’s case in September 2009, the Il-
linois Prisoner Review Board approved him for MSR. The
Board’s order listed several conditions, including electronic
monitoring, which the order specified “shall not be re-
moved … unless approved by the Prisoner Review Board.”
The state court issued a corresponding amended sentencing
order, requiring Whitfield to serve a three-year term of MSR.
Following these orders Whitfield was scheduled to be

-- 29 of 48 --

30 No. 20-1747
released on MSR, and he was approved for placement at a
host site in Chicago known as Henry House.
Before release on MSR, inmates at Menard were presented
several documents, including the Agreement. That document
requires prisoners moving to MSR to acknowledge they “will
be participating in the Electronic Detention Program where
all movement will be monitored through the use of electronic
detention equipment.” The Agreement also lists several other
terms and conditions, such as prohibiting access to computers
and the internet, which it expressly states apply only to sex
offenders.
The day Whitfield was scheduled for release on MSR, Jan-
uary 7, 2010, he met with prison counselors to sign paperwork
for his release. When presented with the Agreement, Whit-
field told counselors that signing the Agreement was not re-
quired for his release on MSR. Whitfield said, “according to
the law, [he] was not required to sign that document and that
[he] wasn’t going to sign it.” He believed that prison officials
were “trying to set [him] up” and get him sent back to prison
by requiring him to sign.
Whitfield turned out to be correct that he was not required
to sign the Agreement, but not for the reasons he asserted. He
was lawfully subject to an electronic-monitoring requirement,
but his consent was not required. See 730 ILL. C OMP . S TAT.
A NN . 5/5-8A-5(D) (2000) (amended 2017) (specifying that con-
sent is not required for “persons subject to Electronic Home
Monitoring as a term or condition of … mandatory super-
vised release”).
In this appeal Whitfield’s arguments primarily target
Spiller, the clinical services supervisor at Menard. Spiller met

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No. 20-1747 31
with Whitfield on January 7 and informed him he was re-
quired to sign the Agreement. Though she did not recall pre-
cisely what she said to Whitfield (having worked for IDOC in
numerous positions over 24 years, and undoubtedly with
countless inmates), she testified she would have told him that
electronic monitoring was required during his MSR term. She
also testified she would have told Whitfield that not signing
the Agreement would be considered a violation of his MSR.
This would result, according to Spiller, in Whitfield getting a
disciplinary ticket and being sent to segregation. Whitfield
says he asked Spiller to provide the specific legal basis for re-
quiring him to sign the Agreement, but she responded she did
not know.
Whitfield was not released on MSR that day. Instead, Vicki
Howie, a clinical services counselor, issued Whitfield a disci-
plinary ticket for disobeying a direct order. In the ticket
Howie specified that she tried to explain the Agreement to
Whitfield, but he responded he did not have to sign it. Howie
replied that if Whitfield did not sign the Agreement, he would
not be released on MSR and instead he would be given the
ticket and sent to segregation. Howie did not persuade Whit-
field, who continued to maintain he did not have to sign.
Howie recommended temporary confinement as punishment
for Whitfield’s offense.
Spiller did not sign Whitfield’s disciplinary ticket, which
does not reference her. Spiller testified that she “would have”
directed a staff member to write a disciplinary ticket after
Whitfield persisted in his refusal to sign the Agreement. But
she also testified that she had no role in deciding which in-
mates at Menard would be held in segregation and for how
long. The shift commander’s office, or security staff, initially

