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ORDER- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CURTIS THOMPSON,

Plaintiff,

v.

OFFICER BURACH, et al.,

Defendants.

CASE NO. C05-02064JLR

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

This matter came for trial on December 14-16, 2011, before the court sitting 

without a jury.

1

 Plaintiff Curtis Thompson appeared pro se from Clallam Bay 

Corrections Center. All defendants were represented by John W. Cobb of the King 

County Prosecuting Attorneys Office, Seattle, Washington. The court has considered the 

testimony presented at trial, the exhibits admitted into evidence, and the arguments of 

counsel. The court has weighed the testimony, exhibits, and other evidence using the 

 

1 Mr. Thompson waived his jury trial. (Dkt. # 163.)
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ORDER- 2

required “preponderance of the evidence” standard. The court now makes the following 

findings of fact and conclusions of law.

I. FINDINGS OF FACT

1. On two separate occasions employees of King County Department of Adult 

and Juvenile Detention used force on Mr. Thompson while he was incarcerated at the 

King County Jail. The first occurrence was on April 7, 2005 (the “April 7th Incident”)

and the second occurrence was on January 21, 2006 (the “January 21st Incident”). 

2. During both the April 7th Incident and the January 21st Incident, Mr. 

Thompson was an inmate at the King County Jail in Seattle, Washington. At the time of 

the April 7th Incident, Mr. Thompson was classified as a maximum security inmate. At 

the time of the January 21st Incident, Mr. Thompson was classified as an ultra security 

inmate.

3. During both the April 7th Incident and the January 21 Incident, Defendants 

correctional officer (“C/O”) Richard Burach, C/O Phillip Chu, C/O Tara Eigo, Sergeant 

Bernice Ingersoll, C/O Mohamed Eltayeb, C/O Richard Gorman, and Sergeant Barclay 

Pierson were employed by the King County Department of Adult and Juvenile Detention.

April 7th Incident

4. On April 7, 2005, C/O’s Burach and Chu were assigned to transport Mr. 

Thompson to a court hearing at the King County Courthouse. At about 2:30 pm C/O’s

Burach and Chu transported Mr. Thompson to a holding area on the 12th floor of the 

King County Courthouse for that hearing. Mr. Thompson was first placed in a side cell 
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ORDER- 3

and then transported to another cell, referred to as a “Barney Cell,” so that he could speak 

to his attorneys prior to the court hearing.

5. During transfer to the holding area and into the Barney Cell, Mr. Thompson 

was cooperative. 

6. Sergeant Ingersoll and C/O Eigo were working on the 12th floor of the 

King County Courthouse during the entire time Mr. Thompson was in the “Barney Cell.” 

7. Sergeant Ingersoll and C/O’s Burach and Eigo were all aware of Mr. 

Thompson’s history of violent behavior and C/O Chu had been briefed that Mr. 

Thompson was a dangerous person. Additionally, Mr. Thompson had previously 

threatened C/O Burach in the presence of C/O Eigo. 

8. While in the Barney Cell, Mr. Thompson engaged in a heated conversation 

with his attorneys.

9. Before transporting Mr. Thompson to the court hearing from the Barney 

Cell, Sergeant Ingersoll instructed C/O’s Burach and Chu to apply waist chains and leg 

irons to Mr. Thompson. 

10. C/O’s Burach and Chu entered the Barney Cell with C/O Chu holding the 

waist chains and leg irons and C/O Burach holding pepper spray. 

11. At the time C/O’s Burach and Chu entered the Barney Cell, C/O Eigo was 

standing by the dispatch door, which is near the Barney Cell, and could see into the 

Barney Cell. Sergeant Ingersoll was in the dispatch office. 

12. When C/O’s Burach and Chu entered the cell, Mr. Thompson engaged in a 

fighting stance and began hopping up and down and throwing punches. 
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ORDER- 4

13. In response to Mr. Thompson’s actions, C/O Chu dropped the waist chains 

and leg irons and attempted to restrain Mr. Thompson by going behind him and wrapping 

his arms around him, but Mr. Thompson continued to struggle. 

14. C/O Burach applied pepper spray to Mr. Thompson’s face, but did not get a 

good shot of pepper spray, and Mr. Thompson continued to struggle. At this point, C/O 

Burach also engaged in the effort to physically restrain Mr. Thompson by attempting to 

handcuff him. 

15. While C/O’s Burach and Chu struggled with Mr. Thompson, C/O Eigo 

called into the dispatch office for back up and entered the Barney Cell to assist in the 

efforts to restrain Mr. Thompson. 

16. In response to C/O Eigo’s call into the dispatch office, Sergeant Ingersoll 

told one of the officers in the dispatch office to call for backup over the public address 

system. Sergeant Ingersoll then went to provide backup to the struggle between C/O’s 

Burach, Chu, and Eigo and Mr. Thompson.

17. When Sergeant Ingersoll arrived, the officers were still struggling with Mr. 

Thompson. While the officers had been successful in applying leg restraints, they were 

attempting to handcuff Mr. Thompson, who was resisting against placing his arms behind 

his back and ignoring orders to do the same.

