Michael Denton, V. State Of Washington
Opinion
Filed
Washington State
Court of Appeals
Division Two
August 25, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MICHAEL DENTON, No. 61388-3-II
Appellant,
v.
STATE OF WASHINGTON; WASHINGTON UNPUBLISHED OPINION STATE DEPARTMENT OF CORRECTIONS; TIM THRASHER; DR. KARIE RANIER; LINDSEY MCINTYRE; KEITH GOODENOUGH; JAMIE DAVIS; OFFICER RICHARD SCHOLL; LT. SHELDON MOORE; LT. WILLIAM FLETHER; LT. DANIEL BAYER; ROBERT HERZOG; DAVID MCKINNEY; SCOTT RUSSEL,
Respondents.
LEE, J. — Michael Denton appeals the summary judgment dismissal of his claims for intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED) against the State of Washington, Department of Corrections (DOC), and various DOC employees (collectively, the Defendants) for events that occurred on December 31, 2017, and for the conditions of his incarceration with DOC, specifically his placement in solitary confinement. Denton also appeals the superior court’s order denying his motion to amend his complaint and order striking evidence.
For Denton’s IIED claim, because Denton failed to raise a genuine issue of material fact as to whether the alleged extreme and outrageous conduct caused him to suffer severe emotional
distress, Denton’s claim for IIED fails. For Denton’s NIED claim, because Denton failed to raise a genuine issue of material fact showing that the Defendants breached a duty owed to Denton, his NIED claim also fails. With regard to the superior court’s denial of Denton’s motion to amend his complaint, because Denton brought the motion three years after the original filing of his complaint and after several key disclosure and discovery deadlines had passed, the superior court did not abuse its discretion when it denied Denton’s motion to amend. Finally, even assuming without deciding the superior court erred when it excluded certain evidence on the basis that it was unauthenticated and hearsay, we hold that any error was harmless. Accordingly, we affirm the superior court.
FACTS
A. BACKGROUND Denton has a complicated history of behavioral health issues. Denton has been diagnosed with complex post-traumatic stress disorder (PTSD), borderline personality disorder, antisocial personality disorder, depression, and paranoid schizophrenia, among other conditions. Denton has spent his entire adulthood serving “nearly consecutive jail and prison sentences.” Clerk’s Papers (CP) at 1175.
Denton was first an inmate with DOC from 2006 until 2013. Denton’s current incarceration period began in June 2016, following convictions for custodial assault and harassment. For his current incarceration, Denton had requested that he be placed into maximum (MAX) custody, also known as the Intensive Management Unit, because he did “not get along well with other offenders and want[ed] to have his own cell.” CP at 424. Based on Denton’s history
of violence towards correctional staff, a DOC multidisciplinary team (MDT), which included Mission Housing Administrator Timothy Thrasher, assigned Denton to MAX custody.
Inmates are housed in MAX custody when they present “a serious threat to the safety of employees, contract staff, volunteers, or other offenders through a pattern of violent or seriously disruptive behavior,” have “[e]xtreme protection needs,” or are “[d]esignated offenders with serious mental illness.” CP at 321. Those housed in MAX custody require “a heightened degree of security and supervision.” CP at 309. MAX custody inmates “[r]eceive a minimum of one hour of exercise per day, 5 days per week, outside their cell.” CP at 1259. DOC requires MAX custody inmates to participate in behavioral programs prior to promotion to less restrictive housing. An inmate’s housing within MAX custody is formally reviewed by a committee at least every 180 days, with informal reviews occurring at least every 60 days.
All offenders entering DOC custody are screened for behavioral health needs and can request mental health services. DOC develops individual behavior management plans for each inmate to support the inmate’s behavioral health needs. However, inmates generally have the right to refuse mental health treatment.
DOC has two “mental health residential treatment units,” known as RTUs: one called the Special Offender Unit (SOU) at the Monroe Correctional Complex and one within special units at the Washington State Penitentiary. CP at 176. RTUs are specifically for individuals with “a significant mental disorder, the symptoms of which result in serious impairment in adaptive functioning and may include a safety risk for the individual and/or others.” CP at 176. For an inmate to be sent to an RTU, several criteria must be met, including a referral from the inmate’s
primary mental health provider at DOC and authorization from DOC’s Mental Health Transfer Care Review Committee (Review Committee).
Between June and December of 2016, Denton was housed in MAX custody. By August 2016, Denton had 20 pending serious infractions and correctional staff believed he could not be safely placed within the general inmate population. Correctional staff recommended that Denton be sent to “Close custody,” or “Close Observation Area” (COA), which is the highest level of custody. CP at 312, CP at 1263. However, upon review of Denton’s custody, the MDT voted to maintain Denton within MAX custody and to instruct Denton to work with mental health staff and participate in various DOC programming.
The COA is intended for offenders “who pose a risk to themselves or others or have a mental health concern resulting in a grave disability.” CP at 1263. Offenders may be placed in a COA if they pose risks of self-harm, suicide, or for “[s]evere psychiatric decompensation.” CP at 1264. The COA has “suicide-resistant cells” and placement in a COA is based on an assessment and determination by mental health providers. CP at 1263. The COA is not intended for disciplinary purposes; rather, it is a “mental health determination made for an individual’s safety.” CP at 62. Within the COA, inmates may have varying levels of observation, with some on continuous observation, which means an officer is assigned to monitor an inmate one-on-one at all times.
