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Kessack v. Walla Walla County

United States District Court, E.D. Washington

December 23, 2014

ERIK KESSACK, individually, Plaintiff,
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, Defendants

For Erik Kessack, individually, Plaintiff: Darrell Lee Cochran, LEAD ATTORNEY, Loren A Cochran, Pfau Cochran Vertetis Amala, Tacoma, WA.

For 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, John Does 1 - 5, in their individual capacities, Defendants: Kenneth Allen Miller, Miller Mertens & Spanner PLLC, Kennewick, WA.


EDWARD F. SHEA, Senior United States District Judge.

When Plaintiff Erik Kessack was an inmate at Walla Walla County Jail, he was attacked and injured by a fellow inmate, Fernando Saenz, Jr. Mr. Kessack filed this lawsuit seeking recovery under 42 U.S.C. § 1983 and Washington state law. Defendants seek summary judgment in their favor because Plaintiff Eric Kessack 1) failed to exhaust his administrative remedies, 2) failed to present evidence that any of the Defendants knew that Mr. Saenz presented a safety risk to Mr. Kessack, 3) failed to present evidence that any Defendant negligently supervised Mr. Kessack, and 4) failed to identify a deficiency in the Walla Walla County training program that caused Mr. Kessack's injury. ECF No. 28. Mr. Kessack opposes the motion in its entirety and also clarifies his claims. This Order supplements and memorializes the Court's oral[1] rulings. The Court grants Defendants summary judgment as to Mr. Kessack's 42 U.S.C. § 1983 claim and denies summary judgment as to 1) Mr. Kessack's state-law claims against Walla Walla County and 2) Defendants' failure-to-exhaust administrative-remedies affirmative defense.

A. Factual Background[2]

1. Incident

Mr. Kessack was incarcerated at the Walla Walla County Jail from July 20, 2010, to October 27, 2010. After his intake, Mr. Kessack was assigned to a housing pod near the officer's booth. According to Mr. Kessack, many inmates in that housing pod were gang members affiliated with the 18th Street Sureños. Although Mr. Kessack was not affiliated with a gang and did not previously have problems with gangs, he started having problems in the housing pod. For instance, Mr. Kessack disagreed with Jacihel Contreras, a Sureños gang member, regarding television usage. ECF No. 29, Ex. A at 23:10-25. Because of his problems with Mr. Contreras and the Sureños, Mr. Kessack orally requested a housing move from either Officer Tanner Harris, Officer Brian Martin, or Officer Brian Allen. ECF No. 29, Ex. A at 25:2-11; ECF No. 34, Ex. 1 at 24:17 & 89:2. No immediate action was taken by the officers. Mr. Kessack then called his defense attorney Jerry Makus and told him of the problems he was having in his pod with the gang members. ECF No. 34, Ex. 1 at 32: 4-14. Mr. Makus then called the Walla Walla County Jail and spoke to Officer Jean Hall. ECF No. 34, Ex. 2 at 19:4-22; ECF No. 34, Ex. 6. Officer Hall then spoke to Captain James Romine and advised him that Mr. Makus had called and reported that Mr. Kessack was having problems with gang members. ECF No. 34, Ex. 2 at 1-6. Within approximately ten minutes of Mr. Kessack's telephone call to Mr. Makus, Mr. Kessack was moved from his initial pod to pod two. ECF No. 34, Ex. 1 at 32:15-20. The current record does not identify whether pod two did, or did not have, Sureños gang members. No notation of this phone call and its substance was recorded in the jail's books or prisoner computer records.

On August 6, 2010, Mr. Kessack was injured in the shower. At his deposition, Mr. Kessack stated that he slipped in the shower and injured himself; his injuries necessitated a hospital emergency room visit. ECF No. 29, Ex. A at 31:4-22. During his time at the emergency room, pod two was locked down so that jail staff could conduct an investigation as to Mr. Kessack's shower incident. ECF No. 34, Ex. 3.

After Mr. Kessack returned from the hospital, Officer Lucille (Lucy) Brown Piorier transferred Mr. Kessack to a housing unit with Fernando Saenz, Jr., who, along with Mr. Contreras, was an 18th Street Sureños gang member facing charges pertaining to a March 2010 birthday party where multiple victims were stabbed. ECF No. 34, Ex. 3. Mr. Kessack states that Sergeant Brown Piorier transferred him to a cell[3] with a gang member because she believed that Mr. Kessack intentionally injured himself in the shower in order to try and escape from jail. ECF No. 29, Ex. A at 31:4-11. Yet, in an August 12, 2010 email to Captain Romine, Sergeant Brown Piorier states that she housed Mr. Kessack with Mr. Saenz because she was concerned that individuals in pod two would retaliate against Mr. Kessack given that pod two had been locked down during the investigation regarding his fall in the shower. ECF No. 34, Ex. 3. Sergeant Brown Piorier mentions in the email that there was nothing in the jail's computers or books that indicated Mr. Kessack should not be housed with gang members. ECF No. 34, Ex. 3. There is no documentation submitted to the Court to challenge her assertion.

