IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31350

DERRICK D. L. BRUNSON, 

 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. 

United States Court of Appeals

Fifth Circuit

FILED

November 15, 2017

Lyle W. Cayce

Clerk

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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 

 

1 See 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.

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