                                                                                   FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           September 15, 2016
                             FOR THE TENTH CIRCUIT
                                                                           Elisabeth A. Shumaker
                         _________________________________                     Clerk of Court
PHILIP E. STETZEL,

      Plaintiff - Appellant,
                                                               No. 16-1006
v.                                                   (D.C. No. 1:14-CV-01875-MEH)
                                                                (D. Colo.)
TIFFANI HOLUBEK,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
      _________________________________

       Phillip Stetzel, a prisoner in the custody of the Colorado Department of

Corrections, filed a complaint against legal assistant Tiffani Holubek and others, alleging

various violations of his civil rights. The United States District Court for the District of

Colorado dismissed all of Stetzel’s claims as legally frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(i), except for his retaliation claim against Holubek. Later the district

court held that Holubek was entitled to qualified immunity and granted her motion for


*
  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 This order and judgment is not binding precedent, except under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.
summary judgment on the retaliation claim, dismissing the case with prejudice.

Exercising jurisdiction under 28 U.S.C. § 1291, we grant Stetzel’s motion to proceed in

forma pauperis, and we reverse the court’s grant of summary judgment because factual

disputes exist on whether Holubek retaliated against Stetzel for his grievances by filing a

fabricated incident report against him.1

         Holubek was responsible for providing prisoners at the Arkansas Valley

Correctional Facility with law-library access. Stetzel filed at least eight informal

grievances against her, all of which were denied. At Stetzel’s request he met with

Holubek and the correctional facility’s programs supervisor on April 18, 2014. After the

meeting, she submitted an incident report complaining of his behavior at the meeting.

This led to a disciplinary hearing resulting in his receiving 20 days of punitive

segregation. He was then transferred to a different facility.

         Because Stetzel is proceeding pro se, we liberally construe his pleadings, see Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and address all the arguments we can

discern in his brief. In doing so, however, we are mindful to avoid assuming the role of

his attorney. See id. We review a grant of summary judgment de novo, applying the

same legal standard that the district court is to apply. See Rock v. Levinski, 791 F.3d

1215, 1219 (10th Cir. 2015). Summary judgment should be granted only “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We view the evidence and draw



1
    Stetzel asks us to strike Holubek’s answer brief as untimely, but it was filed on time.

                                                2
reasonable inferences in the light most favorable to the nonmovant.” Rock, 791 F.3d at

1219 (brackets and internal quotation marks omitted).

       On appeal Stetzel argues that Holubek was not entitled to qualified immunity on

the retaliation claim and that the district court should not have dismissed his other claims.

We do not address the merits of the dismissal of his other claims, which are against other

defendants, because his notice of appeal named only the district court’s grant of summary

judgment to Holubek as the subject of the appeal and listed only Holubek as a defendant.

We therefore lack appellate jurisdiction over the dismissed claims. See Nolan v. U.S.

Dep’t of Justice, 973 F.2d 843, 846 (10th Cir. 1992) (no appellate jurisdiction over the

dismissal of a claim that was not mentioned in the notice of appeal).

       Although Stetzel describes his remaining claim as one under the Eighth

Amendment, we agree with the district court that it is properly characterized as a First

Amendment retaliation claim. A First Amendment retaliation claim requires proof of the

following elements:

       (1) that the plaintiff was engaged in constitutionally protected activity;
       (2) that the defendant’s actions caused the plaintiff 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 plaintiff’s exercise of constitutionally
       protected conduct.

Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007). The essence of the

claim that Stetzel pursues on appeal is that Holubek submitted a false incident report

regarding his behavior at the April 18 meeting in retaliation for his having filed

grievances against her.



                                              3
       The district court granted summary judgment on the grounds that Stetzel had not

provided evidence of elements 2 and 3. It said that Stetzel failed on both elements

because he did not “show that [Holubek] had a deciding role in filing a charge against

him[:] she did not participate in writing the charge or hearing it; and it was appealed and

affirmed without her involvement.” Aplt. App., Vol. I at 440 (order granting defendant’s

motion for summary judgment). But this reasoning is contrary to our decision in Pierce

v. Gilchrist, 359 F.3d 1279, 1291–93 (10th Cir. 2004), which held that an expert’s falsely

reporting that a suspect’s hair matched hair found at the crime scene was sufficient to

state a claim under 42 U.S.C. § 1983 for malicious prosecution. Even though the expert

argued that she was not responsible for the suspect’s arrest and prosecution, we held that

her actions caused the later deprivation of his constitutional rights. See id. at 1292.

