UNITED STATES COURT OF APPEALS

Tenth Circuit

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80294

(303) 844-3157

Patrick J. Fisher, Jr. Elisabeth A. Shumaker

Clerk Chief Deputy Clerk

January 31, 1997

TO: All recipients of the captioned opinion

RE: No. 95-1342, No. 95-1395 (consolidated)

 December 31, 1996

Please be advised of the following correction to the captioned decision:

The name of the Defendant-Appellant reads “Deputy Marin, Sheriff.” The correct

designation is “Jesse Marin, Deputy Sheriff.” 

Please make the appropriate correction.

Very truly yours,

Patrick Fisher, Clerk

Susie Tidwell

Deputy Clerk
PUBLISH

UNITED STATES COURT OF APPEALS

Filed 12/31/96

TENTH CIRCUIT

CRAIG BRYANT NORTHINGTON,

Plaintiff-Appellee,

 v.

JESSE MARIN, Deputy Sheriff,

Defendant-Appellant,

 and

CARLOS JACKSON, Captain,

Defendant.

No. 95-1342

No. 95-1395

(Consolidated)

Appeal from United States District Court

for the District of Colorado

(D.C. No. 91-K-352)

Robert M. Liechty (Theodore S. Halaby with him on the brief), of Halaby, Cross,

Liechty, Schluter & Buck, of Denver, Colorado, for the appellant.

Bridget K. Sullivan (Christopher M. Kamper with her on the brief), of Sherman &

Howard L.L.C., of Denver, Colorado, for the appellee.

Before BALDOCK, LOGAN, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.
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Deputy Sheriff Jesse Marin appeals the judgment entered against him in this 42

U.S.C. § 1983 action brought by Craig Northington, a Denver County jail inmate,

claiming Marin caused other inmates to assault Northington by labeling him a snitch. 

Marin contends (1) the district court erred in holding him liable without finding he acted

with subjective recklessness, (2) the court erred in shifting the burden of proof of

causation to Marin, (3) the court failed to conduct de novo review of a magistrate's report,

and (4) the attorney fee award was excessive. We affirm. 

I.

In February 1990, Northington was serving a sentence at the Denver County Jail in

a community corrections program that permitted him to leave the jail to work as an

employee of a painting company. Although it was against department regulations for

deputies to engage in business relationships with inmates, a deputy sold Northington a

truck on contract. Northington cooperated in the subsequent department internal affairs

investigation, which led to dismissal of the deputy. He alleged the internal affairs officers

assaulted and threatened him to obtain his cooperation. Northington also alleged Deputy

Marin caused other inmates to assault him by labeling him a snitch or an informer. 

Northington brought this action under 42 U.S.C. § 1983 and § 1985, alleging the

internal affairs officers, Marin, various other deputies, correction officers, and the Denver

Sheriff Department violated his civil rights. The claims were initially dismissed for

failure to state a claim. On appeal, the dismissal was affirmed in part and reversed in

part, remanding the claims against Marin and the internal affairs officers for further

proceedings. Northington v. Jackson, 973 F.2d 1518 (10th Cir. 1992). Counsel was

appointed to represent Northington, and the case went to trial before a magistrate judge
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sitting as a special master. The magistrate recommended denial of the claim against the

internal affairs officers as unsupported by credible evidence, but recommended a $5,000

judgment in favor of Northington on the claim against Marin. The magistrate believed

the testimony of several inmates that Deputy Marin had spread a rumor among inmates

that Northington was a snitch, and found Northington was assaulted several times by

inmates who accused him of being a snitch. Although Marin denied spreading the rumor,

he testified that an inmate labeled a snitch would most likely be beaten. There was

evidence that other deputies spread the snitch rumor about Northington, and the

magistrate found there was no evidence that Marin rather than another deputy originated

the rumor heard by the inmates who assaulted Northington. However, Northington's

appointed counsel argued the burden of proof of causation should be shifted to Marin. 

The magistrate agreed and found Marin did not sustain the burden of proving his

statements did not cause the assaults on Northington. 

Marin requested review by the district court. The district court adopted most of the

magistrate's recommendation, but because Marin had received no notice that the burden

of proof on causation would be shifted, the district court remanded the case to the

magistrate to permit Marin to present evidence on causation. After further hearing, the

magistrate found Marin had failed to sustain his burden and again recommended a $5,000

judgment against Marin. Marin again requested de novo review. On review, the district

court adopted the magistrate's recommendation. After another evidentiary hearing, the

district court awarded Northington's appointed counsel attorney fees of $93,649.61 under

42 U.S.C. § 1988. 
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II.

Northington based his claim against Marin on the Eighth Amendment. 