By December 2016, Denton had failed to complete any programming based on “[o]ngoing [d]isciplinary [b]ehaviors.” CP at 442. Denton’s infractions included flooding his cell, tampering with his cell lock, and assaulting correctional staff. In late December 2016, Denton was transferred to Pierce County custody because of pending criminal charges.
1. Eusanio Report While in Pierce County’s custody, Dr. Anthony Eusanio, a forensic psychologist, conducted a clinical and forensic psychological evaluation of Denton and wrote a report (Eusanio Report). Dr. Eusanio conducted the evaluation at the request of Denton’s defense team at the time, who wished to explore a diminished capacity defense. The Eusanio Report included a discussion of whether Denton suffered from mental disorders and to what extent Denton’s mental status was affected by “Secure Housing Unit” (SHU) Syndrome—in other words, the “effects of long term isolation.” CP at 1188. Dr. Eusanio observed that Denton exhibited antisocial personality disorder, borderline personality disorder, and complex PTSD. The Eusanio Report noted:
Denton reported having significant traumatic experiences, from birth to the present day, which continue to plague him and produce recurrent episodes of extreme distress. . . . Consequently, [Denton] reports poor appetite, weight loss, and severely disturbed sleep patterns (only 2 hours per night). He shows severe tension, has problems relaxing, and becomes fatigued by the frequency, intensity, and duration of the accumulating stress.
CP at 1194.
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Filed
Washington State
Court of Appeals
Division Two
August 25, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MICHAEL DENTON, No. 61388-3-II
Appellant,
v.
STATE OF WASHINGTON; WASHINGTON UNPUBLISHED OPINION STATE DEPARTMENT OF CORRECTIONS; TIM THRASHER; DR. KARIE RANIER; LINDSEY MCINTYRE; KEITH GOODENOUGH; JAMIE DAVIS; OFFICER RICHARD SCHOLL; LT. SHELDON MOORE; LT. WILLIAM FLETHER; LT. DANIEL BAYER; ROBERT HERZOG; DAVID MCKINNEY; SCOTT RUSSEL,
Respondents.
LEE, J. — Michael Denton appeals the summary judgment dismissal of his claims for intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED) against the State of Washington, Department of Corrections (DOC), and various DOC employees (collectively, the Defendants) for events that occurred on December 31, 2017, and for the conditions of his incarceration with DOC, specifically his placement in solitary confinement. Denton also appeals the superior court’s order denying his motion to amend his complaint and order striking evidence.
For Denton’s IIED claim, because Denton failed to raise a genuine issue of material fact as to whether the alleged extreme and outrageous conduct caused him to suffer severe emotional
distress, Denton’s claim for IIED fails. For Denton’s NIED claim, because Denton failed to raise a genuine issue of material fact showing that the Defendants breached a duty owed to Denton, his NIED claim also fails. With regard to the superior court’s denial of Denton’s motion to amend his complaint, because Denton brought the motion three years after the original filing of his complaint and after several key disclosure and discovery deadlines had passed, the superior court did not abuse its discretion when it denied Denton’s motion to amend. Finally, even assuming without deciding the superior court erred when it excluded certain evidence on the basis that it was unauthenticated and hearsay, we hold that any error was harmless. Accordingly, we affirm the superior court.
FACTS
A. BACKGROUND Denton has a complicated history of behavioral health issues. Denton has been diagnosed with complex post-traumatic stress disorder (PTSD), borderline personality disorder, antisocial personality disorder, depression, and paranoid schizophrenia, among other conditions. Denton has spent his entire adulthood serving “nearly consecutive jail and prison sentences.” Clerk’s Papers (CP) at 1175.
Denton was first an inmate with DOC from 2006 until 2013. Denton’s current incarceration period began in June 2016, following convictions for custodial assault and harassment. For his current incarceration, Denton had requested that he be placed into maximum (MAX) custody, also known as the Intensive Management Unit, because he did “not get along well with other offenders and want[ed] to have his own cell.” CP at 424. Based on Denton’s history
of violence towards correctional staff, a DOC multidisciplinary team (MDT), which included Mission Housing Administrator Timothy Thrasher, assigned Denton to MAX custody.
Inmates are housed in MAX custody when they present “a serious threat to the safety of employees, contract staff, volunteers, or other offenders through a pattern of violent or seriously disruptive behavior,” have “[e]xtreme protection needs,” or are “[d]esignated offenders with serious mental illness.” CP at 321. Those housed in MAX custody require “a heightened degree of security and supervision.” CP at 309. MAX custody inmates “[r]eceive a minimum of one hour of exercise per day, 5 days per week, outside their cell.” CP at 1259. DOC requires MAX custody inmates to participate in behavioral programs prior to promotion to less restrictive housing. An inmate’s housing within MAX custody is formally reviewed by a committee at least every 180 days, with informal reviews occurring at least every 60 days.
