     Case: 17-41183   Document: 00515250311    Page: 1    Date Filed: 12/27/2019




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT

                                                         United States Court of Appeals

                                No. 17-41183
                                                                  Fifth Circuit

                                                                FILED
                                                         December 27, 2019

MICHAEL ALAN PETZOLD,                                      Lyle W. Cayce
                                                                Clerk
             Plaintiff–Appellant,

v.

MIKE ROSTOLLAN, Registered Nurse at Federal Correctional Institution
Texarkana; CHRISTOPHER WOODING, Correctional Lieutenant at Federal
Correctional Institution Texarkana; JOHN WILLIAMS, Correctional
Lieutenant at Federal Correctional Institution Texarkana,

             Defendants–Appellees.


                Appeal from the United States District Court
                     for the Eastern District of Texas


Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      Michael Petzold, a diabetic federal prisoner, injured his ankle while
exercising. He sued various prison officials under Bivens, alleging they were
deliberately indifferent to his medical needs in violation of the Eighth
Amendment’s Cruel and Unusual Punishment Clause. Petzold also lodged a
First Amendment claim, alleging retaliation for having filed grievances. The
district court granted summary judgment in favor of all Defendants,
concluding there was no genuine dispute of material fact. We agree and
AFFIRM.
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                                         No. 17-41183
                                                I
       One Friday in October 2013, Petzold injured his ankle. 1 He quickly iced
it, but it swelled, and the pain became “excruciating.” 2 On his walk to the daily
insulin-dispensing line, Petzold told a correctional officer about his injury. 3
Petzold also claims that Mike Rostollan, a prison nurse, passed Petzold in the
hallway and commented on his limp. 4
       Petzold waited in line for insulin. When it was his turn, he asked
Rostollan, the dispensing nurse, to evaluate his ankle and render aid after the
insulin line concluded. 5 Rostollan, without looking at Petzold’s ankle, told
Petzold to “purchase some” pain medication—though the commissary was




       1The facts provided are undisputed unless otherwise noted. And disputed facts are
presented in the light most favorable to Petzold, the non-movant. See Hart v. O’Brien, 127
F.3d 424, 432 n.1 (5th Cir. 1997), abrogated on other grounds by Kalina v. Fletcher, 522 U.S.
118 (1997).
       2 Before he injured his ankle, Petzold had filed multiple grievances aimed at changing
the prison’s insulin line. According to Petzold, his campaign was met with disapproval from
the nursing staff, including prison nurse Mike Rostollan.
       3  Petzold alleges that this correctional officer told Rostollan about Petzold’s injury and,
in response, Rostollan had the officer tell Petzold to go to sick call on Monday. But Rostollan’s
official incident report denies that this interaction occurred. Petzold alleges that this incident
report is false.
       4 Petzold further claims that nurse Rostollan “repeatedly engaged in the
unprofessional mistreatment of inmates in the past. . . .”
       5 Per prison protocol, prisoners can only request medical aid through the insulin line
for “clear medical emergencies.” However, in a personal affidavit, Petzold asserts that he once
saw Rostollan give another prisoner an Ace bandage in the insulin line. Even when no
medical staff is on duty, prisoners can request medical attention—at any time, night or
weekend—through the inmate’s unit officer.



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                                          No. 17-41183
closed for the weekend— or “find some [pain medicine] on the unit,” 6 and “put
some ice on it.” 7
         Petzold says that after he left the line, prison supervisor Christopher
Wooding confronted him, saying Rostollan had reported Petzold’s “insolen[ce]”
in the insulin line, and admonished that Petzold would be “locked up” in an
administrative segregation unit if he caused “any more problems.” Petzold
alleges that, because of Rostollan’s report, Wooding placed him in a “dry cell”
(a cell with no plumbing) for two hours. Petzold also asserts that he showed
Wooding his ankle, said he was diabetic and in pain, and requested further
medical treatment. In response, Wooding allegedly exclaimed, “I don’t care
about your ankle” and told Petzold to report to sick call on Monday.
         Over the weekend, Petzold “iced and elevated his ankle.” Despite his
efforts, he was in “the worst pain he had ever experienced.” 8 On Monday,
Petzold was effectively treated by another nurse; X-rays showed Petzold’s
ankle was slightly fractured.
         Weeks later, Petzold filed a formal grievance against Rostollan. Special
Investigation Supervisor John Williams interviewed Petzold. The next day,
Williams placed Petzold in the Segregated Housing Unit due to safety




        Petzold alleges that “find[ing] some Motrin on the unit” is contrary to prison policy
         6

because prison guidelines prohibit “[p]ossession of anything not . . . issued to [the inmate]
through regular channels.” We agree.
        This account is supported by other prisoners’ affidavits, but Defendants assert that
         7

Rostollan also told Petzold to elevate his ankle, which Petzold disputes. Rostollan’s official
report agreed with Petzold’s assertions but also stated that their encounter was evaluative;
because Petzold does not agree that the encounter was evaluative, he claims this report is
false.
         8   Another prisoner’s affidavit supports Petzold’s recount that Petzold was in severe
pain.



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                                      No. 17-41183
concerns. 9 While in the SHU, Petzold alleges that Rostollan saw Petzold in his
segregated cell and told the SHU guard that Petzold should be treated
adversely. Petzold remained in the SHU for 93 days. While there, Petzold filed
another grievance, which included the statement that he “[didn’t] want to
remain locked up in [the SHU] for an extended period of time.”
       Petzold filed a sworn complaint in 2015 alleging two things—deliberate
indifference (by Rostollan and Wooding) to his serious medical needs in
violation of the Eight Amendment, and retaliation (by Rostollan and Williams)
in violation of his First Amendment right to file grievances. 10 Defendants filed
a motion to dismiss based on (1) Petzold’s failure to state cognizable
constitutional claims, (2) Petzold’s failure to exhaust administrative remedies,
and (3) Defendants’ entitlement to qualified immunity. The magistrate judge
relied on evidence outside the pleadings and properly treated the motion as
one for summary judgment. He recommended granting it in its entirety. 11 The
district court agreed and adopted the magistrate judge’s findings, granted the
defendant’s motion, and dismissed Petzold’s suit with prejudice. 12 Petzold
appealed.



       9 Prisoners who file grievances are “routinely” placed in the SHU, also called
administrative segregation, to protect the prisoner and the staff while the grievance is
investigated.
        Although Petzold also alleged a due process violation, he does not pursue this claim
       10

on appeal.
       11  The magistrate judge’s report and recommendations found that: (1) Rostollan was
not deliberately indifferent to Petzold’s medical needs because Rostollan did not ignore his
complaint; (2) Petzold had not shown a plausible inference that Rostollan’s actions were
motivated by any retaliatory intent; (3) Petzold’s retaliation claim against Williams was
unexhausted; and (4) the defendants were entitled to qualified immunity. Because the court
properly treated the Defendants’ motion to dismiss as a motion for summary judgment, we
refer to it as a motion for summary judgment.
       12   See 28 U.S.C. § 636.



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                                             No. 17-41183
                                                    II
          The rules governing our consideration are well settled.
          First, the standard of review. We review grants of summary judgment de
novo, “using the same standard as that employed initially by the district court
under Rule 56.” 13
          Second, the summary-judgment standard. Under Rule 56, summary
judgment is proper “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.” 14
There is no genuine issue for trial “[i]f the record, taken as a whole, could not
lead a rational trier of fact to find for the non-moving party.” 15 And while we
review the evidence in the light most favorable to the nonmoving party,
“conclusional allegations and unsubstantiated assertions may not be relied on
as evidence by the nonmoving party.” 16

                                                    III
          Almost a half-century ago, the Supreme Court in Bivens approved an
implied damages remedy against federal officials who violate the Fourth
Amendment’s prohibition against unreasonable searches and seizures. 17 The
Court later extended Bivens to Eighth Amendment claims of cruel and unusual
punishment. 18 And while the Cruel and Unusual Punishment Clause prohibits




          13   Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000).
          14   FED. R. CIV. P. 56(a).
          15   Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999).
          16   Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).
          17   Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
          18   Carlson v. Green, 446 U.S. 14, 17 (1980).



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                                          No. 17-41183
deliberate indifference to prisoners’ medical needs, 19 it is unclear if the Bivens
remedy extends to this context. 20 We need not decide this question today;
instead we assume that Bivens reaches Petzold’s Eighth Amendment claims of
deliberate indifference and address the claims’ merit. 21




