Joshua Tolsma v. KING COUNTY; JOHN DOE, 1 and 2

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes these cases are suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA TOLSMA,
Plaintiff - Appellant,
v.
KING COUNTY; JOHN DOE, 1 and 2,
Defendants - Appellees.
Nos. 11-35549
11-35601
D.C. No. 2:09-cv-00489-TSZ
MEMORANDUM*
Appeals from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted November 13, 2012**
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Joshua Tolsma appeals from the district court’s summary judgment in his 42
U.S.C. § 1983 action alleging constitutional violations and a state negligence claim
arising from an assault against him by a fellow pretrial detainee at the King County
FILED
NOV 21 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-35549, 11-35601 2
Correctional Facility. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1258
(9th Cir. 1993), and we affirm.
The district court properly granted summary judgment as to Tolsma’s claims
against the Doe officers because Tolsma failed to raise a genuine dispute of
material fact as to whether the officers knew of and disregarded a risk to his health
or safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison official
cannot be found liable for failing to protect one inmate from another “unless the
official knows of and disregards an excessive risk to inmate health or safety”);
Cousins v. Lockyer, 568 F.3d 1063, 1070-71 (9th Cir. 2009) (explaining that a
violation of a prison regulation does not establish a constitutional violation, and
concluding that further discovery on Doe defendants’ identities would be futile
where plaintiff failed to establish a constitutional violation); Winston v. Dep’t of
Corr., 121 P.3d 1201, 1202-03 (Wash. Ct. App. 2005) (“In order to hold the State
liable for injury to one inmate inflicted by another inmate, there must be proof of
knowledge on the part of prison officials that such an injury will be inflicted, or
good reason to anticipate such, and then there must be a showing of negligence on
the part of these officials in failing to prevent the injury.”).

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11-35549, 11-35601 3
The district court properly granted summary judgment as to Tolsma’s claims
against King County because Tolsma failed to show that the officers’ actions
resulted in his injuries. See Jackson v. City of Bremerton, 268 F.3d 646, 653-54
(9th Cir. 2001) (“Neither a municipality nor a supervisor . . . can be held liable
under § 1983 where no . . . constitutional violation has occurred.”); Winston, 121
P.3d at 1202-03 (explaining requirements for failure-to-protect negligence claim
against prison officials).
The district court did not abuse its discretion in denying Tolsma’s motions
under Fed. R. Civ. P. 59 and 60 because Tolsma failed to show that the district
court overlooked one of his claims in error. See Fed. R. Civ. P. 60(a)
(reconsideration is appropriate to correct “a mistake arising from oversight or
omission”); Sch. Dist. No. 1J, 5 F.3d at 1262-63 (setting forth standard of review
for denial of Rule 59 and 60 motions, and stating that, under Rule 59(e),
reconsideration is appropriate if there was “clear error”).
AFFIRMED.

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