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Fifth Circuit Reverses Dismissal of Federal Prisoner’s Retaliation, Conspiracy Claims

by Matthew Clarke

On November 15, 2017, the Fifth Circuit Court of Appeals reversed the dismissal of a Louisiana federal prisoner’s claims that prison officials conspired to retaliate against him for filing a grievance regarding power outages at his facility.

Derrick D.L. Brunson’s grievance expressed safety concerns related to several power outages at the federal prison where he was housed. Counselor K. Nichols told him the grievance interfered with staff members’ duties, and was potentially threatening to prison safety. She reported it to her supervisors, including Captain Valle, and charged Brunson with a disciplinary infraction.

As a result, he was placed in a Special Housing Unit (SHU) for three weeks pending his disciplinary hearing. At the hearing, Brunson was found guilty and sentenced to seven days of disciplinary segregation and forfeiture of three months’ privileges. He filed a pro se federal civil rights lawsuit pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging, among other claims, retaliation and conspiracy to retaliate against him for filing the grievance.

The district court dismissed all of Brunson’s claims on the grounds that the punishment was de minimus and insufficient to warrant a finding of retaliation. He appealed.

The Fifth Circuit noted that the district court had only taken into account Brunson’s seven days of disciplinary segregation without adding the 21 days of SHU confinement prior to his disciplinary hearing. Twenty-eight days of segregation was more than the 27 days of commissary and cell restriction the appellate court had previously held to be more than de minimus in a case raising retaliation claims, Hart v. Hairston, 343 F.3d 762 (5th Cir. 2003) [PLN, Nov. 2004, p.16].

Brunson alleged Nichols had complained that he was “just putting more work on [her] desk” by filing the grievance. That, together with the chronology of events and comments by Captain Valle, suggested “a retaliatory motivation is arguable.”

The Court of Appeals found that threatening statements made by Valle and another staff member, Lt. Carder, as well as manipulation of the disciplinary process by Valle, were “more than a conclusory allegation of conspiracy.” It also noted the disciplinary conviction was later expunged because ‘“the description of [the] incident [did] not support a code violation’ [which] also suggests that Nichols lacked any basis for initiating the charge.”

In summary, the Court held Brunson had alleged facts supporting plausible claims of retaliation and conspiracy; therefore, it vacated the dismissal of the retaliation claim against Nichols and the conspiracy claims against Captain Valle and Lt. Carder, but affirmed the dismissal of all remaining claims.

Brunson represented himself on appeal; the case remains pending on remand. See: Brunson v. Nichols, 875 F.3d 275 (5th Cir. 2017). 


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Related legal case

Brunson v. Nichols