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

                                   TENTH CIRCUIT                               March 28, 2011

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
DEXTER HARRIS,

       Plaintiff - Appellant,

v.                                                           No. 10-1405
                                               (D.C. No. 1:09-CV-02322-REB-MEH)
MARK ALLAN MATTHEWS, Detective,                               (D. Colo.)
Denver Police,

       Defendant - Appellee.




                                ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.


       Dexter Harris, an inmate at the Denver County Jail, filed a 42 U.S.C. § 1983

complaint against Detective Mark Allan Matthews of the Denver Police Department after

Matthews allegedly disclosed Harris’ status as a state witness to other inmates in the




       *
        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). We have decided this case on the briefs.

        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
jail.1 Harris claimed this disclosure led to him being assaulted by other inmates and

caused him mental and emotional damages. The district court granted summary

judgment to Matthews because Harris had failed to show Matthews’ actions caused the

assault. While we agree with that conclusion, we nevertheless remand as the court failed

to address Harris’ separate mental and emotional damages claim.

                               I. FACTUAL BACKGROUND

       While incarcerated at the Arapahoe County Detention Facility in Colorado, Harris

obtained information from a fellow inmate, implicating the inmate and another individual

in a double homicide. Harris immediately reported the information to law enforcement.

In 2005 or 2006, he testified against them in their criminal cases. As a result of his

cooperation, Harris was placed in the witness protection program.

       On November 16, 2008, Harris was arrested for robbery and possession of a

weapon and placed in the Denver City Jail. On that same day, Matthews went to the jail

to interview Harris on an unrelated matter. According to Harris:

       When [Matthews] was advised that I had already spoken to an attorney, he
       became irate and made threats on my life. When we were in the hallway on
       the way to the elevators, . . . Matthews released information concerning my
       state witness status to the [other jail] inmates in an attempt to have me
       seriously injured or killed. Two Denver Sheriff officer[]s overheard the
       incident, and it was reported to Sergeant Pension, who then placed me in
       administrative segregation for my protection.

(R. at 36.)

       In March or April 2009, Harris learned from a fellow inmate that a “hit” had been

       1
        Because Harris is proceeding pro se, we liberally construe his pleadings. See
Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).


                                            -2-
placed on him by a gang in relation to his testimony. Several months later, on August 24,

2009, while incarcerated at the jail, Harris was kicked down a flight of stairs. He

suffered a cut to one of his elbows and hurt his knee. Harris did not see who kicked him

but “speculat[ed]” it was two gang members who allegedly were present at the time of

the assault. (R. at 119.)

       In May 2009, Harris reported Matthews’ conduct on November 16, 2008 to the

Denver Police Department’s Internal Affairs Bureau. The Bureau closed the complaint

as untimely because it was filed more than six months after the incident.

                            II. PROCEDURAL BACKGROUND

       Harris filed a civil rights complaint against Matthews2 alleging Matthews violated

his due process rights under the Fourteenth Amendment3 by releasing his state witness

status to other inmates in the Denver City Jail. He claimed Matthews’ actions resulted in

the August 24 assault and Harris being “placed on medication to deal with the unrelenting

fear [he] suffer[s] everyday.” (R. at 36.) He sought declaratory and injunctive relief as



       2
         Harris also sued Gerry Witman, the Chief of the Denver Police Department, and
John Burback, the Commander of the Denver Police Department’s Internal Affairs
Bureau. The district court dismissed these individuals for lack of personal participation
in the alleged deprivation of Harris’ constitutional rights. Harris does not challenge that
ruling on appeal.
       3
         In other pleadings, Harris couched his claim in the Eighth Amendment.
However, because he was a pretrial detainee at the time of the alleged constitutional
violation, the Due Process Clause of the Fourteenth Amendment governs. See Bell v.
Wolfish, 441 U.S. 520, 535 n.16 (1979); see also McClendon v. City of Albuquerque, 79
F.3d 1014, 1022 (10th Cir. 1996). Nevertheless, “the Eighth Amendment standards
applicable to convicted persons provide the benchmark [for such claims].” McClendon,
79 F.3d at 1022.


                                            -3-
well as compensatory and punitive damages.

