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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EDWARD R. WHITTINGTON, )

)

Plaintiffs, ) Case No. C05-1914-RSM-JPD

)

v. )

)

KING COUNTY DEPARTMENT OF ) REPORT AND RECOMMENDATION

ADULT DETENTION, )

)

Defendant. )

____________________________________)

INTRODUCTION AND SUMMARY CONCLUSION

Plaintiff is a state prisoner who is currently incarcerated at the Washington State Penitentiary

in Walla Walla, Washington. He brings this civil rights action under 42 U.S.C. § 1983 to allege

violations of his constitutional rights during the course of his incarceration at the King County Jail

(“the jail”) in 2003 and 2004. Specifically, plaintiff alleges that he contracted methicillin-resistant

Staphylococcus aureus (“MRSA”) as a result of unsanitary conditions at the jail and that he has had

recurring MRSA infections as a result of this initial contraction. Plaintiff asserts that his contraction

of MRSA in the jail violated his Eighth Amendment right to be free from cruel and unusual

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1

 Because plaintiff was apparently a pretrial detainee at the time he was subject to the alleged

unconstitutional conduct of defendant, his claims arise under the Due Process Clause of the

Fourteenth Amendment and not under the Eighth Amendment. See Carnell v. Grimm, 74 F.3d 977,

979 (9th Cir. 1996). 

2

 In his complaint, plaintiff identifies both the King County Department of Corrections and

King County as defendants in this action. However, King County is the only proper defendant in this

action. See Nolan v. Snohomish County, 59 Wn.App. 876, 883 (1990) (“in a legal action involving a

county, the county itself is the only legal entity capable of suing and being sued”). 

REPORT AND RECOMMENDATION

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punishment.1 King County is the sole defendant in this action.2 Plaintiff seeks damages in the

amount of five million dollars as well as compensation for future medical expenses incurred as a

result of MRSA. 

Defendant now moves for summary judgment. Plaintiff has filed a response to defendant’s

motion and defendant has filed a reply brief in support of its motion. The briefing is complete and

defendant’s motion for summary judgment is now ripe for review. This Court, having reviewed

defendant’s motion, and the balance of the record, concludes that defendant’s motion for summary

judgment should be granted and this action should be dismissed with prejudice.

FACTUAL BACKGROUND

Plaintiff was booked into the jail a total of eight times between November 2002 and February

2004. (See Dkt. No. 32, Attachment C.) Plaintiff’s claims arise out of his November 2003 and

February 2004 bookings into the jail. Plaintiff asserts in his complaint that on approximately

November 26, 2003, he contracted MRSA as a result of unsanitary conditions at the jail. On this

occasion, the infection appeared under his arms. He asserts that he was once again diagnosed with

the MRSA on March 8, 2004, this time in his right thumb. Finally, petitioner asserts that on July 25,

2004, he was placed in quarantine because of another outbreak of MRSA on his right buttock.

1. MRSA

Defendants have included in their summary judgment papers a fact sheet regarding MRSA

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REPORT AND RECOMMENDATION

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which was prepared by the Centers for Disease Control and Prevention (“CDC”). The CDC fact sheet

explains that Staphylococcus aureus (“staph”) is a bacteria which is carried on the skin and in the nose

of healthy people. (Dkt. No. 32, Attachment B at 1.) Approximately 25%-30% of the population is

colonized (bacteria are present, but not causing infection) in the nose with staph bacteria. (Dkt. No.

32, Attachment B at 1.) Staph can sometimes cause infection and staph bacteria are, in fact, one of

the most common causes of skin infections in the United States. (Id.) Most such skin infections are

minor and can be treated without antibiotics. (Id.) Staph bacteria can also, however, cause more

serious infections. (Id.) MRSA is a type of staph that is resistant to beta-lactam antibiotics. (Id.,

Attachment B at 2.) While 25% to 30% of the population is colonized with staph, approximately 1%

of the population is colonized with MRSA. (Id.) 

