F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    February 2, 2007
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 RO BERT HARR IS,

               Plaintiff - Appellee,                    No. 05-1225
          v.                                           (D. Colorado)
 JOE M ORALES, in his official                     (D.C. No. 98-K-2501)
 capacity and as an individual; SCOTT
 TEETSEL, in his official capacity and
 as an individual,

               Defendants,

      and

 M ONTE GORE, in his official
 capacity and as an individual,

               Defendant - Appellant.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, O’BRIEN, and M cCO NNELL, Circuit Judges.




      *
       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not binding precedent except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Robert Harris w as an inmate at the jail of Summit County, Colorado, in

1998. He brought a civil-rights action seeking compensatory and punitive

damages from officials at the jail and from Summit County. Among his claims

was that Captain M onte Gore violated his Eighth Amendment right to be free

from cruel and unusual punishment. He contends that his right eye was injured by

pepper foam during his incarceration and that Captain Gore acted with deliberate

indifference in denying him needed medical care. Captain Gore moved for

summary judgment. The district court denied the motion as to the inadequate-

medical-care claim but did not fully address Captain Gore’s qualified-immunity

argument. Captain Gore appeals the denial of qualified immunity. M r. Harris

argues that the denial was proper and that w e lack jurisdiction over the appeal.

W e conclude that we have jurisdiction and remand the case to the district court to

address in full the issue of qualified immunity.

I.    B ACKGR OU N D

      For purposes of this appeal Captain Gore does not dispute the following

account of what occurred: W hile M r. Harris w as a prisoner in the Summit County

jail in June 1998, he had a confrontation with Deputy Scott Teetsel, who sprayed

him with pepper foam. M r. H arris was taken to a shower to wash out his eyes.

The warm water of the shower failed to reduce the burning sensation, so Deputy

Teetsel removed him from the shower and sprayed a counterreactant in his eyes.

Captain G ore, Deputy Teetsel’s supervisor, was not present during these events.

                                         -2-
      M r. Harris sent several messages to Captain Gore complaining about

Deputy Teetsel’s handling of the matter and, in at least one message, requesting

medical attention. M r. Harris and Captain Gore met one week after the incident,

and then a few days later the two met with Sheriff Joe M orales. In the second

meeting (and perhaps in the first) M r. Harris said that he was experiencing

blurred vision and had discoloration of his right eyelid and a spot in his right eye.

He said that he needed medical attention, but he received no response to his

request.

      The spot in M r. Harris’s right eye is a scar in the form of a black dot on his

eyeball. The scar and the discoloration of his right eyelid both appear to be

permanent. The nature of his blurry vision is less clear. In his deposition he said

that for two weeks following the pepper-foam incident, he could not watch

television because “the light was affecting my eye,” Aplt. App. at 170, and that

even now, when he w atches television for a period of time, his “eye w ill . . . start

to water[],” 

      M r. Harris filed suit in the United States District Court for the District of

Colorado against Summit County, Sheriff M orales, Captain Gore, and Deputy

Teetsel under 42 U.S.C. §§ 1981, 1983, 1985, and 1986. The defendants filed

motions for summary judgment on all claims. M ost of the claims— the claims

under §§ 1981, 1985, and 1986, and race-discrimination claims under

§ 1983— were then dismissed without prejudice by stipulation of the parties; and

                                          -3-
the district court granted summary judgment on the remaining claims except for

the Eighth Amendment claim against Deputy Teetsel for using excessive force

and the Eighth Amendment claims against Captain Gore and Deputy Teetsel for

failure to provide medical treatment. This appeal concerns only the denial of

Captain Gore’s motion on the inadequate-medical-care claim.

II.   D ISC USSIO N

      W hen a defendant invokes the defense of qualified immunity, “we require a

plaintiff to satisfy a heavy two-part burden to avoid summary judgment: (1) that

the defendant’s actions violated a constitutional or statutory right and (2) that the

right was clearly established at the time of the defendant’s unlawful conduct.”

Serna v. Colo. Dep’t of Corrs., 

, 1150 (10th Cir. 2006) (internal

quotation marks omitted). The constitutional right at issue in this case is the

Eighth Amendment prohibition against cruel and unusual punishment. To

establish an Eighth Amendment claim based on inadequate medical care, the

prisoner must prove “both an objective component and a subjective component.”