All offenders entering DOC custody are screened for behavioral health needs and can request mental health services. DOC develops individual behavior management plans for each inmate to support the inmate’s behavioral health needs. However, inmates generally have the right to refuse mental health treatment.
DOC has two “mental health residential treatment units,” known as RTUs: one called the Special Offender Unit (SOU) at the Monroe Correctional Complex and one within special units at the Washington State Penitentiary. CP at 176. RTUs are specifically for individuals with “a significant mental disorder, the symptoms of which result in serious impairment in adaptive functioning and may include a safety risk for the individual and/or others.” CP at 176. For an inmate to be sent to an RTU, several criteria must be met, including a referral from the inmate’s
primary mental health provider at DOC and authorization from DOC’s Mental Health Transfer Care Review Committee (Review Committee).
Between June and December of 2016, Denton was housed in MAX custody. By August 2016, Denton had 20 pending serious infractions and correctional staff believed he could not be safely placed within the general inmate population. Correctional staff recommended that Denton be sent to “Close custody,” or “Close Observation Area” (COA), which is the highest level of custody. CP at 312, CP at 1263. However, upon review of Denton’s custody, the MDT voted to maintain Denton within MAX custody and to instruct Denton to work with mental health staff and participate in various DOC programming.
The COA is intended for offenders “who pose a risk to themselves or others or have a mental health concern resulting in a grave disability.” CP at 1263. Offenders may be placed in a COA if they pose risks of self-harm, suicide, or for “[s]evere psychiatric decompensation.” CP at 1264. The COA has “suicide-resistant cells” and placement in a COA is based on an assessment and determination by mental health providers. CP at 1263. The COA is not intended for disciplinary purposes; rather, it is a “mental health determination made for an individual’s safety.” CP at 62. Within the COA, inmates may have varying levels of observation, with some on continuous observation, which means an officer is assigned to monitor an inmate one-on-one at all times.
By December 2016, Denton had failed to complete any programming based on “[o]ngoing [d]isciplinary [b]ehaviors.” CP at 442. Denton’s infractions included flooding his cell, tampering with his cell lock, and assaulting correctional staff. In late December 2016, Denton was transferred to Pierce County custody because of pending criminal charges.
1. Eusanio Report While in Pierce County’s custody, Dr. Anthony Eusanio, a forensic psychologist, conducted a clinical and forensic psychological evaluation of Denton and wrote a report (Eusanio Report). Dr. Eusanio conducted the evaluation at the request of Denton’s defense team at the time, who wished to explore a diminished capacity defense. The Eusanio Report included a discussion of whether Denton suffered from mental disorders and to what extent Denton’s mental status was affected by “Secure Housing Unit” (SHU) Syndrome—in other words, the “effects of long term isolation.” CP at 1188. Dr. Eusanio observed that Denton exhibited antisocial personality disorder, borderline personality disorder, and complex PTSD. The Eusanio Report noted:
Denton reported having significant traumatic experiences, from birth to the present day, which continue to plague him and produce recurrent episodes of extreme distress. . . . Consequently, [Denton] reports poor appetite, weight loss, and severely disturbed sleep patterns (only 2 hours per night). He shows severe tension, has problems relaxing, and becomes fatigued by the frequency, intensity, and duration of the accumulating stress.
CP at 1194.
The Eusanio Report also stated that Denton “appear[ed] to be a case in point for the effects of the SHU Syndrome.” CP at 1214 (emphasis in original). SHU Syndrome symptoms include “hypersensitivity to external stimuli,” “perceptual distortions,” “panic attacks,” and “psychotic confusional states and disorientation.” CP at 1215. Dr. Eusanio wrote that Denton exhibited these symptoms and noted that “a mentally ill inmate in long term isolation is likely to be both a . . . ‘behavior case’ as well as a ‘mentally ill’ case,” and “seriously mentally disordered long term SHU residents are highly likely to become even more seriously mentally disordered.” CP at 1215.
The Eusanio Report concluded that Denton’s mental status was affected by his long term isolation—specifically, it increased the likelihood, intensity, duration, and complexity of symptoms of his other mental health disorders. Based on his evaluation, Dr. Eusanio opined upon proposed interventions and treatment, which included psychotherapy for Denton and correctional staff education on the effects of SHU Syndrome when attempting to deescalate a situation with Denton. Dr. Eusanio also wrote: “The system that has been used in this case has not been working effectively. This analysis shows that without correction the inmate can be expected to have increasingly dysfunctional reactions due to isolation and exacerbated mental disorder.” CP at 1224.
Sometime between 2017 and 2021, Dr. Eusanio passed away.
2. Return to DOC Custody Denton returned to DOC custody in June 2017, and was placed back in MAX custody, where he had been prior to being transferred to Pierce County’s custody. Denton’s MAX custody housing was not in an RTU setting.
On Denton’s return to DOC custody, he requested that he be placed in the SOU, which is an RTU and requires a mental health referral and approval from the Review Committee. Denton had not previously been referred to the RTU because correctional staff “believed that his disruptive behavior was related to problematic personality dynamics rather than caused by a mental illness.” CP at 178.