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32 No. 20-1747
made those decisions. The Adjustment Committee later held
a hearing and meted out the discipline.
Four days later, on January 11, Whitfield submitted a
grievance regarding his continued detention at Menard. He
wrote that there was “no clearly established legal authority
which authorizes an IDOC official to detain an inmate in
prison, past his/her release date, because he/she refuses to
sign a document, on the day of his/her release, agreeing to be
placed on electronic detention.” According to his grievance,
Whitfield believed electronic monitoring was required only
for inmates who had been convicted of certain offenses
against children, such as sex offenses. The next day Spiller de-
nied Whitfield’s January 11 grievance. In the denial Spiller
wrote that Whitfield’s “parole term was violated in accord-
ance with IDOC directions. [Whitfield] was afforded 4 oppor-
tunities to sign his MSR agreement and refused to do so.”
On January 12, the Adjustment Committee held a hearing
on Whitfield’s disciplinary ticket. It found that Whitfield dis-
obeyed a direct order and assigned him to segregation for
three months. The Board then held a hearing to consider
whether to revoke Whitfield’s MSR on February 24. Whitfield
had signed the Agreement by then, so his MSR term was kept
in place. But the Board declared Whitfield an MSR violator.
The Board held another hearing on September 15. This time,
it found that Whitfield’s refusal to sign the Agreement vio-
lated the conditions of his MSR, so it was revoked. Whitfield
was discharged from IDOC custody on July 7, 2011, 18
months after his originally scheduled release date. He never
served an MSR term.

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No. 20-1747 33
B. Procedural History
In July 2013, Whitfield sued IDOC, the Board, and various
individuals under 42 U.S.C. § 1983, alleging numerous consti-
tutional violations. Following discovery, Whitfield dismissed
his earlier claims against IDOC and the Board but alleged vi-
olations of his rights under the First, Eighth, and Fourteenth
Amendments by several individual defendants, including
Spiller, then-warden Gaetz, and certain Board members.
The defendants moved for summary judgment. The dis-
trict court found insufficient evidence of personal involve-
ment of the individual defendants not on the Board (includ-
ing Gaetz and Spiller) and granted them summary judgment.
But the court denied the motion as to the three Board mem-
bers, and Whitfield’s claims against them proceeded to trial.
A jury found for the Board members on the First Amendment
retaliation claims and for Whitfield on his Eighth Amendment
deliberate-indifference claims. The jury awarded Whitfield
$50,000 in damages, and judgment was entered for him in that
amount. Whitfield’s remaining claims were dismissed with
prejudice.
The Board-member defendants unsuccessfully sought to
vacate the judgment against them in the district court. They
appealed, and Whitfield renewed a notice of appeal he had
filed earlier from the district court’s grant of summary judg-
ment to the non-Board-member defendants, again including
Gaetz and Spiller. Our court severed the appeals. The Board-
member defendants then settled with Whitfield and voluntar-
ily dismissed their appeal. So, before us now is Whitfield’s ap-
peal from the district court’s grant of summary judgment to
only two of the original defendants—non-Board-members
Gaetz and Spiller.

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34 No. 20-1747
After hearing oral argument from the parties on January
5, 2022, we asked for supplemental briefing on the role of a
prisoner’s false speech and a defendant’s good faith in a First
Amendment retaliation claim.
II. First Amendment Claim
Whitfield challenges the grant of summary judgment to
Spiller on his First Amendment retaliation claim. For such a
claim to succeed, a plaintiff must first make out a prima facie
case, which requires him to show: “(1) he engaged in pro-
tected activity; (2) he suffered a deprivation likely to deter fu-
ture protected activity; and (3) his protected activity was a
motivating factor in the defendants’ decision to retaliate.”
Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018) (citing Perez
v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015)). These three ele-
ments apply regardless of whether the plaintiff is a prisoner,
a public employee, or any other individual, though “the spe-
cific contours of each element can vary depending on the con-
text.” Douglas v. Reeves, 964 F.3d 643, 646 (7th Cir. 2020). If a
prima facie case is made, a burden-shifting framework ap-
plies, Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012),
which I detail later.
Here, the parties dispute the first element and the third el-
ement. I first address whether a reasonable jury could find
that Spiller was personally involved in placing Whitfield in
segregation. Then, I examine the first element of a First
Amendment retaliation claim, the scope of the protected ac-
tivity, and the third element, whether there was sufficient ev-
idence that Spiller acted with a retaliatory motive.

