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, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 20, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

Keith Clayton Brooks, Jr., a Colorado inmate, brought this pro se civil rights 

action against several prison officials 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 court 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-judgment motions for reconsideration filed by 

Mr. Brooks, who now appeals. We have jurisdiction 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 gang member or “security threat group” (STG), R. at 28 

(internal quotation marks omitted), twice denied him lunch for holding the dining-hall 

door open for other inmates, and improperly placed him in segregation. 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 action that he initiated to contest 

grievance restrictions imposed against him. Mr. Brooks claimed the retaliatory conduct 

violated his First, Sixth, Eighth, and Fourteenth Amendment rights. 

On initial screening, the district court dismissed two claims as legally frivolous. 

The court then referred the case to a magistrate 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 his objections. Instead, the day after the 
3 

extended deadline expired, he requested another extension. The district court denied his 

request, and, on September 25, 2014, adopted 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 August 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, the district court adopted the recommendation 

and granted summary judgment. Final judgment 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 the magistrate judge’s August 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 reconsideration of the entry of summary judgment. The 

district court granted the extension and accepted the objections as timely. On August 17, 

2017, Mr. Brooks filed renewed objections to the magistrate judge’s August 19, 2016 

report and recommendation, as well as a renewed Rule 59(e) motion from the entry of 

summary judgment. On September 18, 2017, the court considered Mr. Brooks’ 

objections, confirmed on de novo review that summary judgment was proper, and denied 

the Rule 59(e) motions. Mr. Brooks subsequently filed a notice of appeal on October 10, 

2017. 

 1

 Mr. Brooks filed an interlocutory appeal from the denial 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 appeal. 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 merge 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 dismissal/denying reconsideration.” R. at 574 

(capitalization omitted). The former refers to the September 7, 2016 order granting 

summary judgment, and the latter refers to the September 18, 2017 order denying his 

Rule 59(e) motions for reconsideration. 

 In his briefs, Mr. Brooks does not challenge 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 denying reconsideration, as well as the earlier 

September 25, 2014 dismissal order, which adopted 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 adjudicated 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 not 
5 

identified in the notice of appeal or its functional equivalent.” Lebahn v. Owens, 

813 F.3d 1300, 1304 n.2 (10th Cir. 2016) (internal quotation 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 summary judgment, if the appeal is otherwise 

proper, the intent to appeal from the final judgment is clear, and the opposing party was 

not misled or prejudiced.” (internal quotation marks omitted)). 

 Mr. Brooks failed to designate the September 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 and 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 underlying report and recommendation dated August 14, 2014. 

2. Firm Waiver Rule 

 Under our firm waiver rule, a litigant’s failure 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 issue, “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. 1996). The firm waiver “rule 
6 

does not apply, however, when (1) a pro se litigant has not been informed of the time 

period for objecting and the consequences of failing 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 because the magistrate judge informed the 

parties of the time for objecting and the consequences of failing to do so. See R. at 

183-84. We need not consider the second exception because Mr. Brooks offers no reason 

why the interests of justice require that we review his dismissed claims. See Bronson v. 

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to 

consider arguments that are not raised, or are inadequately presented, in an appellant’s 

opening brief.”). Although we liberally construe Mr. Brooks’ pro se materials, “this 

court has repeatedly insisted that pro se parties 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 quotation 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 district court’s September 25, 2014 order adopting 

that recommendation in part and dismissing the relevant claims. 

 B. Merits 

This leaves the district court’s grant of summary judgment and denial of 

reconsideration on three First Amendment retaliation claims against Sergeant Mathill, 

Captain Gabriel, and Lieutenant Gillis. “We review the 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 quotation marks omitted). At the same time, “courts are ill 

equipped to deal with the increasingly urgent problems of prison administration and 

reform,” so “when a prison regulation impinges on inmates’ constitutional rights, the 

regulation is valid if it is reasonably related to legitimate penological interests.” Gee v. 

Pacheco, 627 F.3d 1178, 1187 (10th Cir. 2010) (internal quotation marks omitted). In 

the First Amendment context, a retaliation claim requires an inmate to establish: 

(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 [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 retaliatory 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, but 
8 

for a retaliatory motive, defendants would not have taken the 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’ imposition of grievance restrictions against him. The next 

day, on September 29, Sergeant Mathill denied him a lunch for 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 following 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 there was no evidence that, but for a retaliatory 

motive, he would have received his lunches. Instead, as the court explained, the record 

indicates that Mr. Brooks was denied two lunches because he violated the prison’s posted 

operational rules by holding the lunch door open rather than “proceed[ing] directly to the 

serving line window,” R. at 432. This regulation, the court correctly concluded, is related 

to a legitimate penological interest in suppressing gang communications. 

Regarding Captain Gabriel, the court correctly determined that Mr. Brooks failed 

to provide evidence indicating that, but for a retaliatory motive, Captain Gabriel would 
9 

not have denied his emergency grievance. Captain Gabriel’s response to the grievance 

stated it would “be routed through normal grievance channels” because, contrary to the 

standards for implementing the emergency grievance 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 alleged 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 violation.” (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 return 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 failed to cite any evidence 

suggesting that, but for a retaliatory motive, Sergeant Mathill would 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’ segregation 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 Amendment test applicable here that “temporal 

proximity between [protected activity] and the alleged retaliatory conduct, without more, 

does not allow for an inference of a retaliatory motive”). 

3. Lieutenant Gillis 

 Finally, Mr. Brooks alleged that he attempted to remove the STG designation from 

his inmate file but Lieutenant Gillis impeded his efforts. He claimed that once he 

succeeded in getting the STG designation removed from his record, Lieutenant Gillis 

retaliated by filing a false disciplinary report. The report charged Mr. Brooks with 

making threats in a letter that was discovered with his property, although Mr. Brooks 

claimed the charge was pretext for retaliation because he filed prison grievances and 

contested the STG designation. 

 The district court recognized that the record does not support Mr. Brooks’ claim. 

The court noted that Lieutenant 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 letter stated, in part: “I’m going to fight the 

police just as hard as I’m gonna fight you.” R. at 436, para. 14; see id. at 438 

(disciplinary report documenting contents of letter). Lieutenant Gillis interpreted the 

letter as a threat and wrote a disciplinary report, choosing the most appropriate charge 

available, “threats,” id. at 438. Given the language in the letter and the absence of 
11 

countervailing evidence, the district court correctly concluded that Mr. Brooks failed to 

show that, but for a retaliatory 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 and suppressing gang 

activity. 

 As for the denial of relief under Rule 59(e), the foregoing discussion demonstrates 

that Lieutenant Gillis and the other defendants were entitled to summary judgment on 

these claims. It follows, then, that the district court did not abuse its discretion in 

denying reconsideration, particularly where 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 include (1) an intervening 

change in the controlling law, (2) new evidence previously unavailable, and (3) the need 

to correct clear error or prevent manifest injustice.”). 

III 

 The district court’s judgment is affirmed. 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 disposed 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 Clerk of the District Court for the District of Colorado. 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge