James Solomon v. Deputy U.S. Marshal Thomas

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-1635

___________________________

James Clayton Solomon

lllllllllllllllllllll Plaintiff - Appellee

v.

Hunter Petray, Captain, Benton County Detention Center; Sheriff Keith Ferguson;

Sgt. Tomlin; Sgt. Robbins; Sgt. Torrez; Deputy Johnson; Deputy Johnston;

Deputy Morrison; Deputy Roland; Deputy Rankin; Deputy Wales; Deputy

Elkington; Deputy Lockhhart; Deputy Engleman; Deputy Wright; Deputy Fry;

Deputy Reyes; Deputy Holly; Deputy Carlton; Deputy Lowther; Deputy Duncan;

Deputy Hernandez; Deputy Bryson; Major Gene Drake; Lt. Carter; Sgt. Vaughn

lllllllllllllllllllll Defendants

Deputy U.S. Marshal Cory Thomas; Deputy U.S. Marshal Susan Jones

lllllllllllllllllllll Defendants - Appellants

John Does, Unknown U.S. Marshals; Benton County Deputy Stickland

lllllllllllllllllllll Defendants

____________

Appeal from United States District Court

for the Western District of Arkansas - Fayetteville

____________

Submitted: April 13, 2015

Filed: July 29, 2015

____________

Before BYE, BEAM, and SMITH, Circuit Judges.

____________

SMITH, Circuit Judge.

United States Marshals Susan Jones and Cory Thomas appeal the district

court's1 denial of summary judgment to dismiss James Solomon's Bivens2 civil-rights

lawsuit against them. The district court held that, according to the facts as pleaded by

Solomon, Jones and Thomas were not entitled to qualified immunity against

Solomon's excessive force claim. We affirm.

I. Background

In January 2008, Solomon was convicted of violating the terms of his

supervised release in the Western District of Arkansas. The court sentenced him to

five years' imprisonment and allowed him to voluntarily surrender himself to the

custody of the United States Marshals on or before April 2, 2008. In February 2008,

Solomon instead absconded. Before doing so, Solomon wrote a letter in which he

stated his hope that the Honorable Jimm Larry Hendren, then Chief Judge of the

Western District of Arkansas, "dies of a slow and painful disease." He sent the letter

to Judge Hendren's chambers and a local newspaper, which subsequently published

the letter. Solomon was later apprehended in Los Angeles on April 10, 2008, and was

charged with failing to surrender himself by April 2.

1

The Honorable J. Leon Holmes, United States District Judge for the Eastern

District of Arkansas, sitting by assignment in the United States District Court for the

Western District of Arkansas.

2

Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971).

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Marshals transported Solomon to the Oklahoma City Federal Transfer Center

in Oklahoma City, Oklahoma. On April 25, 2008, Solomon was then driven from

Oklahoma City to Fort Smith, Arkansas, by Marshal Susan Jones, who was

accompanied by a contract guard. According to Solomon's addendum to his pro se

complaint, "[w]hen [he] was transported from Oklahoma [City] Federal Transfer

Center by Marshals they showed [him] their copy of the letter and said [he]'d 'pay for

writing that type of letter to the judge.'"

After arriving in Fort Smith, Solomon was then transferred to the Benton

County Criminal Detention Center (BCCDC). According to Solomon's addendum,

while marshals were driving him to the BCCDC, Solomon recognized the route they

were taking was not to a local detention center as he had anticipated. When Solomon

asked the marshals where they were going, they responded that he was being

transported to the BCCDC. They said that going to the BCCDC "was like going to

hell [because] they were known for their abusive handling practices." According to

Solomon, the marshals also told him that he would get "'special treatment' at BCCDC

'cause they'd make sure of it." During this trip, the marshals also allegedly told

Solomon that he "should never have written that letter to the judge and they were

going to make sure [he] was punished for that letter." In a later motion, Solomon

alleged that "[o]n or about [the] time" that Marshals told him he was being

transported to the BCCDC, Marshal "Cory Thomas struck [Solomon] with a blow to

the lower body, causing [his] knees to buckle. [Solomon] stated that he received

medical treatment for his injuries."