       19   Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).
       20   Ziglar v. Abbasi, 137 S. Ct. 1843, 1856–58 (2017).
       21  The Supreme Court has explicitly blessed, post-Abbasi, the assume-then-dispose
approach we employ as “appropriate” for “many cases.” Hernandez v. Mesa, 137 S. Ct. 2003,
2007 (2017) (“[D]isposing of a Bivens claim by resolving the constitutional question, while
assuming the existence of a Bivens remedy[,] is appropriate in many cases.” (emphasis
added)). And this approach is certainly not inappropriate for Petzold’s routine constitutional
questions—he doesn’t assert “sensitive” claims or ones with “far reaching” consequences.
Hernandez, 137 S. Ct. at 2007 (finding assuming-then-disposing “imprudent” only in an
extraordinary, “sensitive” context with “far reaching” constitutional consequences). Although
relevant circuit caselaw is limited, district courts also follow the Court’s mandate; they
assume-then-dispose in “many” “appropriate” cases, just as we do today. See, e.g., Wallace v.
Garibay, No. EDCV 16–2046 MWF(SS), 2018 WL 6204583, at *5 n.9 (C.D. Cal. Sept. 14, 2018)
(citation omitted); Grossman v. United States, No. 19–CV–9191 (NSR), 2019 WL 5887365, at
*3 (S.D.N.Y. Nov. 8, 2019); Carpio v. Chief Counsel, DHS-ICE, No. EDCV172030DDPAGR,
2018 WL 5919474, at *4 (C.D. Cal. Aug. 8, 2018), report and recommendation adopted, No.
EDCV172030DDPAGR, 2019 WL 1670940 (C.D. Cal. Apr. 16, 2019).
        But if we were to address whether Bivens extends to this context in light of Abbasi,
Petzold’s deliberate-indifference claims based on denied medical treatment are likely a “new
[Bivens] context” because they “differ in a meaningful way” from existing Bivens claims.
Abbasi¸ 137 S. Ct. at 1856–58, 1865 (“Given [the] Court’s expressed caution about extending
the Bivens remedy . . . the new-context inquiry is easily satisfied.”); Cantú v. Moody, 933 F.3d
414, 422 (5th Cir. 2019) (“What if a plaintiff asserts a violation of the same clause of the same
amendment in the same way? That still doesn’t cut it.”). Here, the federal officers involved
were low-level, the specific actions distinct, and the alternative remedial process robust.
Abbasi, 137 S. Ct. at 1859 (“A case might differ in a meaningful way because of [1] the rank
of the officers involved . . . [3] the generality or specificity of the official action; . . . [7] the
presence of potential special factors that previous Bivens cases did not consider.”); cf. Carlucci
v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018) (assuming a Bivens remedy for a deliberate-
indifference claim based on high-level prison officials failing to heed doctor’s orders). And we
are unlikely to imply a Bivens remedy for this new context as “special factors” counsel
hesitation in federal prison administration. Abbasi, 137 S. Ct. at 1857–58 (“[T]he [special
factors] inquiry [] concentrate[s] on whether the Judiciary is well suited . . . [to] weigh the
costs and benefits of allowing a damages action . . . .”).



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                                         No. 17-41183
       But deliberate indifference is “an extremely high standard.” 22 The
prisoner “must first prove objective exposure to a substantial risk of serious
harm”—in other words, the prisoner must prove a serious medical need. 23
Second, the prisoner must prove the officials’ subjective knowledge of this
substantial risk. 24 Third, the prisoner must prove that the officials, despite
their actual knowledge of the substantial risk, denied or delayed the prisoner’s
medical treatment. 25 Finally, the prisoner must prove that the delay in or
denial of medical treatment resulted in substantial harm, such as suffering
additional pain. 26 Importantly, “disagreement about the recommended medical
treatment is generally not sufficient to show deliberate indifference.” 27
       Supervising officials are liable for their own deliberate indifference but
are not vicariously liable for their subordinates’ conduct. 28 A supervisor is
deliberately indifferent if, with subjective knowledge of the substantial risk of
serious harm, he or she fails to supervise a subordinate and this failure causes
a prisoner’s rights to be violated. 29




       22   Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
       23Gobert v. Caldwell, 463 F.3d 339, n.12, n.30 (5th Cir. 2006); Carlucci, 884 F.3d at
538 (showing implicitly that a “serious medical need” equates to an “objective exposure to
substantial risk of serious harm”).
       24   Lawson v. Dallas Cty., 286 F.3d 257, 262 (5th Cir. 2002).
        See Gobert, 463 F.3d at 345–47 (recounting that negligent or unsuccessful medical
       25

treatment is not actionable); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
       26   Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 422–23 (5th Cir. 2017).
       27   Carlucci, 884 F.3d at 538.
       28   Alderson, 848 F.3d at 420; Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
       29 Goodman v. Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009) (requiring a pattern of
violations to establish deliberate indifference through the failure to supervise).



