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M. Bollinger has not been served and reserved his right to contest service and personal

jurisdiction.

2

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

previously dismissed on summary judgment. (Dkt. # 46). Defendants Pierce County, Paul Pastor,

Brett Karhu, John Delgado, A. Jackson and Juliette Pohl-y-Baca also filed a motion for summary

judgment dismissal. (Dkt. # 50) That motion is dealt with by separate report and recommendation.

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. C0t-5262 BHS/KLS

REPORT AND

RECOMMENDATION

Noted for:

March 7, 2008

Before the Court is the motion to dismiss and for summary judgment of Defendants State of

Washington, Harold Clarke, D. Ang., A. Wedvic, T. Panek, M. Bollinger1

, and Allen Hayter. (Dkt. #

47). 2 Defendants seek dismissal of Plaintiff’s claims. 

In support of their motion, Defendants provide the Declarations of Devon Schrum and Brian

M. Agar. (Dkt. # 48 and 49). 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 the motion has merit.

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

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The State Defendants offer several additional grounds for dismissal that the Court need not

consider in light of its recommendation to dismiss on grounds of exhaustion and failure to satisfy

state tort claim requirements, e.g., lack of expert testimony required by RCW 7.70.030, Eleventh

Amendment immunity, vicarious liability, and doctrine of favorable termination. 

REPORT AND RECOMMENDATION - 2

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

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

Plaintiff has failed to exhaust his administrative remedies as to his federal claims and failed to comply

with Washington’s Tort Claim statute as to his state law claims.3

I. INTRODUCTION

On June 20, 2006, Plaintiff filed his Amended Complaint pro se, against individual Pierce

County employees, treating physicians Drs. Andersen and Friedrick, and the State Defendants for dog

bites he received during his arrest on May 14, 2003 and medical treatment he received following that

arrest at St. Claire Hospital in Lakewood, Washington. (Dkt. # 4). Drs. Anderson and Friedrick were

dismissed from this action on September 14, 2007. (Dkt. # 46). Plaintiff is currently an inmate in the

Washington Department of Corrections (DOC) facility in Littlerock, Washington. (Dkt. # 20).

Plaintiff alleges the State Defendants violated his Eighth and Fourteenth Amendment rights by

providing the wrong or insufficient medical treatment and that there was a disciplinary proceeding

relating to his having declared a medical emergency. (Dkt. # 4, pp. 14-18, 22-24). He also alleges

state tort claims for failure to provide adequate medical care. Id., p. 24.

II. UNDISPUTED FACTS

Plaintiff does not dispute the facts, which are presented by Defendants to the Court, (See Dkt.

47 at 2-4; and Declarations of Schrum and Agar, Dkt. # 48 and 49), as follows:

The Washington Offender Grievance Program has been in existence since the early 1980s and

was fully implemented in 1985. (Dkt. # 48, ¶ 3). Inmates may challenge a variety of things within the

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prison system, including DOC policies, rules and procedures, and staff conduct. Id. ¶ 4. DOC’s

grievance program has a multi-tiered approach to address offender grievances consisting of four levels

of review. Id. ¶ 6. Level I is the initial grievance. Id. Grievances are filed at this level when an

offender is challenging a policy or procedure. Id. After receiving the response from the institution’s

grievance coordinator, the offender can submit an appeal of that decision in a Level II grievance within

two days. Id. These grievances are investigated further and the superintendent at each facility

responds. Id. Finally, if an offender does not agree with the superintendent’s response, he or she may

file a Level III grievance appeal that is submitted to the department headquarters in Olympia,

Washington. Id.

Plaintiff filed only one grievance relating to his medical care during the period June 24, 2003

to June 12, 2006, dated December 8, 2003, received December 11, 2003. (Dkt. 48, Exh. 1). There

were no grievances for claimed retaliatory actions. Id. Plaintiff’s December 11, 2003 grievance

alleged medical misconduct and failure to provide medical treatment. (Id., Exh. 1, Schrum Decl. p. 6). 

The grievance was assigned to an investigator, Bill Doran. (Id., Exh. 2, 3, Schrum Decl. pp. 7, 8). On

December 31, 2003, the Level I response was issued and delivered to Plaintiff, denying his grievance

on the basis that he had received adequate medical treatment and pain medications. (Dkt. # 48, Exh. 4,

p. 9). 

At the bottom of the page on Exhibit 4, the form references the fact that there is a two-day

appeal period. Id. Plaintiff never appealed the decision. Id., ¶ 8. Had he appealed and been

successful, there would have been available remedies. Id., ¶ 9.

On December 12, 2003 Plaintiff was the subject of a disciplinary hearing in which he was

found guilty of creating a false emergency. He was given a suspended loss of 30 day good conduct for

90 days providing no further major infractions. (Dkt. # 4, p. 17, Exh. 6). 