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No. 20-1747 35
A. Spiller’s Personal Involvement
At issue is whether Spiller personally participated in plac-
ing Whitfield in segregation for the six days from when
Howie issued Whitfield a disciplinary ticket to when the Ad-
justment Committee held a hearing on that ticket.1 In my
view, no reasonable jury could find on this record that Spiller
was personally involved in Whitfield’s placement in segrega-
tion.
To hold an official liable under § 1983, the official must
have had personal involvement in the alleged deprivation of
the plaintiff’s constitutional rights. Williams v. Shah, 927 F.3d
476, 482 (7th Cir. 2019). “Prison officials may satisfy the per-
sonal responsibility requirement of section 1983 if the conduct
causing the constitutional deprivation occurs at the official’s
direction or with his or her knowledge and consent.” Id. (cit-
ing Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).
Crucial to Whitfield’s retaliation claim against Spiller is his
assertion that when she instructed Howie to write a discipli-
nary ticket for his refusal to sign the Agreement, Spiller set in
motion a chain of events that resulted in his placement in seg-
regation. On this point Whitfield relies heavily on Spiller’s
deposition testimony. Per Spiller, she likely “would have” in-
formed Whitfield “that he would get a ticket and be sent to
segregation if he didn’t sign his MSR paperwork,” and she
“would” have directed a staff member to write a disciplinary
1 I agree with my colleagues that six days of additional incarceration
is not meaningless time. It would qualify as a cognizable deprivation un-
der the First Amendment. I disagree, though, that the six-day period can
be sufficiently connected to any allegedly retaliatory actions by Spiller.

-- 35 of 48 --

36 No. 20-1747
ticket after Whitfield persisted in his refusal to sign the Agree-
ment.
These statements do not bear out that Spiller was person-
ally involved in sending Whitfield to segregation. Viewing
the facts in the light most favorable to Whitfield, Spiller did
direct Howie to write a disciplinary ticket. Even so, Spiller’s
unrebutted testimony provides that she had nothing to do
with Whitfield’s placement in segregation. Howie, not Spiller,
recommended temporary confinement when Howie issued
the ticket. And according to Spiller’s testimony, the shift com-
mander’s office or security staff decided whether an inmate
who had received a disciplinary ticket should immediately be
sent to segregation. Spiller played no part in that decision.2
She also had no role in the Adjustment Committee’s later de-
cision to assign Whitfield to segregation for an additional
three months after it held a hearing on his disciplinary ticket.
Viewing the facts in the light most favorable to Whitfield,
we assume Spiller told him that if he did not sign the Agree-
ment he would go to segregation. That predictive statement
was a forecast of what would occur, not a description or a
threat of an action she would take. Whitfield and my col-
leagues in the majority do not account for this important dis-
tinction. Whitfield implies that a prison official’s statement
about a punishment likely to be imposed on an inmate is the
same as the official pronouncing that she will carry out that
punishment. In contrast, though, prison administrative
2 The majority opinion states Spiller “still had the option of returning
[Whitfield] to [the] general population.” Of course, that would not be the
case if Spiller played no role in deciding where an inmate is housed after
receiving a disciplinary ticket.

