Filed: Jun. 20, 2018
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 20, 2018 _ Elisabeth A. Shumaker Clerk of Court KEITH CLAYTON BROOKS, JR., Plaintiff - Appellant, v. No. 17-1358 (D.C. No. 1:13-CV-02213-CMA-KMT) DAVID GABRIEL, Captain CDOC, (D. Colo.) individually and in his official capacity; MATHILL-AARON, Sergeant CDOC, individually and in her official capacity; JAMES GILLIS, Lieutenant CDOC, individually and in his official capacity; ANGEL MEDINA, W
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 20, 2018 _ Elisabeth A. Shumaker Clerk of Court KEITH CLAYTON BROOKS, JR., Plaintiff - Appellant, v. No. 17-1358 (D.C. No. 1:13-CV-02213-CMA-KMT) DAVID GABRIEL, Captain CDOC, (D. Colo.) individually and in his official capacity; MATHILL-AARON, Sergeant CDOC, individually and in her official capacity; JAMES GILLIS, Lieutenant CDOC, individually and in his official capacity; ANGEL MEDINA, Wa..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 20, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KEITH CLAYTON BROOKS, JR.,
Plaintiff - Appellant,
v. No. 17-1358
(D.C. No. 1:13-CV-02213-CMA-KMT)
DAVID GABRIEL, Captain CDOC, (D. Colo.)
individually and in his official capacity;
MATHILL-AARON, Sergeant CDOC,
individually and in her official capacity;
JAMES GILLIS, Lieutenant CDOC,
individually and in his official capacity;
ANGEL MEDINA, Warden CDOC,
individually and in his official capacity;
JULI JOFFE, CDOC, individually and in
her official capacity; JACKSON,
Lieutenant, individually and in his official
capacity; AMY COSNER, Legal Assistant
CDOC, individually and in her official
capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Keith Clayton Brooks, Jr., a Colorado inmate, brought this pro se civil rights
action against several prison officials whom he claims violated his constitutional rights.
After dismissing two claims as legally frivolous, the district court referred the case to a
magistrate judge, who recommended dismissal of most of the remaining claims. Without
objection from Mr. Brooks, the district court adopted that recommendation in part,
dismissed the majority of the claims, and later granted summary judgment on the rest.
The court also denied two post-judgment motions for reconsideration filed by
Mr. Brooks, who now appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I
Mr. Brooks alleged that prison officials at Colorado’s Limon Correctional Facility
wrongly identified him as a gang member or “security threat group” (STG), R. at 28
(internal quotation marks omitted), twice denied him lunch for holding the dining-hall
door open for other inmates, and improperly placed him in segregation. He asserted these
actions were in response to his efforts to remove the STG designation from his record,
administrative grievances that he filed, and a state court action that he initiated to contest
grievance restrictions imposed against him. Mr. Brooks claimed the retaliatory conduct
violated his First, Sixth, Eighth, and Fourteenth Amendment rights.
On initial screening, the district court dismissed two claims as legally frivolous.
The court then referred the case to a magistrate judge who, on August 14, 2014,
recommended that the bulk of the remaining claims be dismissed. Mr. Brooks and
defendants sought extensions of time to object to the magistrate judge’s report and
recommendation, but Mr. Brooks never filed his objections. Instead, the day after the
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extended deadline expired, he requested another extension. The district court denied his
request, and, on September 25, 2014, adopted the recommendation in part and dismissed
most of the pending claims.1
At that point, the dismissal left three First Amendment retaliation claims pending
against Sergeant Mathill, Captain Gabriel, and Lieutenant Gillis. These defendants
moved for summary judgment, and, on August 19, 2016, the magistrate judge
recommended that their motion be granted. Again, Mr. Brooks failed to timely object,
and when the time for doing so expired, the district court adopted the recommendation
and granted summary judgment. Final judgment entered on September 7, 2016.