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                                       No. 17-41183
                                               A
       We start with Petzold’s deliberate-indifference claim against Rostollan.
The district court did not err in granting summary judgment. Even viewing
the record favorably to Petzold, there is no genuine factual dispute underlying
two necessary elements of his deliberate-indifference claim. 30 As Petzold does
not produce evidence showing that Rostollan (1) had subjective knowledge of
Petzold’s exposure to harm, or (2) denied or delayed Petzold’s medical
treatment, summary judgment was proper.
       First, there is no factual dispute whether Rostollan had subjective
knowledge that Petzold fractured his ankle—he did not. 31 Rostollan’s fleeting
insulin-line and hallway encounters with Petzold were cursory. Rostollan
never saw Petzold’s swollen ankle, nor did he review Petzold’s medical
records. 32 The record shows that Rostollan only had personal knowledge of
Petzold’s ankle injury, limp, and diabetes. From this subjective knowledge, a



       30 Petzold does show factual disputes underlying two necessary elements of his
deliberate-indifference claim. By producing undisputed evidence that he fractured his ankle
that Friday, Petzold establishes that he was objectively exposed to a substantial risk of
serious bodily harm for which treatment was clearly required—a serious medical need. See
Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (holding that a prisoner’s broken jaw,
although not certain to be broken until days later, met the objective requirement on the day
it was broken). And by producing corroborated evidence that he was in pain over the weekend,
Petzold shows a genuine factual dispute whether he suffered “substantial harm.” See
Alderson, 848 F.3d at 422–23. But Petzold fails to show factual disputes underlying the two
additional, necessary elements of his deliberate-indifference claim.
       31Petzold’s substantial risk of bodily harm is his fractured ankle, not his limp. Harris,
198 F.3d at 159 (holding that a prisoner’s broken jaw, not its damaged appearance, was the
substantial risk of bodily harm)
       32 Though Petzold argues that Rostollan should have done both these things, this
argument is irrelevant under deliberate indifference’s subjective knowledge inquiry. Here,
we only ask what Rostollan actually knew, not what he should have known. Lawson, 286
F.3d at 262. And, to the extent Petzold’s argument has weight, we consider Rostollan’s failure
to perform a thorough evaluation as part of our inquiry into whether Rostollan denied or
delayed treatment. Domino, 239 F.3d at 756.



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                                           No. 17-41183
reasonable jury could infer that Rostollan knew Petzold had a common ankle
sprain because that is a typical concern stemming from an ankle injury and
limp. 33 But no reasonable jury could find that Rostollan had actual knowledge
of Petzold’s fractured bone, an atypical injury, from his limited encounters and
correspondingly truncated knowledge. 34
       Second, there is no genuine dispute of material fact as to whether
Rostollan denied or delayed Petzold’s medical treatment. Even accepting
Petzold’s recount of Rostollan’s insulin-line statements—“ice” your ankle and
“purchase some” pain medicine from the (closed) commissary or “find some”
from other prisoners—a reasonable jury could not find that Rostollan denied
or delayed medical treatment to Petzold. 35
       As a matter of law, Rostollan’s instruction for Petzold to ice his ankle
was medical treatment. 36 It was medical treatment because it was medical
advice that Petzold could, and did, effectuate. 37 Petzold argues that the




       33   See Gobert, 463 F.3d at 349.
       34  Cf. Lawson, 286 F.3d at 262 (inferring subjective knowledge of serious ulcers from
the nurses’ frequent, first-hand observations of the ulcers); Easter v. Powell, 467 F.3d 459,
463 (5th Cir. 2006) (inferring subjective knowledge of a prisoner’s severe chest pain from the
official’s knowledge of the prisoner’s symptoms, his history of heart problems, and his full
medical history); Gobert, 463 F.3d at 349 (inferring subjective knowledge of the risk of
infection to an open wound from the official’s first-hand knowledge of the wound and medical
understanding of infection).
       35 Though there is a dispute over the exact instructions Rostollan provided Petzold in
the insulin line, this dispute is not material because, even accepting Petzold’s assertions as
true, there was no denial or delay of medical treatment.
       36 We agree with Petzold that Rostollan’s medication instructions were not medical
treatment because they were impossible or illegal to effectuate. Easter, 467 F.3d at 463
(holding that medical treatment that is impossible to conduct is not medical treatment). But
this finding is not dispositive because Rostollan’s icing instruction was medical treatment.
        Easter, 467 F.3d at 463; Lawson, 286 F.3d at 262 (listing examples of medical
       37

treatment, all including the inherent ability to be accomplished). As Petzold admittedly iced