18. Soon additional officers arrived at the Barney Cell. 

19. Sergeant Ingersoll applied pepper fog to Mr. Thompson. Pepper fog is 

designed to temporarily make breathing difficult when inhaled. 
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ORDER- 5

20. After application of the pepper fog, Mr. Thompson gasped and stated that 

he couldn’t breathe. At this point, the officers were able to pull Mr. Thompson to the 

floor and apply handcuffs.

21. Mr. Thompson was then placed into a restraint chair, which is designed to 

make it difficult for a person sitting in it to stand up. 

22. Once in the chair, a spit sock was placed over Mr. Thompson’s head, 

because Mr. Thompson was spitting on the officers. It was also used to guard against Mr. 

Thompson biting any of the officers. 

23. Mr. Thompson was transported back to jail where a registered nurse 

evaluated Mr. Thompson and determined that his lungs and heart were in excellent 

condition. 

24. C/O Chu suffered exposure to pepper spray during the incident and C/O 

Burach suffered an injury to his hand. Additionally, numerous officers were treated for 

pepper spray exposure by the jail’s medical staff. 

25. C/O’s Burach, Chu, and Eigo and Sergeant Ingersoll did not use excessive 

force against Mr. Thompson at any point during the struggle. While the use of pepper 

spray is an intermediate use of force, it was justified in the circumstances of the situation. 

January 21st Incident

26. On January 21, 2006, Mr. Thompson was incarcerated at the King County 

Jail in Seattle, Washington.

27. At around 8:00 p.m., Sergeant Barclay Pierson instructed C/O’s Mohamed 

Elteyab and Richard Gorman, along with other officers, to conduct a shakedown of the 
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ORDER- 6

ultra-security inmates in the housing wing where Mr. Thompson was then residing. A 

shakedown consists of removing the inmate from his/her cell and then searching his/her 

cell for contraband.

28. C/O’s Eltayeb and Gorman were assigned to a team of two or more officers 

for the shakedown. Utilization of teams allowed some officers to stay with the inmate 

while other officers conducted a search of the inmate’s cell.

29. In response to Sergeant Pierson’s request, C/O’s Eltayeb and Gorman, 

along with other members of their team, went to Mr. Thompson’s cell to conduct the 

shakedown. 

30. Mr. Thompson was handcuffed through the pass-through in the cell door –

which allows officers to handcuff inmates without danger to the officers – and then 

brought to the opposite side of the room from his cell, where he sat on a bench.

31. C/O Gorman waited with Mr. Thompson at the bench while C/O Eltayeb, 

along with other officers, searched Mr. Thompson’s cell for contraband.

32. The officers found items of nuisance contraband in Mr. Thompson’s cell. 

The items of nuisance contraband were inspected by Sergaent Pierson and removed from 

the cell. Mr. Thompson was then led back towards his cell by C/O’s Gorman and 

Eltayeb.

33. Prior to entering the cell, C/O Eltayeb instructed Mr. Thompson to face the 

wall next to his cell so that the officers could conduct a pat-search, which had been 

requested by Sergeant Pierson. 
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ORDER- 7

34. C/O Eltayeb began to conduct a pat-search of Mr. Thompson. During the

pat-search, Mr. Thompson complained that the pat-search was not necessary. C/O 

Eltayeb continued the pat-search and Mr. Thompson spun away from the wall, and began 

charging towards C/O Eltayeb. 

35. C/O Eltayeb responded to Mr. Thompson’s charge by attempting to secure 

Mr. Thompson using counter-joint techniques. Although Mr. Thompson continued to 

resist, C/O Eltayeb was able to secure Mr. Thompson, and with the assistance of other 

officers, escort Mr. Thompson into his cell. 

36. Once in the cell, C/O Eltayeb instructed Mr. Thompson to lay face down on 

the floor while the officers exited the cell. 

37. After the officers exited the cell, Mr. Thompson was instructed to stand up 

and place his hands through the pass-through so that the handcuffs could be removed. 

38. Mr. Thompson complied with that directive and the handcuffs were 

removed.

39. During the January 21st Incident, none of the participants, including 

Sergeant Pierson and C/O’s Eltayeb and Gorman, ever punched or kicked Mr. Thompson 

and none of the officers slammed Mr. Thompson into the cell walls. 

Credibility of the Testimony

40. The court makes the following findings regarding credibility and the weight 

it has given to the testimony of certain witnesses:

a. The trial was largely about witness credibility, as the parties 

presented contradictory versions of each incident. 
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ORDER- 8

b. The court finds defendants’ version of the April 7th Incident credible 

and Mr. Thompson’s version largely not credible. Among the factors that persuade the 

court of defendants’ greater credibility are the following. The defendants’ descriptions of 

the incident are largely consistent on the details but not so well-matched as to suggest 

they were testifying from a script. Additionally, the fact that numerous officers were 

treated for pepper spray and/or had to be decontaminated of pepper spray is consistent 

with a struggle where lack of control existed between the officers and Mr. Thompson and 

not consistent with a unilateral beating of Mr. Thompson. Lastly, Mr. Thompson’s 

credibility was weakened because he stated that he could not remember what had 

happened the previous day during testimony, repeatedly argued with the court during trial 

proceedings, and admitted to taking various prescribed drugs for his temperament. 

c. Likewise, and for similar reasons, the court finds defendants’ version 

of the January 21st Incident credible and Mr. Thompson’s version largely not credible. 