Denton asked a member of his defense team, a social worker named Eric Johnsen, to send a copy of the Eusanio Report to DOC. Johnsen emailed a copy of the Eusanio Report to Thrasher in July 2017. Thrasher forwarded the Eusanio Report to DOC mental health staff, including the
DOC Director of Mental Health, Dr. Karie Rainer. According to Dr. Rainer, the mental health staff who worked with Denton considered the Eusanio Report in conjunction with DOC’s own behavioral health records and assessments of Denton.
DOC’s review showed that Denton engaged in disruptive behaviors, including declaring mental health emergencies, threatening self-harm, threatening correctional staff, and smearing feces in his cell. Denton would intermittently spend time in COA units based on this behavior. Correctional staff had the impression that Denton would orchestrate crises when he did not agree with his housing conditions. In June 2017, one DOC mental health provider noted: “[Denton] has demonstrated a pattern of frequent disruptive behavior when he disagrees with modifications to conditions of confinement and/or housing placement.” CP at 257. DOC would offer Denton mental health services and screenings, which Denton would refuse. Based on this review, Denton was placed in MAX custody.
However, in September 2017, the MDT set a requirement for Denton to accrue 60 days of good behavior prior to consideration of a transfer to the SOU. In November 2017, correctional staff recommended that Denton be transferred to the SOU because he fulfilled the 60-day good behavior requirement. The Review Committee approved the transfer.
On December 29, 2017, the MDT voted to transfer Denton to the SOU. But shortly after that decision was made, Denton was informed that he had new pending infractions, and Denton started threatening self-harm, which precipitated the decision to place Denton in the COA “for 1:1 watch.” CP at 280. Thus, Denton was again placed in a COA.
3. Events of December 31, 2017 On December 31, 2017, Denton remained in the COA on continuous observation. DOC cited risk of suicide and risk of self-harm as reasons for Denton’s placement on the COA.
DOC specifically placed Denton in a hallway called E-Tier. The E-Tier cells are 9-foot by 12-foot rooms and do not contain sinks or toilets; instead, according to Denton, there was a small grate on the cell floor in which inmates could urinate and defecate. Only correctional officers could “‘flush[]’” the grate system, and according to Denton, the officers would often refuse to do so. CP at 1179. Denton and inmates would need to request water from correctional staff if they were thirsty.
On December 31, Officer Richard Scholl was assigned to observe Denton during the 2 p.m.
to 10 p.m. shift. As part of the one-to-one observation, Scholl and other officers would make logbook entries every 15 minutes and report Denton’s actions to their superiors as needed.
According to Denton, he asked Scholl to transcribe a grievance on his behalf regarding the lack of a toilet in his COA cell. Allegedly, Scholl responded with abusive language, which included, “‘F*** off you dumb retard,’” and “‘You heard me you dumb piece of s*** retard. I said f*** off. You ain’t got s*** coming.’” CP at 1181. When Denton asked to speak with the on-duty sergeant, Scholl replied, “‘I ain’t calling the sergeant. Why don’t you try to kill yourself like the dumb f*** next door in Cell 1 is trying to do.’” CP at 1181.
Denton felt “humiliation, fear, anxiety and deep despair.” CP at 1181. As a result, Denton allegedly found a rock on the floor of his cell and began to cut his wrist with the rock for approximately an hour and 45 minutes. According to Denton, his conduct was in plain view, and Scholl did not contact medical staff or attempt to prevent Denton from self-harm. Instead, Scholl
allegedly “encouraged [Denton] to commit suicide” and stated, “‘Make sure you do a good job and kill yourself, retard.’” CP at 1181. Denton claims he then began banging his head on the door of his cell. Denton did so for 45 minutes without any intervention. The on-duty shift sergeant, Sergeant William Fletcher, arrived and instructed Denton to stop banging his head. When Denton did not stop, Sergeant Fletcher stated to Scholl, “‘F*** him. Call me when they[1] are dead.’” CP at 1182.
According to Denton, the correctional officers allowed him to engage in self-harm for over three hours without intervention. After the three hours, correctional staff entered the cell to place Denton in a restraint chair. Denton remained in the chair for two hours. He was subsequently placed in a restraint bed, apparently naked with the exception of a single towel, in a “poorly insulated” cell while it was 30 degrees outside. CP at 1183. Denton alleges that the “conditions further humiliated [him] and caused [his] mental well-being to deteriorate” and the “anxiety and stress [he] felt as a result of this experience was intense and has lasted for years.” CP at 1183. In the years following the incident, Denton accrued more infractions and attempted suicide or self- harm several times.
According to Scholl, Scholl never insulted or spoke abusively to Denton. Denton asked Scholl to fill out a grievance, and Scholl began to do so. However, Denton began cursing at Scholl, at which point Scholl put aside the grievance and informed Denton that he would not continue until Denton stopped cursing at him. Denton did not again ask Scholl to fill out the grievance and the matter “was dropped.” CP at 829.
