                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     February 19, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                            FOR THE TENTH CIRCUIT




    BRIAN L. BROWN,

                Plaintiff-Appellant,

    v.                                                     No. 07-6120
                                                     (D.C. No. 06-CV-228-F)
    DON NARVAIS,                                           (W.D. Okla.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.



         This prison civil rights action arises out of events at the Oklahoma Federal

Transfer Center (OFTC) where, recovering from an assault at another facility,

plaintiff was temporarily placed while awaiting reassignment. An emergency

arose and he was held for a short time with another inmate in a double cell. His

complaint alleges that, while returning plaintiff to his single cell, defendant, a


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
prison guard, told plaintiff’s cell-mate that he would not want to be housed with

plaintiff, indicating he would explain later. Thereafter, the guard disclosed that

plaintiff was a child molester, angering the cell-mate and prompting him to spread

the information among inmates awaiting transfer out of OFTC to other facilities,

including FCI Florence, where plaintiff was to be transferred. Plaintiff later filed

this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), claiming that defendant knowingly exposed him

to a risk of serious bodily danger from other inmates, in violation of the Eighth

Amendment. The district court dismissed the action for failure to state a claim

and admonished that, absent a successful appeal, the ruling would count as a

“strike” under 28 U.S.C. § 1915(g). Plaintiff appealed and moved for leave to

proceed in forma pauperis (IFP). We grant the IFP motion, reverse the dismissal

of the action, and remand for further proceedings. 1

      Without implying any opinion regarding the ultimate determination of this

case, we think circuit precedent precludes its dismissal at the pleading stage. In

Benefield v. McDowall, 241 F.3d 1267 (10th Cir. 2001), a prisoner alleged his

Eighth Amendment rights were violated when a prison guard circulated rumors

that he was a “snitch,” knowingly putting him in physical danger at the hands of

1
      Although the district court certified the appeal as not taken in good faith
under 28 U.S.C. § 1915(a)(3), which states that such an appeal “may not be taken
[IFP],” we properly reconsider the matter under Fed. R. App. P. 24(a)(5), grant
IFP, and proceed to a review of the merits. See Rolland v. Primesource Staffing,
L.L.C., 497 F.3d 1077, 1078-79 (10th Cir. 2007).

                                         -2-
other inmates. Id. at 1269-70. This court held that not only had the prisoner

stated a claim for relief but that the law supporting the claim was sufficiently

well-established to preclude a defense based on qualified immunity:

      [I]f we accept as true Plaintiff's allegations that [a prison guard]
      labeled him a snitch, that the label was communicated to other
      inmates, and that [the guard] was aware of the obvious danger
      associated with a reputation as a snitch, clearly established law
      provides that [the guard] violated Plaintiff's constitutional rights
      under the Eighth Amendment.

Id. at 1271 (citing illustrative decisions from five circuits, including this court’s

decision in Northington v. Marin, 102 F.3d 1564, 1567 (10th Cir. 1996)). While a

different incendiary badge of prison infamy was used here, the same principles

apply. The amended complaint 2 alleges that defendant disclosed plaintiff’s status

as a child molester “knowing . . . that [by] giving that information [he] placed

[plaintiff] in a class of inmates subject to serious bodily harm.” R. doc. 37 at 2;

see also id. at 9 (alleging that staff “intentionally placed prisoners in a class of

inmates subjected to serious bodily harm” and that defendant did so “knowing

what he did was wrong, and knowing it would cause problems”). Taking these

allegations as true, as we must at this stage, the conduct and danger complained

of here are materially indistinguishable from that in Benefield.


2
      Plaintiff’s motion for leave to file the amended complaint was denied as
moot, but that ruling simply reflects the fact that, under Fed. R. Civ. P. 15(a), he
was entitled to amend the complaint before defendant filed a responsive pleading.
The magistrate judge’s recommendation, adopted by the district court, explicitly
addressed the allegations of the amended complaint, as do we.

                                          -3-
      Moreover, just as here, in Benefield the disclosure had not yet led to an

attack on the plaintiff, but that did not render the pleadings deficient on the

objective component of the Eighth Amendment claim, i.e., the existence of a

substantial risk of serious harm:

             The Supreme Court has rejected the notion that the Eighth
      Amendment does not reach official conduct that ‘is sure or very
      likely to cause’ serious injury at the hands of other inmates. Helling
      v. MicKinney, 509 U.S. 25, 33 [(1983)] . . . . The government’s
      argument that the mere risk of harm is insufficient to establish the
      objective component of an Eighth Amendment violation is precisely
      the position taken by the dissent in Helling . . . .

             . . . The actual extent of any physical injury, threats or
      psychological injury is pertinent in proving a substantial risk of
      serious harm. At this point, [however,] construing Plaintiff’s pro se
      pleadings liberally, . . . we hold that . . . Plaintiff’s allegations [were]
      sufficient to survive [a] motion to dismiss based on qualified
      immunity.

Id. at 1272 (emphasis added). Benefield did note that the absence of an attack

caused by the disclosure raised questions as to the appropriate available remedy,

but that did not affect the legal sufficiency of the constitutional claim pled, as “a

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

Id.

      Following Benefield, we must reverse the dismissal of this action. But it is

important to clarify the limited import of our disposition. We do not hold that

prison personnel may be liable for failing to prevent harmful disclosures about a

prisoner from other sources. Here, as in Benefield, the harmful disclosure was


                                           -4-
allegedly made by the prison guard himself. We also do not hold that disclosures

of this sort always in fact create an actionable danger to the inmate, regardless of

circumstances that might materially affect the consequences of the disclosure,

such as protective action by prison authorities or other contingencies that could

negate the potential danger involved. We hold only that allegations of a prison

officer’s deliberate disclosure of dangerous information about an inmate’s status

are sufficient to state a claim under the Eighth Amendment provided the alleged

danger is facially concrete and plausible enough to satisfy basic pleading

standards. See generally Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)

(discussing and applying Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S. Ct.

1955 (2007)). In that regard, the disclosure of obviously harmful information at a

transfer facility–from which it may be expected to (and allegedly has) spread to

other prisons where the plaintiff is or may be placed–cannot be summarily

discounted as insufficiently dangerous on its face “to raise a right to relief above

the speculative level.” Id. at 1218 (quotation omitted).

      Of course, plaintiff may be unable to substantiate his allegations, or

defendant may be able to show additional circumstances that negate or neutralize

the danger created by the disclosure. In either case, defendant could successfully

defend against the suit on summary judgment. Again, consistent with Benefield,

we simply hold that this action was not subject to dismissal at the pleading stage.




                                          -5-
      The judgment of the district court is REVERSED and the cause is

REMANDED for further proceedings. Plaintiff’s motion for leave to proceed in

forma pauperis on appeal is GRANTED.



                                                 Entered for the Court


                                                 Bobby R. Baldock
                                                 Circuit Judge




                                       -6-
