Kessack v. Walla Walla County, No. 2:2013cv05062 - Document 43 (E.D. Wash. 2014)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND AMENDING CAPTION - granting in part and denying in part 28 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (CC, Case Administrator)
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Kessack v. Walla Walla County Doc. 43 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 Plaintiff, 8 v. 9 10 11 12 13 CASE NO.4:13-CV-5062-EFS ERIK KESSACK, individually, WALLA WALLA COUNTY; J. MICHAEL HUMPHREYS, in his individual capacity; JAMES ROMINE, in his individual capacity; RYAN L. ALLEN, in his individual capacity; TANNER HARRIS, in his individual capacity; and JOHN DOES 1-5, in their individual capacities, ORDER GRANTTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND AMENDING CAPTION 14 Defendants. 15 16 When Plaintiff Erik Kessack was an inmate at Walla Walla County 17 Jail, he was attacked and injured by a fellow inmate, Fernando Saenz, 18 Jr. 19 1983 and Washington state law. 20 their favor because Plaintiff Eric Kessack 1) failed to exhaust his 21 administrative remedies, 2) failed to present evidence that any of the 22 Defendants knew that Mr. Saenz presented a safety risk to Mr. Kessack, 23 3) failed to present evidence that any Defendant negligently supervised 24 Mr. Kessack, and 4) failed to identify a deficiency in the Walla Walla 25 County training program that caused Mr. Kessack’s injury. 26 Mr. Kessack opposes the motion in its entirety and also clarifies his Mr. Kessack filed this lawsuit seeking recovery under 42 U.S.C. § Defendants seek summary judgment in ECF No. 28. ORDER - 1 Dockets.Justia.com This Order supplements and memorializes the Court’s oral1 1 claims. 2 rulings. 3 Kessack’s 42 U.S.C. § 1983 claim and denies summary judgment as to 1) 4 Mr. 5 Defendants’ 6 defense. 7 A. The Court grants Defendants summary judgment as to Mr. Kessack’s state-law claims failure-to-exhaust against Walla Walla County administrative-remedies and 2) affirmative Factual Background2 8 1. Incident 9 Mr. Kessack was incarcerated at the Walla Walla County Jail from 10 July 20, 2010, to October 27, 2010. After his intake, Mr. Kessack was 11 assigned to a housing pod near the officer’s booth. According to Mr. 12 13 1 A telephonic hearing occurred on December 18, 2014. Mr. Kessack 15 was appeared 16 Defendants’ behalf. 14 17 2 represented by Loren Cochran, and Ken Miller on The parties submitted a Joint Statement of Uncontroverted Facts. 18 ECF No. 40. 19 Rule of Civil Procedure 56(d), and are set forth in this AFactual 20 Background@ without citation to the record. 21 motion and creating this factual section, the Court 1) believed the 22 undisputed 23 justifiable inferences in Mr. Kessack=s favor unless they were flatly 24 contradicted by the record. 25 242, 255 (1986); Scott v. Harris, 550 U.S. 372, 380 (2007). 26 ORDER - 2 These facts are established consistent with Federal facts and Mr. Kessack=s When considering this evidence and 2) drew all See Anderson v. Liberty Lobby, 477 U.S. 1 Kessack, many inmates in that housing pod were gang members affiliated 2 with the 18th Street Sureños. 3 with a gang and did not previously have problems with gangs, he started 4 having problems in the housing pod. 5 with Jacihel Contreras, a Sureños gang member, regarding television 6 usage. 7 Mr. Contreras and the Sureños, Mr. Kessack orally requested a housing 8 move from either Officer Tanner Harris, Officer Brian Martin, or Officer 9 Brian Allen. Although Mr. Kessack was not affiliated For instance, Mr. Kessack disagreed ECF No. 29, Ex. A at 23:10-25. Because of his problems with ECF No. 29, Ex. A at 25:2-11; ECF No. 34, Ex. 1 at 24:17 10 & 89:2. 11 then called his defense attorney Jerry Makus and told him of the problems 12 he was having in his pod with the gang members. 13 32: 4-14. 14 to Officer Jean Hall. 15 Officer Hall then spoke to Captain James Romine and advised him that 16 Mr. Makus had called and reported that Mr. Kessack was having problems 17 with gang members. 18 minutes of Mr. Kessack’s telephone call to Mr. Makus, Mr. Kessack was 19 moved from his initial pod to pod two. ECF No. 34, Ex. 1 at 32:15-20. 