UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

STEVEN DOUGLAS GREEN, Plaintiff-Appellant,

v. DARRELL SNYDER, Defendant-Appellee. No. 12-1366 (D.C. No. 1:10-CV-02669-WYD-MEH) (D. Colo.)

ORDER AND JUDGMENT *

Before McKAY , BALDOCK , and O’BRIEN , Circuit Judges.

Steven Douglas Green, a Colorado st ate prisoner proceedi ng pro se, appeals from a summary judgment entered in favor of Darrell Snyder. He seeks to proceed on appeal without prepayment of fees (in forma pauperis). See 28 U.S.C. § 1915(a) & (b). We affirm the judgment and deny leave to proceed in forma pauperis.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 14, 2013

Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND The parties are familiar w ith the facts, and the magist rate judge and the district court provided an exhaustive discussion of th e evidence. Therefore, we recite only a short factual background to fra me the issues on appeal. Th e facts are viewed in the light most favorable to Green as th e party resisting summary judgment. See E.E.O.C. v. Picture People, Inc. , 684 F.3d 981, 993 ( 10th Cir. 2012). During the relevant events, Green was in carcerated at the Sterling Correctional Facility in Sterling, Colorado. In early 201 0, Green sought to file a grievance against prison guard Wendy Brown for sexual harassment. He cl aimed Snyder, his prison case manager, delayed giving him a Step 1 grievance form . After he obtained the form and filed a Step 1 grievance, he aske d Snyder for the nece ssary grievance form to proceed to Step 2. He asserted Snyde r did not provide the requested Step 2 form and directed him to the library to obtain one. But the library turned out not to be the place to get the form, so he went back to Snyder, who th en gave him the necessary form. The alleged delay caused a Step 2 f iling to be untimely. Green submitted the form anyway. Eventually Green filed th is lawsuit, naming as defe ndants Brown, Snyder, and Sergeant Emrick, a supervisor. The matter was referred to a magistrate judge (MJ) who produced an initial report and recommendation (R &R). Acting on it on August 29, 2011, the district judge dismissed the claims agai nst Emrick and the sexual- 3 - harassment 1 and other claims against Brown; all claims were dism issed for failure to state a plausible claim for relief. 2 Green’s claims agains t Snyder for interference with his right to petition for redress of hi s grievances and for re taliation proceeded to the summary judgment stage. During t hose proceedings, Snyder submitted an affidavit explaining his earl ier statement concerning wh en he had given Green the Step 1 grievance form: the date of March 3, 2010, was in error, and the correct date was March 10, 2010 (3/10/ 10 instead of 3/3/10). 3 Green moved to st rike the affidavit

as false and submitted in bad faith. The MJ denied the motion to strike, commenting he would keep in mind the discrepancies when considering su mmary judgment. Both parties moved for summar y judgment. In a second R&R the MJ construed Green’s pleadings as stating two claims for relief against Snyder: (1) Snyder’s deliberate mishandling of grie vances violated his First Amendment right to petition the government for re dress of grievances, and (2) Snyder retaliated against him by mishandling the grievances in an effort to discourage him from pursuing a

1 Green timely objected to the R&R. Nevertheless, the district judge, in adopting the MJ’s recommendation, decided Brown’s conduct did not rise to the level of an Eighth Amendment violation and sh e was entitled to qualified immunity.

2 Green has not appealed from the dismi ssal of his complaints against Brown or Emrick.

3 Green has not made entirely clear why the change in dates mattered. Apparently the change was designed to refu te his claim of inte ntional delay due to Snyder’s refusal to process his grievance. According to Green , he received the Step 1 grievance form on March 3 and su bmitted it on March 5, but it was not processed. He says March 10 was the da te on which Snyder processed several of Green’s unrelated grievances , so Snyder was attempting to say the Brown grievance was among those.- 4 - claim against Brown, al so in violation of his First Am endment rights. On the first claim, he recommended summary judgment in Snyder’s favor be cause Green had not suffered any constitutionally cognizable in jury because his claims against Brown were fully adjudicated on the merits, not ba rred due to Green’s failure to complete the prison grievance process. He also re commended summary judgment in Snyder’s favor on the retaliation claim, concluding Green could not m eet the relevant criteria and therefore Snyder was entitled to qualif ied immunity. Green timely objected to the MJ’s recommendations, but did not in clude an objection to the recommendation concerning the right-of-court-access claim. Accordingly the district judge only

reviewed the recommendation on the retali ation claim. Upon de novo review he agreed with the magistrate judge’s assessment and, by order dated August 8, 2012, adopted the recommendation to enter su mmary judgment in favor of Snyder. Green’s appeal to us adva nces three issues: (1) the district judge should have reviewed the MJ’s order denying his mo tion to strike Snyder’s affidavit; (2) “Snyder’s actions alone caused [his] gr ievances to be denied on procedural errors,” Aplt. Opening Br. at 3; and (3) Gr een’s evidence of Snyd er’s retaliation was sufficient to preven t summary judgment. II. DISCUSSION