1 The record suggests there was another inmate in the E-tier engaged in self-harm at the same time as Denton.
Denton then allegedly began peeling paint off the cell wall. Denton took a paint chip and began to self-harm by scraping the paint chip over his wrist. Correctional staff instructed Denton to stop and within five minutes, Sergeant Fletcher arrived to speak with Denton. Denton refused to engage with Sergeant Fletcher. Scholl noted “some blood” that resulted from Denton’s scratching with the paint chip. CP at 170. However, Denton was covered by a security smock or blanket and staff could not see what exactly Denton was doing underneath the blanket.
Sergeant Fletcher directed correctional staff to not use force, including the use of pepper spray, or engage with Denton unless they could visibly see or verify that Denton was self-harming and that self-harm resulted in “[copious] amounts of blood.” CP at 850. All the while, Denton threatened and used abusive language towards staff and yelled at other inmates. Correctional staff did not view Denton’s level of self-harm to be particularly serious.
When Denton began banging his head on the cell door, Sergeant Fletcher went back to Denton’s cell to instruct him to stop. According to Officer Sheldon Moore, Denton was only “intermittently” hitting his head on the door and any time correctional staff approached Denton’s cell with pepper spray to make Denton stop, “Denton would retreat from the cell door and stop his activity.” CP at 128.
Additionally, the unit nurse contacted the mental health duty officer, psychology associate Jamie Davis, to report Denton’s behavior. As the mental health duty officer, Davis’ role was to evaluate whether inmates experiencing a “mental health emergency” needed to be restrained for safety and security concerns. CP at 67.
Davis received several calls from the unit nurse with updates about Denton. When the unit nurse first contacted Davis, Denton was threatening self-harm but not actually engaging in self-
harm. Therefore, Davis did not recommend restraints at the time. Davis had several conversations with correctional and nursing staff regarding use of the least restrictive means to keep Denton safe. Later, however, based on information that Denton was continually banging his head on the door, Davis recommended the use of the restraint chair and later, the restraint bed. Apparently, Denton had developed a “1 inch circular hematoma to the center of his forehead,” but with “no active bleeding or dried blood noted.” CP at 99.
Following Denton’s placement in the restraint chair, a unit nurse examined him. In an incident report, the nurse wrote:
[Denton] has been self harming by scratching his left wrist. He has several superficial wounds/scratches to the left wrist, there is no active bleeding, and there is a small amount of dried blood covering the wound.
....
Restraints checked. [Denton] is alert and oriented, is able to speak and breathe without difficulty and has good circulation to all extremities.
[Denton] is asked if he has any injuries related to the placement into restraint chair.
He is verbally [assaultive] and will not allow me to medically assess him at this time.
CP at 99.
By the morning of January 1, 2018, Denton was still restrained. Denton refused breakfast and stated that he would “‘stay on the bed until [he got his] SOU transfer.’” CP at 70. However, by 11:30 a.m., Denton stated that he was “‘done with this sh**’” and ready to return to his cell. CP at 70. Davis recommended that Denton be removed from restraints and returned to his cell.
B. PROCEDURAL HISTORY In February 2020, Denton filed a complaint for damages against: (1) the State of Washington (the State), (2) DOC, (3) Thrasher, (4) Dr. Rainer, (5) Lindsey McIntyre, (6) Keith Goodenough, (7) Davis, (8) Scholl, (9) Moore, (10) Sergeant Fletcher, (11) Lieutenant Daniel Bayer, (12) Robert Herzog, (13) David McKinney, and (14) Scott Russell (collectively, the Defendants). Denton alleged IIED, NIED, false imprisonment, battery, and negligent supervision and training.
1. First Motion for Summary Judgment In October 2022, the Defendants moved for summary judgment, arguing in part that Denton’s lawsuit was barred by res judicata because “Denton’s complaint in this lawsuit [was] essentially the same as the one that he filed in federal court in 2018” and the federal case had been dismissed.2 CP at 28. In November 2022, the superior court granted partial summary judgment in favor of the Defendants. The superior court found that Denton’s claims were all addressed by the federal district court and that it was appropriate to apply res judicata. The superior court’s order stated:
1. Claims against the [DOC], Rob Herzog, Scott Russell, Karie Rainer, Keith Goodenough and Jamie Davis were dismissed on the merits [at federal court] and are therefore barred by res judicata.
2. Claims related to the cell conditions against Daniel Bayer and Sheldon Moore were dismissed on the merits and are therefore also barred by res judicata.
2 See generally Denton v. Thrasher, No. 3:18-cv-05017-BHS, 2022 WL 1095030 (W.D. Wash. Mar. 18, 2022) (court order).
3. Plaintiff shall serve Mr. McKinney and Mr. Goodenough with the summons and complaint within thirty days of this order.[3]
CP at 965.
In December 2022, the Defendants filed a “motion for reconsideration and/or clarification”
of the superior court’s order granting partial summary judgment. CP at 966. Specifically, the Defendants sought clarification as to whether any portion of their motion for summary judgment was denied and clarification regarding claims related to individuals that the superior court’s order had not named. The Defendants also noted that the superior court “appeared only to address the arguments about res judicata” and had not issued any rulings regarding the merits of Denton’s claims. CP at 970.
