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Washington: Failure-to-Protect Suit against King County Allowed to Proceed

The Washington Court of Appeals has reversed a superior court ruling dismissing on res judicata grounds a "Complaint for Damages" filed by a prisoner against King County, alleging that he was raped by other prisoners in the tenth floor shower of the King County jail and that the County was vicariously responsible for the acts and omissions of its employees in failing to protect him from assault. The Court held that while the first and second suits both concerned the same alleged sexual assault, because there was no identity of parties or claims, res judicata did not preclude the second suit.
In October 2008, Kirk Thompson, proceeding pro se, filed suit in federal court, pursuant to 42 U.S.C. §1983, against Officer McMillen and Sergeant Weirich in their individual capacities, alleging deliberate indifference amounting to cruel and unusual punishment. When McMillen and Weirich moved for summary judgment, submitting evidence that they did not know Thompson was being sexually assaulted or was in need of protection, Thompson signed a stipulation for voluntary dismissal, agreeing to withdraw the complaint "with prejudice."
In February 2010, after obtaining legal representation, Thompson filed an action in state court, this time naming King County as defendant. The County successfully moved for dismissal on the ground that the state-court complaint was precluded by the former federal complaint. The Court of Appeals disagreed.
The Court applied the test for res judicata, considering whether there was (1) a final judgment on the merits, (2) an identity of claims, and (3) an identity or privity between the parties. It had little trouble rejecting Thompson's contention that the stipulation for voluntary dismissal did not constitute a final judgment on the merits.
With respect to claims and parties, on the other hand, the Court found that Thompson's first suit turned on the conduct and potential liability of only McMillen and Weirich, while the second suit dealt with the conduct and potential liability of other jailors. Moreover, to the extent that the County is responsible for the maintenance and operation of the jail, the County itself might be shown to be liable for breach of a duty arising independently from its vicarious liability for negligence on the part of its officers. See: Thompson v. King County, 163 Wash.App. 184, 259 P.3d 1138 (Wash.App. Div. 1 2011).

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Related legal case

Thompson v. King County