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No. 20-1747 37
systems like at Menard are entitled to and do separate the re-
sponsibilities of each employee. See Burks v. Raemisch, 555 F.3d
592, 595 (7th Cir. 2009). There is a critical distinction between
a prison staff member predicting consequences likely to be
imposed on a prisoner and a staff member’s declaration of in-
tent to personally impose those consequences.3
Even though Spiller’s role at Menard did not involve im-
posing specific punishments, Whitfield asks us to infer from
Spiller’s testimony that she could override the established de-
cision-making channels and impose segregation on Whitfield.
But Spiller testified she “had no role” in determining which
inmates would be held in segregation and for how long. Be-
cause the inference Whitfield asks us to make is not grounded
in the record, it is not reasonable, and I decline to draw it. See
MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co.,
994 F.3d 869, 876 (7th Cir. 2021) (“An inference is not reason-
able if it is directly contradicted by direct evidence provided
at the summary judgment stage, nor is a ‘conceivable’ infer-
ence necessarily reasonable at summary judgment.”).
B. Scope of Protected Activity
In addition to Spiller’s lack of personal involvement, Whit-
field fails, in my view, to establish a prima facie case of First
Amendment retaliation. To do so, Whitfield must first show
that “he engaged in protected activity.” Daugherty, 906 F.3d at
610. As in any First Amendment retaliation case, the question
of what portion (if any) of Whitfield’s statements and actions
qualifies as protected activity is central to this dispute.
3 Further, it does not follow from a threatening statement, anymore
than a predictive statement, that Spiller had any personal involvement in
placing Whitfield in segregation.

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38 No. 20-1747
Under the lawful orders of the Board and the Illinois court,
Whitfield was subject to electronic monitoring as a condition
of his release on MSR. His erroneous beliefs and resulting
statements to the contrary—including that electronic moni-
toring could be required only for sex offenders and inmates
convicted of crimes against children—are, in my judgment,
distinct from his refusal to sign the Agreement.
Our court has cautioned that not everything a prisoner
says or writes to a corrections employee—in other words, not
all prisoner speech—is protected by the First Amendment. See
Watkins v. Kasper, 599 F.3d 791, 797–98 (7th Cir. 2010); cf. also
Zimmerman v. Bornick, 25 F.4th 491, 493 (7th Cir. 2022) (citing
Watkins and noting the continued tension in this court’s case
law applying the First Amendment to prisoners’ claims).
Prison walls do not “form a barrier separating prison inmates
from the protections of the Constitution.” Bridges v. Gilbert,
557 F.3d 541, 548 (7th Cir. 2009) (quoting Turner v. Safley, 482
U.S. 78, 84 (1987)). Yet “[l]awful incarceration brings about the
necessary withdrawal or limitation of many privileges and
rights, a retraction justified by the considerations underlying
our penal system.” Id. (quoting Pell v. Procunier, 417 U.S. 817,
822 (1974)).
The Supreme Court in Turner developed a test to assess
whether a prison regulation validly, or constitutionally, “im-
pinges on prisoners’ constitutional rights.” Watkins, 599 F.3d
at 794 (citing Turner, 482 U.S. at 89). A prison regulation “is
valid if it is reasonably related to legitimate penological inter-
ests.” Turner, 482 U.S. at 89. In “determining the reasonable-
ness of the regulation at issue,” a court should consider:
(1) whether there is a rational connection between the regula-
tion and a valid and neutral government interest; (2) whether

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No. 20-1747 39
there are alternative means of exercising the constitutional
right at issue, (3) the impact that accommodation of the as-
serted right will have on guards, inmates, and the allocation
of prison resources; and (4) whether the regulation is an exag-
gerated response to prison concerns. Id. at 89–90. The stand-
ard articulated in Turner governs “whether a prisoner’s
speech is protected” in a First Amendment retaliation claim.
Watkins, 599 F.3d at 794.
So, to determine whether Whitfield’s speech is protected,
we “examine whether [he] engaged in speech in a manner
consistent with legitimate penological interests.” Id. at 794–95
(citing Bridges, 557 F.3d at 551). “Such legitimate penological
interests might include crime deterrence, prisoner rehabilita-
tion, and protecting the safety of prison guards and inmates.”
Van den Bosch v. Raemisch, 658 F.3d 778, 785 (7th Cir. 2011).
When prisoner speech is inconsistent with legitimate peno-
logical interests, prison officials have “broad discretion” to
regulate it. Watkins, 599 F.3d at 796; see also Kervin v. Barnes,
787 F.3d 833, 835 (7th Cir. 2015) (stating that any “speech that
violates prison discipline” is not protected).
The Supreme Court has repeatedly upheld prison regula-
tions that sharply curtail the speech rights of inmates. See
Beard v. Banks, 548 U.S. 521, 525–26, 533 (2006) (upholding reg-
ulations barring certain prisoners from accessing any newspa-
pers, magazines, or personal photographs); Thornburgh v. Ab-
bott, 490 U.S. 401, 412–16 (1989) (upholding regulations au-
thorizing prison officials to reject incoming publications
found to be detrimental to institutional security); Turner, 482
U.S. at 91 (upholding a regulation barring inmate-to-inmate
correspondence). On these occasions, the Court has forth-
rightly observed that analogous regulations would be invalid