20 The current record does not identify whether pod two did, or did not 21 have, Sureños gang members. 22 substance was recorded in the jail’s books or prisoner computer records. 23 No immediate action was taken by the officers. Mr. Kessack ECF No. 34, Ex. 1 at Mr. Makus then called the Walla Walla County Jail and spoke ECF No. 34, Ex. 2 at 19:4-22; ECF No. 34, Ex. 6. ECF No. 34, Ex. 2 at 1-6. Within approximately ten No notation of this phone call and its On August 6, 2010, Mr. Kessack was injured in the shower. At his 24 deposition, Mr. Kessack stated that he slipped in the shower and injured 25 himself; his injuries necessitated a hospital emergency room visit. ECF 26 No. 29, Ex. A at 31:4-22. ORDER - 3 During his time at the emergency room, pod 1 two was locked down so that jail staff could conduct an investigation 2 as to Mr. Kessack’s shower incident. ECF No. 34, Ex. 3. 3 After Mr. Kessack returned from the hospital, Officer Lucille 4 (Lucy) Brown Piorier transferred Mr. Kessack to a housing unit with 5 Fernando Saenz, Jr., who, along with Mr. Contreras, was an 18th Street 6 Sureños gang member facing charges pertaining to a March 2010 birthday 7 party where multiple victims were stabbed. 8 Kessack states that Sergeant Brown Piorier transferred him to a cell3 9 with a gang member because she believed that Mr. Kessack intentionally ECF No. 34, Ex. 3. Mr. 10 injured himself in the shower in order to try and escape from jail. ECF 11 No. 29, Ex. A at 31:4-11. 12 Romine, Sergeant Brown Piorier states that she housed Mr. Kessack with 13 Mr. Saenz because she was concerned that individuals in pod two would 14 retaliate against Mr. Kessack given that pod two had been locked down 15 during the investigation regarding his fall in the shower. 16 Ex. 3. 17 nothing in the jail’s computers or books that indicated Mr. Kessack 18 should not be housed with gang members. ECF No. 34, Ex. 3. 19 documentation submitted to the Court to challenge her assertion. Yet, in an August 12, 2010 email to Captain ECF No. 34, Sergeant Brown Piorier mentions in the email that there was There is no 20 21 3 Based on the record, it is unclear whether Mr. Kessack and Mr. Saenz 22 were housed together in a two-person cell or whether they were 23 housed in a small unit with separate cells. On the current record, the Court understands it was the latter given the incident report’s 24 discussion of different F cells and reference that Mr. Kessack and 25 Mr. Saenz were playing cards at a day-room table. 26 4 at 2-3. ORDER - 4 ECF No. 34, Ex. While Mr. Kessack was housed with Mr. Saenz, he learned Mr. Saenz 1 2 was a Sureños gang member. 3 did not request to be moved to a different housing unit as he and Mr. 4 Saenz had not yet had any confrontation. 5 interacted socially by playing cards and watching TV with each other, 6 but otherwise kept to themselves. 7 on August 8, 2010, when Mr. Kessack and Mr. Saenz were playing cards, 8 Mr. Saenz became upset and assaulted Mr. Kessack. 9 injuries and was taken to St. Mary’s Hospital in Walla Walla, where a 10 Notwithstanding this knowledge, Mr. Kessack Mr. Kessack and Mr. Saenz ECF No. 29, Ex. A at 46:5-21. Then Mr. Kessack suffered CT scan showed that he suffered several facial fractures. 11 Walla Walla County Deputy Jeff Jackson investigated the attack and 12 took formal statements from Mr. Saenz, Mr. Kessack, and Officers Harris 13 and Allen. 14 were filed against Mr. Saenz, but these charges were later dropped in 15 exchange for Mr. Saenz’s guilty plea to the March 2010 knife attacks. Mr. Saenz admitted he assaulted Mr. Kessack. Formal charges 16 On August 10, 2010, Mr. Makus wrote a letter to the Walla Walla 17 County Prosecuting Attorney’s Office demanding to know why his prior 18 calls for Mr. Kessack’s safety while in custody at the jail were ignored. 19 On August 11, 2010, Mr. Saenz made a comment to Sergeant Brown 20 Poirier, which was overheard by Officer Loudermilk, that Mr. Saenz had 21 understood that Sergeant Brown Piorier housed him with Mr. Kessack in 22 order that he “take care of” Mr. Kessack. 