Two days later, however, on September 9, 2016, Mr. Brooks moved the district
court for an extension of time to object to the magistrate judge’s August 19, 2016 report
and recommendation. Then, on September 30, 2016, he filed objections and also filed a
Fed. R. Civ. P. 59(e) motion for reconsideration of the entry of summary judgment. The
district court granted the extension and accepted the objections as timely. On August 17,
2017, Mr. Brooks filed renewed objections to the magistrate judge’s August 19, 2016
report and recommendation, as well as a renewed Rule 59(e) motion from the entry of
summary judgment. On September 18, 2017, the court considered Mr. Brooks’
objections, confirmed on de novo review that summary judgment was proper, and denied
the Rule 59(e) motions. Mr. Brooks subsequently filed a notice of appeal on October 10,
2017.
1
Mr. Brooks filed an interlocutory appeal from the denial of his request for an
extension, but we dismissed for lack of jurisdiction. See Brooks v. Medina,
No. 14-1411 (10th Cir. Dec. 10, 2014).
3
II
A. Scope of Appeal
We first define the scope of this appeal. Mr. Brooks’ notice of appeal does not
designate the final judgment for review. See Sylvia v. Wisler, 875 F.3d 1307, 1323
(10th Cir. 2017) (“[A] notice of appeal which names the final judgment is sufficient to
support review of all earlier orders that merge in the final judgment.” (internal quotation
marks omitted)). Rather, the notice of appeal lists only two orders: the “order granting
summary judgment” and the “order of dismissal/denying reconsideration.” R. at 574
(capitalization omitted). The former refers to the September 7, 2016 order granting
summary judgment, and the latter refers to the September 18, 2017 order denying his
Rule 59(e) motions for reconsideration.
In his briefs, Mr. Brooks does not challenge the district court’s initial dismissal of
two claims as legally frivolous, but he does contest all other dispositive rulings, including
the orders granting summary judgment and denying reconsideration, as well as the earlier
September 25, 2014 dismissal order, which adopted in part the magistrate judge’s August
14, 2014 recommendation to dismiss many of his claims. However, because Mr. Brooks
did not designate the September 25, 2014 order in his notice of appeal, and did not object
to the magistrate judge’s underlying August 14, 2014 report and recommendation, we
will not review the claims adjudicated by the September 25, 2014 order.
1. Notice of Appeal
A notice of appeal must “designate the judgment, order, or part thereof being
appealed.” Fed. R. App. P. 3(c)(1)(B). “We lack jurisdiction to review orders not
4
identified in the notice of appeal or its functional equivalent.” Lebahn v. Owens,
813 F.3d 1300, 1304 n.2 (10th Cir. 2016) (internal quotation marks omitted). Although a
technical error in designating the judgment appealed from should not defeat an appeal,
the appeal must be otherwise proper, we must be able to infer the intent to appeal, and
there must be no prejudice to the opposing party. See Sines v. Wilner,
609 F.3d 1070,
1074 (10th Cir. 2010); see also Artes-Roy v. City of Aspen,
31 F.3d 958, 961 n.5
(10th Cir. 1994) (“[A]n appeal from the denial of a Rule 59 motion will be sufficient to
permit consideration of the merits of the summary judgment, if the appeal is otherwise
proper, the intent to appeal from the final judgment is clear, and the opposing party was
not misled or prejudiced.” (internal quotation marks omitted)).
Mr. Brooks failed to designate the September 25, 2014 interlocutory dismissal
order in his notice of appeal, but even if he intended to appeal that order or it merged
with the orders granting summary judgment and denying Rule 59(e) relief, we still could
not review the September 25, 2014 dismissal order because Mr. Brooks failed to object to
the magistrate judge’s underlying report and recommendation dated August 14, 2014.
2. Firm Waiver Rule
Under our firm waiver rule, a litigant’s failure to object to the magistrate judge’s
report and recommendation “waives appellate review of both factual and legal
questions.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (internal
quotation marks omitted). To preserve an issue, “a party’s objections to the magistrate
judge’s report and recommendation must be both timely and specific.” United States v.
One Parcel of Real Prop.,
73 F.3d 1057, 1060 (10th Cir. 1996). The firm waiver “rule
5
does not apply, however, when (1) a pro se litigant has not been informed of the time
period for objecting and the consequences of failing to object, or when (2) the interests of
justice require review.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.
2005) (italics and internal quotation marks omitted).
