UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ KEITH CLAYTON BROOKS, JR., Plaintiff - Appellant,

v. DAVID GABRIEL, Captain CDOC, 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. No. 17-1358 (D.C. No. 1:13-CV -02213-CMA-KMT) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MATHESON , and EID , Circuit Judges.

________________ _________________

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### June 20, 2018
Elisabeth A. Shumaker Clerk of Court2 Keith Clayton Brooks, Jr., a Colorado inma te, brought this pro se civil rights action against several prison offi cials 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 c ourt 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-judgmen t motions for reconsideration filed by Mr. Brooks, who now appeals. We have juri sdiction 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 ga ng member or “security threat group” (STG), R. at 28 (internal quotation marks omitted), twice deni ed him lunch for holding the dining-hall door open for other inmates, and improperly placed him in segr egation. 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 acti on that he initiated to contest grievance restrictions imposed against him. Mr. Brooks claimed th e retaliatory conduct violated his First, Sixth, Eighth, and Fourteenth Amendment rights. On initial screening, the district court di smissed two claims as legally frivolous. The court then referred the case to a magi strate 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 hi s objections. Instead, the day after the3 extended deadline expired, he re quested another extension. Th e district court denied his request, and, on September 25, 2014, adopte d 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 A ugust 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, th e district court adopted the recommendation and granted summary judgment. Final ju dgment 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 th e magistrate judge’s A ugust 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 reconsidera tion of the entry of summary judgment. The district court granted the extension and accepte d the objections as timely. On August 17, 2017, Mr. Brooks filed renewe d objections to the magistrate judge’s August 19, 2016 report and recommendation, as well as a rene wed Rule 59(e) motion from the entry of summary judgment. On Se ptember 18, 2017, the court considered Mr. Brooks’ objections, confirmed on de novo review that summary ju dgment was proper, and denied the Rule 59(e) motions. Mr. Brooks subsequen tly filed a notice of appeal on October 10,
2017.