After a few days at the BCCDC, Solomon alleged in his complaint that he "was

handcuffed in the middle of the night . . . and a dark cloth was slipped over [his] head

and he was . . . carried out of his cell . . . into a hallway and then into another room

and given a 'blanket-party' by the deputies." Solomon believed that a blanket party

refered to a beating in which the assailants wrap the victim in a blanket so that the

victim cannot see or identify the assailants. Solomon further alleged that "[t]he

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deputies told [him], 'that one's for the marshals' or something to that effect to let [him]

know the U.S. Marshal Service asked them to give [him] the 'blanket party.'"

Solomon brought this Bivens action pro se against Jones and Thomas, among

others.3 Solomon alleged Jones and Thomas "violated [his] civil rights

. . . guarantee[ing] due process and to be free of excessive force"; Solomon did not

offer further specifics. Solomon's complaint also alleged that the Marshals Service

sent Solomon to the BCCDC to retaliate against Solomon for the letter he wrote to

Judge Hendren.

Jones and Thomas filed separate motions to dismiss, or in the alternative,

motions for summary judgment. Jones and Thomas both argued that Solomon's

complaint failed to state a claim against them because they were not responsible for

transporting Solomon from Fort Smith to the BCCDC. They both submitted a

declaration from Mark Spellman, the Supervisory Deputy United States Marshal of

the Western District of Arkansas ("Spellman Declaration"). In his declaration,

Spellman indicated that neither Jones nor Thomas were responsible for deciding

where Solomon would be housed. Further, the Spellman Declaration averred that

BCCDC deputies transported Solomon from Fort Smith to the BCCDC. Of the two

marshals, only Jones had actually transported Solomon, and she transported Solomon

from Oklahoma City to Fort Smith. Therefore, Jones and Thomas moved for dismissal

because they could not have made the threats alleged by Solomon during his transport

from Fort Smith to the BCCDC or otherwise arranged for the blanket party at the

BCCDC. Additionally, both Jones and Thomas moved for dismissal based on

qualified immunity.

3

Solomon also brought actions against several deputies of the BCCDC and

other state officials under 42 U.S.C. § 1983. See Gordon v. Hansen, 168 F.3d 1109,

1113 (8th Cir. 1999) (per curiam) ("An action under Bivens is almost identical to an

action under section 1983, except that the former is maintained against federal

officials while the latter is against state officials." (quotation and citation omitted)).

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The district court, pursuant to Rule 12(d) of the Federal Rules of Civil

Procedure, treated the motions as those for summary judgment because he considered

"matters outside the pleadings" by considering the Spellman Declaration. See Fed. R.

Civ. P. 12(d). The court construed the facts in the light most favorable to Solomon but

also made factual findings consistent with the undisputed Spellman Declaration that

Jones and Thomas were not responsible for assigning Solomon to the BCCDC and

that neither were present during Solomon's transportation from Fort Smith to the

BCCDC. The court denied summary judgment stating "Solomon correctly notes that

his complaint against [Jones and Thomas] does not depend upon a finding that they

transported him from the federal building in Fort Smith to the [BCCDC]."

Jones and Thomas appealed the decision to this court. Solomon v. Petray, 699

F.3d 1034, 1038 (8th Cir. 2012). Thomas did not challenge the district court's

declination to dismiss Solomon's excessive-force claim. In his appellate briefing,

Thomas applied Anthony v. Runyon, 76 F.3d 210, 214 (8th Cir. 1996), and concluded

that "Solomon has raised a[n excessive-force] claim which on its face is not subject

to dismissal at this time." We ultimately remanded the case back to the district court

"for a more detailed consideration of the claims of qualified immunity." Solomon, 699

F.3d at 1038. We found that there was a "complete absence in the order of any

explicit reference to, or analysis of, Jones's and Thomas's claims of qualified

immunity which leaves us unable to determine whether the district court even

considered the issue of qualified immunity before denying the motions for summary

judgment." Id. at 1039.

On remand, the district court first discussed the Spellman Declaration.

"Because the record conclusively demonstrates that Thomas and Jones did not decide

that Solomon would be detained in the [BCCDC] and did not transport him there,"

the district court granted summary judgment on Solomon's claims that Thomas and

Jones assigned Solomon to the BCCDC in retaliation for his letter to Judge Hendren.

Additionally, the court found that Thomas and Jones could not have leveled any of

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the alleged threats against Solomon while being transported to the BCCDC because

the record indicated that they were not involved in this leg of Solomon's

transportation.

After granting summary judgment on these claims, the court next took the

"opportunity to clarify" Solomon's remaining cognizable claims in the pro se

complaint and addendum. The court found that

Solomon is in essence claiming that Jones and Thomas retaliated against

Solomon for writing the letter regarding Judge Hendren by asking

Benton County officers to beat and abuse Solomon and that Thomas

physically abused him. Construing Solomon's pro se complaint liberally,

these allegations can be viewed as distinct claims: (1) claims against

Jones and Thomas that they retaliated against Solomon for writing the

letter; (2) a claim against Jones that she conspired to commit excessive

force on Solomon; and (3) a claim that Thomas committed excessive

force on Solomon.

The court again analyzed the motions as those for summary judgment and

found that Jones and Solomon were not entitled to qualified immunity for any of

Solomon's remaining claims. As to the first claim of retaliation, the court found that

Solomon's letter was protected speech or expression. Thus, Jones and Thomas were

not entitled to qualified immunity because the facts as pleaded showed that they

deprived Solomon of his right to be free from retaliation for engaging in this

constitutional right. The court found that Solomon had pleaded sufficient facts to link

Jones with the alleged blanket party. Solomon alleged that during his transport from

Oklahoma City to Fort Smith, with Jones present as confirmed by the Spellman

Declaration, the marshals showed Solomon a copy of his letter and said that he would

pay for writing it. Later, he suffered the adverse action of a blanket party. Solomon

alleged that BCCDC deputies attributed the abuse to a request from the marshals. The

district court found that these alleged facts, when taken in the light most favorable to

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Solomon, were sufficient to show that Jones was not entitled to qualified immunity.

In regard to Thomas, the court accepted the facts alleged by Solomon that Thomas

struck Solomon for writing the letter. Thus, the court concluded that Thomas was not

entitled to qualified immunity on Solomon's retaliation claim because he also

deprived Solomon of his constitutional right to be free from retaliation for exercising

his First Amendment right of freedom of expression.

As to the second claim against Jones for conspiracy to commit excessive force,

the court also found that Jones was not entitled to qualified immunity. The court

found that Jones's alleged threat during Solomon's transportation from Oklahoma City

to Fort Smith and the BCCDC deputies' alleged statements during the blanket party

could lead reasonable jurors to believe there was an implied agreement between Jones

and the BCCDC deputies to deprive Solomon of his constitutional right to be free

from excessive force. Thus, the district court determined that Jones was not entitled

to qualified immunity on Solomon's conspiracy-to-commit-excessive-force claim

because the alleged facts were sufficient to show she deprived Solomon of an

established constitutional right.

As to the third claim against Thomas for use of excessive force, the court found

that it need not analyze whether to grant summary judgment on the basis of qualified

immunity because Thomas conceded in his briefing to this court that the excessive-

force claim was "not subject to dismissal at this time." The district court determined

that Thomas's concession that the excessive-force claim was not subject to dismissal

relieved the court from having to consider the issue of dismissal on the basis of

qualified immunity.

II. Discussion

Jones and Thomas appeal the district court's denial of qualified immunity. They

argue that they are entitled to qualified immunity based on the Spellman Declaration

and the insufficient facts pleaded in Solomon's complaint and addendum.

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Additionally, they seek remand to the district court for clarification on its findings

regarding Solomon's excessive-force claim against Thomas and to allow for limited

discovery.

A. Jurisdiction

As a preliminary matter, we must determine whether this court has jurisdiction

to hear this interlocutory appeal. See Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009)

("Subject-matter jurisdiction cannot be forfeited or waived and should be considered

when fairly in doubt." (citation omitted)). An order denying qualified immunity is

immediately appealable if it turns on a question of law, meaning the application of

qualified immunity principles. Aaron v. Shelley, 624 F.3d 882, 883–84 (8th Cir.

2010). Thus, we have jurisdiction to review the merits of an appeal when a defendant

"principally challenges the district court's application of qualified immunity

principles to the established summary judgment facts." Jones v. McNeese, 675 F.3d

1158, 1161 (8th Cir. 2012). Accordingly, we will examine Jones's and Thomas's

arguments on appeal and discern if they raise issues of law or issues of disputed facts.

