UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

NICKY SMITH, 

 Plaintiff - Appellant, 

v. 

SERGEANT NELSON; JOSEPH 

HALLIGAN, 

 Defendants - Appellees. 

and 

MICHELL RUSSOM, 

 Defendant. 

No. 14-1512 

(D.C. No. 1:13-CV-02978-RBJ-CBS) 

(D. Colo.) 

_________________________________ 

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. 

FILED 

United States Court of Appeals

Tenth Circuit 

July 20, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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. 
4 

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 
5 

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 
6 

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