1 Mr. Brooks filed an interloc utory appeal from the deni al 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).4 II A. Scope of Appeal We first define the scope of this app eal. 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 me rge 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 dism issal/denying reconsideration.” R. at 574 (capitalization omitted). The former refers to the September 7, 2016 order granting summary judgment, and the la tter refers to the September 18, 2017 order denying his Rule 59(e) motions for reconsideration. In his briefs, Mr. Brooks does not challe nge 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 deny ing reconsideration, as well as the earlier September 25, 2014 dismissal order, which adop ted 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 adjudica ted 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 not5 identified in the notice of appeal or its functional equivalent.” Lebahn v. Owens , 813 F.3d 1300, 1304 n. 2 (10th Cir. 2016) (internal quot ation 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 su mmary judgment, if the appeal is otherwise proper, the intent to appeal from the final judgment is cl ear, and the opposing party was not misled or prejudiced.” (internal quotation marks omitted)). Mr. Brooks failed to designate the Se ptember 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 a nd 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 unde rlying report and recommendati on dated August 14, 2014. 2. Firm Waiver Rule Under our firm waiver rule, a litigant’s fa ilure 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 is sue, “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. 19 96). The firm waiver “rule6 does not apply, however, when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of fa iling 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 becaus e the magistrate ju dge informed the parties of the time for objecting and th e consequences of failing to do so. See R. at 183-84. We need not consider the second ex ception because Mr. Broo ks offers no reason why the interests of justice require th at we review his dismissed claims. See Bronson v.
Swensen , 500 F.3d 1099, 1104 (1 0th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised, or ar e inadequately presented, in an appellant’s opening brief.”). Although we liberally cons true Mr. Brooks’ pro se materials, “this court has repeatedly insisted that pro se pa rties 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 quota tion 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 dist rict court’s September 25, 2014 order adopting that recommendation in part and di smissing the relevant claims.
B. Merits This leaves the district court’s gran t of summary judgment and denial of reconsideration on three Firs t Amendment retaliation claims against Sergeant Mathill, Captain Gabriel, and Lieute nant Gillis. “We review th e district court’s summary judgment order de novo, and apply the same legal standards as the district court.” Doe v.7 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 quot ation marks omitted). At the same time, “courts are ill equipped to deal with the increasingly urge nt problems of prison administration and reform,” so “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably rela ted to legitimate peno logical interests.” Gee v. Pacheco , 627 F.3d 1178, 1187 (10t h Cir. 2010) (internal quotation marks omitted). In the First Amendment context, a retaliation cl aim requires an inmate to establish: (1) that [he] was engaged in constituti onally protected activ ity; (2) that the defendant’s actions caused [him] to suffer an injury that would chill a person of ordinary firmness from contin uing to engage in that activity; and (3) that the defendant’s adverse acti on 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 retaliat ory 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, but8 for a retaliatory motive, defe ndants would not have taken th e 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’ im position of grievance restricti ons against him. The next day, on September 29, Sergeant Mathill denied him a lunch fo r holding the prison dininghall 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 follo wing 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 ther e was no evidence that, but for a retaliatory motive, he would have received his lunches. Instead, as th e court explained, the record indicates that Mr. Brooks was denied two l unches because he violated the prison’s posted operational rules by holding the lunch door open rather than “proceed[i ng] directly to the serving line window,” R. at 432. This regula tion, the court correctly concluded, is related to a legitimate penological interest in suppressing gang communications. Regarding Captain Gabriel, the court corr ectly determined that Mr. Brooks failed to provide evidence indicating that, but for a retaliatory motive, Captain Gabriel would9 not have denied his emergency grievance. Captain Gabriel’s response to the grievance stated it would “be routed through normal grie vance channels” because, contrary to the standards for implementing the emergency grie vance 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 a lleged 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 viol ation.” (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 retu rn 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 fa iled to cite any evidence suggesting that, but for a retaliatory motive, Sergeant Mathill woul d 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’ segr egation based on the lunch incidents).10 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 Amendm ent test applicable here that “temporal proximity between [protected activity] and the alleged retaliatory conduct, without more, does not allow for an inferen ce of a retaliatory motive”). 3. Lieutenant Gillis Finally, Mr. Brooks alleged that he a ttempted to remove the STG designation from his inmate file but Lieutenant Gillis impede d his efforts. He claimed that once he succeeded in getting the STG designation rem oved from his record , Lieutenant Gillis retaliated by filing a false disciplinary repo rt. The report charged Mr. Brooks with making threats in a letter that was discovere d with his property, although Mr. Brooks claimed the charge was pretext for retaliati on because he filed pr ison grievances and contested the STG designation. The district court recognized that the r ecord does not support Mr. Brooks’ claim. The court noted that Lieutena nt 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 lette r stated, in part: “I’m going to fight the police just as hard as I’m gonna fi ght you.” R. at 436, para. 14; see id. at 438 (disciplinary report documenti ng contents of letter). Lieu tenant Gillis interpreted the letter as a threat and wrote a disciplinary re port, choosing the most appropriate charge available, “threats,” id. at 438. Given the language in the letter and the absence of11 countervailing evidence, the dist rict court correctly conclude d that Mr. Brooks failed to show that, but for a retaliato ry 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 a nd suppressing gang activity. As for the denial of relief under Rule 59 (e), the foregoing discussion demonstrates that Lieutenant Gillis and th e other defendants were enti tled to summary judgment on these claims. It follows, then , that the district court did not abuse its discretion in denying reconsideration, particularly wher e 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 includ e (1) an intervening change in the controlling law, (2) new eviden ce previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.”).
III The district court’s judgment is affi rmed. 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 dis posed of this matter on the merits,12 Mr. Brooks remains obligated to pay all filing and docketing fees. He is directed to pay the fees in full to the Cler k of the District Court for the District of Colorado.

Entered for the Court

Mary Beck Briscoe Circuit Judge