In this appeal, Jones and Thomas argue that the district court should have

granted qualified immunity because the facts, as pleaded by Solomon, do not show

a violation of clearly established rights. Jones and Thomas state that "[f]or the

purpose of this appeal, there are no disputed facts . . . to determine." The issue then

is "whether [the facts pleaded by Solomon] (undisputed for the purpose of this

appeal) and any reasonable inferences therefrom . . . show[] a violation of 'clearly

established' law." Specifically, Thomas first argues that the district court erred in

denying him qualified immunity as to Solomon's retaliation claim because there are

no facts showing that Thomas's alleged blow was causally related to Solomon's

exercise of his free expression rights. Similarly, Jones argues that the district court

erred in denying her qualified immunity as to Solomon's retaliation claim against her

because the facts as pleaded by Solomon fail to provide any causal relation between

her alleged threats and the blanket party at the BCCDC. Finally, for the same reason,

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Jones also argues that the district court erred by denying her qualified immunity as

to Solomon's conspiracy claim.

The question of "whether the uncontested evidence demonstrates that [the

defendants] violated a clearly established constitutional right" is "a legal issue falling

squarely within our limited interlocutory appellate jurisdiction." Brown v. Fortner,

518 F.3d 552, 557 (8th Cir. 2008). "To be sure, the resolution of th[is] legal issue[]

will entail consideration of the factual allegations that make up the plaintiff's claim

for relief . . . ." Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). Whether a

constitutional violation occurred is a question of law based on underlying facts; here,

we find that Jones and Thomas challenge whether the underlying facts, when properly

construed, amount to violations of Solomon's constitutional rights.4 This is within the

limited scope of our interlocutory review of a district court's denial of qualified

immunity.

B. Qualified Immunity

4

We reject Solomon's argument that Jones's and Thomas's argument should not

be considered on appeal because it was not first raised before the district court.

McBurney v. Stew Hansen's Dodge City, Inc., 398 F.3d 998, 1002 (8th Cir. 2005)

("Absent exceptional circumstances we will not consider arguments raised for the

first time on appeal." (citation omitted)). Our review of the record reveals that Jones

and Thomas questioned whether the facts pleaded in Solomon's complaint and

addendum were enough to support constitutional violations. Each of Jones's and

Thomas's motions to dismiss, or in the alternative, for summary judgment contained

sections entitled "Qualified Immunity," which argued in part that "[u]nless the

plaintiff’s allegations state a claim of violation of clearly established law, a defendant

pleading qualified immunity is entitled to dismissal before commencement of

discovery." (Citing Mitchell, 472 U.S. at 526.) This adequately preserved their current

arguments for appeal.

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We review de novo the district court's denial of summary judgment on qualified

immunity grounds.5 See Brown, 518 F.3d at 558 (citation omitted). To determine if

Jones and Thomas are "entitled to qualified immunity, we must conduct a two-step

inquiry: (1) [whether] the facts, viewed in the light most favorable to the plaintiff,

demonstrate the deprivation of a constitutional or statutory right; and (2) [whether]

the right was clearly established at the time of the deprivation." Jones, 675 F.3d at

1161 (alterations in original) (quotation and citation omitted). In making this

determination, we must also "afford [Solomon] all reasonable inferences to be drawn

from [the] record." Davis v. Hall, 375 F.3d 703, 711 (8th Cir. 2004) (citation

omitted). Jones and Thomas only challenge the first step by arguing that the facts as

pleaded by Solomon are insufficient to show that his constitutional rights were

violated.

We have instructed that district courts "'must take a careful look at the record,

determine which facts are genuinely disputed, and then view those facts in a light

most favorable to the non-moving party as long as those facts are not so blatantly

contradicted by the record . . . that no reasonable jury could believe [them].'" Jones,

675 F.3d at 1161–62 (alterations in original) (quotation marks omitted) (quoting

O'Neil v. City of Iowa City, Iowa, 496 F.3d 915, 917 (8th Cir. 2007)). On appeal, "we

[then] look at 'whether the official is entitled to qualified immunity based on the

summary judgment facts as described by the district court.'" Id. at 1162 (quoting

Nelson v. Shuffman, 603 F.3d 439, 446 (8th Cir. 2010)).