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                                         No. 17-41183
prescribed “treatment” was not based on an evaluation, lacked specific
instructions, and was ineffective. But, because medical treatment was
provided, even if it was negligent, disagreed-with, and based on a perfunctory
and inadequate evaluation, it was not denied. 38 Under governing precedent,
imperfect treatment does not equal denied treatment. And a disagreement
with recommended treatment is generally insufficient to show deliberate
indifference. 39
       As there was no genuine dispute of material fact regarding two elements
of Petzold’s deliberate-indifference claim against Rostollan, the district court
properly granted summary judgment.
                                               B
       We next turn to Petzold’s deliberate-indifference claim against Wooding.
Viewing the record favorably to Petzold, we conclude that no reasonable jury
could find that Wooding denied or delayed medical treatment to Petzold. 40


his ankle before and after receiving Rostollan’s icing instruction, Rostollan provided medical
treatment.
       38See Gobert, 463 F.3d at 345–47; Domino, 239 F.3d at 756 (finding that a five-minute
“evaluation” that led to no actual medical care was medical treatment).
       39   Carlucci, 884 F.3d at 538.
       40 As discussed in Section III(A), the Rostollan deliberate-indifference analysis,
Petzold produces evidence showing disputes as to whether the requisite objective risk and
substantial harm were present. These findings also apply to the Wooding deliberate-
indifference analysis. But, for Wooding, we also find that Petzold produced evidence
establishing a factual dispute as to whether Wooding had subjective knowledge of Petzold’s
fractured ankle. A reasonable jury could infer Wooding’s subjective knowledge from Wooding
allegedly: (1) seeing Petzold limp, (2) seeing his swollen ankle, and (3) hearing about his
extreme pain. See Lawson, 286 F.3d at 262. Though Wooding has no medical training, a
reasonable jury could nonetheless find that Wooding had actual knowledge of Petzold’s
fractured ankle because Wooding, as opposed to Rostollan, allegedly had a prolonged
encounter with Petzold and saw his grotesquely swollen ankle. See Gobert, 463 F.3d at 349
(“[K]nowledge of the health risk inherent in the type of wound establishes the requisite
awareness.”). But this factual dispute matters not since Petzold fails to show a factual dispute
underlying a necessary element of his deliberate-indifference claim.



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                                       No. 17-41183
       Even if we accept Petzold’s uncorroborated assertion that Wooding said
he “didn’t care about [Petzold’s] ankle” and told Petzold to go to sick call on
Monday and not to cause additional problems with medical, Wooding did not
deny or delay Petzold’s treatment. Rostollan had already promptly treated
Petzold’s injury, and Wooding was aware of the Rostollan-Petzold interaction.
Wooding’s conduct did not deny or delay treatment; it deferred to a medical
professional’s prior treatment. 41 Under our precedent, an official defers to prior
treatment—and doesn’t delay it—when he knows an injured prisoner has
recently received medical care and denies the prisoner’s additional treatment
request for the same injury. 42 For example, Wooding would have denied or
delayed Petzold’s treatment had Wooding made it impossible for Petzold to
effectuate Rostollan’s prescribed treatment. 43 But merely refusing to provide
additional treatment is insufficient for deliberate indifference. And, if someone
is to blame for Petzold not receiving further treatment, it is arguably Petzold
himself. Petzold could have sought additional medical attention from the



       41  See Alderson, 848 F.3d at 422–23 (stating that a delay may only be inferred by an
official’s conduct clearly preventing the prisoner from receiving prompt medical treatment);
Gobert, 463 F.3d at 346 (“The decision whether to provide additional treatment is a classic
example of a matter for medical judgment”). Wooding’s lack of medical training and reliance
on Rostollan’s expertise bolster this conclusion. See Davis v. Phillips, No. 5:15CV48, 2016 WL
11200220, at *2 (E.D. Tex. Dec. 13, 2016), report and recommendation adopted, No.
5:15CV48, 2017 WL 941925 (E.D. Tex. Mar. 10, 2017) (concluding that “prison officials are
entitled to rely on the opinions and conclusions of qualified medical providers” based on
holdings in the Fourth Circuit, Eighth Circuit, and various Texas district courts).
       42 See Gobert, 463 F.3d at 350–51 (holding no delay or denial of treatment when a
prison doctor deferred to the prior medical judgment of specialists and refused to provide
additional antibiotics until the injury worsened). If the ankle injury had dramatically
increased in severity between Rostollan’s treatment and Wooding’s conduct such that
Wooding would have effectively denied or delayed treatment for a new injury not previously
treated, our analysis may have been different. See id.
       43Cf. Alderson, 848 F.3d at 422–23 (stating that an official who ignored a prisoner’s
multiple requests for his prescribed medication may well have been deliberately indifferent).



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                                         No. 17-41183
weekend staff without causing “problems”—that is, in a compliant manner—
but he inexplicably chose not to. 44 Petzold cannot disguise his deliberate
inaction as Wooding’s deliberate indifference.
       To the extent Petzold alleges Wooding was deliberately indifferent by
failing to supervise Rostollan, this theory also fails because Rostollan did not
violate Petzold’s rights. 45 Because Petzold does not point to any factual
disputes underlying necessary elements of his deliberate-indifference claim
against Wooding, summary judgment is appropriate.

