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1

Plaintiff’s claims against Defendants Stephen E. Friederick and C.Z. Anderson were

previously dismissed on summary judgment. (Dkt. # 46). Defendants State of Washington, Harold

Clarke, D. Ang, A. Wedvic, T. Panek, M. Bollinger and Allen Hayter also move for summary

judgment dismissal. (Dkt. # 47). That motion is the subject of a separate Report and

Recommendation. (Dkt. # 56).

2

By Praecipe, Defendants submitted the signed Declaration of Defendant Pohl-Y-Baca at

Dkt. # 53.

REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

KHALID O. RAHMAN,

Plaintiff,

v.

PIERCE COUNTY, et al.,

Defendants.

Case No. C06-5262 BHS/KLS

REPORT AND

RECOMMENDATION

Noted for:

March 21, 2008

Before the Court is the motion for summary judgment of Defendants Pierce County, Paul

Pastor, Brett Karhu, John Delgado, A. Jackson and Juliette Pohl-Y-Baca.1 (Dkt. # 50). In support

of their motion, Defendants provide the Declarations of Kawyne A. Lund, John Delgado, Brett Karhu

and Juliette Pohl-Y-Baca,. (Dkt. # 51, Exhs. 1, 2, and 13, with attachments2

). Plaintiff has not

responded to Defendants’ motion, although he has had ample time to do so. Under Local Rule 7

(b)(2) failure to file papers in opposition to a motion may be deemed by the Court as an admission

that Defendants’ motion has merit.

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28 REPORT AND RECOMMENDATION - 2

After careful review of Defendants’ motion, supporting evidence, the balance of the record,

and viewing the facts in the light most favorable to the Plaintiff, the undersigned recommends that

Defendants (“the County Defendants”) are entitled to dismissal of the claims against them because

Plaintiff has failed to state a violation of his constitutional rights.

I. INTRODUCTION

On June 20, 2006, Plaintiff filed his Amended Complaint pro se, against County Defendants,

treating physicians Drs. Andersen and Friedrick, and personnel of the Washington Department of

Corrections, where he is currently incarcerated, for dog bites he received during his arrest on May 14,

2003 and medical treatment he received following that arrest at St. Clare Hospital in Lakewood,

Washington. (Dkt. # 4). Drs. Anderson and Friedrick were dismissed from this action on September

14, 2007. (Dkt. # 46). 

Plaintiff alleges the County Defendants violated his Fifth, Eighth and Fourteenth Amendment

rights in using excessive force during his arrest and in providing medical treatment while he was

detained at the Pierce County Detention and Corrections Center. (PCDCC). (Dkt. # 4, pp. 7-11; 12-

14). 

II. FACTS

A. Facts Relevant to Incidents Surrounding Arrest

At approximately 2 a.m. on May 14, 2003, Deputy John Delgado saw Plaintiff and passenger 

Denise Nirsch, driving a stolen vehicle. (Dkt. # 51, Exh. 1). Deputy Delgado turned on his emergency

lights and sirens to pull over the Plaintiff. Id. Deputy Delgado explains the high-speed chase that

ensued in his police report as follows:

[T]he suspect made a U-turn and back on to Canyon Road and proceeded northbound

...The speeds at this time were 50 m.p.h. in a 35 m.p.h. zone. The suspect vehicle then

turned westbound onto SR 512, the speeds reached 80 m.p.h. in a 35 m.p.h. zone. The

suspect vehicle exited ...at the last second, nearly crashing on the off-ramp...the suspect

vehicle turned westbound [and then] the suspect turned south into a bank parking lot

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3

Plaintiff was charged with several felonies including stealing a car in violation of RCW

9A.56.140(1) and RCW 9A.56.150(1), attempting to elude a pursuing police vehicle in violation of

RCW 46.61.024, striking an unattended vehicle in violation of RCW 46.52.010, obstructing law

enforcement in violation of RCW 9A.76.020(1) and resisting arrest in violation of RCW 9A.76.040(1). 

Id., Exh. 6. Plaintiff was taken to PCDCC to await trial. On June 18, 2003, Plaintiff pled guilty to

felony counts of possession of stolen property and attempting to elude a pursuing police vehicle and

REPORT AND RECOMMENDATION - 3

where he made a loop and then drove eastbound...Again, the suspect vehicle nearly

crashed. Speeds reached 90 m.p.h. in a 35 m.p.h. zone while driving eastbound...The

suspect then turned south into the Golden Given Apartments. Once inside the

apartment complex the suspect vehicle struck a parked vehicle...and then the driver

...climbed over the front passenger ...and exited the vehicle. The vehicle was still

moving when [Plaintiff] exited.