5

As a preliminary matter, Jones and Thomas challenge the district court's

treatment of their motions to dismiss as motions for summary judgment. "This court

reviews a district court's decision to convert a Rule 12(b)(6) motion to dismiss into

a motion for summary judgment for abuse of discretion." Hamm v. Rhone-Poulenc

Rorer Pharm., Inc., 187 F.3d 941, 948 (8th Cir. 1999) (citation omitted). We find no

abuse of discretion in the court's conversion given its consideration of the Spellman

Declaration, which amounts to the consideration of evidence outside of the pleadings.

See Fed. R. Civ. P. 12(d).

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Jones and Thomas emphasize the Spellman Declaration throughout their brief.

They assert that it proves that Jones and Thomas had no role in deciding where

Solomon was housed and did not transport Solomon from Fort Smith to the BCCDC.

Given the uncontested testimony contained in the Spellman Declaration, the court

correctly granted Jones and Thomas summary judgment on Solomon's claims alleging

that they sent him to the BCCDC in retaliation for writing the letter to Judge Hendren.

The court also correctly granted Thomas and Jones qualified immunity from any

liability that could be associated with the alleged threats made to Solomon while

being transported from Fort Smith to the BCCDC. As the district court recognized,

however, the Spellman Declaration does not end the matter. Solomon's claims are not

solely premised on threats made during his transportation to the BCCDC. Quite the

contrary, the district court determined that the facts as pleaded by Solomon still

alleged several cognizable claims against Thomas and Jones for an alleged physical

blow, threats made during his transportation from Oklahoma City to Fort Smith, and

the so-called blanket party at the BCCDC.

1. Retaliation Claims

"To prevail on a retaliation claim, [Solomon] must show 1) he engaged in a

protected expression, 2) he suffered an adverse action, and 3) the adverse action was

causally related to the protected expression." Nelson, 603 F.3d at 450 (citation

omitted). Jones and Thomas focus on the third element, arguing that Solomon has not

pleaded facts that would allow a reasonable jury to find a causal connection between

Solomon's protected expression and the adverse actions he suffered.

a. Thomas

Thomas first argues that the district court erred in its construction of Solomon's

claim. Specifically, Thomas contends that his alleged blow to Solomon "is a claim of

'excessive force' only, not retaliation." Pursuant to the Prison Litigation Reform Act,

district courts are charged to review prisoner complaints and to "identify cognizable

claims or dismiss the complaint." 28 U.S.C. § 1915A(b). As a pro se petitioner,

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Solomon's complaint and addendum are to be given liberal construction. "When we

say that a pro se complaint should be given liberal construction, we mean that if the

essence of an allegation is discernible . . . then the district court should construe the

complaint in a way that permits the layperson's claim to be considered within the

proper legal framework." Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

Solomon's factual allegations against Thomas assert the following:

Defendants told [Solomon] that he was going to "hell" in retaliation for

a letter he wrote to Judge Hendren. Defendants also said that he would

"pay for writing that type of letter to the judge." On or about this time,

Defendant Cory Thomas struck [Solomon] with a blow to the lower

body . . . .

Thomas would have us reverse the district court's determination that these facts allege

a retaliation claim. Under a liberal construction, we find these facts are enough to

state a cognizable retaliation claim. Solomon pleaded that Thomas struck him while

or shortly after unnamed defendants leveled threats against Solomon "in retaliation"

for his protected expression. We hold that the district court did not err by liberally

construing Solomon's facts to allege that Thomas's blow was a retaliation for

Solomon's alleged expression about Judge Hendren.

Thomas also argues that even if Solomon has pleaded a retaliation claim that

Solomon has not pleaded specific facts to fulfill the third element of such a claim:

that the adverse action of Thomas's blow was causally related to Solomon's protected

expression. We disagree. Applying the appropriate review standard, we find that the

facts as pleaded do allege that Thomas's adverse action was in retaliation to

Solomon's protected expression. While Solomon's pro se complaint and addendum

did not expressly connect the dots, these documents clearly allege that Thomas's blow

occurred during an episode in which others were threatening Solomon for his

protected expression.