Staph infections occur most frequently among persons in hospitals and healthcare facilities

who have weakened immune systems. (Id.) However, staph and MRSA infections can also occur in

persons who have not been recently hospitalized or had a medical procedure performed. (Id.) Such

infections are known as community-associated (“CA”) MRSA infections, and are usually manifested

as skin infections which occur in otherwise healthy people. (Id.) These skin infections may look like

a pimple or boil, they can be red, swollen, and painful, and they may also have pus or other drainage. 

(Id.) 

The CDC, which has investigated clusters of CA-MRSA skin infections, has identified the

following factors which have been associated with the spread of MRSA skin infections: close skinto-skin contact, openings in the skin such as cuts or abrasions, contaminated items and surfaces,

crowded living conditions, and poor hygiene. (Id.) Most staph and MRSA infections are treatable

with antibiotics. (Id., Attachment B at 3.) MRSA infections can recur even after a prior infection as

been cured. (Id., Attachment B at 4.) MRSA infections can be prevented, both initially and from

recurrence, by practicing good hygiene. (Id.)

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REPORT AND RECOMMENDATION

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2. MRSA and the King County Department of Adult and Juvenile Detention

Defendants have also submitted in support of their summary judgment motion the declaration

of William Danforth, RN, ARNP, MSN, FNP-BC, CWCN. (Dkt. No. 33.) Mr. Danforth is

employed as an infection control practitioner and wound care nurse practitioner by Public Health

Seattle-King County. (Dkt. No. 33 at 1.) He acknowledges that CA-MSRA is a public health issue

which impacts the King County Department of Adult and Juvenile Detention (“DAJD”), but indicates

that steps have been taken to address CA-MRSA infection within DAJD. (Id. at 2.) According to

Mr. Danforth, DAJD has hired an infection control consultant; established wound care protocols;

established a wound care clinic at the Regional Justice Center Detention Facility; developed and

distributed educational material about CA-MRSA prevention and transmission; provided enhanced

attention directed to environmental sanitation and hygiene; and, formed committees and work groups

focusing on the broader issue of MRSA in DAJD facilities. (Id.)

Mr. Danforth explains that MRSA is not a reportable disease. (Id.) Thus, there is no

requirement that occurrences of MRSA be reported to Public Health Seattle-King County or the

Washington State Department of Health. Mr. Danforth states, however, that according to estimates

by the Communicable Disease-Epidemiology Division of Public Health Seattle-King County, the

number of CA-MRSA cases in King County is increasing, “particularly among vulnerable subjects

like IV drug users and those living on the streets.” (Id. at 3.) He further notes that IV drug users and

others who are more susceptible to CA-MSRA infection spend time in DAJD facilities. (Id.)

3. Plaintiff’s Incarceration History 

As noted above, plaintiff’s claims arise out of his November 2003 and February 2004 bookings

into the jail. However, the record reflects that on two other occasions, prior to his November 2003

booking into the jail, plaintiff presented with skin infections upon being booked into the jail. 

On May 17, 2003, plaintiff was booked into the jail on a theft related charge. (See Dkt. No.

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32, Attachment C.) At booking, plaintiff presented with skin infections on his right wrist and on his

left upper thigh. (Dkt. No. 34-2 at 2-3.) Plaintiff told the nurse that he had contracted the infection

on his wrist while cleaning a tropical fish tank several days before, and that the infection on his leg

appeared at around the same time. (Dkt. No. 34-2 at 3.) Plaintiff indicated to the nurse that he had

been to Group Health for treatment and had been prescribed an antibiotic and pain medication, but

that he had not picked up the prescriptions. (Id.) The nurse referred plaintiff to a Jail Health Services

physician for further assessment and the physician prescribed antibiotic treatment later that same day. 

(Id.) It is not known whether these skin infections were CA-MRSA infections as there are no records

indicating that cultures were taken from the infected areas for testing. Plaintiff was released from

custody on this occasion on May 30, 2003. (Dkt. No. 32, Attachment C.)

