Green v. Snyder

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

FOR THE TENTH CIRCUIT May 14, 2013

Elisabeth A. Shumaker
Clerk of Court
STEVEN DOUGLAS GREEN,

Plaintiff-Appellant,

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

Defendant-Appellee.

ORDER AND JUDGMENT*

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

Steven Douglas Green, a Colorado state prisoner proceeding 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 appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. BACKGROUND

The parties are familiar with the facts, and the magistrate judge and the district

court provided an exhaustive discussion of the evidence. Therefore, we recite only a

short factual background to frame the issues on appeal. The facts are viewed in the

light most favorable to Green as the 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 incarcerated at the Sterling Correctional

Facility in Sterling, Colorado. In early 2010, Green sought to file a grievance against

prison guard Wendy Brown for sexual harassment. He claimed 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 asked Snyder for the necessary grievance form

to proceed to Step 2. He asserted Snyder 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 then gave him the necessary

form. The alleged delay caused a Step 2 filing to be untimely. Green submitted the

form anyway.

Eventually Green filed this lawsuit, naming as defendants 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 against Emrick and the sexual

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harassment1 and other claims against Brown; all claims were dismissed for failure to

state a plausible claim for relief.2 Green’s claims against Snyder for interference

with his right to petition for redress of his grievances and for retaliation proceeded to

the summary judgment stage. During those proceedings, Snyder submitted an

affidavit explaining his earlier statement concerning when 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 strike 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 summary judgment.

Both parties moved for summary 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 grievances violated his First Amendment right

to petition the government for redress 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 she was entitled to qualified immunity.
2
Green has not appealed from the dismissal 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 refute his claim of intentional delay due to
Snyder’s refusal to process his grievance. According to Green, he received the
Step 1 grievance form on March 3 and submitted it on March 5, but it was not
processed. He says March 10 was the date on which Snyder processed several of
Green’s unrelated grievances, so Snyder was attempting to say the Brown grievance
was among those.

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claim against Brown, also in violation of his First Amendment rights. On the first

claim, he recommended summary judgment in Snyder’s favor because Green had not

suffered any constitutionally cognizable injury because his claims against Brown

were fully adjudicated on the merits, not barred due to Green’s failure to complete

the prison grievance process. He also recommended summary judgment in Snyder’s

favor on the retaliation claim, concluding Green could not meet the relevant criteria

and therefore Snyder was entitled to qualified immunity. Green timely objected to

the MJ’s recommendations, but did not include an objection to the recommendation

concerning the right-of-court-access claim. Accordingly the district judge only

reviewed the recommendation on the retaliation 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 summary judgment in favor of Snyder.

Green’s appeal to us advances three issues: (1) the district judge should have

reviewed the MJ’s order denying his motion to strike Snyder’s affidavit;

(2) “Snyder’s actions alone caused [his] grievances to be denied on procedural

errors,” Aplt. Opening Br. at 3; and (3) Green’s evidence of Snyder’s retaliation was

sufficient to prevent summary judgment.

II. DISCUSSION

“We review the district court’s summary 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) (internal quotation marks omitted). “The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact

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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 order denying motion to strike affidavit

Green complains about the failure of the district judge to review the MJ’s

minute order denying his motion to strike Snyder’s affidavit. 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 order 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 May 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 inmate to allege and prove he used the

prison’s legal mail system (if one is available), or to include a notarized statement or

a declaration under penalty of perjury of the date on which he gave the documents to

prison staff for mailing and attesting that postage was prepaid. Id. at 1166. Green’s

certificate of mailing of his objection did not include any of these requirements so the

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prison mailbox rule does not apply. Therefore, because “[a] party may not assign as

error a defect in the [magistrate judge’s] order not timely objected to,” Fed. R. Civ.

P. 72(a), we cannot address this claim.

2. Claim as to Snyder’s delay in processing grievances

Green tells us “Snyder’s actions alone caused [his] grievances to be denied on

procedural errors,” Aplt. Opening Br. at 3, but that cannot be. The district judge

decided Green’s claims against 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 against 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 constitutionally cognizable injury

resulting from the claimed procedural error. The summary judgment was

appropriate.

3. Retaliation

Green’s claim that Snyder deliberately mishandled his grievances to

discourage him from pursuing relief against Brown also fails. In Shero v City of

Grove, we discussed the parameters of a retaliation claim, saying:

Government retaliation against a plaintiff 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 caused the plaintiff to suffer an injury

4
In fact, the defendants did not argue procedural bar.

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 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 plaintiff’s exercise of
constitutionally protected conduct. When the plaintiff alleges that the
defendant’s action was taken in retaliation 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 prosecution claim.

510 F.3d 1196, 1203 (10th Cir. 2007) (emphasis supplied) (citations, brackets,

ellipsis, and internal quotation marks omitted). The same test applies in the prison

context. See Gee, 627 F.3d at 1189.

A defendant is entitled to qualified immunity unless the plaintiff demonstrates

the facts he has shown “make out a violation of constitutional right[, and] the right at

issue was clearly established at the time of defendant’s alleged misconduct.”

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation and internal quotation marks

omitted); see id. at 231 (“[Q]ualified immunity is an immunity from suit rather than a

mere defense to liability.” (internal quotation marks omitted)).

For purposes of resolving this claim, we assume filing grievances is

constitutionally protected activity. Moving on, we struggle to identify any injury

Green ultimately suffered because of the claimed delay in providing proper forms

since no procedural bar was asserted by the 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. Certainly that is true

here. Like the district court, we conclude Snyder’s failure to provide the grievance

forms in a timely fashion would not chill a person of ordinary firmness from

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continuing to file grievances. And Green has proffered no evidence of Snyder’s

motivation to retaliate. The MJ concluded Snyder could not have known of Green’s

intention to file a grievance against Brown at the time he delayed producing the

Step 1 grievance form. As for the Step 2 grievance, Snyder stated he did not know

Brown, and she had already left her employment 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, conclusions. In this appeal, he

suggests Snyder intended to retaliate because both he and Brown were prison

employees, an argument we do not consider because 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 consider arguments raised for the first time

on appeal.” (internal quotation marks omitted)). Even so, we fail to see how these

circumstances demonstrate a retaliatory motive, particularly since Snyder did not

know Brown. Any suggestion of institutional bias in favor of prison employees, if

that is what Green intends, must be supported by facts, not supposition. Green has

failed to show a genuine issue of material fact concerning violation of his First

Amendment rights. Snyder was entitled 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 clerk of the district court. If Green fails to

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immediately pay the filing and docketing fees as required, our previous order

requiring periodic payments remains in effect until the fees are fully paid.

Entered for the Court

Terrence L. O’Brien
Circuit Judge

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