       Matthews filed a motion for summary judgment arguing Harris had failed to

establish a causal connection between Matthews’ alleged actions and the August 24

assault.4 The district court agreed:

       Notably, Harris does not know who assaulted him, and no statements were
       made to Harris at the time of the assault, or shortly thereafter, that provide
       any indication of the motive for the assault. . . . [A]t least four months
       passed between [Matthews’] alleged release of information and any threat
       or assault directed at Harris. In his response . . . to the motion for summary
       judgment, Harris notes that, in his deposition, he testified that two members
       of the organization against whom Harris had testified were present when
       Harris was kicked down the stairs. A couple of days earlier, Harris says,
       these two individuals had attempted to question Harris about the
       information Detective Matthews allegedly released to inmates in the city
       jail. This portion of Harris’s deposition is not included with the motion for
       summary judgment or with Harris’s response. Thus, there is no competent
       evidence in the record to establish the facts on which Harris relies in his
       response.

                                           ....

       [V]iewing the evidence in the record in the light most favorable to Harris,
       no reasonable fact finder could find that Detective Matthews’ alleged
       release of information was a cause of the assault Harris suffered on August
       24, 2009. Causation is an essential element of Harris’s § 1983 claim
       against Detective Matthews and, absent evidence in the record that might
       establish causation, Detective Matthews is entitled to summary judgment.

(R. at 160-62.)

       Harris filed a timely notice of appeal. The district court denied his motion to

proceed in forma pauperis (ifp) on appeal.5


       4
       Matthews denied the allegations but conceded them for purposes of summary
judgment.
       5
       After filing his notice of appeal, Harris filed a motion for entry of default
judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure, a motion for new

                                            -4-
                              III. STANDARD OF REVIEW

       “We review summary judgment decisions de novo, applying the same legal

standard as the district court.” Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1104 (10th

Cir. 2008). “The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “When applying this standard, we view the

evidence and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Sanders, 544 F.3d at 1105 (quotations omitted).

                                     IV. DISCUSSION

       Harris’ complaints, while numerous, are essentially two-fold. First, he argues the

court erred in determining he had failed to establish Matthews’ actions caused the August

24 assault based on the amount of time that lapsed between the two events and the mere

fact that the gang members who pushed him down the stairs did not say anything to him

trial under Rule 59(a) of the Federal Rules of Civil Procedure and a motion to alter or
amend judgment under Rule 59(e) of the Federal Rules of Civil Procedure. The district
court denied these motions. In his opening brief, Harris attempts to challenge the denial
of his motion to alter or amend judgment. However, Harris did not file a new notice of
appeal or amend his previous notice of appeal to include the court’s denial of that motion.
See Fed. R. App. P. 3(c)(1)(B) (“The notice of appeal must . . . designate the judgment,
order, or part thereof bring appealed.”), 4(a)(4)(B)(ii) (“A party intending to challenge an
order disposing of [a post-trial] motion . . . must file a notice of appeal, or an amended
notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule
measured from the entry of the order disposing of the last such remaining motion.”).
Therefore, we lack jurisdiction to review that denial. See Foote v. Spiegel, 118 F.3d
1416, 1422 (10th Cir. 1997); see also Kibbe v. Williams, 392 Fed. Appx. 648, 651 (10th
Cir. 2010).

      Unpublished opinions are not binding precedent. 10th Cir. R. App. P. 32.1(A).
We mention Kibbe and the other unpublished opinions cited in this decision as we would
opinions from another circuit, persuasive because of their reasoned analyses.


                                           -5-
at the time of the assault. He says it is obvious the gang members were responsible for

the assault as they were present at the time of the assault and had questioned Harris about

the information Matthews had disclosed a few days prior to the assault. He also contends

the delay between Matthews’ disclosure of information and the assault was due to the fact

that the information had to “find its way” from the jail to the gang and then from the gang

back to Harris in jail. (Appellant’s Reply Br. at 8.) Second, he contends the court’s

ruling was premature as Matthews never responded to or defended against his claim for

mental and emotional damages. According to Harris, he suffered “unrelenting,” “life-

threatening fear” due to Matthews’ actions and, as a result, has had to undergo treatment

and been prescribed medications. (Appellant’s Opening Br. at 10.)

