*3 MILBURN, Before KENNEDY and ENGEL, Judges, Circuit Senior Judge. Circuit ENGEL, Judge. Senior Circuit litigation This arises from an incident which occurred on December 1985 at Reformatory Women when Ohio plaintiff Rita F. Marsh was attacked and severely by fellow inmate. beaten There- after, brought Marsh suit a num- charg- December Leonard attacked employees and officials ber of room, beating in their dorm her which she acts and omissions ing them with the head with a metal combination lock. a deliberate indiffer- alleged amounted eventually escaped from Leonard prison- needs as a state security ence to locking herself the bathroom. Marsh rights to of her were thus violative er and concussion, treated for a skull basal punishment and unusual free from cruel her head. fracture and for lacerations to the consti- eighth amendment to under relationship facts as to the Additional are called appeals we tution. In these parties among the various to this law suit and omissions those acts upon to measure leading up to the assault on events defendants, most viewed in the remainder of this Marsh are noted against the prisoner, to the favorable *4 opinion pertinent. where indif- of deliberate standard constitutional at the time established ference as it was prison Marsh After her release from For the reasons place. took the assault against brought this section 1983 action follow, the district court’s affirm ORW, employees and officials of fourteen defen- to four of the grant of JNOY as they protect her alleging that failed to as to the denial of JNOY dants and reverse attack in violation of her from Leonard’s Furrow. defendant Delores eighth amendment to be free from punishment. Prior to
cruel and unusual
trial,
summary
granted
the district court
I.
defendants,
judgment for five of
9,1985,
arrived at
August
Rita Marsh
On
summary judgment as to all other
denied
(“ORW”)
Reformatory for Women
the Ohio
defendants.
on convictions for two
serve a sentence
in
in
juryA
trial resulted
verdicts
favor
carrying
and
a concealed
theft offenses
against
defendants and
de-
of four of the
experience
weapon. This was Marsh’s first
Amis,
Arn,
Betty
Dorothy
Delores
fendants
27, 1985,
September
prison.
Around
Furrow,
Mary
Anthony
and
Morse
Graves
dormitory
assigned to a six-bed
Marsh was
“defendants”).
jury
The
(collectively
hall
Cottage,
a residential
room Lincoln
damages in
compensatory
Marsh
awarded
of Marsh’s room-
in the institution. One
$45,000
punitive
and
dam-
the amount of
Leonard,
repeat offend-
Tonya
mates was
a
$5,000 against
of
each
ages in the amount
serving her second sentence at
er who was
the five defendants.
of
included
criminal record
ORW. Leonard’s
assault, carrying
or,
a
for felonious
convictions
for JNOV
Defendants filed motions
theft,
weapon,
prostitution.
alternative,
and
The dis-
concealed
for a new trial.
variety
a
prison record included
granted
Leonard’s
court
JNOV for
trict
Morse,
offenses,
fighting Amis, Arn,
finding that
two of which were for
and
Graves
any
weapon
inmate
to show that
a
with another
the evidence failed
without
knowledge of
injuries.
in no
had actual
apparently
which
resulted
these defendants
Marsh.
injury
as-
of serious
genuine
was no evidence she had ever
risk
There
however,
court,
saulted,
denied JNOV
unilaterally provoked and at- The lower
i.e.
Furrow, finding
tacked,
evi-
defendant
another inmate.
Furrow had actual
dence demonstrated
requested
to be
In October
genuine threat of serious
knowledge of a
room,
reassigned
dormitory
and
to another
Marsh and that Furrow
physical harm to
accordingly placed
waiting
on a
she was
qualified immunity.
entitled to
was not
the next few months Marsh and
list. Over
conditionally
court also
argu-
The district
were involved
several
Leonard
Amis,
time,
trial for defendants
granted
a new
During
period
this
ments.
Arn,
pursuant to Feder-
cor-
Graves and Morse
began telling certain
asserts that she
50(c)(1),stating
Rule of
Procedure
prison officials about
al
Civil
rectional officers and
that these
“should
determined
having with Leonard.
problems she was
be.
[it]
any
them were not enti-
defendants or
general
These included
threats and other
notwithstanding the ver-
judgment
instigated by Leonard. On tled
minor incidents
their al-
in his favor.”
Id.
