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ORDER ON MTNS

FOR SUMM JMT - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PATRICK L. GUILLORY,

Plaintiff(s),

v.

SNOHOMISH COUNTY JAIL, et al.,

Defendant(s).

NO. C06-747MJP

ORDER GRANTING MOTIONS FOR

SUMMARY JUDGMENT

The above-entitled Court, having received and reviewed:

1. Defendants Snohomish County Sheriff, Snohomish County Corrections, Stephanie Gilbert,

David Oster and Steve Thompson’s Motion for Summary Judgment (Dkt. No. 50);

2. Motion to Object to the Defendants Motion for Summary Judgment (Dkt. No. 76)

3. Defendants Snohomish County Sheriff, Snohomish County Corrections, Stephanie Gilbert,

David Oster and Steve Thompson’s Reply and Motion to Strike (Dkt. No. 65)

4. Defendant Eva Frese’s Motion for Summary Judgment (Dkt. No. 57)

5. Defendant Eva Frese’s Reply in Support of Motion for Summary Judgment (Dkt. No. 63)

and all exhibits and declarations attached thereto, makes the following ruling:

IT IS ORDERED that the motions are GRANTED, and Plaintiff’s claims are DISMISSED

with prejudice.

Background

Plaintiff Guillory was detained at Snohomish County Corrections from April 13, 2006 to May

25, 2006, on which date he was released to the custody of the U.S. Marshals for transport to the

Marion Correctional Facility in Ohio.
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ORDER ON MTNS

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On at least two occasions during his Snohomish County incarceration, Plaintiff was subject to

pat-down searches by female correctional officers: Defendant Eva Frese (May 5, 2006) and Defendant

Stephanie Gilbert (May 17, 2006). While Gilbert and Frese assert that these were over-the-clothes

contraband searches conducted in conformance with jail policy (see Gilbert Decl., ¶¶ 6-7; Frese Decl.,

¶¶ 6-7), Plaintiff has characterized them as “sexual assaults.” Although he does allege that Defendant

Frese touched his genitals inside his pants (Amended Complaint, Dkt. No. 9, p. 11: ¶ 14), his

allegations extend to over-the-clothes touching of his buttocks and groin area by both officers during

the course of the searches. Id., p. 11: ¶ 14, p. 13: ¶ 19.

Plaintiff filed a grievance with Snohomish County Corrections on May 5, 2006 alleging

“fondaling [sic] and gropping [sic] by female CO’s.” Comer Decl., Exh. B. The Snohomish County

Corrections Facility employs a three-tier grievance system to address inmate complaints. The three

steps are: (1) a grievance addressed to the shift commander, followed by (2) an appeal of any denial to

the Manager, then finally (3) an appeal of that denial to the Director. Thompson, Decl., ¶ 3.

The same day that Plaintiff filed his May 5 grievance, he retracted it in writing. Comer Decl.,

Exh. C. On May 8, 2006, he submitted another grievance form, but rather than containing a

complaint, the form merely reported his understanding that it was Snohomish County Corrections

policy to permit female corrections officers to conduct pat-down searches of male inmates. Id., Exh.

D. On May 9, 2006, he filed a grievance form which advised that he had filed a civil rights action

alleging a variety of violations, including “sexual harassment” and “sexual discrimination.” Id., Exh.

E. Plaintiff never filed any grievance forms related to the May 17 incident alleged in his complaint. 

Oster Decl., ¶ 5.

Following Plaintiff’s initial grievance (and despite Plaintiff having withdrawn it), Classification

Supervisor (and Defendant) David Oster met with Plaintiff to discuss his concerns. Oster’s account of

that conversation relates that Plaintiff’s concerns were not directed at inappropriate (i.e., under the
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1 “[Plaintiff] advised that the allegations were not directed toward any one officer and that no one officer was

conducting searches in an inappropriate manner.” Comer Decl., Exh. F.

ORDER ON MTNS

FOR SUMM JMT - 3

clothing) contact by an individual correctional officer,1 but rather at what he considered the general

impropriety of permitting pat-down searches of male inmates by any female correctional officer. Oster

Decl., ¶¶ 2-4. When informed that this was in accordance with Corrections policy and was legally

approved in the State of Washington, Plaintiff is reported to have responded “[T]hat’s what this is all

about; I’m going to change the law.” Comer Decl., Exh. F.