23 that day, Mr. Saenz retracted this statement when Officer Loudermilk 24 questioned him about it. 25 // 26 / ORDER - 5 Id. ECF No. 34, Ex. 11. Later 1 2. Grievance Policy 2 The Walla Walla County Jail has a Corrections Facility Grievance 3 System Policy (“Grievance Policy”), ECF No. 30, Ex. A. 4 Grievance Policy, an inmate may submit a cite. 5 the inmate may 1) make a request, 2) file a grievance, 3) request an 6 explanation, or 4) seek medical attention. 7 inmates are encouraged to “resolve disputes or complaints informally 8 prior to filing a written grievance on the matter. 9 circumstances will a deputy or any other staff member (contract or 10 otherwise) attempt to discourage or threaten any inmate desiring to file 11 a written grievance.” 12 the corrections captain to designate a corrections deputy to serve as 13 the grievance coordinator. 14 that 15 unrestricted access to the forms. 16 inmate to complete a cite within one week4 of the incident or onset of 17 the grieved problem and return the cite to a corrections deputy for 18 submission to the grievance coordinator. 19 corrections deputy is to place a completed grievance in the “grievances” 20 file box prior to the end of his shift. 21 Policy provides an appeals process for any cite. adequate cite Id., Ex. A at 1. forms Id. Pursuant to the On the single-page cite, Before filing a cite, However, under no The Grievance Policy requires Jail personnel are required to ensure are available and that inmates have The Grievance Policy requires the Id., Ex. A at 2. Id., Ex. A at 3. The The Grievance To appeal a decision 22 23 4 At the hearing, counsel stated that an inmate has five days to file 24 a grievance. However, the Grievance Policy sets a one-week cite 25 filing deadline, and a five-day deadline to appeal the decision on 26 the cite. ORDER - 6 1 on a cite, an inmate submits a written appeal to the corrections captain 2 within five days of his receipt of the grievance coordinator’s response. 3 Within his approximate three-month stay at the Walla Walla County 4 Jail, Mr. Kessack submitted thirty-eight cites, which requested special 5 food due to his injuries, mouthwash to treat sores in his mouth, a mat, 6 medical treatment, prescription refills, and permission for his mother 7 to pick up his medical file. 8 Mr. Kessack’s pain or medical conditions resulting at least in part 9 from the August 8, 2010 assault. Many of these cites sought treatment for Id., Ex. B (cites on August 15, 17, 10 18, 20, 22, 26, and 31, 2010; September 11, 14, 26, and 28, 2010; October 11 9, 14, and 19, 2010). 12 Kessack appealed any of the cites; however, it is undisputed that Mr. 13 Kessack did not appeal an October 14, 2010 cite in which he grieved the 14 adequacy of his medical treatment. 15 assault, Mr. Kessack did not submit a cite complaining that he felt 16 unsafe or in danger, as he did not understand that he needed to file a 17 cite if staff members responded to his oral requests concerning such 18 housing issues. Based on the record, it is unclear whether Mr. Either before or after Mr. Saenz’s 19 3. 20 Mr. Kessack was released from Walla Walla County Jail on October 21 22 Other Events 27, 2010. Beginning December 15, 2012, Mr. Kessack was in the custody of 23 Pierce County Jail, until July 26, 2013. 24 County Jail, Mr. Kessack, through counsel, filed a tort claim form under 25 RCW 4.96.020, with Walla Walla County pertaining to the August 8, 2010 26 ORDER - 7 While he was housed at Pierce 1 attack. This lawsuit was later filed on June 5, 2013, by his counsel. 2 ECF No. 1. 3 B. Summary-Judgment Standard 4 Summary judgment is appropriate if the record establishes "no 5 genuine dispute as to any material fact and the movant is entitled to 6 judgment as a matter of law.@ 7 summary judgment must point to specific facts establishing a genuine 8 dispute of material fact for trial. 9 317, 324 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 Fed. R. Civ. P. 56(a). The party opposing Celotex Corp. v. Catrett, 477 U.S. 10 U.S. 574, 586-87 (1986). If the non-moving party fails to make such a 11 showing for any of the elements essential to its case for which it bears 12 the burden of proof, the trial court should grant the summary-judgment 13 motion. 