If the evidence
diet,
grant
es
then this Court
strongly in
“points
new trial on the
so
favor of
movant
motion for a
ternative
them
minds could not come to a
grounds that
the verdicts
that reasonable
conclusion,
weight of the evidence.”
then the motion
against the
different
were
granted.”
denied defen-
Id.
the district court
should be
trial,
motion for a new
dant Furrow’s
determining
whether defendants
of Marsh
judgment
final
favor
entered
Marsh’s
amendment
have violated
damages
compensatory
against Furrow for
failing
protect her from
right by
Leon
$45,000
dam-
punitive
in the amount of
assault,
legal
applicable
ard’s
standard
$5,000. Marsh filed
ages in the amount of
is “whether
the defendants’
conduct
appeal, and Furrow filed
timely
notice of
to a ‘deliberate indifference’ to a
amounted
cross-appeal.
timely
notice
plaintiff.”
injury
risk of
to the
Roland
(1)
appeal are
specific
The
issues on
(6th Cir.1988).
Johnson, 856 F.2d
by grant-
the district court erred
whether
standard,
The
indifference
first
deliberate
conditionally
ing
granting
new
JNOV and
Gamble,
articulated
Estelle v.
Amis, Arn,
trial for defendants
Graves
that Rita Marsh would be categorize reckless, given conduct as by Tonya Leonard.” cited in Cases portrayed by condition of ORW as appellate suggest Marsh’s brief that reck record.2 sense, specifi lessness in the criminal more cally presence danger great so Viewing the evidence most inferred, knowledge can be also should Marsh, favorable to it establishes qualify knowledge component for the previous Amis knew of Leonard’s two *6 the deliberate indifference standard of liab fights among inmates and that she knew ility.1 event, any In whether we examine change Marsh wanted to rooms. This evi the evidence each defendant jury ques dence is insufficient to raise a liability under the standard of stated in the tion as to whether Amis had actual knowl jury instructions or whether in we also it, edge genuine, put aof or has one court a clude recklessness in as defined the cases “specific” risk of harm to Marsh. See above, cited does not alter the outcome Landon, 792, (4th Ruefly v. F.2d this ease. 1987) (while complaint alleged Cir. officials Betty 1. Amis generally knew other inmate to be a violent person engaged because he had in two super
Defendant Amis was a shift fights with other inmates one of whom he ORW, holding captain, visor at the rank of kill, allege threatened to failed to that responsible supervising and she was they spe acted in indifference to deliberate responsibilities correctional officers. Amis’ cific inm known risk of harm to assaulted serving duty included as officer rotation ate).3 Therefore, we hold that the dis supervisors. with other shift duty As a place properly granted officer she had the trict court JNOV for de infirmary security inmate or in con- fendant Amis.
1. See, Columbia, 11(2) (discussion e.g., Morgan v. District 2. See subsection of infra 1049, (D.C.Cir.1987). Shelby pervasive of F.2d 1057-58 whether there was a risk harm at Cf. 1085, Westlake, jury County the ORW which allow a to infer that Jail Inmates v. 798 F.2d (7th Cir.1986) knowledge genuine defendant Arn of a risk (approving jury had 1093 & n. 10 a Marsh). of harm to instruction that in order for officials to be liable they "intentionally must inflict” cruel and un punishment usual or act in "callous indiffer Judge “genuine” 3. “a Graham defined risk as ence," proven by perva risk, the latter of which is hypothetical imagined or real not an risk.” view, sive risk of from harm other inmates to which any In our we do not see substantive reasonably respond knowing officials Judge fail to Graham's definition distinction between risk); Baxley, F.Supp. Redmond v. and the one the Seventh Circuit used in which 1111, (E.D.Mich.1979). Ruefly. Martin, pervasive where problem, and Dorothy Arn proved was an excessive risk of harm superintend Arn Defendant assaults,5 there was no such number of 1987, when she retired. until ent of ORW there evidence here. Nor was evidence responsible for that Arn was Marsh asserts among ORW there were more assaults which contrib policies certain institutional prisoners these classifi inmates because first contends injury. Marsh
