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

                             FOR THE TENTH CIRCUIT                          July 20, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
NICKY SMITH,

      Plaintiff - Appellant,

v.                                                         No. 14-1512
                                               (D.C. No. 1:13-CV-02978-RBJ-CBS)
SERGEANT NELSON; JOSEPH                                     (D. Colo.)
HALLIGAN,

      Defendants - Appellees.

and

MICHELL RUSSOM,

      Defendant.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Appellant Nicky Smith is a prisoner at the Arkansas Valley Correctional

Facility (“AVCF”) in Ordway, Colorado. Smith filed the original lawsuit underlying

this matter under 42 U.S.C. § 1983, alleging violations of his Eighth Amendment


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
right against cruel and unusual punishment, his Fourteenth Amendment right to

privacy and due process, and his First Amendment right to access to the courts and

against retaliatory conduct. Before the magistrate judge, the defendants moved to

dismiss all of the claims, and the magistrate recommended the dismissal of all but

one claim: the First Amendment retaliation claim against Defendants Nelson and

Halligan. The defendants filed an objection to the decision not to dismiss the

retaliation claim; Smith filed no objection to any of the magistrate’s

recommendations. Exercising de novo review, the district court determined that the

First Amendment retaliation claim should have been dismissed along with Smith’s

other claims for relief. Smith now appeals only that ruling. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.


                                   BACKGROUND

      On August 10, 2012, while in custody at the Buena Vista Correctional

Complex, Smith voluntarily attended a mental-health session with Defendant Michell

Russom, a state-sponsored mental health interviewer. Smith and Russom signed a

confidentiality statement related to that session. Before the magistrate, Smith alleged

that after the session Russom falsely accused him of sexually harassing her during

their session and—in the context of her accusation—violated their confidentiality

agreement by disclosing personal information to a hearing officer regarding

statements Smith made during the session. Smith was convicted of sexual harassment

in violation of the Colorado Code of Penal Discipline (“COPD”), and he alleged

                                           2
before the magistrate that this conviction for a COPD violation led to his being

classified as a sex offender. Such classification, he contended, compromised his

health and safety and increased his sentence.

      On October 26, 2012, Smith filed a grievance with his case manager related to

Russom’s accusation and disclosure. The relevant part of the grievance, for our

purposes, stated: “That’s why police get killed at AVCF, if an inmate can’t address

his mental health issues in a professional clinical setting without being subject to

punishment for his thoughts you are building many potential powder kegs.”1 Smith

contends that Sergeant Nelson retrieved this grievance from the mail, read it, and

placed him in handcuffs. Nelson then brought Smith to Halligan, the shift

commander. Smith contends that Halligan and Nelson proceeded to: (1) accuse him

of a violation of the COPD for “advocating a facility disruption by submitting a

grievance”; (2) place him in punitive segregation for 18 days; and (3) take away

twenty of his earned days of “Good Time.”2

      Smith filed a complaint in federal district court alleging that by disclosing

confidential information Russom had violated his Fourteenth Amendment right to

privacy and his Eighth Amendment right against cruel and unusual punishment. He

also alleged that Nelson and Hannigan had violated his Eighth Amendment right

      1
        Smith’s reference here appears to be to an incident that had happened at
AVCF on September 24, 2012 (a little over a month prior to Smith’s grievance letter)
in which a prisoner killed one correctional officer and injured another with a kitchen
butcher knife.
      2
        The COPD charge against Smith and his disciplinary record for this incident
were later expunged.
                                           3
against cruel and unusual punishment, as well as restricted his access to the courts

and retaliated against him in violation of the First Amendment.

      Upon motion of the defendants, the magistrate judge recommended that all but

one of Smith’s claims—that for retaliation in violation of the First Amendment—be

dismissed for failure to state a claim upon which relief could be granted under Fed.

R. Civ. P. 12(b)(6). Smith filed no objection to this recommendation, but the

defendants objected to the magistrate’s determination that Smith’s retaliation claim

should not also be dismissed.

      The district court agreed with the defendants. Regarding Smith’s retaliation

claim, the district court found that Smith’s complaint should be dismissed for two

reasons: (1) his use of threatening language in his grievance made him unable to

prove that, but for his exercise of protected activity under the First Amendment, the

retaliation he complains of would not have taken place; and (2) his claim was barred

because he had not directly challenged his COPD conviction for “advocating a

facility disruption by submitting a grievance.” Smith appeals this ruling.


                                    DISCUSSION

      We review de novo a district court’s dismissal of a complaint under Rule

12(b)(6). Cohen v. Longshore, 621 F.3d 1311, 1315 (10th Cir. 2010). Because Smith

is appearing pro so, we “review his pleadings and other papers liberally and hold

them to a less stringent standard than those drafted by attorneys.” Trackwell v. United

States Govt., 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). Concerning

                                           4
retaliation under the First Amendment in the penal context, we have held that

“[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) (alteration in original) (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). To establish a

First Amendment retaliation claim, Smith must demonstrate three elements:

          (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).

       Smith principally contests the district court’s determination that his claim was

barred because he did not challenge his COPD conviction for “advocating a facility

disruption by submitting a grievance.” We need not resolve this dispute, however,

because we believe the district court’s alternative basis for its ruling to be correct.

Regardless of whether Smith challenged this COPD conviction, the fact remains that

to succeed on a First Amendment retaliation claim he would need to demonstrate that

Nelson and Halligan’s actions towards him were “substantially motivated as a

response to [his] exercise of constitutionally protected conduct,” namely his decision

to file a grievance. Smith does not contest, however, that his grievance contained

language that Halligan and Nelson could have easily perceived as threatening,

particularly given the context of an attack on AVCF personnel a little over one month

                                            5
before he filed the grievance. Since Smith has presented nothing to suggest that

Halligan and Nelson disciplined him as retaliation for his filing of a grievance—

rather than due to their very real perception of his words as a threat—the district

court properly dismissed his claim. See Peterson, 149 F.3d at 1144 (stating that to

establish retaliation claim, inmate “must prove that ‘but for’ the retaliatory motive,

the incidents to which he refers . . . would not have taken place” (quoting Smith v.

Maschner, 899 F.2d 940, 949–50 (10th Cir. 1990) (internal quotation marks

omitted)).


                                    CONCLUSION

      For the reasons stated herein, we AFFIRM the district court. In addition, the

district court granted Smith leave to proceed on appeal in forma pauperis but did not

assess partial payments. We therefore required Smith to file a renewed application to

proceed in forma pauperis. As Smith lacks the money to prepay the filing fee and we

believe he is proceeding in good faith, we similarly GRANT Smith’s motion to

proceed in forma pauperis. See 28 U.S.C. § 1915(a)(3) (2012).We remind Smith that

he is obligated to continue making partial payments until the entire fee has been paid.


                                            ENTERED FOR THE COURT


                                            Gregory A. Phillips
                                            Circuit Judge




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