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40 No. 20-1747
under the First Amendment if they were promulgated outside
the prison context. Beard, 548 U.S. at 528; Thornburgh, 490 U.S.
at 407.
My colleagues in the majority focus on Whitfield’s refusal
to sign the Agreement and conclude that such conduct is pro-
tected by the First Amendment. By refusing to sign the Agree-
ment, Whitfield communicated the message that he did not
need to consent to the statutory electronic-monitoring re-
quirement. So, his conduct is arguably expressive. But to me,
Whitfield’s refusal to sign the Agreement was inconsistent
with Menard’s legitimate penological objectives and therefore
falls outside the First Amendment’s protection.
As Spiller argues, requiring Whitfield to sign the Agree-
ment “was consistent with Menard’s legitimate penological
interest in enforcing the statutory electronic monitoring re-
quirement.” It served to confirm Whitfield’s understanding
of—and therefore compliance with—the rules, regulations,
and conditions of electronic monitoring prior to his release on
MSR. IDOC has a legitimate interest in deterring inmates
from committing the crime of violating the terms of their
MSRs, which Whitfield’s refusal to sign negatively impacted.
See Watkins, 599 F.3d at 797; Van den Bosch, 658 F.3d at 785 (list-
ing crime deterrence as a legitimate penological objective);
730 I LL. C OMP . STAT. A NN . 5/5-8A-4.1 (2009) (amended 2021)
(enumerating the knowing violation of a condition of the elec-
tronic-monitoring program as a felony). Such a requirement
is not an exacerbated response to prison concerns. See Turner,
482 U.S. at 89–90. Because Whitfield’s refusal to sign the
Agreement was inconsistent with his “status as a prisoner or
with the legitimate penological objectives of the corrections

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No. 20-1747 41
system,” id. at 95 (citations omitted), it is not protected by the
First Amendment.4
The majority opinion agrees that Spiller provided a reason
why Menard has an interest in requiring a signature from
prisoners before release. But it faults Spiller for not explaining
what penological interest is served by “punishing Whitfield’s
refusal to sign,” “forcing an inmate to sign release paperwork
when he has not received a complete copy of the document,”
or forbidding an inmate from “clarifying whether a release
document properly applies to him.”
Whether Menard had a penological interest in punishing
Whitfield for his refusal to sign the Agreement does not affect
the protected-activity analysis. In Watkins, an inmate argued
that a prison employee retaliated against him for criticizing
library policies by filing conduct reports, disposing of his per-
sonal materials, and denying him library access. 599 F.3d at
794. Watkins’s criticisms were inconsistent with the prison’s
“legitimate interests in discipline and library administration”
and therefore unprotected under Turner, dooming his First
Amendment retaliation claim. Id. at 797. This court acknowl-
edged that “not all of [the employee]’s alleged responses to
Watkins’s … speech were rationally related to the legitimate
penological interests … identified.” Id. Still, “the particular
nature of the adverse actions cited by Watkins [did] not affect
[this court’s] analysis of his retaliation claim.” Id.
4 “[T]he burden of persuasion is on the prisoner to disprove the valid-
ity of a regulation,” although “defendants must still articulate their legiti-
mate governmental interest.” Van den Bosch, 658 F.3d at 786 (citing Turner,
482 U.S. at 89). Here, Spiller has articulated a legitimate penological inter-
est for requiring Whitfield to sign the Agreement.

