Appellate & Post-Trial Litigation Blog

Tuesday, August 30, 2022

En Banc Split Vote

The Seventh Circuit evenly split on an en banc petition this week, five to five in Johnson v. Prentice, No. 18-3535. The tie vote meant the panel decision stood, and thus the Court would not hear the case en banc. The issue generated a concurrence from Judge Michael Scudder and a passionate dissent from Judge Diane Wood. At issue was whether the district court erred in awarding summary judgment to Defendants who kept the Plaintiff Michael Johnson in solitary confinement in hazardous cells for twenty-four hours a day for four years. The district court found no Eighth Amendment violation, and a panel of the Seventh Circuit affirmed. Prisoner Michael Johnson's efforts for a rehearing en banc fell one vote short. Judge Wood in her dissent from the denial of the rehearing en banc argued the panel decision "sends the message that an inmate who behaves as badly as Johnson did is now fair game for torture, or starvation, or medical neglect, or wholesale deprivation of exercise. The Eighth Amendment assures that minimal human standards cannot be compromised."

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