KIRK HORSHAW, Plaintiff-Appellant, v. MARK CASPER, et al., Defendants-Appellees.
No. 16-3789
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 12, 2018 — DECIDED DECEMBER 14, 2018
Appeal from the United States District Court for the Southern District of Illinois. No. 14-CV-0248-NJR-DGW — Nancy J. Rosenstengel, Judge.
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.
The defendants concede that the attack occurred and that Horshaw‘s injuries are serious. But both Casper and Atchison deny receiving these documents from Horshaw or having any other reason to think that he was in danger. Unless they knew that he was at serious risk, they cannot be liable. See Farmer v. Brennan, 511 U.S. 825 (1994).
The district court granted summary judgment to Casper, Atchison, and the other two defendants, who we do not mention because Horshaw‘s appellate brief abandons his claims against them. 2016 U.S. Dist. LEXIS 132393 (S.D. Ill. Sept. 27, 2016). The court found Casper not liable because, whether or not he received the letter, it did not establish a specific or substantial threat. The judge wrote that the letter, as Horshaw remembers its contents—poorly, as he has a brain injury and says that he gave Casper the only copy—did not offer “any context or time frame for either his alleged action (e.g., who he was accused of disrespecting or when it occurred) or the threat Horshaw received. There is no evidence that Horshaw identified to Casper which gang the [warning] was talking about, who handed him the [warning], or which specific person or group he feared.” Id. at *17. The court found Atchison not liable because he did not receive Horshaw‘s note. Id. at *11–15. Because the districtjudge‘s ground for absolving Casper also would absolve Atchison, even if he did receive Horshaw‘s note, we start there.
Farmer holds that liability for failure to prevent one prisoner‘s attack on another depends on proof that there was an objectively serious threat of which the defendant was subjectively aware (or to which the defendant was deliberately indifferent). 511 U.S. at 845–47. On the district court‘s understanding, liability will be almost impossible, for prisoners
Wardens and guards know that prisoners may exaggerate or make things up to get attention or benefits. A guard who reasonably disbelieves a prisoner‘s assertion is not liable just because it turns out to have been true. See, e.g., Olson v. Morgan, 750 F.3d 708, 713 (7th Cir. 2014); Riccardo v. Rausch, 375 F.3d 521, 526–28 (7th Cir. 2004). But Casper does not contend that he deemed the threat false or hollow. He does not say that it is the sort of thing prisoners send eachother but do not follow up on. Casper does not contend that Horshaw had cried “wolf” earlier and lost his credibility or that there was some other reason to doubt that the threat was serious. And Casper lacks the support of Warden Atchison, who testified by deposition that, if he had received a copy of the letter (or even Horshaw‘s note), he would have put Horshaw in protective custody immediately. Given these considerations, it is not possible to hold on summary judgment that the letter did not satisfy Farmer‘s standard.
Now for Atchison. The district court wrote that the absence of a notation in his office files showing receipt of the note, plus his testimony that he does not remember receiving a note from Horshaw, means that the note was not delivered to him. Yet Horshaw testified that he wrote a note to Atchison, put Atchison‘s name on the envelope, and saw a guard collect the note for delivery. Placing the note in the prison mail system supports an inference of receipt. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Cf. Hayes v. Potter, 310 F.3d 979, 983 (7th Cir. 2002). Maybe Horshaw is lying or unable to remember accurately what happened, or maybe the guard who picked up the note threw it away—though the record contains evidence that this prison‘s internal-mail system functions consistently well. But maybe Atchison saw the note and forgot it, or maybe the staff is lying about what the prison‘s records show, or the records have been altered. A reasonable jury could resolve this conflict either way, which makes it inappropriate to grant summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
Atchison pitches his defense entirely on a contention that he did not receive Horshaw‘s note. He does not contend that, as warden, he delegated to other officials the duty ofreviewing and responding to threats. See, e.g., Miller‘s Estate v. Marberry, 847 F.3d 425, 428 (7th Cir. 2017); Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). Liability under
One final issue requires only brief discussion. The district court held that all defendants are entitled to qualified immunity, 2016 U.S. Dist. LEXIS 132393 at *19, and defendants ask us to accept that conclusion. But the district judge did not find that the law is uncertain. It is not; Farmer clearly establishes the governing rules. The judge found instead that, because the defendants are not liable at all, they also are entitled to immunity. That‘s a confusion. Immunity is appropriate when the law, as applied to the facts, would have left objectively reasonable officials in a state of uncertainty. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148 (2018). The uncertainty in this case is factual. Did Casper or Atchison receive something from Horshaw?; what did the letter to Casper, or the note to Atchison, say?; could the defendants have kept Horshaw safe even if they tried? Atchison himself has toldus that, if he had received a note with the contents Horshaw describes, then he knew exactly what he was supposed to do: offer Horshaw protection. The factual disputes may be hard to resolve given the lapse of time and Horshaw‘s brain injury, but if he is right on the facts then neither Casper nor Atchison is entitled to immunity. (Uncertainty about the limits of supervisory liability after Iqbal and Vance might have supported an immunity defense, but, to repeat, Atchison has not made such an argument.)
The district court‘s judgment is vacated with respect to Casper and Atchison and affirmed with respect to the remaining defendants. The case is remanded for trial.