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42 No. 20-1747
Likewise, the nature of Whitfield’s adverse action—place-
ment in segregation—does not affect our analysis of whether
he engaged in protected activity. To determine whether Whit-
field’s speech is protected, we “examine whether [he] en-
gaged in speech in a manner consistent with legitimate peno-
logical interests.” Id. at 794–95. Whitfield’s refusal to sign the
Agreement was not consistent with Menard’s legitimate pe-
nological interests in enforcing the electronic-monitoring re-
quirement. So, under Turner, his speech is unprotected, and
his First Amendment retaliation claim fails. It matters not
whether his subsequent placement in segregation was ration-
ally related to the legitimate penological interests identified
here.
Citing Whitfield’s contention that he was presented with
only the Agreement’s signature page, as well as the fact that
Whitfield was not serving a sentence for a sex offense, the ma-
jority opinion concludes that on January 7, 2010, he reasona-
bly thought the Agreement was the wrong form. Though we
view the facts in the light most favorable to Whitfield, I cannot
agree that the record together with reasonable inferences sup-
ports this conclusion.
Whitfield’s opening brief on appeal asserts he received
only the Agreement’s signature page, but that is not evidence.
At his deposition Whitfield did not testify that he was pre-
sented with only the signature page on January 7. When
asked to explain why he would not sign the Agreement, he
said, “I bec[a]me familiar with the statute governing elec-
tronic monitoring and when I read the statute [it] stated that
I was not required to sign – or people who were released on
MSR were not required to agree to the conditions of MSR – I
mean of electronic monitoring.” Nor on January 7 (according

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No. 20-1747 43
to his testimony) did he discuss his concern about any re-
quirements listed applying only to sex offenders. On that date,
again according to Whitfield’s testimony, his position was
simply that “according to the law, I was not required to sign
that document … I wasn’t going to sign it.”
Whitfield’s statements purporting to explain why he was
not lawfully subject to an electronic-monitoring requirement
may very well be protected activity. As the majority opinion
notes, Whitfield communicated these beliefs “through appro-
priate grievance channels, without hostility and without in-
subordination.”
Yet, the false nature of Whitfield’s statements may be rel-
evant to whether his statements are consistent with Menard’s
penological interests. See Watkins, 599 F.3d at 799 (citing Smith
v. Mosley, 532 F.3d 1270, 1277 (11th Cir. 2008)) (emphasis
added) (noting that “speech found to be false and insubordinate
under a valid prison regulation” is unprotected). Whitfield
claimed the Board had no authority to impose the electronic-
monitoring condition, which the law provided it did. In doing
so, he challenged the authority of Spiller and other corrections
employees to carry out the lawful orders of the Board and the
state court. From these statements it is highly likely that Whit-
field would not have complied with the conditions of elec-
tronic monitoring while on MSR. And his declarations, if
passed on to other inmates, could have negatively impacted
prison discipline. See Watkins, 599 F.3d at 799; Smith, 532 F.3d
at 1279; cf. also Kervin, 787 F.3d at 835. This court need not re-
solve the extent to which Whitfield’s false and potentially in-
subordinate statements are protected activity. It is enough to
conclude that the precise conduct at issue—Whitfield’s re-
fusal to sign the Agreement—is not.