Northington was not required to show Marin acted with malicious or wrongful intent. 

Prison officials are liable under the Eighth Amendment for denying an inmate humane

conditions of confinement if the officials know of and disregard a substantial risk of

serious harm to the inmate. Farmer v. Brennan, 114 S.Ct. 1970, 1979 (1994). See

Northington, 973 F.2d at 1525 (prison officials liable for "obdurate and wanton disregard

for the inmate's safety"). Marin contends the evidence does not support liability under the

Eighth Amendment. This argument is without merit. 

Marin himself testified that if he spread a rumor in the jail that an inmate was a

snitch, the inmate would probably be beaten by other inmates. The magistrate found from

this evidence that Marin knew the probable result of spreading the rumor would be to

place Northington in serious jeopardy of assault by other inmates and concluded this

amounted to obdurate and wanton disregard for Northington's safety. The district court

adopted the magistrate's findings and agreed with his conclusions of law on this issue. 

We conclude the facts found by the magistrate satisfy the Farmer standard.

Marin points to evidence that his intent in telling inmates Northington was a snitch

was to protect those inmates from being labeled snitches by association. However,

because Marin knew the probable result would be that Northington would be beaten,

intent to protect other inmates is not inconsistent with a knowing disregard of a

substantial risk to Northington's safety.
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III.
1Marin does not argue that § 433B can never be applied in a § 1983 action, and we

conclude the burden-shifting principle of § 433B can apply in a § 1983 action when the

facts support it. Tort law principles may appropriately be applied in § 1983 cases. See

Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305-07 (1986); Carey v.

Piphus, 435 U.S. 247, 258 (1978); Adickes v. S.H. Kress & Co., 398 U.S 144, 231 (1970)

(Brennan, J., concurring in part and dissenting in part). When it is appropriate, the burden

of proof in a § 1983 case may shift to the defendant. Randle v. City of Aurora, 69 F.3d

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The magistrate and the district court shifted the burden of proof of causation to

Marin based on § 433B of the Restatement (Second) of Torts (1965 and 1979). The

magistrate applied subsection (3) of § 433B, which states: 

Where the conduct of two or more actors is tortious, and it is proved that

harm has been caused to the plaintiff by only one of them, but there is uncertainty

as to which one has caused it, the burden is upon each such actor to prove that he

has not caused the harm.

Comment h to § 433B(3) suggests the rule may be limited to cases in which all of the

wrongdoers have been joined as defendants. In Menne v. Celotex Corp., 861 F.2d 1453,

1466 (10th Cir. 1988), a products liability case, this court stated that § 433B(3) can apply

only when all wrongdoers are before the court because, otherwise, there is no assurance

the party who caused the injury is before the court. When all wrongdoers are before the

court but none can prove nonliability, all can fairly be held jointly and severally liable

because the odds are equal that each is liable. See also, e.g., 210 East 86th Street Corp. v.

Combustion Engineering, 821 F. Supp. 125, 149 (S.D. N.Y. 1993); Zands v. Nelson, 797

F. Supp. 805, 813 (S.D. Cal. 1992). But see, e.g., McElhaney v. Eli Lilly & Co., 564 F.

Supp. 265, 270 (D. S.D. 1983); Hall v. E.I. Du Pont De Nemours & Co., 345 F. Supp.353,

379 (E.D. N.Y. 1972) (relaxing the requirement that all wrongdoers be before court).

Marin argues § 433B cannot apply to the facts of this case because the other

deputies who spread the rumor about Northington were not named as defendants.1 We
441, 450 (10th Cir. 1995) (discriminatory intent); Franklin v. Aycock, 795 F.2d 1253,

1263-64 (6th Cir. 1986) (causation). See also Carey, 435 U.S. at 260. 

2

 This rule also applies to reckless and intentional acts. See Restatement (Second)

of Torts §§ 501 and 870, comment 1.

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agree that § 433B does not apply, but we base our conclusion on different rationale. 

Section 433B(3) is inapplicable because it applies only in cases of alternative liability,

when it is proved that harm has been caused by only one of the two or more tortious

actors. Here, it was not proved and the magistrate did not find that the beatings were

caused by only one of the deputies who spread the rumors. 