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Thomas argues that such a holding requires this court to "supply additional

facts" or "construct a legal theory for [Solomon] that assumes facts that have not been

pleaded." Stone, 364 F.3d at 914 (quotation and citation omitted). We disagree. As

with all motions for summary judgment, we simply construe the facts in the light most

favorable to the non-moving party and afford him all reasonable inferences supported

by the record. See Jones, 675 F.3d at 1161–62.

Thomas's argument for qualified immunity fails because the facts and

reasonable inferences allege that Thomas violated Solomon's constitutional right to

be free from retaliation for exercising his right to expression. See Nelson, 603 F.3d

at 450. This right is clearly established as "[i]t is well-settled that 'as a general

matter[,] the First Amendment prohibits government officials from subjecting an

individual to retaliatory actions . . . on the basis of his constitutionally protected

speech.'" Osborne v. Grussing, 477 F.3d 1002, 1005 (8th Cir. 2007) (third alteration

in original) (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)).

b. Jones

Next, Jones similarly argues that she is entitled to qualified immunity as to

Solomon's retaliation claim. She avers that Solomon failed to allege facts that show

that the allegedly planned blanket party was causally related to Jones's threat that

Solomon would pay for writing the letter to Judge Hendren. She claims that the

district court resorted to speculation that Jones was in any way responsible for the

blanket party perpetrated by the BCCDC deputies.

"As with any summary judgment motion, while we are required to make all

reasonable inferences in favor of the non-moving party, we do not resort to

speculation." Brown, 518 F.3d at 558 (citing Twymon v. Wells Fargo & Co., 462 F.3d

925, 934 (8th Cir. 2006)); see also ACT, Inc. v. Sylvan Learning Sys., Inc., 296 F.3d

657, 666 (8th Cir. 2002) (stating that non-moving parties are not entitled "to the

benefit of unreasonable inferences, those that amount to nothing more than mere

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conjecture" (citation omitted)). Thus, Jones argues that the district court relied upon

mere speculation and conjecture guised as reasonable inferences to bridge the gap

between her alleged threats and the alleged blanket party.

We disagree. The facts as pleaded by Solomon, while thin, enable a jury to

draw a reasonable inference that Jones used the alleged blanket party to retaliate

against Solomon for his protected expression. Solomon pleaded that during his

transportation from Oklahoma City to Fort Smith, a marshal showed him a copy of

the letter he wrote to Judge Hendren and told him he was going to pay for writing the

letter. As the Spellman Declaration indicates, Jones was one of two people assigned

to this transportation duty; of the two, she was the only marshal. Solomon further

alleged that deputies from the BCCDC gave him a blanket party during which a

deputy stated "that one's for the marshals' or something to that effect to let [Solomon]

know the U.S. Marshal Service asked them to give [him] the 'blanket party.'" The

district court found that the record could support a reasonable inference that the one

named marshal alleged to have threatened Solomon for his protected expression was

plausibly involved in making good on her threat.

Jones contends that this court should nonetheless reject this reasonable

inference of misconduct because there are equally plausible inferences that "more

likely [are] explained by[] lawful . . . behavior." Iqbal, 556 U.S. at 680 (citation

omitted). Jones argues that her alleged threat that Solomon would pay for writing his

letter to Judge Hendren is more likely explained as an acknowledgment that Solomon

would be punished for absconding. Additionally, Jones contends that her threat can

be more likely explained by her knowledge of the Sentencing Guidelines; thus,

Solomon would "pay" because the letter would likely prevent him from taking

advantage of a 2-level decrease in his total offense level pursuant to Guidelines §

3E1.1 for accepting responsibility for absconding. Jones's inferences are indeed

plausible but not necessarily more likely and hence more suited for a jury to evaluate

than this court.

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Therefore, Jones's argument for qualified immunity fails because the facts as

pleaded by Solomon and the reasonable inferences afforded in his favor allege that

Jones violated Solomon's constitutional right to be free from retaliation for exercising

his right to expression.6

2. Conspiracy Claim Against Jones

To prevail on his claim that Jones conspired to deprive him of his constitutional

rights, Solomon must show "[(1)] that the defendant conspired with others to deprive

him . . . of a constitutional right; [(2)] that at least one of the alleged co-conspirators

engaged in an overt act in furtherance of the conspiracy; and [(3)] that the overt act

injured the plaintiff." Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999) (citation

omitted) (discussing a claim brought against state actors under 42 U.S.C. § 1983).7

6

In passing, Jones and Thomas argue that they are entitled to summary

judgment on Solomon's Bivens claim for retaliation because Solomon fails to plead

factual allegations of personal participation in the alleged constitutional violations.

See Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to Bivens and

§ 1983 suits, a plaintiff must plead that each Government-official defendant, through

the official's own individual actions, has violated the Constitution."); Estate of

Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (finding that a prison's warden

and associate warden were not liable for his supervision of prison employees who

allegedly deprived the plaintiff of his constitutional rights). We reject this argument

because the facts pleaded by Solomon are sufficient to establish personal participation

of both Jones and Thomas in the deprivation of Solomon's constitutional rights. Jones

allegedly threatened Solomon, and Solomon later suffered a beating at the hands of

BCCDC deputies who indicated that unnamed marshals requested the beating.

Thomas personally struck Solomon while Solomon was being threatened by unnamed

marshals for writing the letter to Judge Hendren. These facts are sufficient to plead

that Jones and Thomas personally participated in the deprivation of Solomon's rights.

7

As a general rule, Bivens claims and § 1983 claims are almost identical and

involve the same analysis. See Gordon, 168 F.3d at 1113 ("An action under Bivens

is almost identical to an action under section 1983, except that the former is

maintained against federal officials while the latter is against state officials." (citation

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Here, the district court found that Solomon pleaded sufficient facts that adequately

alleged that Jones conspired with BCCDC deputies to deprive Solomon of his

constitutional right to be free from excessive force. Jones challenges this finding

because she argues that Solomon has failed to plead facts that establish the first

element: that she conspired with BCCDC deputies.

For largely the same reasons stated above regarding Solomon's retaliation claim

against Jones, we disagree with Jones's argument. It is true that Solomon's complaint

and addendum did not explicitly state that Jones entered into an agreement with

BCCDC deputies, as might normally be required to plead a conspiracy claim. See

Murray v. Lene, 595 F.3d 868, 870 (8th Cir. 2010) ("A conspiracy claim . . . requires

allegations of specific facts tending to show a 'meeting of the minds' among the

alleged conspirators." (citations omitted)). The question of whether a conspiracy

exists "'to deprive the plaintiffs of their constitutional rights[, however,] should not

be taken from the jury if there is a possibility the jury could infer from the

circumstances a 'meeting of the minds' or understanding among the conspirators to

achieve the conspiracy's aims.'" White v. McKinley, 519 F.3d 806, 816 (8th Cir. 2008)

(quoting Larson by Larson v. Miller, 76 F.3d 1446, 1458 (8th Cir. 1996)). Further,

Because "the elements of a conspiracy are rarely established through

means other than circumstantial evidence, and summary judgment is

only warranted when the evidence is so one-sided as to leave no room

for any reasonable difference of opinion as to how the case should be

decided . . . [t]he court must be convinced that the evidence presented

is insufficient to support any reasonable inference of a conspiracy."

Id. (quoting Westborough Mall, Inc. v. City of Cape Girardeau, 693 F.2d 733, 743

(8th Cir. 1982)). We agree with the district court that a liberal construction of

omitted)); Duffy v. Wolle, 123 F.3d 1026, 1037 (8th Cir. 1997) (recognizing that the

§ 1983 body of law applies to Bivens actions).

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Solomon's pro se complaint would allow a reasonable jury to find that Jones entered

an implicit agreement with BCCDC deputies to give Solomon a blanket party.

Solomon pleaded that while he was being transported from Oklahoma City to Fort

Smith, marshals showed him a copy of the letter Solomon wrote to Judge Hendren

and told him that he would pay for writing the letter. The Spellman Declaration

established that Jones was the only marshal who was involved in this leg of

Solomon's transportation. Solomon further alleges that he was given a blanket party

by BCCDC deputies who specifically mentioned that they were doing so at the

request of the marshals. While these facts, taken together, are thin, they are

nonetheless sufficient for a pro se litigant to survive summary judgment on qualified

immunity grounds. If such facts were presented to a jury, they could reasonably infer

that the one marshal who threatened that Solomon would suffer repercussions for

writing the letter to Judge Hendren agreed with BCCDC deputies to bring about those

repercussions.