While incarcerated in Snohomish County Corrections, Plaintiff requested access to the law

library or legal materials on four occasions. Def. Answers to Interrog. No. 17, Dkt. No. 39. One

request concerned a search for information on his pending criminal matter; there is a policy prohibiting

defendants represented by an attorney from doing their own legal research and the request was denied. 

Id. On the three other occasions, Plaintiff responded to Defendant Oster’s requests for more

information about the nature of his research needs and his pro se status by simply filing another

request for general access to the law library. Id. 

Plaintiff’s amended complaint, while not completely clear, appears to state the following causes

of action:

1. Denial of access to legal materials (against Defendants Thompson and Oster).

2. Denial of access to the courts.

3. Violation of Fourth Amendment right to be free from unreasonable search (against

Defendant Frese).

4. Violation of Eighth Amendment prohibition against cruel and unusual punishment

(against Defendant Frese).

5. Violation of 14th Amendment right to freedom from sexual assault (against Defendant

Frese).
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ORDER ON MTNS

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6. Failure to protect Plaintiff from sexual assault re: search by Defendant Frese (against

Defendants Snohomish County Sheriff, Thompson and Oster).

7. Failure to provide adequate medical treatment and mental health counseling following

his sexual assault (against Defendants Snohomish County Sheriff, Thompson and

Oster).

8. Violation of right to access the grievance system re: denial of access to legal materials

(against Defendants Snohomish County Sheriff, Thompson and Oster).

9. Violation of Fourth Amendment right to be free from unreasonable search (against

Defendant Gilbert).

10. Violation of Eighth Amendment prohibition against cruel and unusual punishment

(against Defendant Gilbert).

11. Failure to protect Plaintiff from sexual assault re: search by Defendant Gilbert (against

Defendant Thompson).

12. Failure to protect Plaintiff and offer “adequate remedy under grievance system”

(against Defendants Snohomish County Sheriff and Thompson).

Amended Complaint, Dkt. No. 9, pp. 16-21.

Discussion

Summary judgment standard

Summary judgment is not warranted if a material fact exists for trial. Warren v. City of

Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). The underlying facts are viewed in the light most

favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). “Summary judgment will not lie if. . . the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). The party moving for summary judgment has the burden to show initially the absence of a
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ORDER ON MTNS

FOR SUMM JMT - 5

genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970). 

This can be done be either producing evidence negating an essential element of plaintiff’s claim, or by

showing that plaintiff does not have enough evidence of an essential element to carry its ultimate

burden at trial. Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir.

2000). 

However, once the moving party has met its initial burden, the burden shifts to the nonmoving

party to establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial. Celotex Copr. v. Catrett, 477 U.S. 317, 323-24 (1986). To

discharge this burden, the nonmoving party cannot rely on its pleadings, but instead must have

evidence showing that there is a genuine issue for trial. Id.. At 324. In considering a motion for

summary judgment, however, “the court must draw all reasonable inferences in favor of the

nonmoving party, and it may not make credibility determinations or weigh the evidence.” Anderson,

477 U.S. at 250-51. Additionally, “at the summary judgment stage the judge’s function is not . . . to

weigh the evidence . . . but to determine whether there is a genuine issue for trial.” Liberty Lobby,

477 U.S. at 249.

Exhaustion of administrative remedies

Although nowhere in his “Statement of Claims” does Plaintiff actually cite to 42 U.S.C. §

1983, he attached his Amended Complaint to a Prisoner Complaint Form entitled “Form to Be Used in

Filing a Complaint Under the Civil Rights Act, 42 U.S.C. § 1983.” Further, each of his claims cites to

one or more provisions of the U.S. Constitution which he alleges to have been violated by the

defendant state agencies or officials. The Court will treat Plaintiff’s matter as a § 1983 action.

Under the Prisoner Litigation Reform Act, a § 1983 claim cannot be pursued until a prisoner

has completely exhausted all available administrative remedies. 42 U.S.C. § 1997e(a). The exhaustion

requirement is mandatory (McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) and is only satisfied
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ORDER ON MTNS

FOR SUMM JMT - 6

when the inmate has sought final administrative review. Booth v. Churner, 532 U.S. 731, 735 (2001). 

