United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANT PIERCE COUNTY'S MOTION FOR
J. BRYAN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Pierce County,
Washington's Motion for Summary Judgment (Dkt. 48) and
Pierce County's motion to strike (Dkt. 59). Oral argument
has been requested, but is not necessary in deciding the
motions. The Court has considered the pleadings filed
regarding the motions and the remaining file herein.
case, Plaintiff, a former prisoner, alleges that Defendant
Pierce County violated his federal constitutional rights and
was negligent when it housed him in the jail with violent
rival gang members who beat him. Dkt. 26. He also claims the
County was negligent related to medical treatment for a leg
lesion which was unconnected to the attack. Id.
Pierce County now moves for summary dismissal of all claims
Plaintiff asserts against it. Dkt. 48. Plaintiff opposes the
motion to dismiss the constitutional claim related to the
gang attack. Dkt. 53. Plaintiff does not respond to the
motion to dismiss the negligence claims. For the reasons
stated below, Pierce County's summary judgment motion
(Dkt. 48) should be granted and its motion to strike (Dkt.
59) should be granted, in part, and denied, in part.
FACTS AND PROCEDURAL HISTORY
ATTACK BY RIVAL GANG MEMBERS
who is around 50, was a member of the Nortenos street gang in
the 1980s while living in North California. Dkt. 49, at
24-26. When he moved to Washington around 1987, he left the
gang. Id. Plaintiff has gang related tattoo
“sleeves” on both his forearms. Id., at
was booked into Pierce County jail on March 31, 2014. Dkt.
49, at 32. He didn't tell anyone during the booking
process that he was a former gang member, and there was
nothing in his prior records about gang membership or gang
related crime. Dkt. 49, at 33. The booking officer,
Correctional Deputy Hector Hernandez, states that Plaintiff
“had numerous tattoos that were previously listed in
the LINX system from prior bookings, ” and so asked
Plaintiff if “he had any new tattoos that needed to be
noted.” Dkt. 51, at 2. Plaintiff told him,
“no.” Id. Deputy Hernandez was not aware
that any of Plaintiff's tattoos were an indication he was
part of a gang. Id. As an officer in Pierce County,
Washington, Deputy Hernandez states that has “little to
no exposure” to the Nortenos, a Northern California
gang. Id. He did not enter any information into the
computer system regarding Plaintiff's prior gang
membership. Id. Deputy Hernandez states that
pursuant to the jail's policy, if Plaintiff had told him
of his prior gang affiliation or expressed concerns regarding
the presence of rival gang members, Deputy Hernandez would
have “entered the names of any known threating
individuals under the ‘Keep Separates' tab in the
computer and the classification section would have taken such
information into consideration in classifying and housing him
- such as housing him in a pod separate from any of the
inmates listed under the ‘Keep Separates'
tab.” Id. In any event, Deputy Hernandez asked
Plaintiff if “there was anything else [they] should
know” or if he had “any other concerns.”
Id. Plaintiff told Deputy Hernandez that he had a
“bad knee” and needed a “low
bunk/tier.” Dkts. 49, at 40; 50, at 11. Deputy
Hernandez states that at the time (2014), the jail did not
have “gang related violence issues.” Dkt. 51, at
3. Corrections Sergeant Jackie Caruso states that she
reviewed at least four years of incident reports at the jail,
and there were no known incidents of gang related violence in
2010-2014. Dkt. 50, at 3.
Plaintiff was interviewed by Deputy Hernandez, he was subject
to the jail's classification procedure. Dkt. 50, at 3.
Pursuant to the jail's “Policy and Procedures
Manual” in effect at the time,
“classification” was defined as the process that
placed inmates “in a housing area that appears to be
best suited for the individual's security classification,
program participation, and personal and medical/mental health
needs.” Dkt. 50, at 8. Inmates were classified as
either requiring minimum security (level 1 & 2), medium
security (levels 3, 4, & 5), or maximum security (level
6, 7, 8). Id. Classification is to ensure
“safety and security, ” and so is based, in part,
on by “any known reason an inmate needs to be kept
separate from other inmates - such as where there is a
request by the inmate . . . or where there are other inmates
at the [jail] who are known to be codefendants, victims, . .
. share gang affiliation, or members of rival gangs.”
Dkt. 50, at 2. Classification of inmates is subject to
review, upon receipt of new information such as “gang
affiliation, medical or mental health, protective custody,
behavioral issues . . .” Dkt. 50, at 9.
was originally classified as a “level 4” and
placed in one unit, but after he engaged in alleged
disruptive behavior, he was reclassified as a “level
3” and moved. Dkts. 50, at 3; 54, at 4. Plaintiff's
move took place on April 6, 2014; the two officers on duty in
his new unit did not know of Plaintiff's prior gang
affiliation. Dkt. 49, at 85 and 99. A little after Plaintiff
arrived on the new unit, the cell door opened (it was meal
time and most of the unit's cell doors were automatically
opened), and Plaintiff's cellmate left to eat. Dkt. 49,
turned and noticed that three individuals were standing at
the cell door. Id. One of these individuals was then
20-year-old Naitaalii Jeovan Toleafoa, a member of the
Eastside Loco Surenos street gang, who was in the jail on
first degree murder charges. Dkts. 49, at 93; 55, at 46.
