     Case: 14-31350        Document: 00514238546          Page: 1     Date Filed: 11/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                        No. 14-31350                                 FILED
                                                                             November 15, 2017
                                                                               Lyle W. Cayce
DERRICK D. L. BRUNSON,                                                              Clerk

                Plaintiff - Appellant

v.

K. NICHOLS; LEWIS; M. WHITE; CAPTAIN VALLE; LIEUTENANT
CARDER; DAVIS; UBANKS; UNITED STATES OF AMERICA,

                Defendants - Appellees




                     Appeal from the United States District Court
                        for the Western District of Louisiana


Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District
Judge.*
E. GRADY JOLLY, Circuit Judge:
      Derrick D. L. Brunson, an inmate in federal prison, filed this pro se civil
rights action under Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), and under the Federal Tort Claims Act.
Brunson alleged retaliation after he filed a grievance expressing safety
concerns following several power outages at the prison. His prison counselor,
K. Nichols, told Brunson that his complaint was potentially threatening to



      *   District Judge of the Western District of Texas, sitting by designation.
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                                  No. 14-31350
prison safety and interfered with the prison officials’ duties. Nichols told her
supervisors, Lewis and Captain Valle, and prepared an incident report, which
triggered disciplinary proceedings. Brunson was then placed in a Special
Housing Unit (“SHU”), which he describes as “lockup,” for three weeks pending
his hearing. At the hearing, Brunson was sanctioned with seven days of
disciplinary segregation plus three months of lost privileges. That violation
was later expunged.
      Brunson then filed this suit against Nichols, her supervisors, the
disciplinary hearing officer (“DHO”), and other prison officials. Prior to service
of any of the defendants, a magistrate judge analyzed Brunson’s complaint
pursuant to the screening process under 28 U.S.C. § 1915A. The district court
dismissed all of his Bivens claims for failure to state a claim, including the
retaliation and conspiracy claims, and dismissed his FTCA claim for lack of
jurisdiction. Relevant here, the district court dismissed Brunson’s retaliation
claim on the ground that the punishment was de minimis—insufficient to
warrant a finding of retaliation. The district court also dismissed Brunson’s
conspiracy claims as “conclusory.” Brunson v. Nichols, No. 14-CV-2467, 2014
WL 5796670, at *2 (W.D. La. Nov. 6, 2014). The district court did not address
Brunson’s bystander liability claims.
      Brunson appeals. We hold that Brunson has alleged facts that support
plausible claims of retaliation and conspiracy. We vacate the district court’s
dismissal of those claims and remand them for further proceedings. We affirm,
however, the district court’s dismissal of all remaining claims.
                                        I.
      We review de novo the district court’s dismissal of Brunson’s complaint
under 28 U.S.C. § 1915A, “taking the facts alleged in the complaint as true and
viewing them in the light most favorable to the plaintiff.”          Alderson v.


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Concordia Par. Corr. Facility, 848 F.3d 415, 419 (5th Cir. 2017). “[W]e construe
pro se pleadings liberally.” Id.
                                              II.
       We cannot agree with the district court’s conclusion that Brunson’s
alleged injury was de minimis. “Retaliation against a prisoner is actionable
only if it is capable of deterring a person of ordinary firmness from further
exercising his constitutional rights.” Morris v. Powell, 449 F.3d 682, 686 (5th
Cir. 2006). Disciplinary segregation and loss of privileges may constitute an
adverse act. See Hart v. Hairston, 343 F.3d 762, 763–64 (5th Cir. 2003). 1 In
Hart, for example, a prisoner filed a grievance and “was punished with 27 days
of commissary and cell restrictions.” Id. at 763. This court found such a
response was more than de minimis. Id. at 764.
       Here, Brunson was placed in the SHU for twenty-one days before his
disciplinary hearing. Following that hearing, Brunson was also punished with
seven days of disciplinary segregation and the loss of privileges. The district
court’s de minimis analysis did not consider the twenty-one days of segregation
following Brunson’s filing of a grievance. Instead, it held that “[t]o the extent
that Plaintiff had to serve his seven days of segregation prior to the
expungement, this adverse act is de minimis.” Brunson, 2014 WL 5796670, at
*3. Taking the twenty-one days in the SHU and the seven days of disciplinary
segregation together, however, the alleged retaliatory act lasted at least
twenty-eight days, which is certainly comparable to the twenty-seven days in
Hart, which we held not to be de minimis. See 343 F.3d at 763. We hold that
these adverse consequences of Brunson’s filing a grievance, including those
three weeks Brunson spent in the SHU after his submission of a grievance but


