“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
Trump 11th Circuit judge Elizabeth Branch cast the deciding vote in the August unsigned decision in Marbury v. Warden in which the court affirmed the dismissal without trial of a man’s claim that prison officials were deliberately indifferent to his complaints about a serious risk of assault by other prisoners — concerns that were later proven true when he was stabbed and severely injured. Judge Robin Rosenbaum strongly dissented, noting that after the majority’s ruling, we “might as well” decide to “sentence people to be stabbed and beaten.”
Over a two-month period, Mitchell Marbury made repeated requests to be transferred to another dormitory or placed in protective lockup at Alabama’s St. Clair Correctional Facility. In the first of several letters to the warden, he stated that he had witnessed 15 stabbing incidents that appeared to be gang-related and feared for his safety, which he repeated in personal transfer requests to another prison official. He reported seeing “unmitigated violence—even against the guards” and that a friend warned him that he was the “target of an imminent attack.” But all his requests were denied. One official laughed at him and “told him to get a knife” or “shank” for his protection.
Less than a week after Marbury’s last transfer request, he was, in fact, “repeatedly stabbed from behind” and beaten by other prisoners. He was sent to the infirmary with “a puncture wound to the base of his skull, multiple stab wounds to his shoulder area, a broken nose, and a gash two centimeters deep in his back.”
Marbury then filed a lawsuit on his own against the warden and the other official, contending that they were deliberately indifferent to the substantial risk of serious harm he faced. The district court granted summary judgment against him without a trial, and in a 2-1 unsigned opinion joined by Branch, the 11th Circuit affirmed. The majority maintained that Marbury had shown only a “generalized risk of attack,” and that the 15 stabbings he complained about “may have occurred over the course of 6 years, for a rate of 2.5 per year.”
Judge Rosenbaum vigorously dissented. Criticizing the majority for failing to view the record in the light “most favorable to Marbury,” which is required in reviewing a summary judgment ruling against anyone, Rosenbaum explained Marbury had reported 15 stabbing incidents “in less than seven months” when he was in his current cell block. This comes out to once every 1.75 weeks, or “three times as often” as in another case relied on by the majority. She pointed out that the majority “simply ignore[d]” the other facts and threats reported by Marbury, and noted that a Department of Justice report on conditions at St. Clair the year after he was stabbed corroborated the frequent stabbings and other violence there.
The majority was also wrong, Rosenbaum explained, in suggesting that “a prisoner must be able to identify with specificity the precise threat he faces” before a prison official has “any responsibility to protect him” from violence. As the Supreme Court has explained, once dangerous conditions like in St. Clair are shown, it is “irrelevant to liability that the officials could not guess beforehand precisely who would attack whom.” A “reasonable jury” could find that the officials’ “deliberate indifference” to his plight “caused Marbury’s injuries,” Rosenbaum went on. She also showed in detail that caselaw at the time of the incident gave the officials “fair notice that their actions violated the Eighth Amendment” and thus they could not claim qualified immunity as a matter of law.
Rosenbaum concluded her dissent by showing the danger that the majority decision made possible by Branch poses to incarcerated people elsewhere as well. “The Eighth Amendment does not allow prisons to be modern-day settings for Lord of the Flies,” she noted. When a prison official “knows of a substantial threat of serious harm,” she went on, the official “must undertake reasonable action to protect” the incarcerated person, not “laughing at the prisoner’s predicament and telling him to get a ‘shank.’” But by refusing to allow Marbury to pursue his claim against the prison officials, Rosenbaum concluded, the majority opinion “condones this behavior and ensures it will occur again.” Indeed, as she stated earlier, the decision “gives corrections officials license to perpetuate prison violence.”