On June 6, 2003, plaintiff was once again booked into the jail. (Id.) The jail health screening

sheet completed at the time of booking notes that plaintiff had been diagnosed with a staph infection

on his right wrist on May 17, 2003, but that he had not taken the prescribed antibiotics regularly and

therefore had not completed the antibiotic treatment. (Dkt. No. 34-2 at 8.) The infection was

apparently still present at that time, and plaintiff was referred for further treatment. (Id.) However,

plaintiff was released from the jail the following day, June 7, 2003. (Dkt. No. 32, Attachment C.)

On November 27, 2003, petitioner was booked into the jail on a stolen vehicle charge. (Id.) 

Plaintiff was seen by a nurse at the time of his booking after he reported that he had diabetes and

lumps or cysts under his arms. (Dkt. No. 34-2 at 9.) The nurse observed that plaintiff had numerous

small and large cysts under his arms, at least some of which were red and appeared to be fluid filled. 

(Id.) The nurse referred plaintiff for further assessment. (Id.) Plaintiff was seen by a nurse

practitioner (ARNP) on November 29, 2003, who diagnosed an abscess under plaintiff’s left arm

which she drained and cultured. (Id. at 10.) Plaintiff was prescribed a seven day course of

antibiotics and a two day course of painkillers, and was referred for wound care. (Id. at 10-13.) On

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REPORT AND RECOMMENDATION

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December 3, 2003, a lab report confirmed that the culture taken from the cyst under plaintiff’s left

arm tested positive for CA-MRSA bacteria. (Id. at 14.) Plaintiff was released from the jail on

December 4, 2003. (Dkt. No. 32, Attachment C.)

On February 10, 2004, plaintiff was booked into the jail on various matters including a rape

charge. (Dkt. No. 32, Attachment C.) On February 16, 2004, plaintiff submitted a kite indicating

that his thumb was infected. (Dtk No. 34-3 at 1.) Plaintiff was seen by an ARNP on February 18,

2004. (Dkt. No. 34-3 at 2.) Plaintiff’s jail medical records indicate that he told the ARNP that his

thumb became swollen approximately three weeks previously. (Id.) The records also appear to

indicate that plaintiff received treatment for this condition prior to his incarceration, but that he did

not complete the prescribed antibiotic treatment. (Id.) There is no indication in the record that a

culture was taken from the thumb infection to test for staph or CA-MRSA. However, plaintiff’s

history of MRSA was noted in his medical records and he was apparently treated as though the

infection was attributable to MRSA. (See id. at 2 and 4.) 

During the same course of incarceration, on July 23, 2004, plaintiff submitted a kite

indicating that he had a cyst on his right thigh below his buttock. (Dkt. No. 34-3 at 9.) Plaintiff’s

wound was cultured and he was prescribed more antibiotics. (See Dkt. No. 34-2 at 15 and Dkt. No.

34-4 at 2.) The lab report returned on July 28, 2004, indicated that the culture taken from plaintiff’s

wound tested positive for MRSA. (Dkt. No. 34-4 at 8.) Plaintiff was admitted to the infirmary on

July 29, 2004, and placed in isolation because of the MRSA. (See Dkt. No. 34-2 at 15 and Dkt. No.

34-4 at 5.) While plaintiff was in the infirmary because of the MRSA on his buttock, he developed

additional infections on one of his fingers and on his cheek. (See Dkt. No. 34-4 at 3.) The wound on

plaintiff’s cheek was cultured on August 8, 2004. (Id. at 4.) The lab report returned on August 13,

2004, indicated that the culture tested positive for staph but not for MRSA. (Id. at 9.)

On October 28, 2005, plaintiff was transferred from the custody of King County into the

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custody of the Washington Department of Correction following his convictions on two counts of rape

in the first degree. 

