Rita F. Marsh, Cross-Appellee v. Dorothy Arn, Delores Furrow, Cross-Appellant

KENNEDY, Circuit Judge,

concurring separately.

I agree with Judge Engel that it was not clearly established in December 1985 that a prison administrator violated a prisoner’s right to be free from cruel and unusual punishment by failing to remove the prisoner from a dormitory room when she had been threatened by a single inmate. However, I would not reach that issue because I do not believe that the evidence would permit the jury to find anything more than an error of judgment. Such an error of judgment made in good faith, and here there is no evidence of bad faith or anything but good faith, does not amount to cruel and unusual punishment. Whitley v. Albers, 475 U.S. 312 , 106 S.Ct. 1078 , 89 L.Ed.2d 251 (1986) explains:

It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock....

When the “ever-present potential for violent confrontation and conflagration,” Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 132 , [ 97 S.Ct. 2532, 2541 , 53 L.Ed.2d 629 ] (1977), ripens into actual unrest and conflict, the admonition that “a prison’s internal security is peculiarly a matter normally left to the discretion of prison administrators,” Rhodes v. Chapman, [ 452 U.S. 337 , 349 n. 14, 101 S.Ct. 2392, n. 14 , 69 L.Ed.2d 59 (1981) ], carries special weight. “Prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, [ 441 U.S. 520, 547 , 99 S.Ct. 1861, 1878 , 60 *1072 L.Ed.2d 447 (1979) ]. That deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline. It does not insulate from review actions taken in bad faith and for no legitimate purpose, but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice. Accordingly, in ruling on a motion for a directed verdict in a case such as this, courts must determine whether the evidence goes beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superi- or alternatives.

Id. at 319, 321-22, 106 S.Ct. at 1084, 1085 (emphasis in original).

Viewed in the light most favorable to plaintiff, the evidence here shows only that Furrow made a considered judgment that Leonard’s threat was not serious and that talking to the two women was sufficient. She didn’t ignore the incident. When Leonard told her that she had not meant the threat and where the evidence showed that threats by inmates to kill other inmates were made all the time when they weren’t really meant, we have only a dispute as to whether she exercised due care in making that judgment. That she misjudged the seriousness of the threat may be negligence, but it is not deliberate indifference. Further evidence that she was not deliberately indifferent is found in the fact that she directed that special attention be given to checking plaintiff’s dormitory room. There is simply no basis for finding that she did not act in good faith.