                                                IV
       We now address Petzold’s retaliation claims. “Prison officials may not
retaliate against prisoners for exercising their constitutional rights,” including
their “First Amendment right to file grievances.” 46 But to succeed on a
retaliation claim, the prisoner must overcome a “significant burden.” 47 The
prisoner must prove that (1) he or she exercised a constitutional right to which
(2) the official intended to retaliate against, and (3) the prisoner’s



       44   See id.; see Galvan v. Calhoun Cty., 719 F. App’x 372, 375 (5th Cir. 2018).
       45   Goodman, 571 F.3d at 395.
       46 Butts v. Martin, 877 F.3d 571, 588 (5th Cir. 2017). Petzold also packaged his First
Amendment retaliation claims in a Bivens wrapper. But the Supreme Court has only
recognized Bivens actions for certain Fourth, Fifth, and Eighth Amendment violations.
Abbasi, 137 S. Ct. at 1857 (chronicling the Court’s refusal to create an implied damages
remedy for new contexts or new categories of defendants). And, as First Amendment
retaliation claims are a “new” Bivens context, it is unclear—and unlikely—that Bivens’s
implied cause of action extends this far. Abbasi, 137 S. Ct. at 1859; Reichle v. Howards, 566
U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends to First Amendment
claims.”); Brunson v. Nichols, 875 F.3d 275, 278 n.3 (5th Cir. 2017) (collecting pre-Abbasi
cases and noting that a “First Amendment claim is likely a new [Bivens] context”). However,
because these constitutional questions are not “sensitive” or “far reaching,” and ordinary
summary-judgment principles bar the claims in any event, we need not address the Bivens
issue. Hernandez, 137 S. Ct. at 2007; see supra note 21.
       47   Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).



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                                         No. 17-41183
constitutional exercise caused (4) the official to commit a retaliatory act that
was more than de minimis. 48 To prove intent and causation, the prisoner must
at least establish a “chronology of events from which retaliation may be
plausibly inferred.” 49
                                              A
       The district court properly granted summary judgment on Petzold’s
retaliation claim against Rostollan. Though Petzold undeniably exercised his
First Amendment right to file grievances, there is no genuine factual dispute
as to whether Rostollan’s retaliatory acts amount to a cognizable retaliation
claim. They do not.
       We first clarify the retaliatory timeline. Viewing the chronology in
Petzold’s favor:
       1. Petzold filed grievances about the insulin line, grievances that
          the prison nurses (including Rostollan) disapproved of;
       2. Rostollan provided cursory medical treatment to Petzold’s
          ankle;
       3. Rostollan falsely reported Petzold’s “insolence” to Wooding
          which led to Petzold’s two-hour “dry cell” confinement;
       4. Rostollan filed a false incident report and a false discipline
          report against Petzold; and
       5. Petzold filed another grievance against Rostollan, who later
          made a statement adverse to Petzold while he was in the SHU.

The record shows three possible retaliatory acts committed by Rostollan: (1)
hurried medical treatment, (2) filing various false reports, and (3) making an
adverse statement. We address each in turn.



       48 See Butts, 877 F.3d at 588; Morris v. Powell, 449 F.3d 682, 684–85 (5th Cir. 2006)
(defining de minimis as “inconsequential”).
       49   Butts, 877 F.3d at 588–89.



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                                       No. 17-41183
      No reasonable jury could infer the requisite causation for Rostollan’s
provision of treatment in the insulin line. Rostollan did not conduct a
comprehensive exam of Petzold, to be sure. He rendered perfunctory and
nonspecific treatment. But these acts were dictated by the prison’s restrictive
protocol, not Rostollan’s retaliatory intent. 50 According to the prison’s
Assistant Health Services Administrator, prison policy is clear: “Unless an
inmate presents with a clear medical emergency (e.g., symptoms of a heart
attack      or   stroke,    unresponsiveness,    seizure,    obvious     broken    bone,
uncontrollable bleeding, etc.), the insulin and pill line is not the appropriate
place, nor means through which, to request medical treatment of an ankle
injury.” 51 Petzold does not argue his injury was serious enough to require
treatment in the insulin line per the prison guidelines. Nor does he present
competent evidence that, despite prison guidelines, prison nurses regularly
treat inmates in his situation such that he was treated atypically in
retaliation. 52 Absent such factual showings, no reasonable jury could find that
Rostollan’s acts were driven by a retaliatory motive, as opposed to the prison
protocol covering such situations. 53 Summary judgment was appropriate for
the alleged insulin-line retaliation as Petzold failed to demonstrate a genuine,




      50   See Bibbs, 541 F.3d at 273–74.
      51 Declaration of Commander Torrey Haskins at 2, Petzold v. Rostollan, No. 17–81183
(E. D. Tex. Dec. 19, 2016) (emphasis added).
      52 Though Petzold alleges that he once saw another inmate receive an Ace bandage
through the insulin line, we do not consider this evidence because it is an uncorroborated
“conclusional allegation.” Carnaby, 636 F.3d at 187.
      53 See Bibbs, 541 F.3d at 273–74. In fact, Petzold alleges that Rostollan was
“repeatedly” unprofessional to numerous inmates, showing that Rostollan’s alleged
abrasiveness was not unique to Petzold but was characteristically ubiquitous.