Id., Exh. 3. Deputy Brett Karhu joined the chase at 1:59 a.m. Id., Exh. 3 and 4. Deputy Karhu’s

emergency lights and sirens were also activated. Id.

Deputies Karhu and Delgado exited their cars and Deputy Karhu released a K-9 unit, “Harley”

in Plaintiff’s direction using a “direct application.” (Dkt. #51, Exh. 2, p. 2). A “direct application”

does not require the use of a warning to the suspect prior to release of a K-9 unit. Id. Harley caught

up with Plaintiff and secured him until the Deputies arrived. Id., Exh. 1 and 2. 

When Deputy Karhu caught up with Plaintiff and Harley, Plaintiff had wrapped his leg around

Harley’s neck and was trying to choke the dog. Id., Exh. 2. Plaintiff resisted arrest and refused to

comply with numerous orders from Deputies Delgado and Karhu to give up his hands so that they

could safely handcuff him. Id. Deputy Delgado was extremely concerned that Plaintiff was armed

with a weapon. Id., Exh. 1. When Plaintiff continued to resist arrest and would not comply with

repeated orders to give up his hands, Deputy Delgado struck him on the elbow with his flashlight to

secure his compliance. Id. 

After Plaintiff was safely in custody, Deputy Karhu ordered Harley to release Plaintiff and

summoned medical aid. Id., Exhs. 1 and 2. First aid was administered at the scene and Plaintiff was

then transported to the hospital. Id.

3

 Deputy Delgado and Deputy Karhu perceived Plaintiff’s wounds

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was sentenced to 14 months in state prison. Id., Exh. 7.

4

Plaintiff alleges in his Complaint and testifies under oath that the treatment he received from

Drs. Friedrick and Andersen at St. Clare Hospital was substandard. However, this Court previously

found that Plaintiff has provided no evidence establishing that these Defendants were deliberately

indifferent to his serious medical needs and granted summary judgment in their favor. (Dkt. # 46).

REPORT AND RECOMMENDATION - 4

to be minor in nature. Id.

In his Affidavit attached to his Amended Complaint, Plaintiff declares that Deputy Delgado

purposefully rammed into the back of his car with the intent to cause him harm. (Dkt. # 4, Exh. 1, p.

1). Plaintiff had to flee the vehicle in fear of his life. Id. The Plaintiff alleged in his Amended

Complaint that Deputies Karhu and Delgado encouraged Harley to continue his attack with commands

of “get the nigger,” and “get him” and “eat him,” (Dkt. # 4, p. 8), but he did not include that statement

in his Affidavit. Deputy Karhu jerked on Harley, causing the dog to wound him further. (Dkt. # 4,

Exh. 1, p. 1). 

Plaintiff also testified that both deputies beat him with their metal flashlights. Id., Exh. 1, pp.

1-2. Plaintiff screamed for help and lay in his own blood. Id., Exh. 1, p. 2. Plaintiff testifies that the

deputies then threw him in a muddy drainage ditch and left him there to die for approximately one-half

hour before placing him in the squad car and taking him to St. Clare Hospital for treatment. Id.

B. Facts Relevant to Medical Treatment

Plaintiff was admitted to St. Clare Hospital in Lakewood, Washington at 3:08 a.m. Id., Exh. 8. 

Plaintiff had three punctures in his leg, two near the right knee and one on the upper thigh. Id., Exh. 9. 

While in the emergency room, a local anesthetic was administered to Plaintiff’s wounds, his wounds

were evaluated, cleaned, irrigated extensively, sutured and dressed, and he was given a medication for

pain and an antibiotic and was given a prescription for the antibiotic on discharge. (Dkt. # 45, p. 5).4

An x-ray of his left elbow revealed mild swelling, but no fracture. (Dkt. # 51, Exh. 16; Dkt. # 41, Exh.

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28 REPORT AND RECOMMENDATION - 5

A, p. 7). 

Deputy Karhu followed Plaintiff to the hospital and photographed all of his wounds. Id., Exhs.

2 and 11. When Deputy Karhu was taking photographs, Plaintiff’s demeanor changed, “[W]hen I got

to the hospital Khalid was as calm as could be and actually laughed about how much of a show he had

put on at the scene.” Id., Exh. 2. 

Plaintiff arrived at PCDCC at 5 a.m. on May 14, 2003. Id., Exh. 12. Plaintiff was housed in

cell “4SB 4,” at the request of the health clinic. That cell is reserved for inmates with medical needs so

nurses can more closely monitor the inmate. Id., Exh. 13. In addition to priority housing, Plaintiff

received medical treatment the same day he arrived. Id., Exh. 14. Plaintiff was given Augmentin, an

antibacterial, and Vicodin for pain. Id. This treatment was in addition to the care he received only

hours earlier at St. Clare Hospital. Id.