14 C. Celotex Corp., 477 U.S. at 322. Authority and Analysis 15 1. Administrative Remedies 16 The parties disagree whether Mr. Kessack was required to exhaust 17 administrative remedies under the Grievance Policy before filing this 18 lawsuit 19 administrative remedies. 20 mandates that prisoners exhaust all available administrative remedies 21 before filing “any suit challenging prison conditions.” 22 1997e(a). 23 about 24 particular episodes, and whether they allege excessive force or some 25 other wrong.” and, ORDER - 8 required, whether he exhausted the available The Prisoner Litigation Reform Act (PRLA) 42 U.S.C. § This exhaustion requirement applies to “all inmate suits prison 26 if life, whether they involve general circumstances Porter v. Nussle, 534 U.S. 516, 532 (2002). or 1 First, as to whether Mr. Kessack is subject to the PLRA, Defendants 2 rely on Gibson v. Brooks, 335 F. Supp. 2d 325 (D. Conn. 2004), to argue 3 that because Mr. Kessack was in jail when he filed this lawsuit he was 4 a “prisoner” for PLRA purposes and he must have exhausted administrative 5 remedies under the Grievance Policy before filing this lawsuit, and his 6 failure to do so results in dismissal of this lawsuit. 7 argues that the PLRA’s administrative-exhaustion requirement does not 8 apply to him because he was not in Walla Walla County Jail custody when 9 this lawsuit was filed, relying on Talamantes v. Leyva, 575 F.3d 1021 10 Mr. Kessack (9th Cir. 2009). The Court finds the PLRA administrative-exhaustion requirement 11 12 does not apply to this lawsuit. 13 exhaust all administrative remedies before filing “any suit challenging 14 prison conditions.” 15 as “any person incarcerated or detained in any facility who is accused 16 of, 17 violations of criminal law or the terms and conditions of parole, 18 probation, pretrial release or diversionary program.” 42 U.S.C. § 19 1997e(h). 20 Circuit determined that grievance procedures need not be exhausted by 21 individuals, who are released from prison and who then bring a lawsuit 22 challenging prior confinement conditions. Talamantes, 575 F.3d at 1024; 23 see also Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999). 24 Circuit stated, “If Congress had intended for all individuals, including 25 former 26 conditions to exhaust all available administrative remedies, it could convicted of, 42 U.S.C. § 1997e(a). sentenced for, or The PLRA defines “prisoner” adjudicated delinquent for, Given the PLRA’s application to “prisoners,” the Ninth prisoners, ORDER - 9 The PLRA mandates that a “prisoner” who wished to bring an action The Ninth regarding prison 1 have expressed that intention in the statute. 2 Id. 3 Congress did not do so.” Although Mr. Kessack was in custody—a prisoner—when he filed this 4 lawsuit, he was not in the custody of Walla Walla County. Therefore, 5 the Court finds the purposes of the PLRA are not furthered by applying 6 the PLRA administrative-exhaustion requirement to this lawsuit. 7 Talamantes, 575 F.3d at 1024 (concluding that the PLRA’s purpose was to 8 reduce frivolous lawsuits filed by prisoners who have the opportunity 9 and motivation to bog down the jail’s litigation system). See Mr. Kessack 10 challenges conditions in a prison facility different than the prison 11 facility that he was a prisoner in when he filed the lawsuit; in 12 addition, Pierce County Jail is not operated by Walla Walla County. 13 Therefore the facts here differ from those in Gibson, 335 F. Supp. 14 2d 325, which is relied on by Defendants. 15 in Berry v. Kerik, 366 F.3d 85 (2d Cir. 2003), the plaintiff was 16 incarcerated (for a second time) at the same institution against which 17 he filed a grievance pertaining to his first incarceration. 