The first exception does not apply because the magistrate judge informed the
parties of the time for objecting and the consequences of failing to do so. See R. at
183-84. We need not consider the second exception because Mr. Brooks offers no reason
why the interests of justice require that we review his dismissed claims. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to
consider arguments that are not raised, or are inadequately presented, in an appellant’s
opening brief.”). Although we liberally construe Mr. Brooks’ pro se materials, “this
court has repeatedly insisted that pro se parties follow the same rules of procedure that
govern other litigants.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840
(10th Cir. 2005) (brackets and internal quotation marks omitted). Mr. Brooks’ failure to
object to the magistrate judge’s August 14, 2014 report and recommendation waived
review of all claims adjudicated by the district court’s September 25, 2014 order adopting
that recommendation in part and dismissing the relevant claims.
B. Merits
This leaves the district court’s grant of summary judgment and denial of
reconsideration on three First Amendment retaliation claims against Sergeant Mathill,
Captain Gabriel, and Lieutenant Gillis. “We review the district court’s summary
judgment order de novo, and apply the same legal standards as the district court.” Doe v.
6
City of Albuquerque, 667 F.3d 1111, 1122 (10th Cir. 2012). “Summary judgment should
be granted if there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.”
Id. (citing Fed. R. Civ. P. 56(a)). We review the denial of
a Rule 59(e) motion for an abuse of discretion. Phelps v. Hamilton,
122 F.3d 1309, 1324
(10th Cir. 1997).
“[P]rison officials may not retaliate against or harass an inmate because of the
inmate’s exercise of his constitutional rights.” Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir. 1998) (internal quotation marks omitted). At the same time, “courts are ill
equipped to deal with the increasingly urgent problems of prison administration and
reform,” so “when a prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests.” Gee v.
Pacheco,
627 F.3d 1178, 1187 (10th Cir. 2010) (internal quotation marks omitted). In
the First Amendment context, a retaliation claim requires an inmate to establish:
(1) that [he] was engaged in constitutionally protected activity; (2) that the
defendant’s actions caused [him] to suffer an injury that would chill a
person of ordinary firmness from continuing to engage in that activity; and
(3) that the defendant’s adverse action was substantially motivated as a
response to [the inmate’s] exercise of constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). This last element requires
the inmate to “prove that but for the retaliatory motive, the incidents to which he refers,
including the disciplinary action, would not have taken place.”
Peterson, 149 F.3d at
1144 (internal quotation marks omitted).
Applying these principles, the district court granted summary judgment on the
three surviving retaliation claims because Mr. Brooks failed to provide evidence that, but
7
for a retaliatory motive, defendants would not have taken the allegedly adverse actions.
We affirm for substantially the same reasons stated by the district court, which analyzed
the claims as follows:
1. Sergeant Mathill & Captain Gabriel
According to the record, Mr. Brooks filed a state action on September 28, 2011,
challenging prison officials’ imposition of grievance restrictions against him. The next
day, on September 29, Sergeant Mathill denied him a lunch for holding the prison dining-
hall door open for other inmates. Sergeant Mathill denied him a second lunch on October
4, after he again insisted on holding the dining-hall door open for other inmates.
Mr. Brooks filed an emergency grievance following the first lunch incident, but Captain
Gabriel denied it, and, after the second lunch incident, Mr. Brooks was placed in
segregation. Based on these events, Mr. Brooks claimed that Sergeant Mathill and
Captain Gabriel retaliated for exercising his First Amendment rights.
The district court properly granted summary judgment on this claim. With regard
to Sergeant Mathill, the court recognized there was no evidence that, but for a retaliatory
motive, he would have received his lunches. Instead, as the court explained, the record
indicates that Mr. Brooks was denied two lunches because he violated the prison’s posted
operational rules by holding the lunch door open rather than “proceed[ing] directly to the
serving line window,” R. at 432. This regulation, the court correctly concluded, is related
to a legitimate penological interest in suppressing gang communications.
