David W. Watts v. KEVIN JONES and MARK SMIT

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-1046
DAVID W. WATTS ,
Plaintiff-Appellee,
v.
K EVIN JONES and M ARK S MIT,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 23-cv-87-wmc — William M. Conley, Judge.
____________________
A RGUED S EPTEMBER 25, 2025 — DECIDED M AY 29, 2026
____________________
Before BRENNAN , Chief Judge, and EASTERBROOK and S YKES ,
Circuit Judges.
EASTERBROOK, Circuit Judge. Two detectives investigating
an inmate at the Wisconsin Secure Program Facility tried to
speak with David Watts, another inmate, who had sent letters
suggesting that he had valuable information about a murder
and an attempted murder. One detective appeared at Watts’s
cell. He feared that the inmate under investigation would get
wind of anything he said, so he refused to talk. Watts relates
that, even so, he was threatened and harassed. Though no

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2 No. 25-1046
physical harm came to him, Watts filed this suit under 42
U.S.C. §1983 seeking damages from the detectives for expos-
ing him to risk.
Watts asked the district court to conduct the litigation un-
der seal, and it largely obliged. Many papers were withheld
from the public record, and others were heavily redacted. Af-
ter the district court denied the defendants’ motion for sum-
mary judgment, they took an immediate appeal to argue for
qualified immunity. Watts asked us to conduct the appeal un-
der seal. A motions judge of this court declined but author-
ized redactions so severe that the case was docketed—and the
briefs were captioned—as “Appellee v. K.J. and M.S.”
The use of pseudonyms was explored at oral argument,
during which the defendants consented to the disclosure of
their names. Watts continued to assert a right to anonymity,
but this court found secrecy unjustified and entered an order
(reproduced as an appendix to this opinion) giving him a
choice between withdrawing the suit and having his name
placed in the public record. After that time passed without ac-
tion on his part, the court revised the docket to use the parties’
real names.
The facts that matter are few: defendants allowed other in-
mates to learn (or suspect) that Watts furnished information
valuable to an ongoing investigation. They asked Watts to
meet them in an interview room, but he refused. That led one
detective to appear at Watts’s cell and ask about a letter (but
without referring to the letter’s contents). Watts refused to talk
with the detective. He submits, however, that just by coming
to the cell and mentioning a letter, the detective put him in
danger—and Watts contends that the detective wanted the
other inmate to learn that he was willing to talk.

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No. 25-1046 3
Watts suggests that we lack appellate jurisdiction, but an
interlocutory appeal is proper when the public officials con-
fine attention to the question whether the claim rests on
clearly established law. Green v. Newport, 868 F.3d 629, 632
(7th Cir. 2017). The detectives have accepted all of the district
judge’s conclusions about what facts a jury could find, and
having done this they are entitled to present arguments about
the state of the law.
We know from Farmer v. Brennan, 511 U.S. 825 (1994), that
prison guards may not inflict punishment by allowing in-
mates to harm each other. We may assume that the same rule
applies to detectives visiting a prison and that these detectives
were deliberately indifferent to the risk that appearing at
Watts’s cell door would lead other prisoners to harm Watts.
But physical harm did not occur; he was hassled but not at-
tacked. The question for qualified immunity: is it clearly es-
tablished that public employees can be liable in damages
when their choices do not lead to a prisoner’s bodily injury?
Recognizing that Watts has not been injured physically,
the district judge concluded that his recovery is limited to $1
in nominal damages, plus any punitive damages that a jury
may see fit to award. Presumably the $1 would be a response
to emotional injury, and it would encounter problems under
42 U.S.C. §1997e(e): “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 cus-
tody without a prior showing of physical injury or the com-
mission of a sexual act[.]” All of Watts’s claims in this suit are
difficult to square with §1997e(e).
But the deeper problem is that there cannot be any recov-
ery under §1983, nominal or punitive, unless it was clearly es-
tablished at the time of the events that the defendants violated

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4 No. 25-1046
the plaintiff’s rights. See, e.g., Zorn v. Linton, 146 S. Ct. 926
(2026) (summarizing the law of qualified immunity). And nei-
ther the district court nor counsel for Watts has pointed to a
decision clearly establishing that exposing a prisoner to a risk
of physical harm that never comes to pass violates the Consti-
tution.
Quite the contrary, the norm in many parts of tort law is
that risk alone is inadequate. See, e.g., Metro-North Commuter
R.R. v. Buckley, 521 U.S. 424 (1997) (no liability for fear of dis-
ease, caused by exposure to a carcinogen, if disease does not
develop). When concluding that Watts has clearly established
law on his side, the district judge pointed to decisions such as
Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998), which held it
clearly established that the release by police of tape record-
ings showing that Thomas Monfils had identified a co-worker
as a thief violated the Constitution, when the police expressly
promised Monfils to maintain confidentiality. The judge cited
many other decisions observing that allowing a prisoner to be
identified as a snitch puts that person in danger.
Thomas Monfils was not a prisoner, and Monfils goes
about as far as an appellate court can in departing from the
norm, see DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989), that public officials do not owe
free citizens a duty to protect them from harm. But Watts does
not get mileage from Monfils, and not just because the defend-
ants never promised Watts to maintain confidentiality.
Thomas Monfils paid with his life for the police department’s
error. He was “discovered at the bottom of [a] vat. The body
was mutilated—the vat had propellers that stirred the thick
pump mixture. A rope, with a 50-pound weight, was tied to
Monfils’ neck.” 165 F.3d at 513. The suit was filed by Susan
Monfils, administrator of his estate. Monfils does not establish
a rule that a person not harmed physically following