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44 No. 20-1747
C. Motivating Factor
The third element for a prima facie case, contested here,
requires that a plaintiff demonstrate that “his protected activ-
ity was a motivating factor in the defendants’ decision to re-
taliate.” Daugherty, 906 F.3d at 610. The “motivating factor”
requirement demands a causal link between a plaintiff’s pro-
tected conduct and a defendant’s allegedly retaliatory action.
Manuel v. Nalley, 966 F.3d 678, 680 (7th Cir. 2020); Kidwell, 679
F.3d at 964–65. Even if one concedes that Whitfield engaged
in protected activity by expressing his mistaken beliefs that he
was not subject to electronic monitoring, those beliefs did not
motivate Spiller’s alleged decision to direct Howie to write the
disciplinary ticket.
A motivating factor is “a consideration present to [the de-
fendant’s] mind that favors, that pushes [him or her] toward,
the action.” Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001, 1006
(7th Cir. 2005). It “is a sufficient condition, but never a neces-
sary one,” meaning “if it is present, something else is bound
to happen.” Greene v. Doruff, 660 F.3d 975, 978 (7th Cir. 2011).
To be a motivating factor, then, the plaintiff’s protected activ-
ity must invariably produce the allegedly retaliatory action by
the defendant. See Browning-Ferris Indus. of Ill., Inc. v. Ter Maat,
195 F.3d 953, 958 (7th Cir. 1999) (“If A is a sufficient condition
of B, this means that, if A occurs, B will occur.”).
Whitfield’s core allegation is that when Spiller allegedly
directed Howie to write the disciplinary ticket, she set in mo-
tion a chain of events resulting in his continued incarceration.
But critically, nothing in the record indicates that Spiller di-
rected Howie to issue the disciplinary ticket because of Whit-
field’s beliefs about the electronic-monitoring requirement,
rather than his refusal to sign a release document.

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No. 20-1747 45
I read our court’s law as concluding that a defendant’s in-
tent, or state of mind, may be relevant to adjudicating causa-
tion. A plaintiff claiming retaliation must show that a defend-
ant acted with a “retaliatory motive.” Manuel, 966 F.3d at 681;
Thomas v. Anderson, 912 F.3d 971, 975–76 (7th Cir. 2018);
Daugherty, 906 F.3d at 610. “Retaliation” is defined as “[t]he
act of doing someone harm in return for actual or perceived
injuries or wrongs; an instance of reprisal, requital, or re-
venge. See R ETALIATION , BLACK’ S LAW DICTIONARY (11th Ed.
2019). Indeed, in the context of a First Amendment retaliation
claim, we have used “revenge” to characterize the nature of a
defendant’s required state of mind. Thomas, 912 F.3d at 976;
Holleman v. Zatecky, 951 F.3d 873, 879 (7th Cir. 2020). If a pris-
oner-plaintiff fails to identify evidence showing that the de-
fendant’s conduct “was motivated by a desire to chill [the
prisoner-plaintiff’s] speech or otherwise dissuade him from
complaining about … his confinement,” there is no motivat-
ing factor, and the defendant is entitled to summary judg-
ment. Daugherty, 906 F.3d at 610. Nothing in the record sug-
gests Spiller sought to chill Whitfield’s speech about whether
he was subject to electronic monitoring.
Rather, there was “[ano]ther, non-retaliatory motive” for
Spiller directing the disciplinary ticket to be written. Manuel,
966 F.3d at 681. Spiller’s proffered motive, which Whitfield
fails to effectively contest, was that she believed Whitfield had
violated the terms of his MSR by refusing to consent to the
electronic-monitoring requirement. According to Spiller, in-
mates who refused “to sign MSR orders” and “paperwork”
violated their MSR. And no evidence shows that prisoners
who withheld their signatures from documents required for
release on MSR were subsequently released. Cf. Casanova v.
Am. Airlines, Inc., 616 F.3d 695, 697–98 (7th Cir. 2010) (noting