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                                          No. 17-41183
material factual dispute regarding causation, a necessary element of his
retaliation claim.
       But a reasonable jury could infer the requisite causation for Rostollan’s
false filings and adverse statement. Petzold shows specific factual evidence
demonstrating a genuine, material factual dispute underlying whether the
requisite intent and causation may be plausibly inferred for these retaliatory
acts. 54 There was a “tight[] chain of events” between the predicate events and
alleged retaliatory acts—ranging from less than an hour to almost a month. 55
And Rostollan, the nurse who was the implicit and explicit subject of Petzold’s
grievances, committed the allegedly retaliatory acts. 56 A reasonable jury could
plausibly infer intent and causation from this alleged chronology.
       Yet, even considering this inference in Petzold’s favor, no reasonable jury
could find that these “retaliatory” actions had consequences that were more
than de minimis. 57 The two hours spent in a dry cell because of the false
complaint were inconsequential. 58 Rostollan’s allegedly false medical report,
false disciplinary report, and adverse statement in the SHU had no
repercussions and were inconsequential. 59 As Petzold made no factual showing



       54   See Butts, 877 F.3d at 588.
       55Id. at 589 (reversing a grant of summary judgment on a retaliation claim in part
because of the two-hour gap between the filed grievance and alleged retaliatory acts).
       56 Bibbs, 541 F.3d at 273–74 (reversing a grant of summary judgment on a retaliation
claim in part because the guards who committed the retaliatory acts were the same guards
subject to the complaint).
       57   Morris, 449 F.3d at 684–85.
       58 See Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir. 1986) (reasoning that “a single
incident, involving a minor sanction” was not “sufficient” to classify as “harass[ent] [of] an
inmate in retaliation . . . .”).
       59Morris, 449 F.3d at 85 (stating that only “serious” allegations of retaliations are
legitimate).



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                                        No. 17-41183
of serious consequences, no reasonable jury could find that these acts were
cognizable. Summary judgment was thus appropriate.
                                               B
      Summary judgment was also proper on Petzold’s retaliation claim
against Williams. The record is clear that Petzold failed to exhaust his
administrative remedies as required by the Prison Litigation Reform Act. 60
      The PLRA’s exhaustion provision bars a prisoner’s claim if the prisoner
did not pursue all available administrative remedies before filing suit. 61 “Thus
federal prisoners suing under Bivens . . . must first exhaust inmate grievance
procedures just as state prisoners must exhaust administrative processes prior
to instituting a § 1983 suit.” 62 A prisoner exhausts all available administrative
remedies for a claim only if he or she (1) completes the prison’s grievance
process (2) in a manner “sufficiently specific to give ‘officials a fair opportunity
to address the problem that will later form the basis of the lawsuit.’ ” 63
      Petzold is subject to the Federal Bureau of Prison’s grievance process. 64
To meet the exhaustion requirement for his retaliation claim against Williams,
Petzold must have totally exhausted the Bureau’s four-step process—(1)
informal resolution, (2) formal administrative grievance (“step-one grievance”),
(3) regional appeal, and (4) national appeal. 65 As Petzold never filed a step-one




      60 Petzold undisputedly exhausted every other claim except for his retaliation claim
against Williams.
      61   42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002).
      62   Nussle, 534 U.S. at 524.
      63   Jones v. Bock, 549 U.S. 199, 218 (2007); Butts, 877 F.3d at 582.
      64   28 C.F.R. §§ 542.13–15.
      65   Id.