Again, the defendants’ descriptions of the incident are largely consistent on the details 

but not so well-matched as to suggest they were testifying from a script. With respect to 

Mr. Thompson’s credibility, it was again weakened because he stated that he could not 

remember what had happened the previous day during testimony, repeatedly argued with 

the court during trial proceedings, and admitted to taking various prescribed drugs for his
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ORDER- 9

temperament. Additionally, Mr. Thompson referred to C/O Eltayeb by using derogatory 

language.2

II. CONCLUSIONS OF LAW

1. The court has federal question jurisdiction to decide this action brought 

under the authority of 42 U.S.C. § 1983. See 28 U.S.C. § 1331.

2. Venue is proper because the events giving rise to Mr. Thompson’s claims 

occurred in King County, which is within the Western District of Washington. 28 U.S.C. 

§§ 84(a), 1391(b).

3. To prevail on a claim under 42 U.S.C. § 1983, Mr. Thompson must show 

(1) that a right secured by the Constitution or laws of the United States was violated and 

(2) that the violation was committed by a person acting under the color of state law. See

West v. Atkins, 487 U.S. 42, 48 (1988).

4. All defendants were acting under color of state law during both incidents.

5. The Eighth Amendment's prohibition of cruel and unusual punishment is 

violated when prison officials subject a prisoner to the use of excessive force. In 

evaluating such a claim, “the core judicial inquiry is . . . whether force was applied in a 

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause 

harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In making this determination, a 

court may evaluate the need for application of force, the relationship between that need 

and the amount of force used, the extent of any injury inflicted, the threat reasonably 

 

2 In Mr. Thompson’s response to a disciplinary report pursuant to the January 21st 

Incident, he refers to C/O Eltayeb as a “Big Goon.” (Dkt. #171 at 33.)
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ORDER- 10

perceived by the responsible officials, and any efforts made to temper the severity of a 

forceful response. Id. at 7; LeMaire v. Maass, 12 F.3d 1444, 1454 (9th Cir. 1993).

6. A prison official who fails to intervene to prevent an Eighth Amendment 

violation may be held liable under 42 U.S.C. § 1983. See Robins v. Meecham, 60 F.3d 

1436, 1442 (9th Cir. 1995).

7. The only defendants present during the April 7th Incident were Sergeant 

Ingersoll and C/O’s Burach, Chu, and Eigo. During the April 7th Incident, Sergeant 

Ingersoll and C/O’s Burach, Chu, and Eigo did not use excessive force under the 

circumstances. The force they used was only that necessary to subdue, restrain, and 

handcuff Mr. Thompson who had resisted lawful orders to stop and to submit to 

handcuffs.

8. During the April 7th Incident, Sergeant Ingersoll and C/O’s Burach, Chu, 

and Eigo did not act maliciously and sadistically for the very purpose of causing harm to 

Mr. Thompson.

9. The only defendants present during the January 21st Incident were Sergeant 

Pierson and C/O’s Eltayeb and Gorman. During the January 21st Incident, Sergeant 

Pierson and C/O’s Eltayeb and Gorman did not use excessive force under the 

circumstances. The force they used was only that necessary to restrain Mr. Thompson 

and escort him back to his cell so that the officers could safely leave. The handcuffs were 

then removed from Mr. Thompson, without incident, through the pass-through of his cell. 

Mr. Thompson had defied lawful orders to submit to a pat-search after nuisance 

contraband was found in his cell during the shakedown. 
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ORDER- 11

10. During the January 21st Incident, Sergeant Pierson and C/O’s Eltayeb and 

Gorman did not act maliciously and sadistically for the very purpose of causing harm to 

Mr. Thompson.

11. Because the force being used was not excessive in relation to the need for 

force, no defendant has liability for failing to intervene to stop the use of force.

12. Mr. Thompson did not establish by a preponderance of the evidence that 

any defendant violated his rights under the Eighth Amendment to be free from cruel and 

unusual punishment on April 7, 2005 or January 21, 2006.

13. Under the doctrine of qualified immunity, government officials are immune 

“from liability for civil damages insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a reasonable person would have 

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Saucier v. Katz, 533 

U.S. 194, 201-02 (2001).

14. All defendants are entitled to qualified immunity for their actions because 

their conduct did not violate Mr. Thompson’s constitutional rights.
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ORDER- 12

III. CONCLUSION

Having made the above findings of fact and conclusions of law, the court now 

orders that plaintiff take nothing on his complaint. Judgment will be entered in 

Defendants’ favor and against Plaintiff. The clerk shall close the file.

IT IS SO ORDERED.

Dated this 22nd day of December, 2011.

A

The Honorable James L. Robart

U.S. District Court Judge