M ata v. Saiz, 

, 751 (10th Cir. 2005) (internal quotation marks

omitted). The objective component is that “the alleged harm . . . [w as]

sufficiently serious.” 

The subjective component is that the prison

official had a “culpable state of mind”— namely, deliberate indifference to the

prisoner’s serious medical needs. 

The prisoner must also prove that




                                         -4-
the acts performed with the culpable state of mind caused the serious harm. See

753.

      In his qualified-immunity argument in district court, Captain Gore raised,

albeit sparsely, a challenge to the subjective component of M r. Harris’s claim (on

appeal he makes no argument on this issue), and the contention that M r. Harris’s

alleged constitutional right had not been clearly established. He omitted any

mention of the causation element in his opening brief below, but his reply brief

claimed that M r. Harris had not shown that his injuries w ere caused by Captain

Gore’s actions. See Pippin v. Burlington Res. Oil & Gas Co., 

,

1192 (10th Cir. 2006) (district court may not rely on new materials or new

arguments in a summary-judgment movant’s reply brief unless it permits the

nonmovant to respond).

      Captain Gore’s most extensive argument in district court concerned the

objective component of M r. Harris’s claim. He argued that the eye injuries

simply were not sufficiently serious. He cited four cases, only one of which

involved an alleged eye injury— Clemmons v. Bohannon, 

, 1526

(10th Cir. 1992) (en banc), in which we held that a prisoner’s exposure to

secondhand tobacco smoke did not constitute a serious medical need because he

had alleged only throat, eye, and nose irritation, see 

(prisoner had

“alleged no adverse physical symptoms from cigarette smoke different from those

suffered by everyone in society”), and the potential for more serious carcinogenic

                                         -5-
effects in the future, see 

But see Helling v. M cKinney, 

,

30 (1993) (allowing prisoner’s secondhand-smoke claim to proceed). 1

      The district court denied summary judgment to Captain Gore on

M r. Harris’s inadequate-medical-care claim. But it addressed only whether

M r. Harris had produced evidence of a constitutional violation. The court

concluded that “for purposes of summary judgment . . . Gore should have

recognized the need for medical attention in Plaintiff’s case” and that the

evidence supported a “finding that [Gore] had enough information to infer

Plaintiff was at substantial risk of injury and disregarded it . . . .” Aplt. App. at

219 (Order on M ot. for Summ. J., April 6, 2005). The court did not address

      1
        W e note that other courts have occasionally addressed Eighth Amendment
claims for eye injuries. See Koehl v. D alsheim, 

, 87–88 (2d Cir. 1996)
(prisoner requiring “specially prescribed, tinted eye-glasses” to prevent double
vision and loss of depth perception asserted a sufficiently serious medical need
when removal of his glasses led to loss of sight in one eye and shifting of that eye
into the corner of his socket); M itchell v. M aynard, 

, 1443 (10th Cir.
1996) (removal of prescription eyeglasses from a prisoner “could constitute a
violation of his right to be free of cruel and unusual punishment[]”); Kersh v.
Derozier, 

, 1510, 1513 (5th Cir. 1988) (evidence sufficient for a
jury finding of deliberate indifference to serious medical needs when piece of hay
in eye caused redness, tearing, bleeding, and eventual loss of sight); Freeman v.
Lockhart, 

, 1017 (8th Cir. 1974) (prisoner with tuberculosis that
had settled in his eyes and that eventually led to permanent impairment of his
vision alleged a sufficient injury for claim of failure to provide medical treatment;
optometrist had recommended surgery to address the “hazard to his vision”
caused by the disease); cf. United States v. Woodlee, 

, 1409 (10th
Cir. 1998) (impairment of vision is a “serious bodily injury” under the United
States Sentencing Guidelines); United States v. Talamante, 

, 1158
(10th Cir. 1992) (loss of eye that had some residual vision is a “serious bodily
injury” under the United States Sentencing Guidelines).


                                          -6-
whether the constitutional right at issue was clearly established at the time of the

incident.

      On appeal Captain Gore contends that M r. Harris’s claimed injury is not

sufficiently serious and that M r. Harris has not established that his injury was

caused by the delay in receiving medical care. He further argues that the alleged

Eighth Amendment right at issue was not clearly established at the time of the

pepper-foam incident.