The burden is Defendants’ to demonstrate that Plaintiff has failed to exhaust his administrative

remedies (Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), and they have sustained that

burden. Outside of the initial grievance that Plaintiff filed regarding the May 5 incident with

Defendant Frese (which he withdrew that same day), none of the “grievances” filed by him represent a

progression through the administrative appeal process provided by the correctional facility. There is

no evidence that Plaintiff sought any form of administrative remedy regarding the May 17 incident

with Defendant Gilbert.

Plaintiff acknowledges withdrawing his initial grievance, but then claims that he “resubmitted

his Grievance, Appeal, and obtained the Responce (sic) from Mr. david (sic) Oster stating that ALL

REQUIREMENTS ARE EXHAUSTED.” Pltf Motion to Object, p. 4. (emphasis in original.) 

Plaintiff goes on to claim that all of his personal and legal papers were either lost or destroyed when he

was transferred from Snohomish County Corrections to his federal detention location. Id., pp. 4-6. 

The result is that he has no proof of his allegations regarding exhaustion, and the only proof before the

Court demonstrates that Plaintiff’s exhaustion of his administrative remedies was incomplete at best. 

Plaintiff’s claim is further undercut by Defendants’ production of a document signed by Plaintiff upon

his release from Snohomish County Corrections verifying that “I have received all of my personal

property at release from the Snohomish County Corrections Facility.” (Second Comer Decl., Exh. B.)

The appropriate remedy for failure to exhaust administrative procedures is dismissal. Wyatt,

315 F.3d at 1120. The Court is satisfied that Plaintiff has in fact failed to exhaust the administrative

remedies on any of his claims and dismissal is justified on that basis alone. As the analysis below will

indicate, however, even if that were not the case Defendants are entitled to summary judgment.
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ORDER ON MTNS

FOR SUMM JMT - 7

Snohomish County Sheriff’s Office

It is unclear why Plaintiff chose to join this particular branch of county government in this

lawsuit. A municipality (or branch of a municipal government) cannot be held liable under § 1983

absent a showing that constitutional rights were violated as the result of policy or custom of the

municipality. Board of County Com’rs of Bryan Co. v. Brown, 520 U.S. 397, 397 (1997). To the

extent that Plaintiff’s complaint is directed at the policies and practices at Snohomish County

Corrections, the Snohomish County Sheriff’s Office has no involvement in creating policy at that

institution. (Thompson Decl., ¶ 4). Nor does Plaintiff attempt to introduce any evidence of an

unconstitutional policy or practice (beyond that permitting cross-gender pat-down searches).

On that basis, the Sheriff’s Office is not the proper subject of a § 1983 complaint concerning

alleged violations of constitutional rights at the county jail and they will be dismissed as a defendant in

this action.

Access to the jail library

The Court is not convinced that Defendants acted improperly in denying Plaintiff access to the

jail’s law library. Plaintiff has not disputed anything about Defendants’ factual allegations in this

regard and based on that evidence it appears that Plaintiff (1) sought access to conduct research on a

criminal matter where he was already represented, which is a violation of jail policy; and (2) refused to

advise the jail regarding his reasons for later requests. Plaintiff has not challenged the constitutionality

of the jail’s library access policy, which was followed, according to Defendants’ uncontroverted

account.

Even if there was something untoward in the access policy or the jail’s application of that

policy, however, Plaintiff would still have to demonstrate some sort of injury therefrom, some

evidence that “the alleged shortcomings in the library or legal assistance program hindered his efforts

to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Plaintiff has made no such
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ORDER ON MTNS

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allegations, either in his complaint or in response to Defendants’ motion. This lawsuit is proof that he

was not impeded in pursuing his legal remedies. Defendants are entitled to summary judgment on this

claim.

Access to a grievance system

First, the facts as presented by both sides indicate that Plaintiff had access to the jail’s

grievance system. He filed several grievance forms. Although only his initial grievance form appears

to actually constitute a complaint about his treatment while in Defendants’ custody, he does not

appear to have been prevented from filing further grievance forms. Plaintiff presents no evidence or

allegations to the contrary in response to Defendants’ contention that he had unfettered access to the

jail’s grievance procedures.

In any event, however, it is the rule in the Ninth Circuit that prisoners possess no cognizable

liberty interest in a jail grievance system. Mann v. Adams, 855 F.2 639, 640 (9th Cir. 1988) (citing

Shango v. Jurich, 681 F.2d 1091, 1100 (7th Cir. 1982)). Since Plaintiff has no right to access to a

grievance system, Defendants cannot be liable for any alleged failure to provide such access to him.

