Ohlson v. State of Washington et al

Filing 34

ORDER DIRECTING SUPPLEMENTAL BRIEFING. Because the current briefing does not adequately address Plaintiffs Eighth Amendment claims based on deliberate indifference or sexual harassment/humiliation, the parties are ordered to file the following sup plemental briefing addressing the propriety of summary judgment on those claims: a. Defendants must file a supplemental brief, limited to 15 pages, on or before April 17, 2024; b. Plaintiff must file a supplemental response, limited to 15 pages, on or before April 22, 2024; c. Defendants may file an optional reply, limited to 10 pages, on or before April 26, 2024. The Clerk of Court is directed to re-note the Motion for Summary Judgment (Dkt. 25 ) for consideration on April 26, 2024. Finally, the parties may file a joint statement by April 3, 2024, apprising the Court on whether this matter should be referred to a settlement judge during the pendency of summary judgment. Signed by Judge David W. Christel. (MW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JAMES OHLSON,
v.

Plaintiff,

STATE OF WASHINGTON, et al.,

CASE NO. 3:22-CV-5864-JCC-DWC
ORDER DIRECTING
SUPPLEMENTAL BRIEFING

Defendant.

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The District Court has referred this matter filed pursuant to 42 U.S.C. § 1983 and

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Washington state law to United States Magistrate Judge David W. Christel. On February 27,

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2024, Defendants State of Washington, Washington State Department of Corrections, and

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Thomas Delong (collectively “Defendants”) filed a partial Motion for Summary Judgment on

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Plaintiff’s § 1983 claims and his state law outrage claim. Dkt. 25.

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In their Motion, Defendants argue, among other things, Plaintiff cannot meet his burden

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in proving Defendants violated the Eighth Amendment to the United States Constitution, so they

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are entitled to summary judgment on his § 1983 claims. Dkt. 25 at 8–11. In response, Plaintiff

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argues he has created genuine issues of material fact as to whether Defendants violated the

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ORDER DIRECTING SUPPLEMENTAL
BRIEFING - 1

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Eighth Amendment by using excessive force and by exhibiting deliberate indifference to his

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health and safety. See Dkt. 29 at 9–20. Plaintiff also makes arguments akin to an Eighth

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Amendment sexual harassment/humiliation claim. See, e.g., id. at 11. In their reply, Defendants

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argue Plaintiff pled only excessive force claims and cannot raise new Eighth Amendment claims

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for the first time in response to summary judgment. Dkt. 32 at 1–2.

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Defendants are correct Plaintiff cannot raise new claims in response to summary

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judgment. Patel v. City of Long Beach, 564 F. App’x 881, 882 (9th Cir. 2014) (“[A] plaintiff

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cannot raise a new theory for the first time in opposition to summary judgment.”) (citing

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Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292–93 (9th Cir. 2000)). For example, Plaintiff

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argues he has created a genuine issue of material fact as to whether Defendants violated his

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Eighth Amendment rights by withholding food. See Dkt. 29 at 7. However, his Complaint

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includes no mention of food deprivation, so that claim is not properly before the Court. Patel,

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564 App’x at 882.

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This does not mean Plaintiff failed to raise any other Eighth Amendment claim in his

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Complaint. Quite the opposite. Plaintiff’s Complaint raises two § 1983 claims alleging violations

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of the Eighth Amendment. See Dkt. 1-1. The first alleges Defendants used “excessive force” in

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violation of the Eighth Amendment when they shoved Plaintiff to the rear of his cell, activated

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an Electronic Immobilization Device (“EID”) shield, and held him to the floor as they cut off his

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clothing. Id. at 6–7. There is no dispute this cause of action fairly encompasses Plaintiff’s Eighth

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Amendment claim based on excessive force.

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The second is labeled a “cruel and unusual punishment” claim and alleges Defendants

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“violated the Eighth Amendment by assaulting Plaintiff, refusing to cover the Plaintiff with a

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towel, forcibly putting a spit mask on the Plaintiff and violating policy 420.255 Emergency

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ORDER DIRECTING SUPPLEMENTAL
BRIEFING - 2

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Restraint Chair and Multiple Restraint Bed.” Dkt. 1-1 at 5–6. Although this cause of action could

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have been more artfully drafted, it is sufficiently broad to encompass an Eighth Amendment

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claim based on both deliberate indifference and sexual harassment/humiliation.

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Because the current briefing does not adequately address Plaintiff’s Eighth Amendment

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claims based on deliberate indifference or sexual harassment/humiliation, the parties are ordered

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to file the following supplemental briefing addressing the propriety of summary judgment on

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those claims:

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a. Defendants must file a supplemental brief, limited to 15 pages, on or before
April 17, 2024;
b. Plaintiff must file a supplemental response, limited to 15 pages, on or before
April 22, 2024;
c. Defendants may file an optional reply, limited to 10 pages, on or before April
26, 2024.
The Clerk of Court is directed to re-note the Motion for Summary Judgment (Dkt. 25) for

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consideration on April 26, 2024. Finally, the parties may file a joint statement by April 3, 2024,

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apprising the Court on whether this matter should be referred to a settlement judge during the

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pendency of summary judgment.

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Dated this 27th day of March, 2024.

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A

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David W. Christel
United States Magistrate Judge

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ORDER DIRECTING SUPPLEMENTAL
BRIEFING - 3