       1See also Hanna v. Maxwell, 415 F. App’x 533, 535–36 (5th Cir. 2011) (finding that
the sanction of ten days of confinement in isolation and loss of 180 days of “good time” credit
are more than de minimis adverse actions).
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before his disciplinary hearing, would likely deter a person of ordinary
firmness from exercising his constitutional rights. See Morris, 449 F.3d at
685–86. Brunson’s punishment was therefore more than de minimis.
      The district court did not address the fourth element of retaliation,
causation. Upon review of the record, we find that Brunson pleaded facts
supporting a plausible inference of causation. An “inmate must . . . establish
that but for the retaliatory motive the complained of incident—such as the
filing of disciplinary reports as in the case at bar—would not have occurred.”
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). “The inmate must produce
direct evidence of motivation or . . . allege a chronology of events from which
retaliation may plausibly be inferred.” Id. (internal quotation marks omitted).
      Here, Nichols acknowledged that Brunson was only “trying to explain
his concern” about the power outages, yet she reported that Brunson made a
threat. Brunson alleged that when he told Nichols about his concerns, Nichols
complained that Brunson was “just putting more work on [her] desk.” Though
not conclusive perhaps, viewing these alleged events most favorably to
Brunson, it is supportable that Nichols retaliated against him for adding to her
workload. When Brunson pointed out to Captain Valle that Nichols “didn’t
even articulate a violation on the charging document,” the Captain allegedly
responded, “Well, when I talk to the DHO we’ll see if he can articulate a
violation.” That the disciplinary sanction was later expunged because “the
description of [the] incident [did] not support a code violation” also suggests
that Nichols lacked any basis for initiating the charge. Taken together, this
“chronology of events” suggests that a retaliatory motive is arguable. See id.
Indeed, this court has previously noted that an “action motivated by retaliation
for the exercise of a constitutionally protected right is actionable, even if the
act, when taken for a different reason, might have been legitimate.” See id. at
1165. We conclude that Brunson’s narrative states a plausible claim against
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                                       No. 14-31350
Nichols that “but for the retaliatory motive,” the incident report would not have
been filed. 2
                                             III.
       We also disagree with the district court’s determination that all of
Brunson’s conspiracy claims are “conclusory.” See Brunson, 2014 WL 5796670,
at *2. Brunson alleged facts supporting a plausible inference of a conspiracy
among Captain Valle and Lieutenant Carder to retaliate against Brunson for
filing the grievance form. Brunson alleged that while he was in the SHU,
Captain Valle and Lieutenant Carder paid him a visit. Captain Valle allegedly
said, “[Y]ou didn’t think I know the lights are an issue? . . . . You are not going
to make threats.” Lieutenant Carder then said, “Thanks for telling us how to
do our jobs, you want to tell us how to do our jobs things go down hill for you.”
When Brunson pointed out that Nichols’s incident report “didn’t even
articulate a violation,” the Captain responded, “Well, when I talk to the DHO
we’ll see if he can articulate a violation.” The DHO subsequently changed the
charged offense from “threatening” to “refusal to obey an order.” These facts
suffice to state “an agreement to commit an illegal act which resulted in the
plaintiff’s injury.” Hay v. City of Irving, Tex., 893 F.2d 796, 799 (5th Cir. 1990).
Therefore, Brunson’s complaint has alleged more than a “conclusory
allegation[] of conspiracy.” McAfee v. 5th Circuit Judges, 884 F.2d 221, 222
(5th Cir. 1989).



       2 The defendants argue that Brunson’s allegations do not causally link Nichols to the
subsequent period of segregation and loss of privileges, but they cite no authority to support
their argument that there is thus no causation. Brunson’s factual allegations support the
conclusion that but for Nichols’s filing of the incident report, Brunson would not have been
subjected to discipline. The defendants also argue that Brunson cannot allege “a retaliatory
adverse act,” and that the “only potential adverse act arguably caused by Defendant Nichols
was the issuance of the Incident Report.” A prison official’s filing of an incident report,
however, has not insulated that official from retaliation claims in previous cases. See, e.g.,
Hart, 343 F.3d at 764; Woods, 60 F.3d at 1162–63.
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                                             IV.
       For the reasons above, the district court’s dismissal of Brunson’s
retaliation claim against Nichols is VACATED and REMANDED for further
proceedings. The district court’s dismissal of Brunson’s conspiracy claims
against Captain Valle and Lieutenant Carder is also VACATED and
REMANDED for further proceedings.                  We AFFIRM the district court’s
dismissal of all remaining claims.
       We hold only that Brunson has alleged facts supporting plausible claims
of retaliation and conspiracy.         On remand, the district court may find it
appropriate to also raise the “antecedent” question of whether a Bivens remedy
is available to Brunson, especially in the light of the Supreme Court’s recent
decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). 3 See Hernandez v. Mesa,
137 S. Ct. 2003, 2006 (2017) (noting that “the Bivens question” is “antecedent”
to the merits).
                       AFFIRMED in part, VACATED in part, and REMANDED.



       3 It appears that we have never framed as a holding a rule that Bivens extends to First
Amendment retaliation cases, but we have at times assumed that substantive claims under
§ 1983 and Bivens are coextensive. See Boyd v. Driver, 579 F.3d 513, 515 n.5 (5th Cir. 2009);
Izen v. Catalina, 382 F.3d 566, 570 n.3 (5th Cir. 2004); Evans v. Ball, 168 F.3d 856, 862–63
n.10 (5th Cir. 1999), abrogated by Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003); see
also Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). We have on more than one occasion
assumed that Bivens supplies a remedy in similar cases. See, e.g., Wolters v. Fed. Bureau of
Prisons, 352 F. App’x 926, 928–29 (5th Cir. 2009); Patel v. Santana, 348 F. App’x 974, 977–
78 (5th Cir. 2009); Burnette v. Bureau of Prisons, 277 F. App’x 329, 332–33 (5th Cir. 2007);
Lair v. Purdy, 84 F. App’x 413, 414 (5th Cir. 2003); Muniz v. Childers, 85 F.3d 623 (5th Cir.
1996) (unpublished). But in Abbasi the Supreme Court strongly cautioned against extending
Bivens to new contexts. 137 S. Ct. at 1857. A First Amendment claim is likely a new context.
See id. at 1860; Wood v. Moss, 134 S. Ct. 2056, 2067 (2014) (“[W]e have several times assumed
without deciding that Bivens extends to First Amendment claims.”); Ashcroft v. Iqbal, 556
U.S. 662, 675 (2009) (“Indeed, we have declined to extend Bivens to a claim sounding in the
First Amendment.”). Because Brunson is pro se, the district court on remand may wish to
appoint counsel to brief this important issue. The individual defendants were not served in
the proceedings below, so an answer has not yet been filed in this case. Accordingly, because
the defendants have not been given an opportunity to raise the Bivens issue, the issue is not
waived on remand.
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