uted to her Compare together. cations were housed not acknowledges that ORW did Arn Solem, 766-67 Vosburg ac segregating inmates policy of have a (8th Cir.1988) (fact plaintiff was assaulted nature of their offense cording to the and a number of separate occasions on four tendency violence. Marsh asserts their sexually were assault young inmates other security assign inmates a did that ORW support provided sufficient evidence to ed criminal record and rating upon their based institution, finding prison officials were liable jury these at the but their conduct assigning to de eighth consulted in amendment for failure ratings were not under admission to Upon rooms. velop policies inmates to which administrative Marsh received August victims, potential ORW protect plaintiff and other July security rating. minimum inmates accord segregation as the such security a medium Leonard received supervision ing and better to their offenses Accordingly, Marsh contends rating. peni areas of of inmates’ cells and isolated not have been and Leonard should she at 794 tentiary) Ruefly, room. placed in the same (without harm to other evidence of risk of victim, negli have been segregate violent inmates Failure to indifferent, deliberately gent, has been held to non-violent inmates from and allowing “deliberate indifference” inmate with known violent tenden constitute amendment among general population). thus to violate remain cies to “pervasive” of harm there is a risk where acknowledged responsibility for Arn belonged the victim to an “identi or where by Marsh as al policy a second identified prisoners for whom risk of group fiable” July contributing injury. to her On legedly problem is a serious of substantial assault Arn issued Post Order No. Mellas, 837 F.2d dimension. See Walsh v. prohibited opening an inmate’s door which Cir.1988); Martin v. 793-94 *7 a male correctional lockup after without (8th Cir.1984). White, F.2d 474-75 that being present. Arn testified officer authority While Arn testified that she had security for rea this order was instituted institution,4 her failure policy to set for the fe response to incidents which sons not, in our segregate the inmates does to officers had been at male correctional indifference.” opinion, result “deliberate opening by upon inmates cell doors. tacked Walsh, plaintiff where was a mem Unlike delayed this order Marsh contends that group prisoners of ber of an identifiable female correctional officers from interven- risk of assault was a serious for whom incidents, may it be established the evidence isolated but 4. The district court found reign the by proof failed to indicate whether Arn established policy a violence much less than of of separating non-vio- of not violent from particular It and terror in the institution ... Department lent offenders or whether the Ohio enough that violence and sexual assaults of Rehabilitation and Correction instituted frequency that ... occur ... with sufficient therefore, jury, The could have bureau-wide. prisoners put in reasonable fear for ... are authority reasonably concluded she had that reasonably apprise prison safety their and to proximate failure to do so was a cause and her problem and of the existence of the officials injury. of Marsh’s for the reasons protective measures. need for opinion the text we do not find stated in of necessary prisoners to show that all It is not that Arn’s conduct satisfies the relevant stan- enough pervasive harm. It is suffer a risk of liability. dard of do, group prisoners of if that an identifiable group. complainant is a member of a 5. The Fourth Circuit clarified definition harm, Martin, (quoting Withers v. "pervasive" stating: 742 F.2d at risk of Levine, (4th Cir.1980)). 615 F.2d ordinarily pervasive A risk of harm single pointing be shown to a incident or acknowledged that Marsh. Arn she was attacked Leon- night she was ing on the generally disciplinary for the arrival aware of Leonard’s they had to wait ard because patrolled inmate, who male officer she said that record as trial, evidence was At grounds. particularly Leonard’s record was not un- that the attack indicated presented which explained fairly usual. Arn it was thirty approximately sec- lasted might have common for an inmate to be involved in already locked that Marsh had onds and confinement, fights during two or more when the first fe- in the bathroom herself removing and this conduct did not warrant arrived at correctional officer male general population an inmate from be- in fact ceased before If the attack room. of a lack of room to accommodate cause arrived, officers female correctional of women who could fit into number not have contrib- No. 11 would Post Order category. this No evidence in the record if Arn was injury Marsh’s even uted to opinion contradicts Arn’s of Leonard’s establishing policy. responsible Clearly, record. when the evidence is Willits, See Williams most favorable to viewed Cir.1988). Marsh, requisite Arn still did not have the event, no evi- any knowledge genuine specific In the record contains of a risk of 11, or for that that Post Order No. dence harm for an amendment violation. policy separate the lack of a grant matter Accordingly, the district court’s offenses, ever according to their inmates Arn JNOV for defendant is affirmed. injury prior an inmate in an resulted Hence, if Marsh. even Leonard’s attack on Mary Morse No. Post Order