Nurses of the PCDCC continued to change the Plaintiff’s dressings, clean his wounds and

apply antibacterial medicine to the healing wounds. Id., Exh. 15. On June 3, 2003, it was determined

that Plaintiff was healthy and could be housed in the General Population. Id. Records reflect that prior

to June 3, 2003, Plaintiff had been seen by prison medical staff five times between May 14, 2003 and

June 3, 2003 (5/15, 5/18, 5/19, 5/22, 5/28). (Dkt. # 51, Exhs. 19, 24-28).

On June 13, Plaintiff submitted a kite to the medical staff stating, “I have an STD because my

[sic] growing is sore and I have sores on my penis and my stomach hurts bad.” Id., Exh. 17. The

Plaintiff was seen June 14, when medical staff noted “unremarkable swelling of testicles” and a few

“small” sores. Id., Exh. 18. On June 14, Plaintiff was seen by medical staff at 4 p.m., who noted

“unremarkable swelling” and “few small sores.” Id. Plaintiff was given 800 mg of ibuprofen and

noted for follow-up the same day. Id. At 8 p.m. the same day, Plaintiff was seen by a physician’s

assistant, who noted “decreased discomfort” with a follow-up for the next day. Id. 

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28 REPORT AND RECOMMENDATION - 6

On June 15 at 9:50 a.m., medical staff noted Plaintiff’s scrotum was swollen. Id., Exh. 19. 

However, medical staff continued to believe the swelling to be related to an STD because Plaintiff told

the nurse he had herpes and unprotected sex without condoms. Id. Accordingly, Plaintiff was given

Vicodin for discomfort and Acyclovir (medication for herpes) and was noted for follow-up the next

day. Id. 

On June 16 at 3:15 a.m. a corrections officer notified medical staff that Plaintiff was

complaining of pain and swelling related to the herpes outbreak. Id., Exh. 19. Plaintiff was given cool

packs and 800 mg of ibuprofen. Later that day, Plaintiff was summoned for a follow-up visit with

physician’s assistant Pohl-y-Baca who performed a thorough examination of Plaintiff and inquired into

the wounds being related to herpes or possibly HIV. Id. Plaintiff believed the wounds to be related to

a dog bite. Id. Defendant Pohl-y-Baca’s notes state “did not have dog bite to scrotum.” However, she

ordered a culture to diagnose Plaintiff’s lesions and swelling, including tests for HIV, herpes and staph

infection. Id., Exhs. 20 and 27. The PA continued “acyclovir” treatment. Id., Exh. 27. A follow-up

exam was noted for June 18. 

On June 18, the test results came back negative for HIV. Id., Exh. 27 and 20. Plaintiff was

started on Keflex to fight skin infection and scheduled for the next day. Id., Exh. 27. Keflex is an

effective treatment against several types of skin bacteria. Id., Exh. 13. 

On June 19, Plaintiff was seen by Dr. Miguel Balderrama. Id., Exh. 27. Dr. Balderrama

examined the dog bites and saw no evidence of infection. Id. When the doctor attempted to examine

the area of infection, Plaintiff would not allow him to do so. The medical records reflect that “Patient

did not allow exam of external genitalia.” Id.

On June 20, medical staff received preliminary results that Plaintiff was positive for MRSA

(Methicillin-resistant Staphyl9ococcus aureus), a type of staph infection, and prescribed Clindamycin

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that same day. Id., Exhs. 21, 27. Clindamycin is an effective treatment against MRSA. (Dkt. # 51,

Exh. 13). 

Plaintiff’s treatment was continued and he was seen for follow-ups on June 21, 22, 23 and 24. 

Id., Exh. 28. Plaintiff was transferred to state prison on June 24, 2003 to fulfill his 14 month sentence. 

Id., Exh. 22. His transfer order from PDCC medical specifically states the Plaintiff had scrotal lesions,

cellulitis (skin infection), MRSA and had been treated with noticeable improvement with Clindamycin. 

Id.

Plaintiff testified in his affidavit that he was ignored by jail medical staff and was not given

any pain pills or antibiotics until the next day shift, that jail medical staff did not alleviate his pain and

that Defendants Jackson and Pohl-y-Baca denied him treatment and proper medical care on numerous

occasions. (Dkt. # 4, Exh. 1, p. 2-3). Plaintiff also alleges that Defendants Jackson and Pohl-y-Baca

purposefully diagnosed herpes and treated him for that disease when they knew that he had tested

negative for herpes and knew that the medication they were giving him would not help him, but would

make his condition worse. (Dkt. # 4, p. 13-14).

