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, 

(1971).

                                          -2-
      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

                                          -3-
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, 

,
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)).

                                           -4-
       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, 

, 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, 

, 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." 

. 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." 

       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

                                         -5-
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


                                          -6-
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.

                                          -7-
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, 

, 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, 

, 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, 

, 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,

                                          -8-
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,

, 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, 

, 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., 

, 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 

.) This adequately preserved their current
arguments for appeal.

                                           -9-
       We review de novo the district court's denial of summary judgment on qualified
immunity grounds.5 See 

(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." 

(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, 

, 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].'" 

–62 (alterations in original) (quotation marks omitted) (quoting
O'Neil v. City of Iowa City, Iowa, 

, 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.'" 

(quoting
Nelson v. Shuffman, 

, 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., 

, 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).

                                         -10-
        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." 

(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,

                                          -11-
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, 

, 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.

                                          -12-
       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." 

(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 

–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 

. 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, 

, 1005 (8th Cir. 2007) (third alteration
in original) (quoting Hartman v. Moore, 

, 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." 

(citing Twymon v. Wells Fargo & Co., 

, 934 (8th Cir. 2006)); see also ACT, Inc. v. Sylvan Learning Sys., Inc., 

, 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

                                         -13-
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." 

(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.

                                         -14-
       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, 

, 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 

("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, 

, 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 

("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

                                           -15-
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, 

, 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, 

, 816 (8th Cir. 2008)
(quoting Larson by Larson v. Miller, 

, 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."

Mall, Inc. v. City of Cape Girardeau, 

, 743
(8th Cir. 1982)). We agree with the district court that a liberal construction of


omitted)); Duffy v. Wolle, 

, 1037 (8th Cir. 1997) (recognizing that the
§ 1983 body of law applies to Bivens actions).

                                         -16-
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, 

(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. 

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. 

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." 

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

tied Culwell's verbal threats with the attack to allege
a conspiracy. 

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." 

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." 

(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."

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, 

, 647 (citing Anderson v. Creighton, 

,
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, 

, 334 (8th

                                          -18-
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., 

, 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, 

, 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, 

, 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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