The district court reviewed the magistrate's report and concluded "[t]he facts in

this case present a concurrent cause situation; inmates and guards were spreading rumors

regarding Northington. The spreading of the rumor is akin to starting a fire. Over time

the sources from which the statements were heard become muddled and often

indistinguishable." Appellant's append. II at 223. The court held that the burden of proof

shifts to the defendant in the case of concurrent causes. We agree. 

Under the "but for" test of causation, Marin could not be the cause of

Northington's beating. Had Marin not spread the rumor, the statements of other deputies

to inmates would have spread rapidly with the probable result that Northington would

have been beaten. However, Restatement (Second) of Torts § 432 (2) states: "If two

forces are actively operating, one because of the actor's negligence, the other not because

of any misconduct on his part, and each of itself is sufficient to bring about harm to

another, the actor's negligence may be found to be a substantial factor in bringing it

about."2

 See generally, e.g., In re Bendectin Litigation, 857 F.2d 290, 310-11 (6th Cir.

1988), cert. denied 488 U.S. 1006 (1989); Basko v. Sterling Drug, 416 F.2d 417, 430-31
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(2d Cir. 1969); Fleming v. Kellett, 167 F.2d 265, 267 (10th Cir. 1948) (Federal

Employers' Liability Act case); W. Page Keeton, ed., Prosser and Keeton on Torts § 41,

pp. 266-67 (5th ed. 1984).

Here, two forces were actively operating to spread the rumor--Marin and the other

deputies. Because, as the magistrate found, rumors about snitches spread rapidly and

inmates rumored to be snitches will probably be beaten, the conduct of each (Marin's

circulation of the rumor, or the other deputies' circulation of the rumor) by itself was

sufficient to cause Northington to be beaten.

The magistrate's findings also established that Marin's spreading of the rumor was

a substantial factor in bringing about harm to Northington. Marin's actions were not

insignificant in relation to those of the other deputies. The magistrate found Marin

repeated the rumor to inmates on four occasions. There was no evidence of more than

four other instances in which other deputies spread the rumor. See Restatement (Second)

of Torts § 433(a), comment d; Prosser and Keeton on Torts § 41, pp. 266-69. The

magistrate's findings therefore established that Marin and the other deputies were

substantial factors in bringing about harm to Northington, and thus were concurrent

causes of the harm.

Multiple tortfeasors who concurrently cause an indivisible injury are jointly and

severally liable; each can be held liable for the entire injury. It is not essential that all

persons who concurrently caused the harm be joined as defendants. Restatement

(Second) of Torts § 433A, comment i, § 433B, comments c and d, and §§ 879-82. See

Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260 n. 7 and 8 (1979);

Menne, 861 F.2d at 1466; Bell v. Mickelsen, 710 F.2d 611, 619 (10th Cir. 1983)
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(applying Wyoming law); Prosser and Keeton on Torts, § 47, p. 328 and § 52, pp. 347-48. 

Consequently, a tortfeasor who cannot prove the extent to which the harm resulted from

other concurrent causes is liable for the entire harm. Subsection (2) of § 433B states the

burden of proof also shifts to the defendant in the case of concurrent causes: 

"Where the tortious conduct of two or more actors has combined to bring

about harm to the plaintiff, and one or more of the actors seeks to limit his liability

on the ground that the harm is capable of apportionment among them, the burden

of proof as to the apportionment is upon each such actor."

These rules apply in § 1983 actions. Persons who concurrently violate others' civil rights

are jointly and severally liable for injuries that cannot be apportioned. See Weeks v.

Chaboudy, 984 F.2d 185, 188-89 (6th Cir. 1993); Finch v. City of Vernon, 877 F.2d 1497

(11th Cir. 1989); Hinshaw v. Doffer, 785 F.2d 1260, 1269 (5th Cir. 1986); Watts v.

Laurent, 774 F.2d 168, 179 (7th Cir. 1985), cert. denied 475 U.S. 1085 (1986). We

conclude the burden of proof also shifts to the defendant under those circumstances,

whether or not all wrongdoers are before the court. 

Burton v. Waller, 502 F.2d 1261 (5th Cir. 1974), cert. denied 420 U.S. 964 (1975), 

and Hessel v. O'Hearn, 977 F.2d 299 (7th Cir. 1992), on which Marin relies, do not

support a different conclusion. Both cases involve alternative liability under § 433B(3),

rather than concurrent liability under § 433B(2). Moreover, in both cases, because some

of the defendants did no wrongful act, § 433B(3) was inapplicable, and the burden of

proof could not properly be shifted to the defendants. 