Four days later, Denton filed a motion for leave to amend his complaint. Denton requested to add a “general common law negligence claim” against Scholl, Moore, Fletcher, Bayer, and the State for “injuries sustained when [Denton] was allowed to commit self-harm for hours without any meaningful intervention.” CP at 976. In Denton’s proposed first amended complaint, he listed only Scholl, Moore, Fletcher, Bayer, DOC, and the State as defendants, claiming IIED, NIED, and negligence. The Defendants opposed Denton’s motion.
In January 2023, the superior court denied Denton’s motion for leave to amend his complaint. Additionally, the superior court granted the Defendants’ motion for reconsideration and/or clarification. The superior court’s order stated in part:
1. Defendants’ motion for reconsideration and/or clarification is GRANTED;
3 Apparently, Denton had failed to serve all named defendants—specifically, Keith Goodenough and David McKinney.
2. All of Plaintiff’s claims, except for the claims against Mr.
McKinney and Mr. Goodenough, are DISMISSED WITH PREJUDICE based on res judicata.
CP at 1019 (boldface omitted). Denton appealed the superior court’s order to this court. Then, in March 2023, the superior court dismissed Denton’s claims against Goodenough and McKinney based on Denton’s failure to serve them.
In March 2024, we reversed the superior court’s summary judgment dismissal of Denton’s claims. Denton v. State et al., No. 57792-5-II, slip op. at 2 (Wash. Ct. App. Mar. 19, 2024) (unpublished).4 Because one of Denton’s claims had been dismissed by the federal court for failure to exhaust administrative remedies, we held that the failure to exhaust was not a final judgment on the merits to warrant application of res judicata. Id. We also held that Denton’s remaining state claims were not barred by res judicata because “they do not share an identity in cause of action with the federal claims dismissed by the federal court.” Id. Finally, because the superior court had denied Denton’s motion to amend based on its res judicata ruling, we remanded the motion to amend to the superior court for reconsideration. Id.
2. Remand and Motion to Amend In June 2024, Denton re-filed his motion to amend his complaint. The Defendants again objected to Denton’s motion to amend. Specifically, the Defendants argued that Denton’s actions had been dilatory and that he brought the motion after deadlines had passed for discovery, witness and expert witness disclosures, and after the superior court had granted summary judgment in favor of the defendants in December 2022. The Defendants asserted that an amendment would result in
4 https://www.courts.wa.gov/opinions/pdf/D2%2057792-5-II%20Unpublished%20Opinion.pdf.
prejudice to them in preparing to defend against the newly asserted negligence claim. In light of Denton’s apparent intention to voluntarily dismiss several of his claims in his proposed amendment, the Defendants also requested that the superior court dismiss Denton’s claims for battery, false imprisonment, and negligent supervision, as well as claims against Thrasher, Dr. Rainer, McIntyre, Davis, Herzog, and Russell.
In response, Denton argued that the superior court should grant leave for him to amend his complaint because his negligence claim was based on the same facts already asserted and he was simply adding another theory of recovery. Denton further claimed that the Defendants would not suffer prejudice because they had not conducted discovery or disclosed any expert witnesses.
In July 2024, the superior court denied Denton’s motion to amend the complaint, “for the reasons stated in the Defendants’ opposition materials.” CP at 1110. The superior court further stated, “Given the late stage of the requested amendment, there is undue prejudice to the Defendants.” CP at 1110.
Then, in August 2024, in a stipulation and order for partial dismissal, Denton and the Defendants agreed to dismiss Denton’s claims for battery, false imprisonment, and negligent training and supervision. Additionally, the parties agreed that “[a]ll claims against Defendants (1) Tim Thrasher; (2) Dr. Karie Rainer; (3) Lindsey McIntyre; (4) Jamie Davis; (5) Robert Herzog; and (6) Scott Russell are DISMISSED with prejudice.” CP at 1117 (boldface omitted).
3. Second Motion for Summary Judgment In October 2024, the remaining Defendants—the State, DOC, Bayer, Fletcher, Moore, and Scholl—moved for summary judgment, arguing that there were no triable issues of material fact to support Denton’s two remaining claims for IIED and NIED. First, as to the NIED claim, the
Defendants asserted that Denton could not establish that the Defendants owed a duty to Denton regarding solitary confinement or that they breached any duty or caused Denton “medically diagnosable emotional distress.” CP at 1135. As to Denton’s claim for IIED, the Defendants argued that Denton’s housing placement did not amount to extreme and outrageous conduct, nor did the Defendants act to intentionally or recklessly cause Denton severe emotional distress.
Denton argued that several material issues of fact precluded summary judgment for both his claims. For his IIED claim, Denton argued that his mental illness “must” be factored into the court’s consideration of whether the Defendants’ conduct was extreme and outrageous and consideration of harm the conduct might have caused. CP at 1167. Further, for the NIED claim, Denton asserted that the Defendants breached their duty to Denton on December 31, 2017, when they allowed him to self-harm.
In support of his opposition to the Defendants’ motion for summary judgment, Denton attached the Eusanio Report to his declaration. Denton also filed the declaration of psychiatrist Dr. Terry Kupers. In Dr. Kupers’ declaration, Dr. Kupers stated that he “reviewed several documents to supplement [his] conclusions in [the] case,” which included the Eusanio Report, depositions of DOC staff, and some 2023 mental health evaluations of Denton. CP at 1381. Dr. Kupers opined that Denton “suffers from serious mental illness,” specifically borderline personality disorder with psychotic features and complex PTSD. CP at 1382. Dr. Kupers further declared that Denton “should not be housed in [MAX custody]” and should be “barred from any form of solitary confinement as this has perpetuated Mr. Denton’s psychological and mental health conditions.” CP at 1385.