III. STANDARD OF REVIEW

In examining Defendants’ motions, the Court must draw all inferences from the admissible

evidence in the light most favorable to the non-moving party. Addisu v. Fred Meyer, Inc., 198 F.3d

1130, 1134 (9th Cir. 2000). Summary judgment is proper where there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving

party bears the initial burden to demonstrate the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party has met its burden, the opposing party must show that there is a genuine

issue of fact for trial. Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87

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(1986). The opposing party must present significant and probative evidence to support its claim or

defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). 

IV. DISCUSSION

To state a claim under 42 U.S.C. § 1983, the defendant must be a person acting under color

of state law; and his conduct must have deprived the plaintiff of rights, privileges, or immunities

secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535

(1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). Implicit in

the second element is a third element of causation. See Mt. Healthy City School Dist. v. Doyle, 429

U.S. 274, 286-87 (1977); Flores v. Pierce, 617 F.2d 1386, 1390-91 (9th Cir. 1980), cert. denied,

449 U.S. 875 (1980). When a plaintiff fails to allege or establish one of the three elements, his

complaint must be dismissed. 

A. Plaintiff’s Excessive Force Claim

Plaintiff alleges that Defendants Karhu and Delgado violated his Eighth Amendment rights

when they used excessive force in arresting him. (Dkt. # 4, p. 21-22). Plaintiff testified that the

Deputies actively encouraged Harley to attack him and that Deputy Karhu jerked on Harley, causing

the dog to wound him further. (Dkt. # 4, Exh. 1, p. 1). Plaintiff also testified that both deputies

clubbed him with their metal flashlights. Id., Exh. 1, pp. 1-2. 

The use of force to effect an arrest is subject to the Fourth Amendment’s prohibition on

unreasonable seizures. Graham v. Connor, 490 U.S. 386 (1989). Police dog bites to the arms or

legs are not considered “deadly force” and are therefore, properly analyzed under the Graham

criteria. Miller v. Clark County, 340 F.3d 959, 962-63 (9th Cir. 2003).

In determining the reasonableness of a seizure effected by non-deadly force, “the nature and

quality of the intrusion on the individual’s Fourth Amendment interests” should be balanced against

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“the countervailing governing interests at stake.” See Graham, 490 U.S. at 396 (internal quotations

omitted). The Ninth Circuit teaches that the issue should be approached in the following manner: 

First, the gravity of the particular intrusion on Fourth Amendment interests

are assessed by evaluating the type and amount of force inflicted. 

Second, the importance of the government interests at stake are assessed by

evaluating: (1) the severity of the crime at issue, (2) whether the suspect imposed an

immediate threat to the safety of the officers or others, and (3) whether the suspect

was actively resisting arrest or attempting to evade arrest by flight. 

Third, the gravity of the intrusion on the individual is balanced against the

government’s need for that intrusion to determine whether it was constitutionally

reasonable. 

Miller, 340 F.3d at 964 (internal citations omitted).

1. Intrusion on Plaintiff’s Constitutional Rights

A court “assess[es] the gravity of the particular intrusion on Fourth Amendment interests by

evaluating the type and amount of force inflicted.” Miller, 340 F.3d at 964 (citing Chew v. Gates, 27

F.3d 1432, 1449 n. 19 (9th Cir. 1994)). In this case, it is undisputed that Plaintiff was bitten by a police

dog and that those bites can cause pain and bodily injury. Defendants do not dispute that the intrusion

on Plaintiff’s rights was a serious one.

2. The Government’s Interests at Stake

The next step is to balance the intrusion on Plaintiff’s rights against the countervailing interests

of the government. Graham, 490 U.S. at 396. Relevant factors in determining the government’s

interest include, “the severity of the crime, whether the suspect posed an immediate threat to the safety

of the officers or others, whether he was actively resisting arrest or attempting to evade arrest by

flight.” Graham, 490 U.S at 396.

A review of the evidence reveals that all three factors weigh in favor of the government’s

countervailing interests. 

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First, the severity of Plaintiff’s crime is undisputed as Plaintiff pled guilty to possession of

stolen property and eluding police. (Dkt. # 51, Exh. 7). Plaintiff was suspected of driving a stolen

vehicle, was eluding police and was endangering the public by driving 90 miles per hour in 35 mile per

hour zones. (Dkt. # 51, Exhs. 1-5). See e.g., Miller, 340 F.3d at 964 (citing United States v. Hensley,

469 U.S. 221, 229 (1985) (“The government has an undeniable legitimate interest in apprehending

criminal suspects.”)

