Derrick Brunson v. K. Nichols ( 2017 )


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  •      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.
    Case: 14-31350     Document: 00514238546     Page: 2   Date Filed: 11/15/2017
    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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    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.
    6