there was a nexus between personnel inmate officer at As attack, particular we would be 11 and this ORW, responsible Morse was defendant find indiffer- pressed hard “deliberate making assignments for the inmates. room Roland, (in at 770 ence.” Cf. single inmates Because most wanted summary judgment, reviewing a motion for room, assigned single rooms on a Morse liability found that could the Sixth Circuit come, first served basis. Inmates first who, upon de- imposed two defendants sending request reassignment by making and spite their decision “kite” to Morse. October knowledge high level of violence a kite from Marsh which Morse received assaults, policies to exist allowed several “May please single I have a room. stated: (1) dangerous inmates to permitted which get along. Tonya and I don’t We Leonard “honor,” (2) discour- positions hold Signed, Rita Marsh.” argue constantly. reporting prosecution of as- aged the request Marsh’s her room Morse entered saults). Again, there was no evidence of Marsh that assignment system and advised at high level of violence and/or assaults single for a eleventh on the list she was the ORW. *8 Cottage in and that four of room Lincoln per- that Arn was Marsh also contends already the list. were her roommates problems she was sonally aware of approxi that she received Morse testified that having with Leonard. Marsh testified there per and that mately ten kites week approached of 1985 she late November re unusual Marsh’s nothing was about grounds and asked for Arn on institution nothing testified she heard quest. She also getting of the dorm room she help out Marsh. further from While Arn testified shared with Leonard. testimony of Ser- Marsh relies on the contact, jury not recall this that she did Balsinger, a correctional geant Charlotte her. did not have to believe that, Cottage, who stated at Lincoln officer Arn alleged contact with was plaintiff’s Marsh and after one incident between told Arn limited. Maish testified that she Leonard, Leonard Morse to move she asked having was trouble with Leonard who she However, Balsinger’s single to a room. aggravating and had threatened her was due to a however, request that was not Marsh, Arn reason for did not inform her. harm specific threats of specific knowledge harm to any genuine or risk of Leonard, specifically the with Marsh, problems rather “because of against incident, and told him she “light that about bulb” from roommates prior complaints Leonard had threatened was afraid because wanting manipulation and to [Leonard’s] the correctional offi- snitching her for to to make generally trying charge just and miserable_” Further, Balsinger Sergeant testified cers. According to Bal- their life that Leonard should be she told Graves by indicating that responded singer, Morse felt single room and that Marsh placed inmates troublesome “we don’t reward by Leonard. Graves admitted threatened retired single room.” Morse giving them a Leonard problems him the with Marsh told inci- day of the the same from the ORW be a a nature that there could were of such dent. fight in room. Arn, the Amis As with complaints against Leon- Because of fails to create against Morse evidence ard, day later in the on December had actual to whether she of fact as issue Marsh, Leonard and two Graves had their harm to risk of knowledge genuine of a office to come to his discuss roommates to the kite sent Marsh Neither Marsh. He “light bulb” incident. testified testimony indicates Balsinger’s nor Morse ways we use to determine “one of the harm of a risk of that Morse was informed telling are the truth is whether infer, [inmates] on the based to Marsh. Nor person them with the we have confront requisite record, had the knowl- that Morse ” office, they accusing.... are the district therefore hold that edge. We had acciden- Leonard Graves she told granted JNOV for Morse. properly court Marsh, they just tally scratched had they and that were playing around Anthony Graves again. friends The other roommates de- incident, defen At the time of the incident, knowledge and Marsh nied the social worker as dant Graves was inci- agreed Leonard’s version of the with initially Cottage. signed to Lincoln Graves dent. only had to recom he testified make, and the room- mend, changes. Yet Morse Graves Leonard other room sent testified, his office and talked to Marsh agree seemed to his mates out of and Graves why changed out she her testimony, that Graves could take dis alone find later trial, story. At the Marsh testified ciplinary against action Leonard. Graves meeting Leonard stood behind problems during their aware of Marsh’s became threatening gestures made to- through a kite he from Graves and Leonard received her, causing allega- to retract her with ward her through communication Marsh admitted that told meetings. at tions. Graves cottage officers correctional making him had been faces behind that she met with Graves Leonard testified Graves, during meeting. how- and his back first time on December ever, change that “if was fear requested a room because testified she [Marsh] whatever, acting aggressively of her she have toward life Leonard her, ... she taking belongings, trying stuck to