18 Kessack was not at Walla Walla County Jail when he filed this lawsuit 19 but rather was at Pierce County Jail. Mr. Kessack would have been 20 unable County 21 requirements when housed at Pierce County Jail because the Grievance 22 Policy required him to submit a cite to a corrections deputy at the 23 Walla Walla County Jail, who then was to physically place the cite in 24 the grievance file box. 25 Policy, a Walla Walla County Jail prisoner could file a cite pertaining 26 to “[a] condition[] within the corrections facility,” which given the to ORDER - 10 exhaust his Walla Walla In Gibson, like the plaintiff Jail Here, Mr. administrative Furthermore, per the terms of the Grievance 1 title, terms, and purpose of the Grievance Policy, clearly referred to 2 Walla Walla County Jail. Accordingly, 3 the Court determines the PLRA’s administrative- 4 exhaustion requirement does not apply to Mr. Kessack’s lawsuit filed 5 against Walla Walla County Jail, when he was housed in Pierce County 6 Jail. 7 regard. The Court denies Defendants’ summary-judgment motion in this 8 Even assuming that the PLRA applies to this lawsuit, the Court 9 finds Mr. Kessack sufficiently exhausted the administrative remedies of 10 which Walla Walla County had advised him were available. 11 as the correctional institution, have the burden to prove there was an 12 administrative remedy available to the prisoner, Mr. Kessack, and that 13 the administrative remedy was not exhausted. 14 F.3d 1162, 1166, 1171-72 (9th Cir. 2014). 15 their burden, Mr. Kessack must produce evidence to show that the 16 existing 17 effectively unavailable to him. 18 exhaust 19 correctional institution has the opportunity to correct any mistakes 20 itself and promotes efficient claims resolution. 21 U.S. 81, 89 (2006). and the generally available available See Albino v. Baca, 747 Once the Defendants carry administrative Id. at 1172. administrative Defendants, remedies were Requiring prisoners to remedies ensures that the Woodford v. Ngo, 548 22 The Grievance Policy required Mr. Kessack to file a cite within 23 one week of the incident or onset of the problem for which he was 24 submitting a cite. 25 Sergeant 26 Following the attack on August 6, 2010, Mr. Kessack was no longer housed Brown ORDER - 11 Through his § 1983 claim, Mr. Kessack challenges Piorier’s decision to house him with Mr. Saenz. 1 with Mr. Saenz. Accordingly, there was no reason for Mr. Kessack to 2 file a cite seeking different housing. 3 Kessack’s experience that he could orally request a housing change. 4 to matters that Mr. Kessack did seek relief from the jail by filing a 5 cite following his assault, such as medical treatment for his injuries 6 suffered during the attack, Defendants highlight that Mr. Kessack never 7 appealed the grievance coordinator’s response to these cites as is 8 required by the Grievance Policy. 9 evidence to show that Mr. Kessack was aware of the Grievance Policy’s In addition, it had been Mr. As However, Defendants did not submit 10 appeal process. There is no evidence submitted that Mr. Kessack 11 obtained a copy of the Grievance Policy while he was at Walla Walla 12 County Jail. 13 (and 14 Therefore, Defendants failed to establish that Mr. Kessack was aware of 15 the appeal process. And the cite form itself does not reference the right process) to appeal the grievance coordinator’s decision. 16 Under these circumstances, the Court finds Mr. Kessack has shown 17 he took advantage of the grievance process that he was advised was 18 available to him: he was unaware of the need to file a cite pertaining 19 to a housing decision, which post-incident no longer applied; he filed 20 cites seeking medical treatment for his suffered injuries; and there is 21 no evidence that he was aware of the need to file an appeal of a cite 22 decision. 23 judgment 24 affirmative defense. 25 // 26 / For these reasons, Defendants are not entitled to summary based ORDER - 12 on their failure-to-exhaust administrative-remedies 1 2. Plaintiff’s Claims 2 Defendants ask the Court to find that Mr. Kessack fails to present 3 evidence to support his 42 U.S.C. § 1983 claim and state-law claims. 4 For the reasons set forth below, the Court grants Defendants’ summary- 5 judgment motion as to the § 1983 claim and denies the motion as to the 6 state-law claims brought against Walla Walla County. a. 7 42 U.S.C. § 1983: Failure to Protect Claim 8 Section 1983 provides a cause of action against persons acting 9 under color of state law who have violated rights guaranteed by the 42 U.S.C. § 19835; Buckley v. 10 U.S. Constitution or federal statutes. 