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8th Amendment Violation Imminent Danger.

Byline: Derek Hawkins

7th Circuit Court of Appeals

Case Name: Kirk Horshaw v. Mark Casper, et al.

Case No.: 16-3789

Officials: EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.

Focus: 8th Amendment Violation Imminent Danger

On October 5, 2012, Kirk Horshaw was brutally beaten by other inmates at Menard Correctional Center, acting on the instructions of a gang leader who felt himself disrespected. The injuries were grave; Horshaw was lucky to survive and still suffers pain and the effects of brain trauma. Horshaw had been warned that an attack was in prospect; a few days (maybe weeks) before the attack he received an anonymous letter stating that he would be "eradicated" for disrespecting the gang's leader. In this suit under 42 U.S.C. 1983 Horshaw contends that he gave Mark Casper, a guard, a letter describing this threat. Horshaw asserts that Casper promised to investigate yet did nothing. Horshaw also contends that he sent a note to Michael Atchison, then the prison's warden, describing the threat and asking for protection.

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).

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 84547. On the district court's understanding, liability will be almost impossible, for prisoners do not threaten each other with the level of detail the judge demanded.

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.

Affirmed in part. Vacated in part. Reversed and Remanded in part.

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Derek A. Hawkins is a trademark corporate counsel attorney for Harley-Davidson, where he concentrates his practice on brand protection and strategy.[/box]

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Publication:Wisconsin Law Journal
Date:Jan 7, 2019
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