Second, the evidence demonstrates that Plaintiff posed an immediate threat to the safety of the

officers or others. Miller, 340 F.3d at 964 (citing Graham, 490 U.S. at 396). Plaintiff does not

dispute that he led deputies on a high speed chase and that he fled from the car. Plaintiff also does not

dispute that he pled guilty for violating RCW 46.61.024 (felony suspect wanted for crime of

attempting to flee from police by driving a car). This crime evinces a willingness to threaten others’

safety. Miller, 340 F.3d at 965. Deputy Delgado also testified that he did not know whether Plaintiff

was armed and both Deputies Delgado and Karhu testified that Plaintiff resisted arrest and refused to

comply with numerous orders to give up his hands so that they could safely handcuff him. (Dkt. # 51,

Exhs. 1-4).

Third, the Court must consider whether Plaintiff was “actively resisting arrest or attempting to

evade arrest by flight.” Miller, 340 F.3d at 965. As noted above, the evidence reflects that Plaintiff

led the deputies on a high speed chase, fled into the night, and subsequently plead guilty to eluding. 

3. The Gravity of the Intrusion

Lastly, the Court considers the “dispositive question whether the force that was applied was

reasonably necessary under the circumstances.” Miller, 340 F.3d at 967. In Miller, the court found it

highly relevant that the deputies had engaged in less forceful means to arrest the suspect including

signaling with their emergency lights and siren, pursuing in the police cruiser and on foot. Id. 

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The undisputed evidence demonstrates that the deputies in this case engaged in similar less

forceful means of arrest. The police records and testimony of Deputies Karhu and Delgado reflect that

they followed Plaintiff’s vehicle on a high speed chase for several minutes, during which time the

emergency lights and sirens of their police vehicles were engaged. (Dkt. # 51, Exhs. 1-4). The record

also reflects that after Plaintiff collided with the parked vehicle and fled the scene on foot, the deputies

followed in pursuit. Id. Because it was at night and dark and Plaintiff was wearing dark clothing, the

deputies released the K-9 unit to apprehend him. Id. 

In Miller, the Court noted that the use of a police dog was well suited to the task of safely

arresting a suspect, that a police dog “neutralizes” the advantages of a fleeing suspect, and that the

dog’s acute vision neutralizes the situation of chasing a suspect in the dark. Id. at 967. Police dogs are

well suited to “restrain” and “hold” suspects until deputies can arrive safely. Id. In Mendoza v. Block,

the Ninth Circuit also found that it was objectively reasonable to use a police dog to find and secure a

fleeing felon until he stopped struggling and could be handcuffed. Mendoza, 27 F.3d 1357, 1363 (9th

Cir. 1994). The use of police dogs is also reasonable because unrestrained suspects have an

opportunity to “hide, flee anew, to recover a weapon, to harm the dog, or to prepare to launch an

ambush against the deputies.” Id. at 268.

The undisputed evidence in this case reflects that it was dark when Plaintiff fled the stolen

vehicle on foot. Plaintiff had already demonstrated a careless disregard for life in order to avoid

apprehension by driving up to 90 miles per hour in 35 mile per hour zones. (Dkt. # 58, Exhs. 1-4). 

The record also reflects that when Deputy Karhu caught up with Plaintiff and Harley, Plaintiff had

wrapped his leg around Harley’s neck and was trying to choke the dog. Id., Exh. 2. Plaintiff resisted

arrest and refused to comply with numerous orders from Deputies Delgado and Karhu to give up his

hands so that they could safely handcuff him. Id. Deputy Delgado was extremely concerned that

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Plaintiff was armed with a weapon. Id., Exh. 1. 

Plaintiff alleges that the Deputies failed to call off the K-9 unit when they arrived. (Dkt. # 4,

Exh. 1, p. 1). However, the Deputies testified that after Plaintiff was safely handcuffed, Deputy Karhu

ordered Harley to release Plaintiff and summoned medical aid. (Dkt. # 51, Exhs. 1 and 2). Viewing

this evidence in the light most favorable to Plaintiff, even if the Deputies waited until after they

handcuffed Plaintiff to call off the K-9 unit, the Court does not find that the force used to restrain

Plaintiff was unreasonable under the circumstances. Had they released Harley earlier, Plaintiff could

have hidden, fled anew, or harmed the dog or the deputies. The medical evidence also reflects that the

blow to Plaintiff’s elbow resulted in mild swelling, supporting a conclusion that the force applied was

reasonable under the circumstances. (See Dkt. # 51, Exh. 16; Dkt. # 41, Exh. A, p. 7). 

