                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                          April 21, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
TORREY V. BANKS,

      Plaintiff - Appellant,

v.                                                         No. 15-1091
                                                 (D.C. No. 1:13-CV-02599-KLM)
CAPTAIN KATZENMEYER;                                        (D. Colo.)
STEPHANIE ENGLAR, FCF Mental
Health Counselor; JERRI SCOLLARD,
Acting FCF Mental Health Supervisor; C.
SOARES, Assistant Warden at CSP;
CAPTAIN ARGUELLO, CSP Mail Room
Supervisor; SGT. CROSLEY; C/O
MALEBRANCHE; CAPTAIN
QUATTLEBAUM,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, PORFILIO, and BALDOCK, Circuit Judges.
                  _________________________________

      Torrey V. Banks filed this pro se civil rights action under 42 U.S.C. § 1983

against employees of the Colorado Department of Corrections (CDOC). He

challenges the district court’s dismissal of his First Amendment retaliation claims

      *
              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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
against defendants Stephanie Englar, Captain Katzenmeyer, and Sergeant Crosley.1

We affirm in part, reverse in part, and remand for further proceedings.

      “[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). In particular, officials may

not retaliate against prisoners for filing administrative grievances. Williams v. Meese,

926 F.2d 994, 998 (10th Cir. 1991). In order to state a First Amendment retaliation

claim, Mr. Banks had to allege

      (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 [his] exercise of constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).

      “We review de novo the [district court’s] grant of a [Fed. R. Civ. P.] 12(b)(6)

motion to dismiss for failure to state a claim.” Gee v. Pacheco, 627 F.3d 1178, 1183

(10th Cir. 2010). “To survive a motion to dismiss, a complaint must state a claim to

relief that is plausible on its face.” Mocek v. City of Albuquerque, 813 F.3d 912, 921

(10th Cir. 2015) (internal quotation marks omitted). “We accordingly disregard

conclusory statements and look only to whether the remaining, factual allegations

plausibly suggest the defendant is liable.” Id. (internal quotation marks omitted).



      1
             The parties consented to have a United States magistrate judge conduct
all proceedings in this action, including the entry of final judgment. See 28 U.S.C.
§ 636(c).
                                             2
      1. Ms. Englar

      In his third amended complaint, Mr. Banks alleged that while he was

participating in the CDOC’s sex-offender treatment program at the Fremont

Correctional Facility (FCF), defendant Stephanie Englar, a therapist at FCF,

disclosed sensitive information about him to other CDOC officials without his

consent. He filed a grievance against Ms. Englar on August 31, 2012. She then

allegedly fabricated a sexual harassment claim against him. Mr. Banks was

convicted of a disciplinary charge based on her claim and was placed in

administrative segregation for approximately 495 days.

      To satisfy the third prong of the First Amendment retaliation test, an inmate

must allege specific facts showing that “but for the retaliatory motive, the incidents

to which he refers . . . would not have taken place.” Peterson, 149 F.3d at 1144

(internal quotation marks omitted). The district court determined that Mr. Banks

supplied only conclusory allegations that retaliatory motives were the “but for” cause

of Ms. Englar’s sexual harassment complaint against him. We agree.

      In Gee, we found the “but for” requirement satisfied where the inmate’s

complaint alleged that the defendants were aware of his protected activity, that the

inmate complained of their actions, and the retaliatory action was in close temporal

proximity to the protected activity. Gee, 627 F.3d at 1189. Here, however, the third

amended complaint’s generic and unspecific allegations that Ms. Englar filed her

claim after Mr. Banks filed his grievance were insufficient to satisfy the “but for”

requirement.

                                           3
      To the extent the complaint relied on conclusory allegations that Ms. Englar’s

claim was “fabricated” and “[b]ogus” to infer that she would not have filed it absent

a retaliatory motive, Aplt. App., Vol. 1 at 151, these allegations were also

insufficient to establish “but for” causation. The complaint failed to allege specific,

objective facts from which it could plausibly be inferred that Ms. Englar’s claim was

pretextual.2 In sum, the district court properly dismissed the claim against

Ms. Englar for failure to adequately allege specific facts showing that her sexual

harassment claim would not have been filed absent a retaliatory motive.3

      2. Captain Katzenmeyer

      As part of his third amended complaint, Mr. Banks alleged that Captain

Katzenmeyer engaged in certain hostile actions toward him. Mr. Banks responded to

these actions by “inform[ing] Captain Katzenmeyer that he planned to pursue legal

action, to which Captain Katzenmeyer informed [Mr. Banks that he] would instruct

his staff to write [Mr. Banks] up at random[.]” Id. at 152. The complaint further

