                                                                                         cpc)
 IN THE COURT OF APPEALS OF THE STATE OF WASHING-
                                                01k
                                                                                         -n
KIRK WILLIAMS,                                      )
                                                                                         >Mpg
                                                    ) No. 73766-0-1                32.   (nr•n
                                  Appellant,       )
                                                   ) DIVISION ONE                  9 c,v)
                     v.                            )                                    .=.4-
                                                                                   4X11
                                                                                              ):*1
                                                    )
CLAUDIA BALDUCCI, DIRECTOR, KING                    ) UNPUBLISHED OPINION
COUNTY DEPT. OF ADULT & JUVENILE                    )
DETENTION FACILITY; BENJAMIN                        )
SANDERS, KING COUNTY MEDICAL                        )
DIRECTOR, MANAGER, SUPT, SUED IN                    )
THEIR INDIVIDUAL AND OFFICIAL                       )
CAPACITY,                                           )
                                                    )
                                  Respondents.      ) FILED: June 19;2017
                                                    )

       SPEARMAN, J. — Kirk Williams sued employees of the King County

Correctional Facility (the jail) under 42 U.S.C. § 1983, alleging they were

deliberately indifferent to his serious medical needs. But Williams made no

showing that the defendants knew of and disregarded an excessive risk to his

health and safety or that they made any intentional decisions regarding the

conditions of his confinement at the jail. Accordingly, the trial court properly

dismissed his claims on summary judgment. We affirm.

                                           FACTS

       Williams sued Dr. Benjamin Sanders and Claudia Balducci, alleging they

violated his constitutional right to adequate medical care while he was a pretrial
No. 73766-0-1/2


detainee in the jail from June 2010 until September 2011. Williams claimed that

as a result of the defendants' negligence, he contracted tuberculosis in the jail

from "illegal immigrants" who "were not properly screened"for communicable

diseases. Clerk's Papers(CP)at 2. Williams tested positive for tuberculosis when

he was later transferred to prison.

         Dr. Sanders is the Medical Director of Jail Health Services at the jail, and

Balducci was director of the Department of Adult and Juvenile Detention.

Williams does not allege that he had any interaction with either defendant.

         Williams attached supporting declarations to his complaint from two fellow

inmates. David James stated that he was exposed to tuberculosis while housed

in the jail from 1994 to 1995. Jason Boothby stated that he was booked into the

jail on January 27, 2011, and was housed in the cell next to Williams. Boothby

claimed he told a medical nurse he had tuberculosis but was never tested.

Boothby concluded that he "could [have]spread tuberculosis to Mr. Williams." CP

at 18.

         On May 29, 2015, Dr. Sanders and Balducci moved for summary

judgment, arguing there was no evidence they knew of or disregarded a serious

risk to Williams' health. They also maintained they were entitled to qualified

immunity.

         In his supporting declaration, Dr. Sanders stated that he reviewed

Williams' health records for the period of his incarceration in the jail from June




                                              -2-
No. 73766-0-1/3


12, 2010 to September 13, 2011. He did not personally examine or treat

Williams, although he did participate in Williams' diabetes diagnosis.

       According to Dr. Sanders, inmates booked into the jail are given a

tuberculosis skin test if they are foreign-born. But all inmates are offered a

tuberculosis skin test during the health assessment, which occurs within 14 days

of booking, and any inmate can receive a skin test on request.

       Williams' receiving screening form noted that there were no indications or

risk factors requiring a tuberculosis skin test, and Williams did not request a test

at the 14-day health assessment. Nor was there any record that Williams ever

submitted a kite requesting a skin test or expressing concerns about the

conditions in the jail or the quality of his medical care.

       Dr. Sanders acknowledged that the Department of Corrections(DOC)

tests all incoming inmates for tuberculosis. He noted, however, that the longer

period of incarceration for DOC inmates generally permits the treatment for latent

tuberculosis, which takes six to nine months, to be successfully completed. Dr.

