                                                                                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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

                                              2
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