what she said when [and] Marsh, that, basically tying my didn’t do she was According on” to her. “come request taking any kind of disciplinary her to write a kite hands from Graves advised ing change, and when she told him action this other woman.” rooma *9 so, already that she had done Graves said light When evidence is viewed the the it. he would look into Marsh, it still most favorable to insuffi- later, question of fact as to Approximately one week on De- cient to create a had whether acted with indif- Marsh and Leonard Graves deliberate cember harm to Where argument light being an left on in ference to a risk of Marsh. about no officer had the room with the result that Leonard other correctional observed “light the arm. re- the incident and where Leon- scratched Marsh on Marsh bulb” on arm ported morning. incident the ard denied that the scratch Marsh’s the next intentional, gain in order again talked to Graves about her had been to officer, argument. an A correctional Shar- harm genuine risk of knowledge of a Foos, up evidence went to the dorm to break the more on needed plaintiff, Graves inmate, espe- another informed complaint argument. the After Foos Furrow than story incident, recanted cially an inmate who Furrow told Foos to about the The dis- by the accused. confronted when and Leonard over to her office. send Marsh however, correctly court, found trict presence, Marsh told Furrow Leonard’s of the escalation Leonard had threatened to kill her that was not aware Graves and Leonard plaintiff night she talked to the offi- of tension between because meet- Leonard, however, the time of the after that occurred too much. told cials on light bulb incident regarding the ing kidding. Furrow she had Unlike There is no evidence Graves, December meeting with defendant knowledge of Leonard’s had that Graves allegations. Marsh also testi- stuck to her made on Decem- attack threat of sexual Furrow she want- fied at trial that she told 18th, fight that occurred the verbal ber room, hoping Furrow get ed to out of the plaintiff Leonard between infirmary overnight place her would and of Leonard’s on the 19th shower previous night. Fur- as she had done the made on the 19th. plaintiff, threat to kill to their row instead sent women back Morse, Amis, Arn and As is the case dorm. support a the evidence does not
because December 19th sometime on had inference Graves reasonable report prepared Furrow a staff to ORW’s inferred) (either actual or knowledge Deputy Superintendent, requesting that going to be plaintiff was genuine risk that single be moved to a room. Sta- Leonard seriously injured, we need not address report were two doc- pled to the staff indiffer- under the “deliberate second issue First, unsigned at- uments. note was whether, in liability, i.e. ence” standard of Balsinger, tached read: “Miss which court, con- the words of the district Graves keep i on 209 you please and [sic] [sic] protect steps take sciously refused to could some trouble tonight, there affirm the district court’s Marsh. We attached tonight....” The other there grant of JNOV for defendant Graves. two-page description of document was a Furrow 5. Delores Marsh and incident between bulb ORW, Fur- employee document, As an defendant plaintiff com- In that Leonard. lieutenant. held the rank of On row “run the room” that Leonard tried to plains incident, evening prior Furrow was inmates up “eat new and wanted to [sic] p.m. to supervisor for the 2:30 the shift commissary.” supervisor, she p.m. 10:30 shift. As a shift trial, was not Furrow testified she At place in the insti- had inmates had scratched Marsh’s aware that Leonard hospital temporary basis. tution’s 16th. She could arm on December testified that she had advised Plaintiff had any in which Leonard recall instances theft of her com- Furrow about Leonard’s posed feel Leonard anyone and did not hurt fact that Leonard was missary and the plaintiff. Fur- harm to a threat of serious aggravating her. picking on her and that on December 19th row also believed 18th Furrow on December Marsh also told supervisor, the next shift she had advised sexually threatened to that Leonard had Callahan, problems be- Sergeant responded to Marsh’s her. Furrow assault Callahan did Marsh and Leonard. tween infirma- by placing her ORW’s concerns not recall this occurrence. testified she did ry night. for the Furrow seriously threat- Marsh was not believe appeals cross Defendant Furrow rather, ened; plaintiff from she removed immuni court’s denial of district so that the other inmates the room new trial. As demonstrat ty, and a JNOV *10 get rest. some summary, fact Fur by foregoing the ed problems between 19th, knowledge of the row’s day, next December Leonard The than more extensive they got into Marsh and Leonard is to kill Marsh after threatened 1066 Moreover, alleged statutory or constitutional viola- the other defendants.
that of
Davis,
place
194,
allegedly had the
tion.