11 City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). 12 this motion, the parties agree Defendants acted under color of state 13 law. 14 establish a genuine dispute of fact as to whether Defendants violated 15 a constitutional right held by Mr. Kessack. The specific constitutional 16 right at issue is Mr. Kessack’s right to be free from injury from a For purposes of The focus is instead on whether Mr. Kessack presented evidence to 17 18 19 20 21 22 23 24 25 5 Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983. 26 ORDER - 13 1 state-created danger pursuant to the Fourteenth Amendment’s due-process 2 clause. This due-process right requires that prison officials not be 3 4 deliberately indifferent to their 5 substantial risk of serious harm from other inmates. 6 92 F.3d 894, 898-99 (9th Cir. 1996); see also Farmer v. Brennan, 511 7 U.S. 825, 834 (1994); McGrath v. Scott, 250 F. Supp. 2d 1218, 1224-25 8 (D. Ariz. 2003) (discussing the framework for analyzing Fourteenth 9 Amendment state-created-danger duty claims protect and an from L.W. v. Grubbs, utilizing objective inmate and the Eighth 10 Amendment’s 11 standards). 12 objective component: “[a] prison official must be ‘aware of facts from 13 which the inference could be drawn that a substantial risk of serious 14 harm exists, and . . . must also draw the inference.’” 15 Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013) (quoting Farmer, 511 16 U.S. 17 indifference, “[l]iability may follow only if a prison official ‘knows 18 that inmates face a substantial risk of serious harm and disregards 19 that risk by failing to take reasonable measures to abate it.’” 20 (quoting Farmer, 511 U.S. at 947). at deliberate-indifference to subjective “Deliberate indifference” has both a subjective and an 837). Given the subjective component Labatad v. Corr. to deliberate Id. 21 The record does not establish a genuine dispute of fact as to 22 whether Sergeant Brown Piorier’s decision to house Mr. Kessack with Mr. 23 Saenz was made with knowledge that Mr. Kessack faced a substantial risk 24 that Mr. Saenz would harm him, and that she chose to disregard that 25 risk. 26 knew there was a concern with housing Mr. Kessack with Mr. Saenz, or a There is no documentation or evidence that Sergeant Brown Piorier ORDER - 14 1 Sureños gang member. Although Mr. Kessack had reported problems with 2 gang members in pod one, there is no record he reported similar problems 3 with gang members in pod two. 4 jail staff that he was concerned with being housed with Mr. Saenz, even 5 though he knew Mr. Saenz was a Sureños gang member. 6 Romine stated at his deposition that Sergeant Brown Piorier was not 7 aware of the concern of Mr. Kessack being housed with gang members. 8 No. 34, Ex. 10 at 45:20-25 & 46:1. And Mr. Kessack had not previously told In fact, Captain ECF 9 Mr. Kessack did present evidence that Mr. Saenz made a post-attack 10 comment to Sergeant Brown Piorier on August 11, 2010, that he understood 11 he was to “take care of” Mr. Kessack. 12 statement later that day when Officer Loudermilk questioned him about 13 it. Yet, Mr. Saenz withdrew this 14 And although Captain Romine stated during his deposition that he 15 would not have housed Mr. Kessack and Mr. Saenz in the same cell because 16 they were both unable to “get along with people,” ECF No. 34, Ex. 10 at 17 33:9-23, 18 information in the record that Sergeant Brown Piorier knew that Mr. 19 Kessack should not be housed with Mr. Saenz or a Sureños gang member, 20 or that she should have known such if she had reviewed the jail’s board 21 or computer files. 22 prior jail conduct and whether he had a disciplinary record that 23 reflected that he posed a substantial danger to a cellmate. and “neither play[ed] well with others,” there is no There also is no evidence regarding Mr. Saenz’s In summary, the record fails to establish a genuine dispute of 24 25 fact that 26 deliberately indifferent to Mr. Kessack’s right to be free from a state- ORDER - 15 Sergeant Brown Pirorier, and Walla Walla County, was 1 created danger. 