A.     August 24 assault

       The district court did not consider Harris’ allegations that two gang members were

present at the time of the assault and had questioned him about his state witness status a

few days prior to the incident because the relevant portions of Harris’ deposition (pages

98 and 99) had not been included with the motion for summary judgment or Harris’

response to the motion. That is only partially correct. While page 99 of Harris’

deposition was not provided to the district court at the summary judgment stage, page 98

was attached to Matthews’ motion. Nevertheless, the only information page 98 provided

is that Harris “speculat[ed]” that two gang members were the instigators of the assault.

(R. at 119.) Therefore, the only evidence before the court at the time of summary

judgment was Harris’ “speculation” that two members of Ray’s gang assaulted him. That

is clearly insufficient to establish Matthews’ actions in November 2008 caused the

                                            -6-
August 2009 assault. See Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) (in order

to state a § 1983 claim, a plaintiff must show the defendant “cause[d]” the constitutional

deprivation; that causal connection is demonstrated “if the defendant set in motion a

series of events that the defendant knew or reasonably should have known would cause

others to deprive the plaintiff of [his] constitutional rights”) (quotations omitted); see also

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (“To defeat a motion

for summary judgment, evidence, including testimony, must be based on more than mere

speculation, conjecture, or surmise.”).

       Nevertheless, even were we to consider Harris’ testimony on page 99 of his

deposition and assume his assailants were two gang members who had questioned him

about his state witness status a few days before the assault, we would reach the same

conclusion. There is no evidence, other than rank speculation, that Harris’ assailants

obtained the information concerning his state witness status from Matthews’ disclosure,

as opposed to the fact that Ray and Owens were both present when Harris testified

against them in court. Again, that is not enough and Harris has failed to establish

Matthews’ disclosure caused the assault.

B.     Mental and Emotional Damages

       The district court did not address Harris’ claim that he suffered mental and

emotional damages as a result of Matthews’ actions.6 Nor did Matthews address it in his


       6
         Harris informed the district court that it had failed to address his mental and
emotional damages claim in his post-judgment motions. The district court denied these
motions without explicitly addressing the mental and emotional damages claim or its
failure to address it in its summary judgment order.

                                             -7-
motion for summary judgment.7 However, it is clear throughout the record that Harris is

claiming he suffered mental and emotional damages as a direct result of Matthews’

actions, irrespective of the assault.8


       7
        Matthews did not address the claim despite questioning Harris as follows at his
deposition:

       Okay. Now there’s a second component to the injuries, and you talked
       about that a little bit. Just now you talked about there’s the mental health
       aspect, the emotional pain. And you gave a good description about that.
       You talked to me about the threat you feel that you’re under now, but I
       wanted to ask you about that because you mention it in your Complaint . . .
       . You said you’re under medication to treat anxiety. Are you still under
       medication to treat anxiety?

(R. at 187 (emphasis added).) Matthews then proceeded with questions concerning the
treatment Harris has received for his mental and emotional distress.
       8
          Harris alleged in his complaint: “Since [Matthews disclosed my state witness
status] . . . I’ve been placed on medication to deal with the unrelenting fear that I suffer
everyday.” (R. at 36.) In his response to Matthews’ summary judgment motion, he
stated:

       The release of this information in the manner in which it was done, (to
       other inmates), placed the Plaintiff in greater danger than he previously
       suffered. “But for” [Matthews’] actions, the Plaintiff’s mental and
       emotional distress would not exist . . . . After [Matthews’ actions], the
       Plaintiff has since been placed on medication to cope with the turmoil that
       he lives with everyday since [Matthews’] actions. The Plaintiff has never
       been prescribed medication for excessive fear, or under the care of a mental
       health physician, until [Matthews’] actions . . . .

(Id. at 127.) And in the Final Pretrial Order, he claimed:

       As a result of [Matthews’] actions, . . . Plaintiff has . . . suffered severe
       mental and emotional problems and has been placed under the care of a
       Mental Health Physician, and is undergoing treatment, and medications . . .
       . There is no question that [Matthews’] actions are the Cause[] of the
       Plaintiff’s mental and emotional distress, for which he is being treated.

(R. at 139-41.)