DISCUSSION

Summary Judgment Standard

Summary judgment is appropriate when, viewing the evidence in the light most favorable to

the nonmoving party, there exists “no genuine issue as to any material fact” such that “the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A material fact is a fact

relevant to the outcome of the pending action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). Genuine issues of material fact are those for which the evidence is such that “a reasonable

jury could return a verdict for the nonmoving party.” Id. 

In response to a properly supported summary judgment motion, the nonmoving party may not

rest upon mere allegations or denials in the pleadings, but must set forth specific facts demonstrating a

genuine issue of fact for trial and produce evidence sufficient to establish the existence of the elements

essential to his case. See Fed. R. Civ. P. 56(e). A mere scintilla of evidence is insufficient to create a

factual dispute. See Anderson, 477 U.S. at 252. In ruling on summary judgment, the court does not

weigh evidence to determine the truth of the matter, but “only determine[s] whether there is a genuine

issue for trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994).

Municipal Liability Standard

A local government unit or municipality can be sued as a “person” under § 1983. Monell v.

Department of Social Servs., of City of New York, 436 U.S. 658, 691 (1978). A plaintiff seeking to

impose liability on a municipality under § 1983 must identify a municipal “policy” or “custom” that

caused his or her injury. Bryan County Commissioners v. Brown, 520 U.S. 397, 403 (1997) (citing

Monell 436 U.S. at 694). Id. 

In Bryan County Commissioners, the Supreme Court explained that 

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it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to

the municipality. The plaintiff must also demonstrate that, through its deliberate

conduct, the municipality was the “moving force” behind the injury alleged. That is, a

plaintiff must show that the municipal action was taken with the requisite degree of

culpability and must demonstrate a direct causal link between the municipal action and

the deprivation of federal rights.

Bryan County Commissioners, 520 U.S. at 404. 

Analysis

Defendant argues in its summary judgment motion that plaintiff’s claim that his constitutional

rights were violated when he contracted CA-MRSA on or about November 27, 2003, as a result of

unsanitary conditions at the jail, and that he thereafter suffered recurrent CA-MRSA skin infections,

must fail because plaintiff fails to allege the presence of any policy, practice, or custom that was the

proximate cause of his contracting the CA-MRSA infection, or to allege the presence of a policy,

practice, or custom that can be considered to amount to deliberate indifference.

Plaintiff argues in his response to defendant’s summary judgment motion that the motion

should be denied because defendant had knowledge that CA-MRSA existed within the jail and yet

failed to provide a safe and healthy environment for pre-trial detainees and employees. Plaintiff

contends that defendant allows mattresses, showers, and outdoor recreation areas to suffer from

inadequate cleaning, irreparable damage, and poor maintenance, and asserts that these unsanitary

conditions are highly likely to be the cause of a recurrence of the CA-MRSA infection. 

Even assuming that defendant’s alleged failure to maintain sanitary conditions in the jail can

be properly deemed a policy or custom, plaintiff cannot demonstrate a “direct causal link” between

any municipal action and the alleged deprivation of his federal rights. The evidence in the record

establishes that plaintiff was first diagnosed with CA-MRSA when he was booked into the jail on

November 27, 2003. Because plaintiff had the infection at the time of his booking, it cannot be said

that he contracted the infection as a result of unsanitary conditions at the jail. Moreover, the record 

establishes that MRSA is a condition which may recur even after a prior infection has been cured. 

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That plaintiff had recurrent CA-MSRA infections on subsequent bookings is not sufficient to

establish that plaintiff, in fact, contracted the infection as a result of the conditions at the jail. As

plaintiff cannot establish a causal link between his CA-MRSA infections and conditions at the jail,

defendant King County is entitled to judgment as a matter of law.

CONCLUSION

Based upon the foregoing, this Court recommends that defendant’s motion for summary

judgment be granted, and that this action be dismissed with prejudice. A proposed order accompanies

this Report and Recommendation. 

DATED this 3rd day of November, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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