Unreasonable search and seizure

Plaintiff has claimed that the pat-down searches by both Defendants Gilbert and Frese

constituted unreasonable searches and seizures in violation of the Fourth Amendment. In his facts, he 

alleges that both Frese and Gilbert touched his buttocks and groin areas inside and outside of his

pants. (Amended Complaint, ¶¶ 14, 19.) As previously stated, it is unclear whether Plaintiff is

complaining of the touching of his genitalia and buttocks inside his pants during the search or about

the entire policy permitting female officers to conduct pat-down searches of male inmates. This order

will address both issues.

The Ninth Circuit has already rejected the argument that a search of a male prisoner by a

female guard is per se unreasonable search and seizure. Beginning with Grummet v. Rushen, 770 F.2d
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2 Regarding Defendant Frese: “That Defendant then placed four (4) fingers of each hand inside the elastic of

plaintiffs (sic) pants inserting her entire hands with the exception of her thumbs inside the plaintiffs pants...” Amended

Complaint, ¶ 14. (emphasis supplied.)

Regarding Defendant Gilbert: “After placing her fingers inside the plaintiffs pants, Gilbert pulled plaintiffs

pubic hairs and ran fingers across the plaintiffs private area. Then continued to go around the plaintiffs hips.” 

Amended Complaint, ¶ 19. (emphasis supplied.)

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FOR SUMM JMT - 9

491 (9th Cir. 1985), this circuit has followed the rule that “pat-down searches, which include the groin

area, and which are otherwise justified by security needs, do not violate the [F]ourteenth

[A]mendment because a correctional officer of the opposite gender conducts such a search.” Id. at

495. That rule has been extended to include occasional visual strip searches of male inmates by female

guards. Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988). The Ninth Circuit was moved to

observe that “it is highly questionable even today whether prison inmates have a Fourth Amendment

right be free from routine unclothed searches by officials of the opposite sex...” Somers v. Thurman,

109 F.3d 614, 622 (9th Cir. 1997). (emphasis supplied.) This Court has no difficulty finding that a

policy permitting female officers to conduct clothed pat-down searches of male inmates under

appropriate circumstances is not an unconstitutional search and seizure on its face.

On the issue of any touching of Plaintiff’s genitalia or buttocks inside his pants, both

Defendants Frese and Gilbert deny that any such contact occurred. Gilbert Decl., ¶ 7; Frese Decl., ¶

7. Viewing the facts as alleged in the light most favorable to the nonmoving party, the Court finds that

at most some incidental contact with Plaintiff’s body may have occurred during that portion of the patdown involving the placing of the officer’s fingers inside an inmate’s waistband and circling the waist

in search of contraband. Plaintiff’s own descriptions of these events2 depict a waistband search where

at no time was either officers’ entire hand inside Plaintiff’s pants. The officers’ uncontroverted

declarations (and the declaration of Defendant Gilbert’s Field Training Officer) indicate that they

followed standard department pat-down procedures in searching Plaintiff, which prohibits the touching

of genitalia inside an inmate’s clothing. Gilbert Decl., ¶ 7; Frese Decl., ¶ 7; Swenson Decl., ¶ 4.
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ORDER ON MTNS

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Plaintiff’s complaint describes his pat-down searches by Defendants Frese and Gilbert in terms

of a criminal sexual offense (“sexual assault”). Washington state law defines “sexual contact” as “any

touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual

desire of either party or a third party.” RCW 9A.44.010(2). Nothing in the facts as presented by

Plaintiff suggests a motive of gratifying sexual desire by either of these two officers. Plaintiff’s use of

words such as “fondling” and “groping” and “sexual assault” does not convert what is at worst

inadvertent contact into criminal or unconstitutional conduct. His claims of unreasonable search and

seizure in violation of the Fourth Amendment will be dismissed.

Cruel and unusual punishment

The courts have used a two-part test to establish whether an inmate’s claim of “cruel and

unusual” treatment rises to the level of an Eighth Amendment violation. First, did the conduct of the

accused agent demonstrate a “sufficiently culpable state of mind”? Second, was “the alleged

wrongdoing. . . objectively harmful enough to establish a constitutional violation”? Somers, 109 F.3d

at 622.

