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Wilson v. Pierce County

United States District Court, W.D. Washington, Tacoma

September 5, 2017

PIERCE COUNTY, a municipal corporation organized under the laws of the State of Washington, PIERCE COUNTY JAIL, PIERCE COUNTY JAIL CORRECTIONAL OFFICERS JOHN DOE 1 and JANE DOE 1, Nurses STEVE CARVER RN, KRISTIN BERRES, RN, Defendants. PIERCE COUNTY, Third-Party Plaintiff,



         This 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.

         In this 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.

         Defendant 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.



         Plaintiff, 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 27.

         Plaintiff 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.

         After 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.

         Plaintiff 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, at 41.

         Plaintiff 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.

         Plaintiff 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.

         The 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 21.

         Plaintiff 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.

         Plaintiff 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.


         The 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 reference:

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., at 15.
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 6/20/14.” Id.
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 “just ...

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