Plaintiff maintains that the Eastside Loco Surenos gang is a
rival of the Nortenos gang. Dkt. 54, at 3. The officers on
duty in the unit were unaware that either of these men had
current or prior gang affiliation or that these were rival
gangs. Dkt. 49, at 85 and 99. According to Plaintiff, the
three men did not have gang tattoos. Dkt. 49, at 58.
Plaintiff states he did not know any of them, but that the
“youngster” “was just looking at [his]
tattoos and smiling.” Dkt. 49, at 41. These three
individuals rushed into the cell, kicked, punched, and beat
Plaintiff. Dkt. 49, at 43-46. As they left, they shut the
cell door. Id. According to Plaintiff, none of the
guards checked the cells to make sure the inmates were o.k.
after the cell doors were opened, but were too busy serving
dinner. Dkt. 54, at 3.
asserts that after a period of time, he stood, someone saw
him through the window in his cell door, and that person
rushed to get help. Dkt. 49, at 43-46. Plaintiff was
found in his cell in a pool of blood, with blood on the
walls. Dkt. 49, at 59.
unit was placed in lockdown, which meant that all inmates
were ordered to their cells. Dkt. 49, at 88-89. Mr.
Toleafoa remained outside his cell. Id. Corrections
Officer Tim Rankin, who was on duty that day, saw Mr.
Toleafoa sitting with all his property packed in his mattress
cover. Dkt. 49, at 89. Officer Rankin heard Mr. Toleafoa say,
“I'm all packed up and ready to go!”
Id. Mr. Toleafoa was bloody and had swollen
knuckles. Dkt. 49, at 92 and 102. He was charged
criminally with assaulting the Plaintiff. Dkt. 55, at
was taken by ambulance to the hospital. Dkt. 49, at 59. He
sustained multiple injuries, including a nasal bone fracture,
facial contusions and lacerations, and a right rib fracture.
Dkt. 49, at 59.
states that while he was in the infirmary after the attack,
another inmate told him that “Jane Doe”
corrections officer made a comment about “teaching him
a lesson” just before he was moved from one unit to
another. Dkt. 49, at 31. Plaintiff does not know the
inmate's name or the corrections officer's name. Dkt.
49, at 31. In his declaration filed to oppose the motion for
summary judgment, Plaintiff now asserts that the “Jane
Doe officer” was a jail staff member with whom he had a
disagreement. Dkt. 54, at 3.
TREATMENT OF LEG LESION
following facts are in the Court's Order Granting
Defendants Carver and Berres' Motion for Summary Judgment
(Dkt. 62, at 2-3), and are repeated here, for ease of
On June 19, 2014, Plaintiff made a healthcare request, which
stated, “I have a zit like soar [sic] on my right leg.
It started out itching but now its [sic] grown and its [sic]
very red and its [sic] painful, and it keeps growing.”
Dkt. 47, at 8. The next day, he was seen by Defendant Berres,
who diagnosed Plaintiff with a lesion, thought to be an
insect bite, and prescribed oral antibiotics. Id.,
On June 22, 2014, Plaintiff made a second healthcare request,
stating, “[t]he so called bug bite on my [right] leg
has gotten worse and [now] is a throbbing pain. I can't
sleep cause [sic] just the slightest touch sends horrible
pain, and it hurts to walk.” Dkt. 47, at 9.
The response states only, “[s]een by SCarver DNP on
On June 23, 2014, Plaintiff sent a third healthcare request
form, which provided, “I now believe I have merca on my
[right] leg. It has more than tripled its size since I saw
the doctor and my lower leg is completely swollen. This is
the 3rd [request] I've put in. Can someone
please help me!” Dkt. 47, at 10.
On June 24, 2014, Plaintiff was seen by Defendant Carver, who
noted that the lesion had grown. Dkt. 47, at 15. Defendant
Carver incised and drained the lesion, gave Plaintiff an
injection of antibiotic, and placed him on additional
antibiotics. Id. The fluid drained from the lesion
was sent for culture, Dkt. 47, at 18, and his antibiotics
were changed as a result. Id.
Plaintiff was seen again on July 10, 2014, and the lesion was
noted to be healing slowly. Id., at 16. He was given
an additional antibiotic. Id. On August 5, 2014,
Plaintiff was again seen and reported that he lesion was