Holubek does not dispute that the only basis for Stetzel’s disciplinary proceeding was the

incident report that she prepared. As in Pierce, she cannot “hide behind” the actions of

others who were also involved in the proceedings. Id. at 1293 (internal quotation marks

omitted).

       Alternatively, Holubek argues on appeal that Stetzel failed to produce sufficient

evidence that she had a retaliatory motive. We disagree. “[A]n official’s retaliatory

intent rarely will be supported by direct evidence of such intent.” Mimics, Inc. v. Vill. of

Angel Fire, 394 F.3d 836, 848 (10th Cir. 2005) (internal quotation mark omitted). Here,

Stetzel submitted an affidavit in support of his response to her motion for summary

judgment, stating that he never did what was alleged in her incident report. In resolving a

motion for summary judgment we ordinarily must accept sufficiently specific assertions


                                              4
in an affidavit as true; and Holubek has not raised any grounds for rejecting the

affidavit’s assertions, such as the limitations imposed by Heck v. Humphry, 512 U.S. 477

(1994). Stetzel therefore has provided sufficient evidence of retaliatory motive through

the temporal proximity of the grievances to the incident report, see Gee v. Pacheco, 627

F.3d 1178, 1189 (10th Cir. 2010) (plaintiff sufficiently pleaded that action was in

retaliation for his filing grievances by reciting facts indicating “that Defendants were

aware of his protected activity, that his protected activity complained of Defendants’

actions, and that the transfer was in close temporal proximity to the protected activity”),

and the absence of any other explanation for the alleged fabrication.

       Finally, Holubek argues on appeal that even if there was a violation, she is entitled

to qualified immunity because the law was not clearly established. Again, we disagree.

“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court

or Tenth Circuit decision on point, or the clearly established weight of authority from

other courts must have found the law to be as the plaintiff maintains.” Tenorio v. Pitzer,

802 F.3d 1160, 1163–64 (10th Cir. 2015) (internal quotation marks omitted). But “[t]he

degree of specificity required from prior case law depends in part on the character of the

challenged conduct. The more obviously egregious the conduct in light of prevailing

constitutional principles, the less specificity is required from prior case law to clearly

establish the violation.” Pierce, 359 F.3d at 1298. We examine “whether the law put

officials on fair notice that the described conduct was unconstitutional.” Tenorio, 802

F.3d at 1164 (internal quotation marks omitted). “[O]fficials can still be on notice that

their conduct violates established law even in novel factual circumstances.” Hope v.


                                              5
Pelzer, 536 U.S. 730, 741 (2002). In Pierce we held that the expert’s constitutional

violation was clearly established even though, unlike prior cases, the expert’s conduct

occurred after the plaintiff had been arrested and placed in custody. See 359 F.3d at

1298–99. We wrote, “There is no moral, constitutional, common law, or common sense

difference between providing phony evidence in support of an arrest and providing phony

evidence in support of continued confinement and prosecution.” Id. at 1299. By the

same token, we cannot distinguish providing false evidence in support of prison

discipline. See Scott v. Churchill, 377 F.3d 565, 571–72 (6th Cir. 2004) (rejecting a

prison guard’s claim that he was entitled to qualified immunity in retaliating against a

prisoner’s grievance by filing a false misconduct charge). Holubek, assuming she acted

as Stetzel has sworn (which, at this stage of the proceedings, we must), was on fair notice

of the constitutional prohibition against her conduct.

       The district court’s grant of summary judgment on Stetzel’s retaliation claim

against Holubek is REVERSED and REMANDED for further proceedings. We GRANT

Stetzel’s request to proceed in forma pauperis. We remind him that he is obligated to

continue making partial payments until the entire fee has been paid.

                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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