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No. 25-1046 5
disclosure of information known to the police has a clearly es-
tablished right to recover under §1983.
At oral argument, counsel for Watts invoked Babcock v.
White, 102 F.3d 267 (7th Cir. 1996), for the proposition that an
unharmed inmate has a constitutional claim against guards
who fail to protect him from other inmates, even when the
feared harm does not occur. But Babcock actually establishes
the opposite rule, holding (id. at 270–73) that the inmate can-
not obtain damages for risk of harm. The court remanded for
consideration of potential relief under the First Amendment,
but Watts does not rely on that constitutional provision.
We recognize that “the wanton infliction of psychological
pain” (Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003)) can
violate the Constitution, but statements of this kind do not
clearly establish the proposition that exposing one prisoner to
risk from other prisoners, in the course of trying to solve a
murder, is a constitutional wrong. The Constitution does not
ensure that all crimes can be solved painlessly. Asking ques-
tions of an inmate (or trying to do so) cannot sensibly be called
the “wanton infliction of psychological pain”.
Police and prosecutors enjoy a privilege to conceal the
names of informants, even during criminal prosecutions, to
reduce the risk of harm that informants face from their com-
rades in crime. When informants’ identities become public,
police or prosecutors may offer the services of witness protec-
tion programs that give the informants new identities in new
cities. But the informant’s privilege belongs to the prosecutor
rather than the informant; a prosecutor may elect to put an
informant on the stand (or disclose his name) if the prosecutor
believes that the risk to the informant is outweighed by the
need to secure a verdict. Similarly, a judge may order the in-
formant’s identity disclosed when necessary to protect the

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6 No. 25-1046
defendant’s right to a fair trial. Compare Roviaro v. United
States, 353 U.S. 53 (1957), with McCray v. Illinois, 386 U.S. 300
(1967). Just as a witness lacks a constitutional right to confi-
dentiality, so an informant lacks a constitutional right to be in
a witness protection program. Valuable as it is to protect in-
formants, so that more crimes can be solved (and more poten-
tial victims protected through deterrence), the tradeoff be-
tween investigation and safety has been left to law enforce-
ment agencies and the political process. It is not something
encoded into the Constitution in 1789 or 1868.
Watts has not identified a violation of a clearly established
right, so defendants are entitled to summary judgment.
R EVERSED

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No. 25-1046 7
Appendix
Plaintiff seeks to hold two detectives liable under 42 U.S.C.
§1983 for making statements, when visiting his cell, that may
have allowed other inmates to infer that he has supplied val-
uable information to law-enforcement personnel. The district
court denied defendants’ motion for summary judgment, and
they have appealed.
The district court entered an order sealing the litigation in
large measure, which effectively created anonymity for the lit-
igants and any potential witnesses. A motion to continue the
sealing during the appeal led to a one-judge order denying
that request but requiring anonymity all around. The result is
that the parties have filed public briefs but not identified the
persons involved. After hearing oral argument, this court now
concludes that anonymity is inappropriate given this court’s
strong presumption that adult litigants must use their own
names. See, e.g., Doe v. Loyola University Chicago, 100 F.4th 910
(7th Cir. 2024); Doe v. Indiana University, 101 F.4th 485, 491–93
(7th Cir. 2024); Doe v. Blue Cross & Blue Shield United of Wiscon-
sin, 112 F.3d 869, 872 (7th Cir. 1997).
As far as we can see, anonymity for the defendants is ut-
terly inappropriate. Police officers, prison guards, and many
other public officials are regularly sued in their own names on
account of acts said to be unlawful or even unconstitutional.
At oral argument counsel for the defendants consented to the
use of their names. Counsel suggested that the district judge
may have believed that identifying the defendants would
have identified the plaintiff too, but any such belief is unsup-
ported. The defendants are police officers who have dealt
with hundreds if not thousands of prisoners over the years.
Publication of defendants’ identities would not point to any
one prisoner.

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8 No. 25-1046
Plaintiff sought to remain anonymous out of a professed
fear that he would be harmed by other inmates. Once again,
however, claims based on potential harm are regularly liti-
gated in the parties’ real names. See, e.g., Farmer v. Brennan,
511 U.S. 825 (1994); Grieveson v. Anderson, 538 F.3d 763, 775–
76 (7th Cir. 2008). Indeed, the table of contents in plaintiff’s
brief, which runs to three pages, includes many decisions ad-
dressing the potential for retaliation against cooperating wit-
nesses, and not even one of those decisions uses pseudonyms.
Although plaintiff contends that he is in fear, he does not
contend that he has actually been harmed by any other in-
mate—and this even though the genesis of his suit is the as-
sertion that, several years ago, defendants allowed other in-
mates to learn his status as a cooperator. When plaintiff com-
menced litigation based on this unrealized fear, he surren-
dered his entitlement to anonymity. (Contrast persons pro-
tected by the informants’ privilege, whose names are pro-
tected in criminal trials largely because they did not bring
publicity on themselves by initiating litigation.) Plaintiff can-
not achieve anonymity by himself making allegations that ex-
pose him to risk.
In other cases in which we have held that a district judge
erroneously allowed anonymous litigation, we have permit-
ted the plaintiff to withdraw the suit in order to preserve con-
fidentiality. See, e.g., Doe v. Indiana University, 101 F.4th at 493;
Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005). The same ap-
proach is appropriate here. We therefore put this appeal on
hold for 14 days. If within that time plaintiff dismisses his
complaint with prejudice, the case will end (and this appeal
with it). If plaintiff does not dismiss his complaint, we will put
all litigants’ names on the public record and proceed to a de-
cision on the merits.

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