266 F.3d 1083 (9th Cir. 2001), 99-36205, Nicholas v. Wallenstein

Docket Nº:99-36205
Citation:266 F.3d 1083
Party Name:TAMMY NICHOLAS; SHERYL ALLBERT; JONATHAN T. DUTCZAK; DAVID L. HARDING; ABRAHAM HINSON; VINCENT HUGER; JOAN L. ILES; MICHAEL G. LEFRANCIS; ALLISON M. DETEMPLE-MASS; FRED R. MCKINNEY; KENNETH E. MORANO; DAVID H. RICHARDSON, JR.; WENDY RUTH WARREN, PLAINTIFFS-APPELLANTS, v. ARTHUR WALLENSTEIN, DIRECTOR, KING COUNTY DEPT. OF ADULT DETENTION; ARTHUR AND
Case Date:September 11, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1083

266 F.3d 1083 (9th Cir. 2001)

TAMMY NICHOLAS; SHERYL ALLBERT; JONATHAN T. DUTCZAK; DAVID L. HARDING; ABRAHAM HINSON; VINCENT HUGER; JOAN L. ILES; MICHAEL G. LEFRANCIS; ALLISON M. DETEMPLE-MASS; FRED R. MCKINNEY; KENNETH E. MORANO; DAVID H. RICHARDSON, JR.; WENDY RUTH WARREN, PLAINTIFFS-APPELLANTS,

v.

ARTHUR WALLENSTEIN, DIRECTOR, KING COUNTY DEPT. OF ADULT DETENTION; ARTHUR AND JANE DOE WALLENSTEIN, A MARITAL COMMUNITY; MICHAEL GRABER AND JANE DOE GRABER, A MARITAL COMMUNITY, DEFENDANTS,

CITY OF SEATTLE, A MUNICIPALITY, DEFENDANT-APPELLEE,

KING COUNTY, A LEGAL SUBDIVISION OF THE STATE OF WASHINGTON, DEFENDANT-APPELLEE.

No. 99-36205

United States Court of Appeals, Ninth Circuit

September 11, 2001

Argued and Submitted August 8, 2001

Page 1084

Sidney J. Strong, Kimberly A. Konat, Strong & Konat, P.S., Seattle, Washington, for the plaintiffs-appellants.

Sandra K. Pailca, Regina S. Cahan, King County Prosecuting Attorney's Office, Seattle, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, District Judge, Presiding. D.C. No. CV-99-00947-BJR

Before: John T. Noonan, A. Wallace Tashima, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Noonan; Concurrence by Judge Tashima

Noonan, Circuit Judge

Tammy Nicholas and the other named plaintiffs (collectively the plaintiffs) appeal the judgment of the district court for the Western District of Washington granting summary judgment to King County and the other named defendants (collectively the defendants). The plaintiffs alleged violation by the defendants of 42 U.S.C. §§§§ 1983 and 1988 and specifically of their right to privacy under the due process clause of the fourteenth amendment, as well as a variety of torts under Washington law. The wrongs alleged arose from a prison officer, Michael Graber, one of the defendants, releasing the names of the plaintiffs, personnel who had been involved in restraining Robert Guy, a prisoner suffering from an overdose of cocaine. Graber had given this information to an angry group of Guy's family and friends at a time they knew that Guy was near death. The plaintiffs' contention is that the release of the information was done with deliberate indifference to the danger to them and

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that this indifference continued in the refusal of the defendants to afford them protection from the danger. Holding that the plaintiffs failed to produce evidence that would create a triable issue of material fact showing that the danger was known or obvious to the defendants, we affirm the judgment of the district court.

FACTS

Reviewing the evidence in the light most favorable to the non-moving party, the following was established: On December 29, 1997, Robert Guy, an inmate of the King County Jail, was engaged in bizarre behavior, throwing himself into the walls, diving off his bunk, and smashing his head. The plaintiffs, corrections officers and health department nurses, responded to an emergency call for help. Several officers struggled with Guy and handcuffed him. They began to move him to the psychiatric area on the seventh floor for observation. He was still yelling and struggling. They used pepper stray to control him. Then they put him on a restraint board. At this point Guy stopped breathing and had no pulse. A nurse performed CPR, the paramedics were called, Guy was revived and transferred to Harborview Medical Center. Guy's family was notified and came to the hospital the next morning. Guy was comatose and later died.

On December 31, 1997, Guy's mother asked to see the incident reports. Michael Graber, jail Facility Commander and an employee of the King County Department of Adult Detention, consulted Jill Hendrix, Senior Deputy Prosecutor. Hendrix advised him that the reports should be disclosed pursuant to Washington's Public Disclosure Act (the PDA). Wash. Rev. Code §§ 42.17. On the same day as Guy's mother's request, Graber went to the hospital to deliver copies of the reports. He did not redact them to eliminate the names of personnel who had participated in Guy's restraint and removal.

Graber entered the conference room where 15 to 20 family members and friends of Guy were assembled. As soon as he introduced himself, Guy's father yelled, "You killed my boy." Another voice shouted, "You killed my cousin. " Another called, "You killed Robert Guy. You're not going to forget this." Graber then gave Guy's father the reports. The crowd tried to calculate the number of persons mentioned in them. Someone called out, "Nineteen officers killed Robert Guy." The crowd became more agitated, shouting, "You're going to pay." Guy's father's companion read the supervisor's summary report aloud. When she reached the part telling of the use of pepper spray, a big man got up, began yelling, pointed his finger at Graber, and moved towards him. Graber and Peter Boehme, the jail sergeant accompanying Graber, quickly left the room.

Upon return to the jail, Graber posted extra guards in front of the jail for the next two shifts. Boehme told several of the plaintiffs that the incident reports had been released so their names were known. Boehme also told them that some of Guy's family and friends were gang members. One jail administrator then denied that the reports had been handed out. A few days later Graber at roll call said he had given the reports only to Guy's mother. Graber did not mention the threats made at the meeting.

Graber did not answer telephone calls from one of the nurse plaintiffs, Tammy Nicholas, who wanted to know more about the release. Nicholas contacted her boss, Barbara Hadley, Administrator for Jail Health Services. Two weeks after the release, Hadley confirmed to Nicholas that Graber had released reports that "may have" included the names of the nurses.

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Hadley also told Nicholas of the "adversarial reaction by a large group of family and friends," but opined that none of the reaction was focused on the nurses. Hadley took no action to protect the nurses.

The plaintiffs were frightened by the knowledge that their names had been released to Guy's family and friends. A nurse, Allison DeTemple-Maas, declares that she has suffered "terrible anxiety and fear," particularly as her car was broken into and the parking lot she was assigned could be observed by inmates of the jail. Several officers and nurses received hang-up calls at home. One officer found on his doorstep a newspaper clipping about Guy's death, accompanied by old insurance cards for the officer's children, which the officer had put in the trash and an unseen visitor had retrieved. Shortly after the release, Office Pott was outside the jail when a car drove up and a passenger pointed a gun at him. Tires on several of the plaintiffs' cars were slashed. Guy's family and friends staged several rallies outside the jail that the plaintiffs interpreted as directed against them. Posters carried by the demonstrators said, "Robert Wayne Guy, Jr. Dead At 20, Murdered While In Custody At King County Jail. Make them accountable."

None of the plaintiffs have suffered physical injury. They have suffered emotional injury.

PROCEEDINGS

On April 28, 1999, the plaintiffs began this action in King County Superior Count. They alleged violation of their common law and Washington State Constitution right to privacy; negligence; infliction of emotional distress; negligent training and...

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