2 information about who Labatad spoke to or what he said, we cannot infer 3 that any of the defendants or officials responsible for making the 4 [cell] assignment were aware that Labatad faced a substantial risk of 5 harm [by a rival gang member housed with him].”)); Banks v. Deschutes 6 Cnty., 408 Fed. App’x 94, 95 (9th Cir. 2011) (“Holland’s disciplinary 7 record does not prove that Holland posed a substantial risk of serious 8 harm to Banks, and it does not prove that prison officials were 9 subjectively aware of any risk Holland posed.”); Carter v. Galloway, 10 352 F.3d 1346, 1349 (11th Cir. 2003) (determining that evidence that 11 prison officials knew that plaintiff’s cellmate acted like “a caged 12 animal” was insufficient evidence to establish a genuine dispute of fact 13 as to whether the prison officials deliberately disregarded the risk 14 that the inmate posed to plaintiff’s safety); Klebanowski v. Sheahan, 15 540 F.3d 633, 639-40 (7th Cir. 2008) (finding summary judgment in 16 defendants’ favor appropriate because plaintiff’s two statements to 17 prison officials that he feared for his life were insufficient for the 18 officers to know that the plaintiff was at risk of being physically 19 assaulted by gang members because of his non-gang member status). 20 these reasons, the Court grants summary judgment in Defendants’ favor 21 on the § 1983 claim. b. 22 For State-Law Claims In his response, ECF No. 33, Mr. Kessack clarifies that he asserts 23 24 See Labatad, 714 F.3d at 1160 (“Without more, such as only state-law 25 26 ORDER - 16 1) negligent-supervision and 2) negligent-training 1 claims against Walla Walla County.6 2 Because these claims are not brought against the individual Defendants, 3 nor are facts presented at summary judgment to support the assertion of 4 these negligence claims against the individual Defendants, the Court 5 grants summary judgment to Defendants James Romine, Ryan Allen, Tanner 6 Harris, and the deceased J. Michael Humphreys. See also ECF No. 1 at 10-12. 7 Under Washington law, Mr. Kessack must support his negligence 8 claims by proving 1) Walla Walla County owed him a duty, 2) Walla Walla 9 County breached that duty, 3) Mr. Kessack suffered injuries, and 4) his 10 injuries were proximately caused by the breach of the duty. See Degel 11 v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48 (1996). The Court 12 proceeds to apply these elements to Mr. Kessack’s negligent-supervision 13 and negligent-training claims. 14 As to Mr. Kessack’s negligent-supervision claim against Walla 15 Walla County, there generally is no duty to prevent a third party from 16 intentionally harming another. 17 39, 43 (1997). Niece v. Elmview Group Home, 131 Wn.2d However, a duty arises where: (a) a special relation exists between third person which imposes a duty control the third person's conduct, (b) a special relation exists between other which gives the other a right 18 19 20 the [defendant] and the upon the [defendant] to or the [defendant] and the to protection. 21 Peterson v. State, 100 Wn.2d 421, 426 (1983) (quoting Restatement 22 (Second) of Torts § 315 (1965)). 23 prison has a special relationship with an individual in its charge and Based on these duty principles, a 24 25 26 6 Plaintiff’s counsel failed to comply with the Scheduling Order’s requirement of filing a notice of to-be-adjudicated claims. ORDER - 17 1 owes that inmate a duty to “exercise reasonable and ordinary care to 2 protect [a] prisoner’s life and health.” 3 318, 323 (1918) (internal quotation removed). 4 its officials are not the insurer of inmate safety, Woody v. Ohio Dep’t 5 of Rehabilitation & Corr’n, 61 Ohio Misc. 2d 275, 277 (1988), and cannot 6 be found negligent for “failing to prevent what he could not reasonably 7 anticipate,” 8 “to hold the [municipality] liable for injury to one inmate inflicted 9 by another inmate, there must be proof of knowledge on the part of 10 prison officials that such an injury will be inflicted, or good reason 11 to anticipate such, and then there must be a showing of negligence on 12 the part of these officials in failing to prevent the injury.” 