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                                          No. 17-41183
grievance that included his “sufficiently specific” retaliation claim against
Williams, this claim is barred by exhaustion.
       Petzold’s only argument is that, in his final step-one grievance, he
implicitly included his retaliation claim against Williams through his
statement, “[I] didn’t want to remain locked up in [the SHU] for an extended
period of time.” Petzold asserts that this statement sufficiently conveys the
factual basis for his retaliation claim against Williams and meets the
exhaustion requirement. But this statement doesn’t explicitly allege
retaliation; it doesn’t even mention Williams by name. 66 Even if we liberally
assume that this statement does vaguely include the Williams claim, it clearly
was not “sufficiently specific” to avoid Defendants’ exhaustion defense. 67
Petzold didn’t even allege that an official’s wrongful conduct was the reason he
was kept in the SHU. Petzold cannot seriously argue that Williams was on
notice of his alleged retaliation such that he had “fair opportunity to address
the problem.” 68 Exhaustion is a prerequisite to suit, and no reasonable jury
could find that Petzold exhausted his retaliation claim against Williams. 69

                                                 V
       In any event, and joining belt with suspenders, Defendants are entitled
to qualified immunity. “Qualified immunity shields government officials from
liability when they are acting within their discretionary authority and their



       66Butts, 877 F.3d at 583 (holding that the prisoner did not exhaust his claim when he
included a factual summary of the alleged violation but did not explicitly complain against
the prison official for the specific conduct).
       67   Id. at 582 (stating that this court strictly applies exhaustion).
       68   Jones, 549 U.S. at 218.
        Here, too, given the district court’s proper rejection of Petzold’s retaliation claim on
       69

exhaustion grounds, we need not reach whether it is a permissible basis for a Bivens claim.



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                                          No. 17-41183
conduct does not violate clearly established statutory or constitutional law of
which a reasonable person would have known.” 70 To rebut the qualified
immunity defense, a plaintiff must show two things: (1) the allegations make
out a violation, and (2) the violation was “clearly established” at the time of the
defendant’s conduct. 71
         Defendants here properly invoked qualified immunity. In response,
Petzold failed to show a material factual dispute as to whether Defendants
violated any constitutional rights, much less clearly established constitutional
rights. As for Petzold’s Eighth and First Amendment claims against Rostollan
and Wooding, Petzold did not produce—because he could not produce (as
discussed above)—any evidence showing the existence of a genuine issue for
trial. As for the claims aimed at Williams, and even setting aside the
dispositive exhaustion defense, Williams’s “retaliatory” actions surely did not
violate Petzold’s First Amendment right. Petzold alleges no competent
evidence that his grievance filings caused Williams to put him in the SHU. 72
Petzold thus failed to show a violation of law, clearly established or otherwise.
All to say, Defendants were entitled to qualified immunity.

                                          *      *      *
         The district court properly granted summary judgment in favor of
Defendants. We AFFIRM.



         70   Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 418 (5th Cir.
2008).
          Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015); see also Kovacic v. Villarreal,
         71

628 F.3d 209, 211 (5th Cir. 2010) (“Once a defendant invokes qualified immunity, the burden
shifts to the plaintiff to show that the defense is not available.”).
          See Butts, 877 F.3d at 588. To the contrary, the defendants produce undisputed
         72

evidence that Petzold’s placement in the SHU was “routine[]” and for the staffs’ and Petzold’s
protection.



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                                  No. 17-41183
ANDREW S. OLDHAM, Circuit Judge, concurring in the judgment:
      The Supreme Court has told us that “the Bivens question . . . is
antecedent to the other questions presented” in a case like this. Hernandez v.
Mesa, 137 S. Ct. 2003, 2006 (2017) (quotation omitted). “The Bivens question,”
of course, is whether Mr. Petzold has an implied cause of action under the
Eighth Amendment. I agree with the Court’s cogent explanation for why he
does not. Ante, at 6, n. 21 (discussing Ziglar v. Abbasi, 137 S. Ct. 1843, 1856–
58, 1865 (2017)); see Cantú v. Moody, 933 F.3d 414, 421–22 (5th Cir. 2019)
(quoting Abbasi, 137 S. Ct. at 1857) (noting that we are loath to engage in the
“disfavored judicial activity” of extending Bivens to a new set of facts). In my
view, that is the beginning and end of this case.
      It is true that, in the past, courts occasionally skipped the antecedent
Bivens question and rejected plaintiffs’ claims on the underlying constitutional
question. See, e.g., Wood v. Moss, 572 U.S. 744, 757 (2014) (skipping the Bivens
question because it was not preserved below and hence “not presented in [the
Supreme] Court”). But those cases came before Abbasi. And it is not clear that
we have the same liberty today. After Abbasi and Hernandez, once we
determine the plaintiff has no cause of action, we should say so and no more.
See Hernandez, 137 S. Ct. at 2007 (vacating our decision to skip the Bivens
question “in light of the intervening guidance provided in Abbasi”); cf. Chafin
v. Chafin, 568 U.S. 165, 172 (2013) (“Federal courts may not decide questions
that cannot affect the rights of litigants in the case before them or give opinions
advising what the law would be upon a hypothetical state of facts.” (quotation
omitted)).




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