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46 No. 20-1747
the plaintiff had not “identified any other worker who be-
haved in a similar fashion and … was not fired”). So, Spiller
believed that Whitfield, in refusing to sign his paperwork,
failed to satisfy the requirements necessary for his release and
was consequently subject to discipline.5 She did not retaliate
against Whitfield due to his beliefs—whether true or false—
about whether he was lawfully subject to electronic monitor-
ing. Instead, she believed Whitfield had violated the terms of
his MSR.
Even if Whitfield engaged in protected activity when stat-
ing his reasons for not signing the form, those reasons did not
form a “sufficient condition” for Spiller’s alleged decision to
direct Howie to write the disciplinary ticket. So, there was no
motivating factor. See Greene, 660 F.3d at 978; Casanova, 616
F.3d at 697–98.
Although I would resolve this case on Whitfield’s failure
to establish a prima facie case of First Amendment retaliation,
I disagree with the majority opinion’s discussion of Spiller’s
“clean heart” defense. If Whitfield established a prima facie
case, the burden shifts to Spiller to show that the allegedly re-
taliatory act—placing Whitfield in segregation—“would have
occurred regardless of the protected activity.” Manuel, 966
F.3d at 680; see also Kidwell, 679 F.3d at 965. If Spiller success-
fully rebuts the causal inference, the burden shifts back to
Whitfield to show that Spiller’s given reason was pretextual,
Manuel, 966 F.3d at 680, and that “the real reason was
5 If Spiller was motivated to retaliate against Whitfield because of his
refusal to sign, Whitfield cannot succeed in his First Amendment retalia-
tion claim because his refusal to sign, as discussed, is not protected activity
under the First Amendment.

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No. 20-1747 47
retaliatory animus,” Thayer v. Chiczewski, 705 F.3d 237, 252
(7th Cir. 2012). See also McGreal v. Vill. of Orland Park, 850 F.3d
308, 313 (7th Cir. 2017). So, while the focus remains on causa-
tion throughout this burden-shifting framework, inquiries
into the defendant’s subjective “motive” or “retaliatory ani-
mus” remain relevant, as they may shed light on causation.
As discussed, Whitfield failed to show that any protected
activity in which he engaged motivated Spiller. For similar
and overlapping reasons, no reasonable jury could find that
the reasons Spiller gave for her actions—her belief that Whit-
field’s continued refusal to sign the Agreement and agree to
electronic monitoring made him ineligible for release—were
pretextual. The record does not undermine the sincerity of her
belief that Whitfield became legally ineligible for release on
MSR as long as he refused to sign the Agreement. Whitfield
has not cast doubt on that explanation nor offered any evi-
dence to show that it was “anything but true.” McGreal, 850
F.3d at 314. When a plaintiff fails to show that a defendant’s
proffered reason is pretextual, we have affirmed the district
court’s grant of summary judgment. See Holleman, 951 F.3d at
879–80 (affirming a grant of summary judgment to the de-
fendant when the plaintiff failed to show the defendants’
proffered motive was pretextual); see also Thayer, 705 F.3d at
252–53 (affirming a grant of summary judgment to the de-
fendants when the record was “void of evidence showing that
[the defendants] acted with retaliatory animus”); Wallscetti v.
Fox, 258 F.3d 662, 666–69 (7th Cir. 2001) (affirming a grant of
summary judgment to the defendant when the plaintiff failed
to show the defendants “harbored a retaliatory intent”). Whit-
field has not shown a genuine dispute of material fact as to
pretext. Spiller is thus entitled to summary judgment. Id.

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48 No. 20-1747
* * *
For these reasons, I would uphold the district court’s grant
of summary judgment to Spiller on Whitfield’s First Amend-
ment retaliation claim. Spiller was not personally involved in
placing Whitfield in segregation, and Whitfield did not en-
gage in protected activity when he refused to sign the Agree-
ment. To the extent that Whitfield engaged in protected activ-
ity when he expressed his reasons for not signing the Agree-
ment, those reasons did not motivate Spiller’s actions. So,
Whitfield’s First Amendment retaliation claim fails.

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