Even viewing the facts in the light most favorable to Plaintiff, his allegations do not pass this

test. The discussion of the Defendant Officers’ conduct above reveals at most inadvertence, not a

degree of intent or culpability sufficient to rise to the level of constitutional violation. Furthermore,

the conduct must be objectively harmful enough to establish a constitutional violation. Without

minimizing the subjective factors which may have lead Plaintiff to find this kind of search highly

uncomfortable, even offensive, nothing he alleges is objectively harmful enough to fairly be called

“punishment,” either cruel or unusual. His claims of an Eighth Amendment violation of the prohibition

against cruel and unusual punishment will be dismissed.

Fourteenth Amendment

Plaintiff’s Statements of Claim V and VI assert a violation of his Fourteenth Amendment right

to be “free from sexual assault during incarceration...” Amended Complaint, p. 18. Plaintiff has cited
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to no case authority which recognizes such a constitutional right. The Ninth Circuit precedent which

supports a penal institution’s right to conduct cross-gender pat-down searches has previously been

cited. Grummet, 779 F.2d at 495. Cross-gender searches “cannot be called ‘inhumane’ and therefore

do[ ] not fall below the floor set by the objective component of the [E]ighth [A]mendment.” Johnson

v. Phelan, 69 F.3d 144, 151 (7th Cir. 1995)

And, as per the above discussion of Plaintiff’s Fourth Amendment claims, the elements of a

sexual offense are simply absent from his allegations. Defendants are correct when they point out that

simply calling something a “sexual assault” does not make it one. Plaintiff’s Fourteenth Amendment

claim will be dismissed.

Right to adequate medical treatment and mental health counseling

Plaintiff’s Statement of Claim VII alleges a violation of his “constitutionally protected right to

be afforded adequate medical and mental health counseling and treatment following sexual assault...” 

which he claims is grounded in the Eighth Amendment. This claim fails legally and factually.

Deliberate indifference to an inmate’s injury requires a demonstration that he “was confined

under conditions posing a risk of ‘objectively, sufficiently serious’ harm and that the officials had ‘a

sufficiently culpable state of mind’ in denying proper medical care.” Clement v. Gomez, 298 F.3d 898,

903 (9th Cir. 2002) (citing Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995)). The element of

“objective harm” is once again fatal to Plaintiff’s case; there is no evidence which supports an

inference, much less a finding, that Plaintiff was seriously harmed in any way by the pat-down searches

or their aftermath.

The facts, which Plaintiff has failed to controvert, indicate quite the opposite of indifference to

his complaints. His medical records reflect that he was given medical attention in several instances. 

Comer Decl., Exh. J. In the wake of the filing of his initial grievance, the documents demonstrate that

he received the attentions of a chaplain (Comer Decl., Exh. C) and the facility’s Classification

Supervisor. Id., Exh. F. That Plaintiff did not receive the outcome he desired in seeking assistance
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does not elevate his dissatisfaction to the level of constitutional violation. His claim of deliberate

indifference to his medical and mental needs will be dismissed.

Right to protection from harm while incarcerated

Establishing a claim of “deliberate indifference to harm” requires Plaintiff to prove (1) that the

conditions of his incarceration posed a “substantial risk of serious harm,” and (2) that an official of the

institution “knows of and disregards an excessive risk to [his] health or safety.” Farmer v. Brennan,

511 U.S. 825, 837 (1994). Plaintiff has presented no facts which create a material issue about whether

Defendants disregarded a risk of serious harm to him. When Defendant Thompson became aware of

Plaintiff’s complaints, he sent Defendant Oster to meet with Plaintiff. Def. Answers to Interrogatories,

Dkt. No. 39; Thompson Decl., ¶ 4. Defendant Oster’s written memorialization of that conversation

(which Plaintiff did not dispute then or now) reported that Plaintiff’s concern was not that he had been

sexually abused, but that the policy permitting cross-gender pat-downs was inappropriate and illegal. 

Comer Decl., Exh. F.

The Court finds that, in the wake of Defendant Oster’s conversation with Plaintiff, Defendants

had no reason to believe that Plaintiff was at risk of serious harm, therefore Defendants cannot be said

to have disregarded such a risk concerning the May 5 pat-down. As Plaintiff did not complain of

Defendant Gilbert’s May 17 search at all, there can be no issue of indifference to a known risk of

harm. Defendants are entitled to summary judgment dismissing Plaintiff’s claim of deliberate

indifference to harm as a matter of law.