Regarding Captain Gabriel, the court correctly determined that Mr. Brooks failed
to provide evidence indicating that, but for a retaliatory motive, Captain Gabriel would
8
not have denied his emergency grievance. Captain Gabriel’s response to the grievance
stated it would “be routed through normal grievance channels” because, contrary to the
standards for implementing the emergency grievance procedures, it failed “to articulate
. . . any indication of potential risk to [his] life or safety or irreparable harm to [his]
health.” Id. at 433. Although Mr. Brooks also alleged that Captain Gabriel retaliated by
confining him in segregation, the district court recognized there was no evidence that
Captain Gabriel personally participated in the decision to place him in segregation. See
Schneider v. City of Grand Junction Police Dep’t,
717 F.3d 760, 768 (10th Cir. 2013)
(“Individual liability under [42 U.S.C.] § 1983 must be based on the defendant’s personal
involvement in the alleged constitutional violation.” (brackets and internal quotation
marks omitted)).
2. Sergeant Mathill
Mr. Brooks also claimed that Sergeant Mathill retaliated by filing a disciplinary
report for disobeying a lawful direct order. He asserted the disciplinary report was “for
complying with her order to return to [his] unit” after the lunch incidents, and because he
had filed grievances and made “verbal protests” against her. R. at 33-34. The district
court correctly determined, however, that Mr. Brooks failed to cite any evidence
suggesting that, but for a retaliatory motive, Sergeant Mathill would not have filed the
disciplinary report. Rather, as the court observed, the record indicates that the
disciplinary report was a direct result of Mr. Brooks’ non-compliance with the posted
operational rules. See id. at 429, para. 24-25 (Mathill Aff. indicating she wrote the
disciplinary report resulting in Brooks’ segregation based on the lunch incidents).
9
Mr. Brooks suggested the temporal proximity between his grievances, the state-court
action, and the disciplinary report demonstrated a causal connection, but the district court
properly rejected that argument. See Trant v. Oklahoma, 754 F.3d 1158, 1170 (10th Cir.
2014) (recognizing under the same First Amendment test applicable here that “temporal
proximity between [protected activity] and the alleged retaliatory conduct, without more,
does not allow for an inference of a retaliatory motive”).
3. Lieutenant Gillis
Finally, Mr. Brooks alleged that he attempted to remove the STG designation from
his inmate file but Lieutenant Gillis impeded his efforts. He claimed that once he
succeeded in getting the STG designation removed from his record, Lieutenant Gillis
retaliated by filing a false disciplinary report. The report charged Mr. Brooks with
making threats in a letter that was discovered with his property, although Mr. Brooks
claimed the charge was pretext for retaliation because he filed prison grievances and
contested the STG designation.
The district court recognized that the record does not support Mr. Brooks’ claim.
The court noted that Lieutenant Gillis helped Mr. Brooks successfully remove the STG
designation from his record. Yet afterwards, another officer gave Lieutenant Gillis a
letter found in Mr. Brooks’ property. The letter stated, in part: “I’m going to fight the
police just as hard as I’m gonna fight you.” R. at 436, para. 14; see id. at 438
(disciplinary report documenting contents of letter). Lieutenant Gillis interpreted the
letter as a threat and wrote a disciplinary report, choosing the most appropriate charge
available, “threats,”
id. at 438. Given the language in the letter and the absence of
10
countervailing evidence, the district court correctly concluded that Mr. Brooks failed to
show that, but for a retaliatory motive, Lieutenant Gillis would not have written the
disciplinary report. Instead, as the court observed, Lieutenant Gillis wrote the report
based on legitimate penological interests in securing the prison and suppressing gang
activity.
As for the denial of relief under Rule 59(e), the foregoing discussion demonstrates
that Lieutenant Gillis and the other defendants were entitled to summary judgment on
these claims. It follows, then, that the district court did not abuse its discretion in
denying reconsideration, particularly where Mr. Brooks identified no proper basis for
granting relief under Rule 59(e). See Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (“Grounds warranting a motion to reconsider include (1) an intervening
change in the controlling law, (2) new evidence previously unavailable, and (3) the need
to correct clear error or prevent manifest injustice.”).
III
The district court’s judgment is affirmed. Mr. Brooks’ motion to proceed on
appeal without prepayment of costs and fees is granted. The relevant statute, 28 U.S.C.
§ 1915(a)(1), does not permit litigants to avoid payment of filing and docketing fees, only
prepayment of those fees. Although we have disposed of this matter on the merits,
11
Mr. Brooks remains obligated to pay all filing and docketing fees. He is directed to pay
the fees in full to the Clerk of the District Court for the District of Colorado.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
12