1067
right
sufficiently
must be
clear that a rea-
and conse-
of effects
and consideration
Interna-
sonable official would understand
Third New
quences.’ Webster’s
1981).
(3d
doing
right.”
In- what he is
violates that
Id.
ed.
Dictionary
tional
596
hand,
put,
nec-
different,
Simply
to be
while official action is not
means
on the other
essarily protected by qualified immunity
nearly total lack of
by
‘marked
a total or
very
question
in
something.’ unless and until the
action
in
about
interest
or concern
‘unconcerned,
unlawful, id., the unlawful-
has been held
synonyms
include
Its
aloof, detached,
apparent
pre-exist-
at
ness must be
uninterested.’
[Id.
335,
ing
together
Malley Briggs,
law.
v.
475 U.S.
Using these two words
1151].
344-45,
1092, 1097-98,
mixing
106 S.Ct.
89 L.Ed.2d
nearly
category
as
is in
same
(1986).
271
and lack of
concepts
of willfulness
care,
occur if one
such as would
due
right
At issue here is whether the
‘intentionally
phrase
were to coin
punish
cruel
unusual
to be free from
negligent.’
prison
ment is violated where
officials fail
Evans,
712
Howell v.
See also
segregate
an inmate who has received
(11th Cir.1991)(distinction between deliber-
threats,
argu
death
threats of assault and
negligence
conceptu-
is
ate indifference
ments
another inmate
the same
with
generally
‘indifference’
ally vague because
Danese,
F.2d
room.
875
at 1243-44.
Cf.
by the actor
implies a lack of attention
1985,
only
As of
this court had decided
one
negligence,
is referred to as
similar to what
dealing
amendment
eighth
case
with
liabili
requires that the actor
whereas ‘deliberate’
ty
protect
for failure to
an inmate from
despite in-
recklessly ignore the situation
v.
assault
another inmate.
In Stewart
person would know
formation a reasonable
Love,
1982),
inmate,
Moreover,
suggested,
previously
as
in the
controlling precedent
is no
there
finding that Fur-
that our
recognize
We
little or no
places
our court
Sixth Circuit
might
qualified immunity
to
row is entitled
circuits
opinions of other
value on the
judicial deliber-
seen as a form of
itself be
clearly
right is
es
determining whether
Therefore,
necessary
it is
indifference.
ate
Seiter,
F.2d at 1176
858
tablished. See
applica-
explain the
for
further
basis
to
case,
possi
extraordinary
be
(“In an
of the
principle in the context
tion of that
courts to
of other
for the decisions
ble
case,
especially since
Sixth
facts of this
law.”);
principle of
Gar
clearly
establish
opportunity
pro-
to
not had the
Circuit has
(“We
focus on
vie,
649
should
845 F.2d at
liability is
guidance where
vide much
acted, the
whether,
at the time
of confine-
sought
upon conditions
based
clearly established
rights asserted were
ment.
or the
Supreme Court
of the
decisions
be,
acutely
we are
aware
As we should
sum,
circuit.”).
federal
courts of this
are
jury, under instructions which
that a
such a
“there was
not believe that
we do
se,
in favor of
challenged per
found
not
say
can
that we
in the caselaw
clear trend
prison
of the nine
Marsh and
five
recognition
that the
with fair assurance
complaint
as defen-
officials named
precedent
controlling
right by a
[i]s
may fairly
that
assume
dants. Thus
of time.” Cleveland-
merely
question
attentively to the evidence
jury listened
Brutsche,
Perdue v.
instructions and made
Cir.1989).
whose
between those
careful discrimination
person in
that a reasonable
We conclude
the standard and
fell short of
conduct
today,
have
perhaps
even
it.
compliant
was
those
conduct
whose
Furrow’s
determining whether
trouble
had
commented, it is diffi-
have earlier
As we
eighth
amendment.
conduct violated
if
rule of hind-
that decision a
cult to fault
judg
guess
second
do not wish to
We
general
or if
no-
to be followed
sight was
has not been
prison
of a
official who
ment
are to
equity
sympathy
be
tions
applied
as that term has
“indifferent”
recognized,
play.
