UNITED STATES COURT OF APPEALS

FILED
United States Court of Appeals
Tenth Circuit

TENTH CIRCUIT

March 28, 2011

Elisabeth A. Shumaker
Clerk of Court

DEXTER HARRIS,
Plaintiff - Appellant,
v.
MARK ALLAN MATTHEWS, Detective,
Denver Police,

No. 10-1405
(D.C. No. 1:09-CV-02322-REB-MEH)
(D. Colo.)

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This order and judgment is an unpublished decision, not binding precedent. 10th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 Citation to unpublished decisions is not prohibited.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Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).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notation B (unpublished).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).
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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 Departments 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

Harris also sued Gerry Witman, the Chief of the Denver Police Department, and
John Burback, the Commander of the Denver Police Departments 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.
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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 Harriss deposition is not included with the motion for
summary judgment or with Harriss 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 Harriss 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

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
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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 courts 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 appealin 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.
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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. (Appellants Reply Br. at 8.) Second, he contends the courts
ruling was premature as Matthews never responded to or defended against his claim for
mental and emotional damages. According to Harris, he suffered unrelenting, lifethreatening fear due to Matthews actions and, as a result, has had to undergo treatment
and been prescribed medications. (Appellants 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 Rays gang assaulted him. That
is clearly insufficient to establish Matthews actions in November 2008 caused the
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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 Intl, 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.
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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 theres a second component to the injuries, and you talked
about that a little bit. Just now you talked about theres 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 youre under now, but I
wanted to ask you about that because you mention it in your Complaint . . .
. You said youre 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] . . . Ive 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 Plaintiffs 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
Plaintiffs mental and emotional distress, for which he is being treated.
(R. at 139-41.)
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[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
plaintiffs 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 plaintiffs 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) (plaintiffs 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 officers alleged
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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

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 Dept 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).
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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 courts 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. OBrien
United States Circuit Judge

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