Qualified immunity

Defendants Gilbert, Frese, Thompson and Oster have all been sued in their individual

capacities. These defendants have asserted qualified immunity from liability. In the Ninth Circuit, a

defense of qualified immunity requires the Court to consider (1) “whether the law governing the

official’s conduct was clearly established” at the time of the incident; and (2) if the law was clearly
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3 While the Court has analyzed all of Plaintiff’s claims and found them factually and legally insufficient, it

should be noted that Plaintiff’s response to Defendants’ motions addressed only two issues: the exhaustion requirement

and Defendants’ qualified immunity defense. The Court is mindful that both case law (see Rand v. Rowland, 154 F.3d

952, 962-963) and our own Local Rules (“If a party fails to file papers in opposition to a motion, such failure may be

considered by the court as an admission that the motion has merit;” LR 7(b)(2)) support a finding in Defendants’ favor

based on Plaintiff’s non-response alone.

ORDER ON MTNS

FOR SUMM JMT - 13

established, whether a “reasonable official could have believed that the conduct was lawful.” Somers,

109 F.3d at 617.

In his response to Defendants’ motions, Plaintiff appears to argue that qualified immunity is

not available to these defendants because (1) they knew that their actions were violating his

constitutional rights and/or (2) they were acting with “malicious intention” to either injure him or

deprive him of his rights. Pltf Motion to Object, p. 4.

Even viewed in the light most favorable to him, neither the facts nor the law support Plaintiff’s

position. Ninth Circuit law at the time of these occurrences supported the right of a jail to permit

cross-gender pat-down searches (see discussion of “Unreasonable search and seizure” above, pp. 8-

10); i.e., the law was “clearly established.” Based on that clearly established law and the facts which

show at worst some inadvertent touching of Plaintiff’s groin and buttocks area, Defendants could

reasonably believe that their conduct was lawful.

The Court finds that the individual defendants are entitled to qualified immunity and to a

summary judgment of dismissal on that basis as well.3

Motion to strike

Attached to Plaintiff’s response are statements from fellow inmates intended to bolster his

allegations regarding the jail’s practice of cross-gender pat-down searches. Pltf Motion to Object,

Statements #3A, 3B and #2, pp. 14-17. Defendants move to strike the statements as irrelevant,

incompetent and inadmissible. The objections are well-taken.

First of all, none of the information conveyed by Plaintiff’s evidence is relevant. FRE 401

defines “relevant” evidence as “having tendency to make the existence of any fact that is of
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consequence to the determination of the action more probable or less probable than it would be

without the evidence.” Only relevant evidence is admissible. FRE 402. The statements of Plaintiff’s

fellow inmates concern the practice of cross-gender pat-downs (which, as has been established, are

permissible in the State of Washington) and generally allege that the proponents have been

“assaulted,” but they say nothing about assaultive or sexually inappropriate behavior by Defendants

Frese or Gilbert. Plaintiff’s complaint does not allege an institutional policy or practice of sexually

assaultive behavior by all female guards. These statements have, therefore, no bearing on the

allegations of this case.

Furthermore, “[s]upporting and opposing affidavits shall be made on personal knowledge, shall

set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein.” FRCP 56(e). None of Plaintiff’s submissions

assert that the affiant is competent to testify. None of the statements purport to have seen the

incidents of which Plaintiff complains. And none of the affiants make their statements under penalty of

perjury.

The motion to strike the statements submitted by Plaintiff in support of his response will be

granted.

Conclusion

Plaintiff has failed to completely exhaust his administrative remedies as required prior to

bringing a claim under 42 U.S.C. § 1983. His response to Defendants’ motion addresses only the

issues of exhaustion of remedies and qualified immunity and on that basis could be said to concede the

validity of the remainder of Defendants’ arguments. In any event, his claims of violations of his

constitutional rights lack both factual and legal sufficiency. There are no disputed issues of material

facts and Defendants are entitled to summary judgment of dismissal as a matter of law.
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ORDER ON MTNS

FOR SUMM JMT - 15

The Snohomish County Sheriff is not responsible for either policy or procedures at the

Snohomish County Corrections Facility, is not a proper party to this lawsuit and will be dismissed on

that basis. The remainder of the individual defendants enjoy qualified immunity from Plaintiff’s claims.

Summary judgment will be GRANTED in favor of Defendants and Plaintiff’s claims are

ordered DISMISSED with prejudice.

The clerk is directed to provide copies of this order to all counsel of record.

Dated: July __16_, 2007

AMarsha J. Pechman

U.S. District Judge