full
The law has
given
Clearly, in hind
similar cases.
other
respon-
that
continuing
recognize,
and is
judgment.
error of
sight Furrow made an
prisoners
must
sibility
protection
for the
officials, however,
not be
should
Prison
prison ad-
analysis
upon
rest
in the final
“misjudg
personal liability for
subject Equally
is that the
ministration.
evident
threats,
ing” the seriousness of inmates’
most anti-social and crimi-
circumstances of
a common
especially where idle threats are
prison
are such
nally
individuals
violent
See,
Williams,
e.g., Daniels v.
occurrence.
ever,
rarely,
if
have the
they
will
662, L.Ed.2d 662
106 S.Ct.
U.S.
financially responsible
held
means to be
(1986)
notwithstanding injury,
(negligence,
damages
party they injured, and
to the
for which relief can
not state a claim
does
remedy
party may
without some other
1983);
granted under U.S.C.
Stew
be
§
very
unrecompensed.
well remain
art,
(negligence
for failure
696 F.2d at
Nonetheless, qualified immunity is de-
protect
from assault
other inmates is
appropriate balance be-
amendment).
signed to strike an
not
under
actionable
accord-
tween the deference
should be
find that defendant Furrow was enti
We
prison
in their administration
qualified immunity and therefore
ed to
officials
tled to
Accordingly,
not address the
and the constitutional
we do
JNOV.
out,
actually
ly
then
carried
unaware that Leonard had scratched Marsh
threats which were
16th,
Also,
prior requests
protection
requests
for
whether
December
and/or
were made but
unheeded;
See,
Goka,
e.g.,
help
go
went
case did
rath-
unheeded.
in Marsh's
652;
Morris,
er,
completely satisfy
them
862 F.2d at
Jones
Furrow failed to
(7th Cir.1985).
apparent-
investigation.
after
1280 n. 5
Furrow
quickly
ence and common sense will
cruel and unusual
to be free from
prisoners
816-17,
Harlow,
telegraph
at
the word to the wise that such
punishment.
(citation omitted). That
employment
at 2737
is to be avoided. This cold
102 S.Ct.
below,
balance,
explained
would reality
as further
forms at least one of the reasons
Furrow, or
upset
view,
here were we to find
Supreme
has
why, in our
Court
any of the other defen-
that matter
immunity
the doctrine of
created
dants, liable.
seemingly placed
thus
a roadblock to
might
what others
conceive as an effective
inquiry into the
not take much
It does
remedy
compensate
injured prisoner.
subject to con-
research on this
substantial
*14
law,
By making
question
this issue a
of
see
historically prisons
reader that
vince the
Garvie, supra,
Supreme
the
has
Court
rec-
prisoners and em-
places
danger for
are
of
ognized
proficient
that courts
at
are more
alike,
large percentage
that a
ployees
and
balancing
conflicting policies
the
inherent
history of aber-
all inmates have some
in a case such as ours.
they
and violent conduct or
rant behavior
“Indeed, some vio-
would not be there.
sure,
easy
To be
there are no
solutions to
un-
prisons
in
has been found to be
lence
prison violence. The resources of the state
pris-
the character of the
avoidable due to
always adequate
probably
are not
and
nev-
Williams,
Therefore, fairly high $5,000 pensatory punitive failing unless threshold for to liability injuries by time, place, prisoner inflicted for the second who wrongful parties imposed, healthy perceived act of third is was otherwise already beleaguered sys- danger infirmary overnight correctional in an in our is tems of governmental judgment wholly the states and other unreasonable and unfair deteriorate, experi- units will further person to the so held. entry court for of JNOV as to defendant earlier, main- judiciary to
As alluded of Furrow. a standard responsibility set tains the suffi- immunity a threshold with proper recogni- represent a
ciently high KENNEDY, Judge, concurring Circuit obtaining interest public tion of separately. prison responsible
retaining reliable
Judge Engel that it
agree
I
with
was not
it is diffi-
Beyond
principle
personnel.
1985 that a
clearly
December
established
limits,
any precise
forth
us to set
cult for
prisoner’s
violated
administrator
in which
variety of circumstances
for the
cruel and
to be free from
unusual
may occur
violations
such constitutional
by failing
prison-
remove the
punishment
conclu-
We are left then
infinite.
dormitory room when she
er from a
had
injuries
notwithstanding
sion that
single
inmate.