While Mr. Kessack was housed with Mr. Saenz, he learned Mr. Saenz was a Sureños gang member. Notwithstanding this knowledge, Mr. Kessack did not request to be moved to a different housing unit as he and Mr. Saenz had not yet had any confrontation. Mr. Kessack and Mr. Saenz interacted socially by playing cards and watching TV with each other, but otherwise kept to themselves. ECF No. 29, Ex. A at 46:5-21. Then on August 8, 2010, when Mr. Kessack and Mr. Saenz were playing cards, Mr. Saenz became upset and assaulted Mr. Kessack. Mr. Kessack suffered injuries and was taken to St. Mary's Hospital in Walla Walla, where a CT scan showed that he suffered several facial fractures.

Walla Walla County Deputy Jeff Jackson investigated the attack and took formal statements from Mr. Saenz, Mr. Kessack, and Officers Harris and Allen. Mr. Saenz admitted he assaulted Mr. Kessack. Formal charges were filed against Mr. Saenz, but these charges were later dropped in exchange for Mr. Saenz's guilty plea to the March 2010 knife attacks.

On August 10, 2010, Mr. Makus wrote a letter to the Walla Walla County Prosecuting Attorney's Office demanding to know why his prior calls for Mr. Kessack's safety while in custody at the jail were ignored.

On August 11, 2010, Mr. Saenz made a comment to Sergeant Brown Poirier, which was overheard by Officer Loudermilk, that Mr. Saenz had understood that Sergeant Brown Piorier housed him with Mr. Kessack in order that he " take care of" Mr. Kessack. ECF No. 34, Ex. 11. Later that day, Mr. Saenz retracted this statement when Officer Loudermilk questioned him about it. Id.

2. Grievance Policy

The Walla Walla County Jail has a Corrections Facility Grievance System Policy (" Grievance Policy"), ECF No. 30, Ex. A. Pursuant to the Grievance Policy, an inmate may submit a cite. On the single-page cite, the inmate may 1) make a request, 2) file a grievance, 3) request an explanation, or 4) seek medical attention. Before filing a cite, inmates are encouraged to " resolve disputes or complaints informally prior to filing a written grievance on the matter. However, under no circumstances will a deputy or any other staff member (contract or otherwise) attempt to discourage or threaten any inmate desiring to file a written grievance." Id., Ex. A at 1. The Grievance Policy requires the corrections captain to designate a corrections deputy to serve as the grievance coordinator. Id. Jail personnel are required to ensure that adequate cite forms are available and that inmates have unrestricted access to the forms. The Grievance Policy requires the inmate to complete a cite within one week[4] of the incident or onset of the grieved problem and return the cite to a corrections deputy for submission to the grievance coordinator. Id., Ex. A at 2. The corrections deputy is to place a completed grievance in the " grievances" file box prior to the end of his shift. Id., Ex. A at 3. The Grievance Policy provides an appeals process for any cite. To appeal a decision on a cite, an inmate submits a written appeal to the corrections captain within five days of his receipt of the grievance coordinator's response.

Within his approximate three-month stay at the Walla Walla County Jail, Mr. Kessack submitted thirty-eight cites, which requested special food due to his injuries, mouthwash to treat sores in his mouth, a mat, medical treatment, prescription refills, and permission for his mother to pick up his medical file. Many of these cites sought treatment for Mr. Kessack's pain or medical conditions resulting at least in part from the August 8, 2010 assault. Id., Ex. B (cites on August 15, 17, 18, 20, 22, 26, and 31, 2010; September 11, 14, 26, and 28, 2010; October 9, 14, and 19, 2010). Based on the record, it is unclear whether Mr. Kessack appealed any of the cites; however, it is undisputed that Mr. Kessack did not appeal an October 14, 2010 cite in which he grieved the adequacy of his medical treatment. Either before or after Mr. Saenz's assault, Mr. Kessack did not submit a cite complaining that he felt unsafe or in danger, as he did not understand that he needed to file a cite if staff members responded to his oral requests concerning such housing issues.

3. Other Events

Mr. Kessack was released from Walla Walla County Jail on ...

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