“We review the district court’s summ ary judgment order de novo, and apply the same legal standards as the district court.” Ribeau v. Katt , 681 F.3d 1190, 1194 (10th Cir. 2012) (int ernal quotation marks omitted). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact- 5 - and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We liberally construe Green’s pro se filings. See Ledbetter v. City of Topeka , 318 F.3d 1183, 1187 (10th Cir. 2003). We do not, however, “take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). 1. Review of magistrate judge’s orde r denying motion to strike affidavit Green complains about the failure of the district j udge to review the MJ’s minute order denying his motion to strike Snyder’s affidav it. Although Green filed an objection to this order, it was untimely. Pursuant to Fed. R. Civ. P. 72(a), an objection to a nondispositive matter such as the MJ’s minute or der must be filed within 14 days. The minute order was entered on May 2, 2012, and Green’s objection was filed on May 21, 2012, outside the 14-day deadline. Although his certificate of mailing stated he mailed the objection on Ma y 10, 2012, his certificate of mailing does not comply with the prison mailbox rule, which provides that a pro se prisoner’s filing may be considered timely if given to prison officials for mailing prior to the filing deadline. See Price v. Philpot , 420 F.3d 1158, 1163-64 (10th Cir. 2005). The prison mailbox rule requires an in mate to allege and prove he used the prison’s legal mail system (if one is available), or to incl ude a notarized statement or a declaration under penalty of perjury of th e date on which he gave the documents to prison staff for mailing and attes ting that postage was prepaid. Id. at 1166. Green’s certificate of mailing of his obj ection did not include any of these requirements so the- 6 - prison mailbox rule does not apply. Therefor e, because “[a] part y may not assign as error a defect in the [magistr ate judge’s] order not timely objected to,” Fed. R. Civ. P. 72(a), we cannot address this claim. 2. Claim as to Snyder’s del ay in processing grievances Green tells us “Snyder’s act ions alone caused [his] grie vances to be denied on procedural errors,” Aplt. Opening Br. at 3, but that cannot be. The district judge decided Green’s claims agai nst Brown on the merits (see footnotes 1 and 2, supra), rather than apply a procedural bar. 4 Because Brown was determined to be entitled to qualified immunity (and no appeal has been taken from that determination) any procedural error with respect to the claim ag ainst her matters not. Cf. Gee v.

Pacheco , 627 F.3d 1178, 1191 (10th Cir. 2010) (an inmate must show actual injury in a denial-of-access claim). Green has sustained no constitu tionally cognizable injury resulting from the claimed procedural error. The summary judgment was appropriate.

3. Retaliation Green’s claim that Snyd er deliberately mishandl ed his grievances to discourage him from pursuing relief ag ainst Brown also fails. In Shero v City of

Grove , we discussed the parameters of a retaliation claim, saying: Government retaliation against a plai ntiff for exercising his or her First Amendment rights may be shown by proving the following elements: (1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant’s actions cause d the plaintiff to suffer an injury

4 In fact, the defendants di d not argue procedural bar.- 7 - that would chill a person of ordi nary firmness from continuing to engage in that activity; and (3) that the defendant’s adverse action was substantially motivated as a response to the pl aintiff’s exercise of constitutionally protected conduct. Wh en the plaintiff alleges that the defendant’s action was taken in re taliation for protected speech, our standard for evaluating that chilling effect on speech is objective, rather than subjective[;] a trivial or de minimis injury will not support a retaliatory pros ecution claim. 510 F.3d 1196, 1203 (10th Ci r. 2007) (emphasis supplie d) (citations, brackets, ellipsis, and internal quota tion marks omitted). The same test applies in the prison

context. See Gee , 627 F.3d at 1189. A defendant is entitled to qualified imm unity unless the plaintiff demonstrates

the facts he has shown “make out a violation of constitutiona l right[, and] the right at issue was clearly es tablished at the time of de fendant’s alleged misconduct.”

Pearson v. Callahan , 555 U.S. 223, 232 (2009) (cita tion and internal quotation marks omitted); see id. at 231 (“[Q]ualified immunity is an immunity from suit rather than a mere defense to liability.” (int ernal quotation marks omitted)). For purposes of resolving this clai m, we assume fili ng grievances is constitutionally protected activity. Moving on, we struggle to identify any injury Green ultimately suffered because of th e claimed delay in providing proper forms since no procedural bar was asserted by th e defendants and his complaints against Brown were judicially determined. In run-of-the-mill cases bureaucratic bungling and delay, even if intentional, would not amount to retaliation. Ce rtainly that is true

here. Like the district court, we conclude Sn yder’s failure to provide the grievance forms in a timely fashion would not ch ill a person of ordinary firmness from- 8 - continuing to file grievances. And Green has proffered no evidence of Snyder’s

motivation to retaliate. The MJ conclude d Snyder could not have known of Green’s intention to file a grievance against Brow n at the time he de layed producing the Step 1 grievance form. As for the Step 2 grievance, Sn yder stated he did not know Brown, and she had already left her em ployment with the Sterling prison before Green filed a grievance about her conduct. Green has pointed to no facts of record casting doubt on those reasonable, if not obvious, conclusi ons. In this appeal, he suggests Snyder intended to retaliate because both he and Brown were prison employees, an argument we do not consider b ecause it was raised for the first time on appeal. See Curtis v. Chester , 626 F.3d 540, 548 (10th Cir. 2010) (“Absent extraordinary circumstances, we will not c onsider arguments raised for the first time on appeal.” (internal quotati on marks omitted)). Even so , we fail to see how these circumstances demonstrate a retaliatory mo tive, particularly since Snyder did not know Brown. Any suggestion of instituti onal bias in favor of prison employees, if that is what Green intends, must be suppor ted by facts, not suppo sition. Green has failed to show a genuine issue of materi al fact concerning vi olation of his First Amendment rights. Snyder was en titled to qualified immunity. III. CONCLUSION The judgment of the district court is affirmed. We deny Green’s request to proceed on appeal in forma pauperis. The full amount of all filing and docketing fees is now due. Payment must be made to the cler k of the district court. If Green fails to- 9 - immediately pay the filing and docketing f ees as required, our previous order requiring periodic payments remains in e ffect until the fees are fully paid.

Entered for the Court

Terrence L. O’Brien Circuit Judge