DERRICK D. L. BRUNSON, Plaintiff - Appellant
K. NICHOLS; LEWIS; M. WHITE; CAPTAIN VALLE; LIEUTENANT CARDER; DAVIS; UBANKS; UNITED STATES OF AMERICA, Defendants - Appellees
from the United States District Court for the Western
District of Louisiana.
JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District
GRADY JOLLY, Circuit Judge
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 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
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.
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.
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. Concordia Par. Corr.
Facility, 848 F.3d 415, 419 (5th Cir. 2017). "[W]e
construe pro se pleadings liberally." Id.
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). 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.
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 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.
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
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 ...