Marin also argues Northington was required to plead the burden shifting theory in

his complaint. We disagree. A plaintiff is not required to plead legal theories in the

complaint, as long as "a late shift in the thrust of the case will not prejudice the other

party in maintaining his defense upon the merits." Evans v. McDonald's Corp., 936 F.2d
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1087, 1090-91 (10th Cir. 1991) (quoting 5 Wright & Miller, Federal Practice and

Procedure: Civil 2d § 1219, p. 194 (1990)). See also Dominick's Finer Foods v. Amoco

Oil Co., 1993 WL 524808, *7 (N.D. Ill. 1993). Here, any prejudice to Marin was cured

by the remand to the magistrate for another evidentiary hearing. See 5 Wright & Miller, §

1219, pp. 194-95.

IV.

After the magistrate ruled on remand that Marin had failed to prove his statements

did not cause the assaults on Northington, Marin requested de novo review by the district

court. In adopting the magistrate's report, the district court stated only: "The United

States Magistrate Judge's Recommendation of June 23, 1995 is accepted and adopted. 

Defendant's Objection to Magistrate's Supplemental Recommendation is overruled. 

Judgment shall enter on the only remaining claim as recommended." Appellant's append.

II at 327. Marin contends the brief order shows the district court failed to conduct de

novo review. We disagree.

De novo review is required after a party makes timely written objections to a

magistrate's report. The district court must consider the actual testimony or other

evidence in the record and not merely review the magistrate's report and

recommendations. Where circumstances indicate the district court did not conduct de

novo review, the case must be remanded. In re Griego, 64 F.3d 580, 583-84 (10th Cir.

1995); Bratcher v. Bray-Doyle Independent School District, 8 F.3d 722, 724 (10th Cir.

1993). However, the district court is presumed to know that de novo review is required. 

Consequently, a brief order expressly stating the court conducted de novo review is

sufficient. Griego, 64 F.3d at 583-84; Bratcher, 8 F.3d at 724. 
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Marin cites Summers v. Utah, 927 F.2d 1165 (10th Cir. 1991), in which we held an

order insufficient to show the district court conducted de novo review because the court

was unaware plaintiff had objected to the magistrate's report, and the court did not state it

had conducted de novo review, but only that it had reviewed the file and adopted the

report. See also Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458 (10th Cir. 1988)

(court's statement that it had laboriously poured over record insufficient to show de novo

review; court also stated it would not substitute its judgment for that of magistrate,

showing deference to magistrate inconsistent with de novo review). 

We conclude the circumstances here do not show the district court failed to

conduct de novo review of the magistrate's supplemental report. Although the district

court's order did not expressly state review was conducted de novo, the court is presumed

to be aware of that requirement. See Griego, 64 F.3d at 580. Unlike the court in

Summers, the district court was aware of the objections to the report, and unlike the court

in Ocelot, did not state it was deferring to the magistrate's judgment. Although the order

was brief, the scope of the supplemental report being reviewed was limited to a single

issue; the magistrate's original report had been subjected to extensive de novo review. 

The circumstances here do not overcome the presumption that the district court knew the

applicable standard of review. 

V.

Marin contends the award of $93,649.61 in attorney fees and costs was excessive.

Contrary to Marin's assertions, the district court applied the correct legal standards for

awarding fees under 42 U.S.C. § 1988. The court reviewed the parties' submissions,

applied the standards set out in Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), and
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concluded the number of hours and the hourly rate sought by plaintiff were reasonable. 

The amount of an attorney fee award under those standards is left to the discretion of the

district court, and is subject to review only for abuse of discretion. See Gottlieb v. Barry,

43 F.3d 474, 486 (10th Cir. 1994); Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir.

1990). 

The district court did not abuse its discretion in finding the number of hours

expended was reasonable. Contrary to Marin's assertion, the court reviewed counsel's

time records and concluded, with reductions made by counsel for duplicative work, time

spent on the unsuccessful claim, and the firm's lack of expertise, the number of hours was

reasonable. The hourly rates of $90 to $180 per hour accepted by the court were

supported by evidence of prevailing rates charged by plaintiff's civil rights attorneys in

the Denver area. We agree with the court's rejection of Marin's argument that the rate

charged by attorneys defending penal institutions in civil rights cases was the appropriate

rate. We conclude the district court did not abuse its discretion in determining the amount

of the attorney fee award.

AFFIRMED.