4. Motion to Strike Evidence and Dismissal of Complaint In January 2025, the Defendants moved to strike “inadmissible evidence” that Denton submitted in support of his opposition to the motion for summary judgment. CP at 1401. Pertinent here, the Defendants moved in part to strike the Eusanio Report as unauthenticated and as hearsay, as well as any references to the Eusanio Report in other declarations. The Defendants also argued that Denton failed to identify Dr. Eusanio as an expert witness.
On January 9, 2025, the superior court granted the Defendants’ motion to strike evidence “for the reasons articulated in that motion.” CP at 1413. In the same order, the superior court also granted the Defendants’ motion for summary judgment. The order stated:
For the reasons articulated by the Defendants in their Motion, the Court GRANTS Defendants’ Motion for Summary Judgment and DISMISSES WITH PREJUDICE the Complaint in this matter.
CP at 1413. Denton moved for reconsideration, which the superior court denied.5 Denton appeals.
ANALYSIS
On appeal, Denton argues that the superior court erred when it (1) granted summary judgment in favor of the Defendants, (2) granted the Defendants’ motion to strike evidence, and (3) denied Denton’s motion to amend his complaint. We address each issue below. A. STANDARD OF REVIEW “Summary judgment is appropriate only when there is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law.” Scotsman Guide, Inc.
5 The order denying reconsideration of Denton’s motion was not designated in the record on appeal.
v. Simmons, 35 Wn. App. 2d 203, 209, 574 P.3d 584 (2025); CR 56(c). “‘A genuine issue of material fact exists where reasonable minds could differ on the facts controlling the outcome of the litigation.’” Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn. App. 859, 864-65, 324 P.3d 763 (2014) (quoting Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008)).
Appellate courts review summary judgment rulings de novo. Scotsman Guide, 35 Wn.
App. 2d at 209. On motions for summary judgment, the reviewing court stands in the same position as the trial court, viewing the evidence in a light most favorable to the nonmoving party. Id. Further, “we may affirm summary judgment ‘on any ground supported by the record.’” Id. (quoting Pac. Marine Ins. Co. v. Dep’t of Revenue, 181 Wn. App. 730, 737, 329 P.3d 101 (2014)).
Because this court’s review is de novo, findings of fact and conclusions of law are unnecessary on summary judgment. Nelson v. Dep’t of Lab. & Indus., 198 Wn. App. 101, 109, 392 P.3d 1138 (2017), review denied, 190 Wn.2d 1025 (2018); CR 52(a)(5)(B). Further, in the case of written motions, “oral argument is a matter of discretion, so long as the movant is given the opportunity to argue in writing his or her version of the facts and law.” State v. Bandura, 85 Wn. App. 87, 93, 931 P.2d 174, review denied, 132 Wn.2d 1004 (1997). B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)
1. Legal Principles For an IIED claim, a party must show “(1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to the plaintiff of severe emotional distress.” Christian v. Tohmeh, 191 Wn. App. 709, 735, 366 P.3d 16 (2015), review denied, 185 Wn.2d 1035 (2016). Extreme and outrageous conduct must be “so outrageous in character and
extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. at 736.
On summary judgment, trial courts must make an initial determination regarding whether the conduct is so extreme and outrageous as to warrant a factual determination by the jury. Id. The requirement of outrageousness is a difficult standard to meet. Id. “‘[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities’” are insufficient for claims of IIED. Kloepfel v. Bokor, 149 Wn.2d 192, 196, 66 P.3d 630 (2003) (internal quotation marks omitted) (quoting Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)); accord Reyes v. Yakima Health Dist., 191 Wn.2d 79, 91, 419 P.3d 819 (2018) (“Liability generally will not extend to threats alone.”).
Courts may consider several factors when determining whether conduct supports an IIED claim, including:
(1) the position the defendant occupied, (2) whether the plaintiff was particularly susceptible to emotional distress and the defendant was aware of the susceptibility, (3) whether the defendant’s conduct was privileged, (4) whether the degree of emotional distress was severe as opposed to merely annoying, inconvenient or embarrassing, and (5) whether the defendant was aware of a high probability that his or her conduct would cause severe emotional distress, and consciously disregarded that probability.
Sutton, 180 Wn. App. at 870.
There must also be evidence of severe emotional distress. Kloepfel, 149 Wn.2d at 203.
Emotional distress may include fright, horror, shame, humiliation, anger, and nausea. Id. Severe emotional distress is distress “‘that no reasonable man could be expected to endure it.’” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. j at 77 (1965)). The distress must be more than transient or trivial. Sutton, 180 Wn. App. at 872. A party is not required to show objective
symptomology of severe emotional distress in order to recover on an IIED claim. Kloepfel, 149 Wn.2d at 198.