Plaintiff also testified that Deputy Delgado purposefully rammed his police car into the car

driven by Plaintiff. (Dkt. # 4, Exh. 1, p. 1). While this is disputed by the officers, the dispute is not a

material factual dispute. The officers were involved in a high speed pursuit and there is no evidence

before the Court that such a ramming violated the Plaintiff’s constitutional rights nor is there any

evidence that the ramming caused any injury to the Plaintiff. In fact, the evidence from the Plaintiff is

that he continued to elude the police on foot after the ramming occurred.

Viewing all of the evidence in the light most favorable to Plaintiff, the undersigned concludes

that Plaintiff has failed to demonstrate that Defendants Karhu and Delgado violated his Eighth

Amendment rights during his arrest. 

B. Claim of Medical Indifference

Plaintiff alleges that all the Defendants “were deliberately indifferent to the plaintiff’s

medical needs.” (Dkt. # 4, p. 22). 

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Deliberate indifference to an inmate’s serious medical needs violates the Eighth

Amendment’s proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97,

104 (1976). Deliberate indifference includes denial, delay or intentional interference with a

prisoner’s medical treatment. Id. at 104-5; see also Broughton v. Cutter Labs., 622 F.2d 458, 459-

60 (9th Cir. 1980). To succeed on a deliberate indifference claim, an inmate must demonstrate that

the prison official had a sufficiently culpable state of mind. Famer v. Brennan, 511 U.S. 825, 836

(1994). A determination of deliberate indifference involves an examination of two elements: the

seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need. 

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). 

First, the alleged deprivation must be, objectively, “sufficiently serious.” Farmer, 511 U.S.

at 834. A “serious medical need” exists if the failure to treat a prisoner’s condition would result in

further significant injury or the unnecessary and wanton infliction of pain contrary to contemporary

standards of decency. Helling v. McKinney, 509 U.S. 25, 32-35 (1993); McGuckin, 974 F.2d at

1059. Second, the prison official must be deliberately indifferent to the risk of harm to the inmate.

Farmer, 511 U.S. at 834. 

An official is deliberately indifferent to a serious medical need if the official “knows of and

disregards an excessive risk to inmate health or safety.” Id. at 837. Deliberate indifference requires

more culpability than ordinary lack of due care for a prisoner's health. Id. at 835. In assessing

whether the official acted with deliberate indifference, a court's inquiry must focus on what the

prison official actually perceived, not what the official should have known. See Wallis v. Baldwin,

70 F.3d 1074, 1077 (9th Cir. 1995). In other words an official must (1) be actually aware of facts

from which an inference could be drawn that a substantial risk of harm exists, (2) actually draw the

inference, but (3) nevertheless disregard the risk to the inmate’s health. Farmer, 511 U.S. at 837-8.

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Mere indifference, negligence or medical malpractice will not support this cause of action. 

Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). 

The evidence reflects that Plaintiff was being treated for the dog bite wounds to his legs and

that he was diagnosed with MRSA on June 20, 2003. Defendants do not dispute that either of these

conditions were serious medical needs. (Dkt. # 50, p. 19). However, Defendants argue that

Plaintiff’s claim fails because PCDCC medical staff were not “deliberately indifferent” to Plaintiff’s

serious medical needs. The Court agrees.

Plaintiff also testified in his Affidavit that after he returned from St. Clare Hospital that he was

ignored by jail medical staff and was not given any pain pills or given any pain pills or antibiotics until

the next day shift. (Dkt. # 4, Exh. 1, p. 2). Plaintiff was booked into PCDCC at 5 a.m. and seen by

medical staff on the same day with follow-up medications and treatment. (Dkt. # 51, Exhs. 12, 14). 

Plaintiff also testifies in his Affidavit that jail medical staff denied him “treatment and

proper medical care numerous times.” (Dkt. # 4, Exh. 1). 

The uncontroverted summary judgment evidence reflects that Plaintiff was incarcerated at

PCDCC for a little over one month. (Dtk. # 51, Exhs. 12, 22). Prior to being placed in General

Population, Plaintiff was seen by prison medical staff six times between May 14, 2003 and June 3,

2003 (5/15, 5/18, 5/19, 5/22, 5/28, 6/3). (Dkt. # 51, Exhs. 19, 24-28). After being placed with the

general population, Plaintiff had face-to-face meetings with medical personnel over twenty times in

just over a one month period of time. (5/14, 5/15 (twice), 5/18, 5/19, 5/22, 5/28, 6/3, 6/11, 6/14 (twice),

6/15 (twice), 6/16 (twice), 6/18, 6/19, 6/20, 6/21, 6/22, 6/23). (Id., Exhs. 19, 24-28.)