How-
threatened
unquestionably suffered
which were
ever,
I
I
reach that issue because
would not
of a de-
Marsh,
in the shoes
no individual
per-
do not
that the evidence would
believe
have
here could reasonable
named
fendant
anything more than
jury
mit the
find
happened
time it
known at
an error of
judgment.
judg-
error of
Such
*15
and omissions attributed
particular acts
faith, and here there
good
ment made in
that,
clearly
under
such
the
him or her was
anything
faith or
but
no evidence of bad
time,
it violated
law at
established
faith,
not amount
to cruel and
good
does
amend-
plaintiff’s right under
Albers,
punishment. Whitley v.
unusual
and unusual
free from cruel
ment
to be
1078,
312,
through the establishment
may be
courts to whom such claims
state
potential
“ever-present
When the
Further,
prisoners.
by injured
submitted
conflagration,”
and
violent confrontation
here,
involved
although not
doctrine
Prisoners’ La
v. North Carolina
Jones
to munici
immunity is no defense
119, 132,
Union, Inc.,
U.S.
bor
[97
may otherwise be
pal corporations which
(1977),
2532, 2541, 53 L.Ed.2d
S.Ct.
629]
violations
federal constitutional
liable for
conflict,
ripens into actual
unrest
Rights
Finally
Act.
under the Civil
prison’s internal
that “a
the admonition
that,
pri
bar
beyond
the doctrine does not
normally
a matter
security is peculiarly
law
of action under
state
vate causes
prison
adminis
the discretion
left to
injury
perpetrator of the
the direct
against
Chapman,
v.
trators,”
U.S.
Rhodes
[452
any individual defendant
or indeed
2392,
14,
337,
14,
n.
n.
101 S.Ct.
law
that state or common
to the extent
(1981)
special
],
carries
L.Ed.2d 59
remedy in state courts.
some
provides
administrators
weight.
“Prison
wide-ranging defer
should
accorded
IV.
and execution
adoption
ence in the
judg
in their
practices
policies and
reasons
AFFIRM
foregoing
For
internal
preserve
or
Amis,
ment are needed
as to
grant
of JNOV
institu
to maintain
discipline and
Graves,
der and
Arn,
and VACATE
Morse and
Wolfish,
v.
security.” Bell
[441
Fur-
tional
denying
as to defendant
order
JNOV
1878,
520, 547,
99 S.Ct.
district
REMAND the case to the
row (1979)
L.Ed.2d 447
qualified immunity
That deference ex-
entitled to
and there-
].
prison security
tends to a
measure taken
fore JNOV.
response
to an actual confrontation
view,
my
Furrow was not entitled to
inmates, just
with riotous
as it does to
qualified immunity
Eighth
because the
prophylactic
preventive
or
in-
measures
protection against
Amendment’s
attack
tended to reduce the incidence of these
clearly
from another
was
inmate
estab
any
other breaches of
disci-
lished
this circuit on the date Leonard
pline. It does
insulate from
review
Norris,
attacked Marsh.
v.
See Walker
actions
taken
bad faith and for no
(6th Cir.1990);
1453 n. 7
legitimate purpose,
requires
Love,
Stewart
Cir.
judge
jury freely
neither
nor
substitute
1982) (per curiam). Moreover,
judgment
their
that of
officials who
sufficiently
“particularized” because
have made a
choice. Accord-
considered
after Stewart a
official
reasonable
ingly,
ruling
aon motion for a directed understand that deliberate
indifference to
this,
verdict in a
such as
case
courts
injury
risk of
to an inmate from an assault
must determine whether
the evidence by
give
another inmate would
rise to liabili
goes beyond
dispute
a mere
over the
ty
Eighth
under the
Amendment. See
particular
reasonableness of a
use of
635, 640,
Creighton,
Anderson v.
483 U.S.
force or the
arguably superi-
existence of
(1987)
107 S.Ct.
Id. at
I parts concur in I II—1 to 4 of the majority’s opinion affirming grant Amis,
JNOV for Arn, Morse
and Graves. I respectfully dis-
sent parts from and III in II—5 which the
majority holds that defendant Furrow was