      Before we can address the merits of Captain G ore’s appeal, we must

address our jurisdiction, which M r. H arris challenges. “Although appellate courts

typically do not have jurisdiction to review denials of summary judgment

motions, we have jurisdiction to hear interlocutory appeals where . . . the

defendant raises a qualified immunity defense and the issue appealed concerns

whether or not certain given facts showed a violation of clearly established law.”

(internal quotation marks, brackets, and ellipsis omitted).

As the Supreme Court has stated, an interlocutory appeal of the denial of

qualified immunity may be appropriate because qualified immunity entitles the

defendant to avoid the burdens of litigation. See Behrens v. Pelletier, 

, 306 (1996). An interlocutory appeal may even be appropriate despite the

district court’s failure to rule on a qualified-immunity motion. See Lowe v. Town

of Fairland, 

, 1380 (10th Cir. 1998) (Otherwise, “if we deny

appellate review, a defendant loses the right not to stand trial.”).

                                          -7-
      But interlocutory appeals of orders denying qualified immunity are limited

to those that raise solely an issue of law . The appeal must relate only to

“resolv[ing] a dispute concerning an abstract issue of law relating to qualified

immunity,” 

(internal quotation marks and brackets

omitted), not a “determination[] of evidentiary sufficiency,” 

the presence of disputed factual issues, an interlocutory order may still be

appealable if the defendant seeking qualified immunity claims on appeal that even

accepting the plaintiff’s allegations as true, he is still entitled to qualified

immunity. See id.; Johnson v. M artin, 

, 1214 (10th Cir. 1999)

(“[I]f a defendant’s appeal of the denial of a motion for summary judgment is

based on the argument that, even under the plaintiff’s version of the facts, the

defendant did not violate clearly established law, then the district court’s

summary judgment ruling is immediately appealable.”).

      M r. Harris contends that the conditions for an interlocutory appeal have not

been satisfied in this case. W e disagree. W e recognize that the district-court

order denying summary judgment to Captain Gore appeared to address only

evidentiary sufficiency. On appeal, however, Captain Gore does not dispute

M r. Harris’s account of what happened. Accordingly, the only issue on appeal is

whether Captain Gore is entitled to qualified immunity on M r. Harris’s version of

events. See 

.




                                            -8-
      Furthermore, as we have stated, it is not dispositive that the district-court

order did not explicitly address Captain Gore’s qualified-immunity argument. To

hold otherwise would be to deny Captain Gore the precise entitlement— namely,

the right not to be burdened by litigation— afforded by qualified immunity. See

. M r. Harris tries to distinguish Lowe on the ground that it

involved a denial of qualified immunity on a motion to dismiss, not a motion for

summary judgment, and that the factual issues involved in a summary-judgment

motion are considerably more complex. But qualified immunity can undoubtedly

be raised in a motion for summary judgment as well as in a motion to dismiss, see

Peterson v. Jensen, 

, 1201 (10th Cir. 2004) (qualified-immunity

defense is typically raised in a summary-judgment motion), and a defendant

should not be deprived of the protection of this doctrine simply because a district

court fails to rule on the merits. In any event, there is no great complexity arising

from consideration of factual issues in this case because Captain Gore does not

dispute the facts on appeal.

      That we have jurisdiction, however, does not mean that we must, or should,

resolve the merits of the appeal. The district court did not fully consider

qualified immunity; it did not address whether the applicable constitutional right

was “clearly established” at the time of Captain Gore’s actions. “As a general

rule an appellate court does not consider an issue not passed upon below.” 

. The situation here is like that in Lowe, in w hich we elected to

                                         -9-
remand the issue of qualified immunity to the district court because it had failed

to address it in the first instance. See id.; see also Workman v. Jordan, 

, 337 (10th Cir. 1992) (when district court postponed decision on defendants’

motion to dismiss based on qualified immunity, appellate court remanded to

district court to decide the motion).

       W e therefore remand to the district court for further consideration on the

issue of qualified immunity. On remand the court should address qualified

immunity before proceeding further on the Eighth A mendment claim against

Captain Gore. The court may consider any new arguments or evidence on the

qualified-immunity issue so long as the opposing party is given an opportunity to

respond.

IV .   C ON CLU SIO N

       W e DENY M r. Harris’s motion to dismiss the appeal for lack of

jurisdiction. W e REM AND for the district court to determine whether qualified

immunity protects Captain Gore from Eighth Amendment liability.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




                                         -10-