      2
              To the extent the allegations that Ms. Englar’s claim was “fabricated” or
“bogus” reflects Mr. Banks’s subjective conclusion concerning the claim, they are
insufficient to allege a retaliatory motive. Cf. Nielander v. Bd. of Cty. Comm’rs,
582 F.3d 1155, 1165 (10th Cir. 2009) (“A plaintiff’s subjective beliefs about why the
government took action, without facts to back up those beliefs, are not sufficient to
create a genuine issue of fact” concerning First Amendment retaliation claim).
      3
              Because the conclusory nature of Mr. Banks’s allegations provides a
sufficient ground for upholding the dismissal, we need not reach the district court’s
alternate rationale: that according to the third amended complaint Mr. Banks was
already in segregation when Ms. Englar allegedly made the fabricated sexual
harassment claim against him. See Peterson, 149 F.3d at 1144 (holding that filing of
lawsuit was not “but for” cause of placement into segregation when such placement
occurred before the suit was filed).

                                           4
alleged that “[i]n light of this threat, [he] received multiple fabricated reports (written

by C/O Estrada, C/O Malebranche, and C/O Watkins) within a six day period from

12-22-12 to 12-28-12.” Id. (internal quotation marks omitted).

        These allegations were sufficient to state a First Amendment retaliation claim.

First, the complaint alleged sufficient facts to satisfy the first element of the

retaliation test. By telling Captain Katzenmeyer that he planned to pursue legal

action, Mr. Banks engaged in constitutionally protected activity.

        Concerning the second element, the defendants argue that Mr. Banks failed to

adequately plead facts showing an injury, because (1) he “did not explain the reports

[made against him] sufficiently . . . to show that he suffered an injury,” and (2) he

“failed to allege that these alleged reports resulted in any disciplinary proceedings.”

Aplee. Br. at 17. Although the complaint did not specify what the retaliatory

write-ups were about, or affirmatively state that they led to disciplinary proceedings

or punitive measures, it alleged a sufficient showing of injury to survive a motion to

dismiss. The allegation of multiple “fabricated” write-ups within a short period of

time presents a sufficient allegation of injury to satisfy the “chill” test. See, e.g.,

Dixon v. Brown, 38 F.3d 379, 379 (8th Cir. 1994) (“Because the retaliatory filing of a

disciplinary charge strikes at the heart of an inmate’s constitutional right to seek

redress of grievances, the injury to this right inheres in the retaliatory conduct

itself.”).

        The complaint also sufficiently stated facts to satisfy the third element of the

test: retaliatory motive. It alleged that in response to Mr. Banks’s threat to take legal

                                             5
action, Captain Katzenmeyer responded that he would have his staff write Mr. Banks

up at random, and that in fact, Mr. Banks subsequently received multiple, fabricated

reports.4 Thus, Captain Katzenmeyer allegedly announced his intent to retaliate, and

allegedly (through his staff), did so. These facts satisfied the “but for” test for

purposes of a motion to dismiss. We therefore reverse the district court’s dismissal

of this claim.

       3. Sergeant Crosley

       Finally, the third amended complaint alleged that

       [b]ecause of the nature of his [disciplinary] write up, and his classification
       as a Sex Offender . . . Sgt. Crosley . . . began harassing [Mr. Banks] after
       reviewing his file from FCF, which eventually led to another Bogus sexual
       harassment claim being filed against [him]. . . . [Mr. Banks] wrote a
       grievance on Sgt. Crosley prior to her writing him up for Sexual
       Harassment.
Aplt. App., Vol. 1 at 153-54.

       The allegation that Sergeant Crosley “harass[ed]” Mr. Banks was insufficiently

specific to satisfy the “harm” element of the retaliation test. Although a filing of a

false charge of sexual harassment might satisfy the harm element, the conclusory

allegation that Sergeant Crosley filed the charge after Mr. Banks filed a grievance

against her did not satisfy the “but for” element. We therefore affirm the dismissal of

this claim.



       4
              Even though the complaint asserted in only conclusory fashion that the
grievances were fabricated or false, the allegations were sufficient to establish “but
for” causation, given the allegation that Captain Katzenmeyer had directly announced
his intention to retaliate through the use of multiple write-ups.
                                              6
      We reverse the district court’s dismissal of Mr. Banks’s First Amendment

retaliation claim against Captain Katzenmeyer, and remand for further proceedings.

We affirm the remainder of the judgment of dismissal.


                                          Entered for the Court


                                          Paul J. Kelly, Jr.
                                          Circuit Judge




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