Sanders explained that the majority of pretrial detainees spend a shorter time in

the jail and that it would be inappropriate to start the treatment for latent

tuberculosis if it cannot be completed. Had Williams shown symptoms of active

tuberculosis while in jail, he would have been isolated in a specialized cell for

diagnosis and treatment.

       Based upon his review, Dr. Sanders concluded that the jail medical staff

followed all applicable protocols for Williams' medical care while in jail.


                                             -3-
No. 73766-0-1/4


       The fact that Mr. Williams, an inmate who had no risk factors for
       tuberculosis and never requested a tuberculosis skin test, was not
       given a tuberculosis skin test met the appropriate standard of care
       and did not result in a disregard or indifference to his medical
       needs.

CP at 114.

       In her affidavit, Balducci stated that she had never provided any medical

treatment to Williams or participated in any medical or housing decision. Balducci

noted that contrary to Williams' assertion, jail records showed he had never been

housed on the ninth floor of the jail.

       The trial court denied summary judgment, and Dr. Sanders and Balducci

moved for reconsideration. After considering all of the materials, including the

additional evidence that Williams submitted, the trial court granted the motion

and entered summary judgment in favor of Dr. Sanders and Balducci. The court

concluded that Williams failed to present any evidence to support an inference

that the defendants knew of a serious risk of harm and were deliberately

indifferent to that risk.

       Williams appeals.

                                         DISCUSSION

Standard of Review

       When reviewing a grant of summary judgment, an appellate court

undertakes the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d

434,437,656 P.2d 1030(1982). We consider the evidence and all reasonable

inferences from the evidence in the light most favorable to the nonmoving party.


                                            -4-
No. 73766-0-1/5


Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957

(2004). Summary judgment is appropriate "if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law." CR 56(c); Keck v. Collins, 184 Wn.2d

358, 370, 357 P.3d 1080(2015).

       The moving party can satisfy its initial burden under CR 56 by

demonstrating the absence of evidence to support the nonmoving party's case.

Young v. Key Pharms., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182(1989). The

burden then shifts to the nonmoving party to set forth specific facts

demonstrating a genuine issue for trial. Kendall v. Douglas, Grant, Lincoln &

Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wn.2d 1, 8-9, 820 P.2d 497

(1991). To defeat a properly supported motion for summary judgment, the

nonmoving party may not rely on the allegations in the pleadings,

       but must set forth specific facts by affidavit or otherwise that show a
       genuine issue exists. Additionally, any such affidavit must be based
       on personal knowledge admissible at trial and not merely on
       conclusory allegations, speculative statements or argumentative
       assertions.

Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744(1992)

(citation omitted).

       In order to maintain a cause of action under 42 U.S.C.§ 1983, Williams

must show, among other things, that(1)the defendants violated a federal

constitutional or statutory right, and (2) the defendants acted under color of state


                                             -5-
No. 73766-0-1/6


law. See Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 11, 829 P.2d 765(1992)

(citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908,68 L. Ed.2d 420

(1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.

Ct. 662, 88 L. Ed. 2d 662(1986)). Williams asserts that Dr. Sanders and Balducci

were deliberately indifferent to his risk of serious harm and therefore violated his

rights under the Eighth and Fourteenth Amendments.

       Deliberate indifference to a prisoner's serious medical needs violates the

Eighth Amendment's prohibition against cruel and unusual punishment. Estelle v.

Gamble 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). To establish

an Eighth Amendment claim, a prisoner must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical needs. Estelle 429

U.S. at 106. An inadvertent failure to provide adequate medical care does not

violate the Eighth Amendment. Estelle 429 U.S. at 105-06.

       Because the Eighth Amendment applies only after conviction, courts have

generally applied a similar deliberate indifference standard under the Fourteenth

Amendment to analogous claims by pretrial detainees. See Bell v. Wolfish, 441

U.S. 520, 535, 998. Ct. 1861,60 L. Ed. 2d 447(1979). A jail official acts with

deliberate indifference only if he or she "knows of and disregards an excessive

risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct.

1970, 128 L. Ed. 2d 811 (1994). Under this subjective standard, the official must

not only "be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists," but"must also draw the inference." Id.