                                             -8-
       “[P]rison officials have a duty [under the Eighth Amendment] to protect prisoners

from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833

(1994) (quotations omitted). In a number of cases, we have held that labeling an inmate a

“snitch” or otherwise inciting other inmates to harm an inmate states an Eighth

Amendment violation, regardless of whether the inmate is ever actually physically

harmed. See, e.g., Benefield v. McDowall, 241 F.3d 1267, 1271-72 (10th Cir. 2001)

(holding it is clearly established law that labeling an inmate a snitch and informing other

inmates of that label with knowledge of the obvious risk of danger associated with that

label violates the Eighth Amendment even though the inmate is never actually harmed; “a

violation of the Eighth Amendment does not turn on the type [of] relief sought” and

“may be implicated not only to physical injury, but also by the infliction of psychological

harm”); Northington v. Jackson, 973 F.2d 1518, 1525 (10th Cir. 1992) (holding

plaintiff’s claim that he was assaulted by other inmates as a result of a jail guard telling

inmates that he was a snitch stated an Eighth Amendment violation); Brown v. Narvais,

265 Fed. Appx. 734, 735-36 (10th Cir. 2008) (unpublished) (allegation that defendant

disclosed plaintiff’s status as a child molester knowing such label would subject the

plaintiff to serious bodily harm stated an Eighth Amendment violation even though the

plaintiff was never actually physically attacked); Johnson-Bey v. Ray, 38 Fed. Appx. 507,

510 (10th Cir. 2002) (unpublished) (plaintiff’s allegations that correctional officer

intentionally told another inmate that plaintiff had tried to set him up for a disciplinary

violation in order to place plaintiff in danger stated an Eighth Amendment violation;

“[t]he fact that plaintiff suffered no physical injury resulting from the officer’s alleged

                                             -9-
action, although relevant to the issue of damages, does not require dismissal”) (citation

omitted); Purkey v. Green, 28 Fed. Appx. 736, 745 (10th. Cir 2001) (unpublished) (“A

prisoner states an Eighth Amendment violation by alleging that a prison official intended

to cause him serious harm by inciting other inmates to do violence against him. While an

idle threat of impending physical harm that is not carried out will not suffice to state an

Eighth Amendment claim, an imminent threat of serious harm, even though injury never

actually occurs, will suffice.”) (citation and quotations omitted).

       It is unclear from the current record whether Harris can prevail on his claim for

mental and emotional damages or whether Matthews has any defenses to that claim other

than 42 U.S.C. § 1997e(e), which does not preclude relief in this case.9 Therefore, we

remand this matter to the district court to allow it to decide the issue in the first instance.

See Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1238 (10th Cir. 2005) (“Where

an issue has been raised, but not ruled on, proper judicial administration generally favors


       9
          Matthews finally addressed Harris’ mental and emotional damages claim in
response to Harris’ motion for new trial and motion to alter or amend judgment, arguing
those damages were barred under 42 U.S.C. § 1997e(e). He repeats that argument on
appeal. Section 1997e(e) provides: “No Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical injury.” While §
1997e(e) bars compensatory damages for mental and emotional injuries suffered by a
prisoner (regardless of the nature of the right asserted) unless he also suffered physical
injury, it does not bar recovery of nominal or punitive damages for violations of a
prisoners’ constitutional rights. See Searles v. Van Bebber, 251 F.3d 869, 878-79, 881
(10th Cir. 2001). Nor does it affect actions for declaratory or injunctive relief. See
Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 808 (10th Cir. 1999). In addition to
seeking compensatory damages, Harris seeks a declaration that Matthews’ actions
violated his constitutional rights. He also requests punitive damages. These damages
claims would not be precluded by § 1997e(e).


                                             - 10 -
remand for the district court to examine the issue initially.”); see also Brammer-Hoelter

v. Twin Peaks Charter Acad., 492 F.3d 1192, 1209 (10th Cir. 2007) (remanding to the

district court to decide a claim which the court failed to address in its summary judgment

order).

          We AFFIRM the district court’s judgment in favor of Matthews on Harris’ claim

that Matthews’ disclosure caused the August 2009 assault. We REMAND Harris’

mental and emotional damages claim for further proceedings consistent with this Order

and Judgment. We GRANT Harris’ motion to proceed ifp on appeal and remind him that

he is obligated to continue making partial payments until the entire fee has been paid.



                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




                                           - 11 -