In addition, the Court does not find that PCDCC medical staff’s failure to diagnose the MSRA

sooner was a disregard of Plaintiff’s medical needs. When Plaintiff complained of having an STD on

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It is for this reason that Plaintiff’s unsupported allegation that Defendants Jackson and Pohly-Baca purposefully diagnosed Plaintiff with having a sexually transmitted disease and knowingly

treated him for a disease he did not have, must also fail. (See Dkt. # 4, p. 13). There is no evidence in

the record to support such an allegation. On the other hand, the undisputed evidence reflects that

Plaintiff complained of having an STD and PCDCC staff responded with the appropriate treatment

until test results revealed that he was, in fact, suffering from MRSA. 

REPORT AND RECOMMENDATION - 15

June 13, medicines effective to combat herpes were administered and after those proved unsuccessful,

additional tests were performed. Id., Exhs. 17, 19-205. As soon as results came back preliminarily

positive for MRSA, medical staff prescribed effective medication to Plaintiff for that condition. Id.,

Exh. 27. In addition, when Dr. Balderama attempted to examine the site of the infection, Plaintiff

failed to cooperate. Id.

For the foregoing reasons, the Court finds that County Defendants are entitled to summary

judgment on Plaintiff’s claim of Eighth Amendment deliberate indifference. 

C. Plaintiff’s Claim for Failure to Train Medical Staff/Deputies

In Count I and II of his Complaint, Plaintiff alleges that Pierce County failed to properly train 

its employees in the medical care of prisoners and for not properly funding training programs for its

deputies. (Dkt. # 4, pp. 19, 21). 

Because the Court finds that Plaintiff’s Fourth and Eight Amendment rights were not violated, 

it need not and has not decided whether Defendant Pierce County could be liable for any constitutional

violation under Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).

D. Equal Protection or Due Process Claims

Plaintiff claims that “[i]n taking the retaliatory and punitive actions [described in his 

Complaint] . . . Defendants were deliberately indifferent to [his] right to be detained under human

conditions,” and have violated [his] right to be free from cruel and unusual punishment under the

Eighth Amendment . . . and his rights to “equal protection and due process under the Fourteenth

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Amendment to the United States Constitution.” (Dkt. # 4, p. 23).

To establish a violation of substantive due process a plaintiff is ordinarily required to prove

that a challenged government action was clearly arbitrary and unreasonable, having no substantial

relation to the public health, safety, morals or general welfare. However, where a particular

amendment provides an explicit textual source of constitutional protection against a particular sort

of government behavior, that Amendment, not the more generalized notion of substantive due

process, must be the guide for analyzing a plaintiff’s claims. Patel v. Penman, 103 F.3d 868, 874

(9th Cir. 1996)(citations, internal quotations and brackets omitted); see also County of Sacramento v.

Lewis, 523 U.S. 833, 841-42 (1998). Here, Plaintiff’s challenge as to the conditions of his

confinement and medical treatment have been analyzed by the Court within the context of the

protection of the Eighth Amendment. 

An Equal Protection claim under the Civil Rights Act, 42 U.S.C. § 1983, requires as a 

necessary element, that defendants acted with the intent to discriminate. Sischo-Nownejad v.

Merced Community College Dist., 934 F.2d 1104, 1112 (9th Cir. 1991). To sustain an Equal

Protection claim under 42 U.S.C. § 1983, Plaintiff must show that there was intentional and

purposeful discrimination between persons or classes. Draper v. Rhay, 315 F.2d 193, 198 (9th Cir.

1963), cert. denied, 375 U.S. 915 (1963) (citing, Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959)).

The Equal Protection Clause does not require conditions, practices, and rules at county and state

correctional facilities to be identical. Cooper v. Elrod, 622 F. Supp. 373 (D.C. Ill. 1985). The

United States Supreme Court has observed that "showing that different persons are treated

differently is not enough without more, to show a denial of Equal Protection." Griffin v. County

School Board of Prince Edward Co., 377 U.S. 218, 230 (1964). Plaintiff must also demonstrate that

persons were "treated differently . . . because [they] belonged to a protected class." Seltzer-Bey v.

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Delo, 66 F.3d 961, 964 (8th Cir. 1995) (citing Divers v. Department of Correction, 921 F.2d 191,

193 (8th Cir. 1990)). 

As discussed above, Plaintiff has failed to demonstrate that the Deputies’ use of the police

dog or that their use of force during his arrest constituted excessive force in violation of his Fourth

Amendment right to be free from unreasonable seizures. There is also no evidence before this

Court of intentional or purposeful discrimination towards Plaintiff because he belongs to a protected

class. Accordingly, the undersigned recommends that Defendants are entitled to summary judgment

on Plaintiff’s due process and equal protection claims.