                                            -6-
No. 73766-0-1/7


       Relying on a United States Supreme Court decision, the Ninth Circuit has

recently adopted a more objective approach to the elements of a pretrial

detainee's Fourteenth Amendment failure-to-protect claim.

      (1) The defendant made an intentional decision with respect to the
      conditions under which the plaintiff was confined;
      (2) Those conditions put the plaintiff at substantial risk of suffering
      serious harm;
      (3) The defendant did not take reasonable available measures to
      abate that risk, even though a reasonable officer in the
      circumstances would have appreciated the high degree of risk
      involved—making the consequences of the defendant's conduct
      obvious; and
      (4) By not taking such measures, the defendant caused the
      plaintiffs injuries.

Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016), cert.

denied, 137 S. Ct. 831, 197 L. Ed. 2d 67(2017)(applying an objective standard

under the Fourteenth Amendment to a failure to protect claim arising from an

inmate beating); see also Kingsley v. Hendrickson,        U.S.     ,135 S. Ct. 2466,

2470, 192 L. Ed. 2d 416(2015)(applying objective standard to a pretrial

detainee's claim for excessive force).

       Williams fails to establish a triable issue under either standard.

       Dr. Sanders never examined or treated Williams while he was

incarcerated in the jail. Williams' medical records revealed no indications or risk

factors suggesting the need to perform a tuberculosis skin test. Nor did he exhibit

any signs of active tuberculosis. Williams never complained about the quality of

his medical care or expressed concerns about the health or condition of other

inmates in the jail.


                                            -7-
No. 73766-0-1/8


          Balducci had no contact with Williams while he was at the jail and did not

participate in any medical or housing decisions involving Williams. Nothing in the

record suggests that either Dr. Sanders or Balducci made any intentional

decisions regarding the conditions of Williams' confinement or that they directed

or supervised any subordinates who may have violated Williams' constitutional

rights.

          The declarations that Williams submitted provided no support for his

conclusory allegations of deliberate indifference. David James stated that he was

exposed to tuberculosis while housed in the jail. But James was in the jail more

than 15 years before Williams and long before either Dr. Sanders or Balducci

began working at the jail. Jason Boothby speculated he might have been the

source of Williams' tuberculosis while he was housed at the jail in 2011 and

claimed he was never tested. But Boothby provided no details about any risk

factors or symptoms that would have prompted testing. Nor did he identify any

contact with Dr. Sanders or Balducci or suggest they had any involvement with

his medical treatment or housing location.

          In response to the defendants' motion for reconsideration, Williams

submitted two declarations from inmates Fausto Filio and Alberto Soliz, who had

been incarcerated in the jail during 2010 and 2011. Both inmates stated they

were never tested for tuberculosis, even though they were foreign born. But

neither inmate claimed he had tuberculosis. Nor did either inmate refer to Dr.

Sanders or Balducci or allege having any interaction with them.


                                              -8-
No. 73766-0-1/9


       Viewed in the light most favorable to Williams, the materials before the

trial court failed to support the slightest inference that Dr. Sanders or Balducci

knew of and disregarded a risk to Williams' health and safety or that they made

any intentional decision regarding the conditions under which he was confined.

The court properly entered summary judgment.1

       Williams has appended various materials to his opening brief that were not

part of the record before the trial court. We therefore decline to consider them.

See RAP 9.12 (appellate review of an order granting summary judgment is

limited to those materials properly before the trial court); see also RAP 10.3(8)

(appendix to appellate brief may not contain materials not in the record on review

without permission for the appellate court). Contrary to Williams' assertions in his

reply brief, the materials do not satisfy the strict criteria for additional evidence on

review under RAP 9.11.

       Affirmed.
                                                    Sif,t/

WE CONCUR:



   41
    144i                                        &SILiv


       1 Because the trial court properly entered summary judgment on Williams'
deliberate indifference claim, we need not address whether Dr. Sanders and Balducci
were also entitled to qualified immunity.

                                              -9-