13 v. State, 130 Wash. App. 61, 64 (2005); see also Restatement (Second) 14 of Torts § 314A, Cmt. (e) (“The duty in each case is only one to exercise 15 reasonable care under the circumstances. 16 where he neither knows nor should know of the unreasonable risk, or of 17 the illness or injury. He is not required to take precautions against 18 a 19 anticipate.”). sudden Kusah v. McCorkle, 100 Wash. However, a prison and Riggs v. German, 81 Wash. 128, 131 (1914). attack from a third person Therefore, Winston The defendant is not liable which he has no reason to 20 The Court finds whether Walla Walla County Jail officials should 21 have had good reason to anticipate the injury inflicted by Mr. Saenz on 22 Mr. Kessack is a triable issue of fact. 23 lower standard than the § 1983 deliberate-indifference standard. 24 the 25 officials had good reason to anticipate that Mr. Saenz would inflict 26 injury on Mr. Kessack because 1) of Mr. Saenz’s suspected violent jury ORDER - 18 could reasonably determine This negligence standard is a that Walla Walla County Here, Jail 1 assaultive conduct, 2) Mr. Saenz was a Sureños gang member and an alleged 2 accomplish 3 disagreements with concerning the television, and 3) Mr. Kessack and 4 his counsel had previously advised jail staff that Mr. Kessack was 5 concerned about being housed with gang members. 6 is insufficient to establish a triable issue of fact as to the § 1983 7 claim, the evidence is sufficient to establish genuine disputes of fact 8 as to whether the Walla Walla County Jail officers failed to use 9 reasonable care to protect Mr. Kessack from an attack by Mr. Saenz. 10 11 of Mr. Contreras, with whom Mr. Kessack had prior Although the evidence Accordingly, the Court denies Defendants’ motion in this regard. As to Mr. Kessack’s negligent-training claim against Walla Walla 12 County, the Court also denies summary judgment in this regard. As 13 mentioned above, Walla Walla County had a duty to “exercise reasonable 14 and ordinary care to protect [a] prisoner’s life and health.” 15 100 Wash. at 323. 16 train its officers to satisfy this standard. Kusah, Walla Walla County likewise had a duty to adequately 17 Here, the officers, who received complaints from Mr. Kessack 18 regarding Sureños gang members and his safety concerns, and Officer 19 Hall, who received such information from Mr. Makus, did not note that 20 information in Mr. Kessack’s jail records, the computer, the pass-on 21 books, or the boards. 22 Walla County failed to properly train its jail staff to record such 23 information—information 24 prisoner’s life or health. 25 jail staff had recorded Mr. Kessack’s concerns about being housed with 26 gang members, Sergeant Brown Piorier would not have housed him together ORDER - 19 The jury could reasonably determine that Walla that is reasonably necessary to protect a The jury could also reasonably find that if 1 with Mr. Saenz. Accordingly, the Court finds there are triable issues 2 of what 3 memorializing 4 communicating such information amongst the officers, and whether a 5 failure 6 Kessack’s injuries. 7 D. fact as to to an Walla Walla inmate’s train in this County’s housing regard, training requests if any, and was regarding concerns, proximately caused and Mr. Conclusion 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Defendants’ Motion for Summary Judgment, ECF No. 28, is 10 GRANTED IN PART (§ 1983 claim and state-law claims against 11 individual Defendants) and DENIED IN PART (remainder). 12 2. The caption shall be AMENDED as follows: ERIK KESSACK, individually, 13 Plaintiff, 14 v. 15 WALLA WALLA COUNTY, 16 Defendant. 17 IT IS SO ORDERED. The Clerk’s Office is directed to enter this 18 Order and provide copies to all counsel. 19 DATED this 23rd day of December 2014. 20 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 21 22 23 24 25 26 Q:\EFS\Civil\2013\5062.msj.lc1.docx ORDER - 20
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