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

> Court of Appeals for the Sixth Circuit · September 23, 1991 · 937 F.2d 1056

URL: https://www.frixlaw.com/law-library/cases/9481784

## Case

- **Full name:** Rita F. MARSH, Plaintiff-Appellant, Cross-Appellee, v. Dorothy ARN, Et Al., Defendants-Appellees, Delores Furrow, Defendant-Appellee, Cross-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** September 23, 1991
- **Citations:** 937 F.2d 1056
- **Precedential status:** Published
- **Opinion:** Concurring in part by Milburn
- **Judges:** Kennedy, Milburn, Engel
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481784

## How later opinions describe it (automated extraction)

- discussing the possible deleterious effects of imposing monetary liability on “the already beleaguered correctional systems of the states ...”

## Opinion text

MILBURN, Circuit Judge,
concurring in part and dissenting in part.
I concur in parts I and II — 1 to 4 of the majority’s opinion affirming the grant of JNOV for defendants Amis, Arn, Morse and Graves. However, I respectfully dissent from parts II — 5 and III in which the majority holds that defendant Furrow was entitled to qualified immunity and therefore JNOV.
In my view, Furrow was not entitled to qualified immunity because the Eighth Amendment’s protection against attack from another inmate was clearly established in this circuit on the date Leonard attacked Marsh. See Walker v. Norris, 917 F.2d 1449 , 1453 n. 7 (6th Cir.1990); Stewart v. Love, 696 F.2d 43, 44 (6th Cir.1982) (per curiam). Moreover, the right was sufficiently “particularized” because after Stewart a reasonable official would understand that deliberate indifference to a risk of injury to an inmate from an assault by another inmate would give rise to liability under the Eighth Amendment. See Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987) (The Supreme Court indicated that requiring a right to be more particularized “is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.”). Therefore, it was for the jury to decide whether the defendants acted with deliberate indifference. See Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir.1991).
In this case, the jury found that Furrow violated Marsh’s Eighth Amendment rights by failing to protect her from Leonard’s attack. When viewed in the light most favorable to Marsh, the evidence creates a question of fact as to whether Furrow acted with deliberate indifference to a known risk of injury to Marsh. Because reasonable minds could disagree as to whether Furrow acted with deliberate indifference by not removing Marsh from the room she shared with Leonard, I would affirm the district court’s denial of Furrow’s motion for JNOV. Moreover, because the jury’s verdict against Furrow is one which could reasonably have been reached, I would also hold that the district court did not abuse its discretion by denying Furrow’s motion for a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481784. Public record. Not legal advice.