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Plaintiff never filed a tort claim against the State of Washington. (Dkt. # 49).

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

(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

A. Exhaustion of Remedies

A motion to dismiss for failure to exhaust administrative remedies is properly brought as

an unenumerated 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 

Defendants raised this affirmative defense. (Dkt. # 14). When considering whether to dismiss a

complaint for lack of exhaustion of administrative remedies, the court may look outside the

pleadings to determine whether the issue has been exhausted. Id. at 119-20. Defendants have the

burden of raising and proving the absence of exhaustion. Id. There can be no “absence of

exhaustion” unless some relief remains “available,” and a defendant must demonstrate that

pertinent relief remained available, whether at unexhausted levels of the grievance process or

through awaiting the results of the relief already granted as a result of that process. Brown v.

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Valoff, 422 F.2d 926, 937 (9th Cir. 2005). 

The Prison Litigation Reform Act (“PLRA”) requires exhaustion of administrative

remedies prior to filing a complaint in federal court. The relevant portion of the PLRA states:

No action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). 

This requirement “applies to all prisoners seeking redress for prison circumstances or

occurrences.” Porter v. Nussle, 534 U.S. 516, 520 (2002). Further, “[a]ll ‘available’ remedies”

must be exhausted, “[e]ven when the prisoner seeks relief not available in grievance proceedings.”

Id. at 524. Inmates must exhaust prison grievance remedies before filing suit if the grievance

system is capable of providing any relief or taking any action in response to the grievance, and

must do so in a timely manner. Booth v. Churner, 531 U.S. 956, 121 S. Ct. 1819, 1825 (2001);

Woodford v. Ngo. 548 U.S. 81, 126 S.Ct. 2378, 2386-87 (2006). The purpose of the exhaustion

requirement is to “reduce the quantity and improve the quality of prisoner suits; . . . [and] afford

corrections officials . . . opportunity to address complaints internally. . . . 42 U.S.C. § 1997e(a). 

McKart v. United States, 395 U.S. 185, 195 (1969). Inmates must make timely appeals through

the third level of review. Wyatt, 315 F.3d at 116-1117; Zarco v. Burt, 355 F.Supp. 2d 1168, 1173-

1174 (S.D. Cal. 2004)(applying similar California mulit-tiered system). Where plaintiff has not

made a timely appeal, his Section 1983 case should be dismissed. Id.

Plaintiff alleges that the State Defendants violated his civil rights by not providing

adequate medical care for the dog bites and other of his medical issues during the period June 24,

2003 to June 12, 2006. (Dkt. 4, pp. 14-18). Plaintiff filed one grievance on December 11, 2003

relating to the medical care he received for the preceding one and one-half months. (Dkt. # 48, ¶

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8, p. 6 (grieving “Medical, for misconduct and not giving me medical attention whereas for the

past month and a half, I’ve expressed a serious medical concern for infection in my leg . . . “). 

The December 11, 2003 grievance was not appealed. Id., ¶ 8. 

Accordingly, the record reflects that Plaintiff filed his lawsuit prematurely and has not yet

fully exhausted his administrative remedies. Because Plaintiff failed to exhaust his available

administrative remedies, his allegations against the State Defendants should be dismissed without

prejudice. 

B. Plaintiff’s State Law Claims

The State Defendants also argue that Plaintiff’s state law claims must be dismissed because

Plaintiff failed to file a tort claim as required by RCW 4.92.100, a mandatory condition precedent to

filing suit against State of Washington defendants. 

RCW 4.92.200 provides, in pertinent part, that all claims against the state or its officers or

employees for damages arising out of tortious conduct shall be presented to and filed with the risk

management division. Compliance with Washington’s Tort Claim Statute is a mandatory condition

precedent to filing suit against State of Washington defendants. RCW 4.92.110; Kleyer v.

Harborview Med. Center, 887 P.2d 468 (1995); Coulter v. State, 608 P.2d 261 (1980);

O’Donoghue v. State, 405 P.2d 258 (1965). 

In order to assert a claim for damages under state law against the State Defendants, Plaintiff

was required by RCW 4.92.200 to first file a tort claim. Schwartz v. Snohomish County, 2006 WL

692024, *8-9 (W.D. Wash. 2006). The claim filing requirement applies only to Plaintiff’s state law

claims as Plaintiff is not required to exhaust state tort claim procedures to maintain a Section 1983

claim. Id. citing Wisenbacker v. Farwell, 341 F.Supp. 2d 1160, 1169 (D. Nev. 2004).

The record reflects that Plaintiff did not file a tort claim prior to filing suit and alleging his

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state law claims against the State Defendants in this case. (Dkt. # 49, ¶ 3). Therefore, the Court

recommends that Plaintiff’s state law claims be dismissed.

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 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 7, 2008, as noted in the caption. 

DATED this 11th day of February, 2008.

A

Karen L. Strombom

United States Magistrate Judge

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