E. State Claims

1. Respondeat Superior

A municipality is held liable only for those deprivations resulting from the decisions of its duly 

constituted legislative body or of those officials whose acts may fairly be said to be those of the

municipality. Bosteder v. City of Renton, 117 P.3d 316 (Wash. 2005), superseded by statute on other

grounds, 170 P.3d 570 (2007). As noted above, Plaintiff has failed to identify any policy or custom,

therefore, the undersigned recommends that any claim based on respondeat superior against Pierce

County should be denied.

2. Claim for Intentional or Negligent Emotional Distress

To establish negligent infliction of emotional distress under Washington law, Plaintiff must

show that Defendants breached a legal duty thereby causing Plaintiff to suffer objective symptoms

of emotional distress. See Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096, 1102-03 (1976) (en

banc). Such symptoms must be “susceptible to medical diagnosis and proved through medical

evidence.” Marzolf v. Stone, 136 Wash.2d 122, 960 P.2d 424, 431 (1998). Plaintiff has produced no

evidence of a diagnosed emotional disorder. 

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Plaintiff also brings a claim for the intentional infliction of emotional distress, otherwise

referred to as the intentional tort of outrage. To recover for the tort of outrage a plaintiff must

prove: (1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional

distress; and (3) actual result to the plaintiff of severe emotional distress. Pettis v. State, 98 Wn.

App. 553, 990 P.2d 453 (1999). To prove extreme and outrageous conduct, it is not enough to show

that the defendant acted with an intent that was tortious or even criminal, or that he intended to

inflict emotional distress, or even that his conduct can be characterized by malice. Grimsby v.

Samson, 85 Wn.2d 52, 530 P.2d 291 (1975). Liability exists only where the conduct has been so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious and utterly intolerable in a civilized community. Hope v. Larry s

Markets,108 Wn. App. 185, 29 P.3d 1268 (2001).

The emotional distress complained of must be inflicted intentionally or recklessly. Bad

faith or malice is not enough to prove an outrage claim. Dicomes v. State, 113 Wn.2d 612, 782

P.2d 1002 (1989). The conduct must result in severe emotional distress to the plaintiff. Brower v.

Ackerley, 88 Wn. App. 87, 943 P.2d 41141 (1997). 

As noted above, Plaintiff has failed to demonstrate that Deputies violated his constitutional

rights when they arrested him following the high speed chase using a police dog. Plaintiff has also

failed to demonstrate that PCDCC medical staff were indifferent to his medical needs. 

In addition, it is not enough to show that a defendant has acted with malice, Plaintiff must

show that the Deputies’conduct was outrageous. The record is devoid of evidence of conduct by

the Defendants that could in any way be considered “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Guffey v. State, 690 P.2d 1163 (1984)(quoting Grimsby v.

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Samson, 530 P.2d 291 (1975)). 

Accordingly, the undersigned recommends that County Defendants’ motion for summary

judgment as to Plaintiff’s claims of negligent and intentional infliction of emotional distress be

granted.

3. Claim for Failure to Provide Adequate Medical Care

Plaintiff alleges in Count VI that Defendants are liable to Plaintiff under Washington

Constitution, art. I, § 3 and art. I § 14, for failing to provide adequate medical care. (Dkt. 4, p. 25) 

There is no cause of action for damages arising from alleged violations of the Washington State

constitution. Blinka v. Wash. State Bar Ass’n, 36 P.3d 1094 (2001); Peters v. Vinatieri, 9 P.3d 909

(2000). 

To the extent Plaintiff’s claims can be analyzed under RCW 7.70.030, which governs all civil

actions arising for negligent medical treatment, any such claim must also be dismissed as Plaintiff has

failed to provide expert opinion that PCDCC medical care fell below the proper standard of care and

failed to demonstrate (or even allege) that “more likely than not” the medical negligence of PCDCC

caused a harmful condition. RCW 7.70.040; Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216,

226-27 (1989); Atwood v. Albertson’s Food Centers, Inc., 92 Wn.App. 316, 331 (1998). 

Accordingly, the undersigned recommends that County Defendants’ motion for summary

judgment on Plaintiff’s state law claims for failure to provide adequate medical care be granted. 

IV. CONCLUSION

For the reasons stated above the Court should GRANT the State Defendants’ motion for

summary judgment (Dkt. # 47). A proposed order accompanies this Report and Recommendation. 

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure,

the parties shall have ten (10) days from service of this Report and Recommendation to file written

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objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those

objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time

limit imposed by Rule 72(b), the Clerk of the Court is directed to set the matter for consideration on

March 21, 2008, as noted in the caption. 

DATED this 4th day of March, 2008.

A

Karen L. Strombom

United States Magistrate Judge

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