Jones relies on Gometz v. Culwell, 850 F.2d 461 (8th Cir. 1988), to support her

argument that the facts as pleaded are not sufficient to plead a constitutional

violation. In Gometz, we reversed a denial of summary judgment because the record

did not contain any facts showing that a public official entered an agreement with

coconspirators to deprive the habeas petitioner of his constitutional rights. Id. at

463–64. Randy Gometz alleged that Deputy United States Marshal Wilson Culwell

conspired with prison officials to beat the petitioner "to prevent and then punish him

for testifying" as a defense witness for fellow federal inmates. Id. at 462. Gometz

alleged that Culwell tried to intimidate him in a holding cell by physically assaulting

him and making verbal threats that he would "make sure he gets his." Id. Upon

returning to the prison after giving his testimony, Gometz alleged he was attacked by

prison guards. Id. Thus, Gometz tied Culwell's verbal threats with the attack to allege

a conspiracy. Id. at 463. We found that "[t]his evidence, evaluated in conjunction with

all reasonable inferences which can be drawn from other facts presented,

demonstrates the lack of a genuine issue of material fact." Id. Gometz, however, is

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distinguishable. First, "even after extensive discovery, Gometz . . . produced

insufficient evidence of any agreement between Deputy Culwell and [prison guards]

to retaliate against Gometz." Id. at 464 (emphasis added). At this stage of the

proceedings in the instant case, Solomon has not benefitted from discovery to

uncover specific facts proving Jones entered into a conspiracy with BCCDC deputies.

Second, "the statement allegedly made by Deputy Culwell and the altercation at [the

prison]—is simply not sufficient for a reasonable jury to return a verdict for Gometz."

Id. Solomon's facts, on the other hand, allege both a threat from Jones and a

confirmation from BCCDC deputies that they were beating Solomon on behalf of the

marshals. This alleged admission by the BCCDC deputies is more than the petitioner

could present in Gometz; it serves as the crucial connecting link that would support

a jury's reasonable inference that Jones entered into an agreement with BCCDC

deputies to deprive Solomon of his constitutional right to be free from excessive

force. Third, Gometz did not involve a pro se litigant. Thus, we agree with the district

court that Jones is not entitled to qualified immunity on Solomon's conspiracy claim

against her.

C. Excessive-Force Claim Against Thomas

Finally, Thomas asks this court to remand Solomon's excessive-force claim

back to the district court so it can clarify its findings and permit limited discovery so

Thomas can later assert qualified immunity on this claim. The interlocutory nature of

this appeal means the case is ongoing in the district court. Whatever clarification

Thomas seeks before the district court regarding the excessive-force claim can and

should be determined in further proceedings. Further, we decline to order the district

court to allow limited discovery for Thomas. Limited discovery is sometimes

appropriate "to resolve the qualified immunity question." Technical Ordnance, Inc.

v. United States, 244 F.3d 641, 647 (citing Anderson v. Creighton, 483 U.S. 635,

646–47 (1987)). We are not a court of first instance, and will not consider

arguments—or in this case, a form of relief—if it was not presented for consideration

to the district court. See Norwest Bank of N.D., N.A. v. Doth, 159 F.3d 328, 334 (8th

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Cir. 1998) ("As a general rule, we will not consider issues not presented to [the lower

court] in the first instance." (alteration in original) (citing First Bank Investors' Trust

v. Tarkio Coll., 129 F.3d 471, 477 (8th Cir. 1997))). Because Thomas has yet to

request limited discovery from the district court, Thomas's request for limited

discovery is best made before the district court in further proceedings below. See,

e.g., Keil v. Triveline, 720 F. Supp. 2d 1088, 1089–90 (W.D. Mo. 2010) (granting

request for limited discovery on qualified immunity issue); In re Scott ex rel.

Simmons, No. 4:10CV1578 TCM, 2011 WL 1791824, at *5 (E.D. Mo. May 10, 2011)

(unpublished) (same).

III. Conclusion

For the foregoing reasons, we affirm the district court's denial of summary

judgment on qualified immunity grounds as to Solomon's retaliation and conspiracy

claims.

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