Derrick Brunson v. K. Nichols
875 F.3d 275
| 5th Cir. | 2017Background
- Brunson, a federal inmate, filed a Bivens and FTCA suit after filing a grievance about prison power outages and safety concerns.
- Counselor K. Nichols reported Brunson allegedly made a threat; she informed supervisors (Lewis and Capt. Valle) and prepared an incident report, triggering disciplinary proceedings.
- Brunson was placed in the SHU for 21 days pending a hearing, then sanctioned with 7 days disciplinary segregation and 3 months loss of privileges; the violation was later expunged.
- The district court dismissed all Bivens claims for failure to state a claim (including retaliation and conspiracy) and dismissed the FTCA claim for lack of jurisdiction; it did not address bystander liability.
- On appeal, the Fifth Circuit reviewed de novo, construed pro se pleadings liberally, and found Brunson plausibly alleged retaliation and conspiracy but affirmed dismissal of other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether alleged punishment was de minimis for First Amendment retaliation | Brunson: 21 days in SHU + 7 days segregation and loss of privileges is more than de minimis and would chill filing grievances | Defendants: The seven days of segregation (before expungement) was de minimis; only the incident report was attributable to Nichols | Court: The total ~28 days (21 SHU + 7 segregation) is more than de minimis and could deter an ordinary person from exercising rights; reversed dismissal on retaliation |
| Whether Brunson pleaded causation for retaliation (retaliatory motive caused discipline) | Brunson: Chronology and statements (Nichols complained about extra work; Valle’s remark about getting DHO to articulate violation; charge later expunged) infer retaliatory motive causing discipline | Defendants: No direct causal link between Nichols’s report and later segregation; only the incident report by Nichols | Court: Allegations suffice to plausibly infer "but for" causation; claim survives pleading stage |
| Whether conspiracy claims were merely conclusory | Brunson: Visits and statements by Capt. Valle and Lt. Carder, DHO changing charges, indicate agreement to retaliate | Defendants: Allegations are conclusory and insufficient to show an agreement | Court: Facts alleged (comments, coordination, changed charge) plausibly state a conspiracy; reversed dismissal on conspiracy |
| Whether Bivens remedy is available in this context | Brunson: Asserting Bivens provides a remedy for First Amendment retaliation by federal officers | Defendants: Not addressed below; government could contest Bivens availability | Court: Declined to decide Bivens availability on merits; noted Ziglar v. Abbasi and Hernandez v. Mesa counsel that Bivens extension is an antecedent issue for district court to consider on remand |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (recognized implied damages remedy against federal officers for constitutional violations)
- Morris v. Powell, 449 F.3d 682 (5th Cir. 2006) (retaliation actionable only if it would deter a person of ordinary firmness)
- Hart v. Hairston, 343 F.3d 762 (5th Cir. 2003) (commissary and cell restrictions held more than de minimis)
- Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995) (retaliation requires but-for causation and chronology inference)
- Hay v. City of Irving, Tex., 893 F.2d 796 (5th Cir. 1990) (conspiracy requires agreement to commit illegal act causing injury)
- McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989) (conclusory conspiracy allegations insufficient)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (cautioning against extending Bivens to new contexts)
- Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (noting the availability of a Bivens remedy is an antecedent question)