2. Denton’s Claim for IIED Fails Denton argues that the conduct—specifically, the remarks—of the corrections staff to him on December 31, 2017, as well as the staff’s failure to prevent Denton from self-harm, were so outrageous as to warrant a factual determination by the jury. Denton further asserts he suffered severe emotional distress as a result of the conduct, as evidenced by his description of the symptoms he experienced and a “declaration from a renowned psychologist.” Br. of Appellant at 45.
Denton’s claim for IIED appears to be based solely on the events of December 31, 2017.
To survive summary judgment, Denton must demonstrate genuine issues of material fact regarding “(1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to the plaintiff of severe emotional distress.” Christian, 191 Wn. App. at 735. While Denton may demonstrate a genuine issue of material fact regarding whether he was subject to outrageous conduct based on the alleged verbal abuse on December 31, Denton fails to establish a genuine issue of material fact as to whether he suffered severe emotional distress based on the alleged verbal abuse.
a. Extreme and outrageous conduct Denton makes a passing remark regarding the conditions of his COA cell, such as the lack of plumbing and fresh water, but Denton does not appear to allege his placement in an E-tier cell on suicide watch itself was outrageous conduct. Indeed, in Denton’s brief, Denton states:
The central question before this Court is whether, given these undisputed circumstances, the vile and dehumanizing remarks that corrections staff made to Denton, while he was in a known mental health crisis under suicide watch, create a genuine issue of material fact as to whether [the Defendants] engaged in outrageous conduct justifying liability.
Br. of Appellant at 37. Denton highlights the alleged outrageous conduct on the part of the on- duty corrections staff before and during his self-harming conduct as the basis of his IIED claim.6 Specifically, Denton asserts that as a mentally ill inmate, he was “peculiarly susceptible to emotional distress due to his long-documented history of mental illness, self-harming behaviors, and psychological instability under stress.” Br. of Appellant at 36-37. Thus, the corrections staffs’ “vile and dehumanizing remarks” to Denton constitute “outrageous conduct justifying liability.” Br. of Appellant at 37. The Defendants argue that even if the corrections staff engaged in verbal abuse, “the totality of the circumstances negate any claims of outrageous conduct.” Br. of Resp’t at 34.
According to Denton, after he asked to Scholl to transcribe a grievance on his behalf, Scholl responded with abusive language, which included, “‘F*** off you dumb retard,’” and “‘You heard me you dumb piece of s*** retard. I said f*** off. You ain’t got s*** coming.’” CP at 1181. When Denton asked to speak with the on-duty sergeant, Scholl replied, “‘I ain’t calling the sergeant. Why don’t you try to kill yourself like the dumb f*** next door in Cell 1 is trying to
6 Denton only discussed the conditions of his confinement in his briefing to provide context for his IIED claim, but during oral argument, Denton argued for the first time that the conditions of his confinement, separate of the events of December 31, 2017, also provide a basis for his claim. Wash. Ct. of Appeals oral arg., Denton v. State, No. 61388-3-II (June 23, 2026), at 33 min, 0 sec. through 33 min., 5 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-2-court-of-appeals-2026061202/?eventID=2026061202. “We need not consider [an] issue[] raised for the first time at oral argument” and thus decline to address it. Apostolis v. City of Seattle, 101 Wn. App. 300, 306, 3 P.3d 198 (2000); RAP 12.1(a).
do.’” CP at 1181. Scholl denies ever using such language. Thus, the parties dispute whether Denton was subject to extreme and outrageous verbal abuse.
While there is evidence that there were cameras recording the events on December 31, the appellate record does not include any videos to corroborate either Denton’s or the Defendants’ versions of whether the verbal abuse occurred. Regardless, the evidence in the record regarding verbal abuse, when viewed in the light most favorable to Denton, raises issues of material fact.
When determining whether conduct supports a claim for IIED, courts may consider the position of the defendant, whether the plaintiff was particularly susceptible to emotional distress and if the defendant was aware of that susceptibility, and whether the defendant was aware his or her conduct would likely cause severe emotional distress, among other factors. Sutton, 180 Wn. App. at 870. Here, the correctional staff were Denton’s jailers; thus, there is a power imbalance. The record shows that Denton has a complicated history of mental health issues and is susceptible to emotional distress. The record also shows that DOC staff were aware of Denton’s mental health issues. Indeed, Denton’s placement in the COA in and of itself meant that Denton was experiencing a mental health crisis insofar as he was suicidal and required constant observation. These factors tend to support Denton’s argument that the alleged verbal abuse was extreme and outrageous. At the very least, viewing the evidence in a light most favorable to Denton, where a corrections officer, who is aware of an inmate’s mental health status with a history of threats of self-harm, is allegedly encouraging that inmate to kill themselves—while that inmate is in the process of self-harming, no less—there exists a genuine issue of material fact as to whether the conduct was extreme and outrageous.
Denton also argues that the Defendants’ conduct after he began self-harming, specifically the “indifference” they exhibited, was extreme and outrageous. Br. of Appellant at 39. In support, Denton submitted a declaration stating that due to the alleged verbal abuse, he began cutting his wrist and hand with a rock found on the floor of his cell “for about an hour and forty-five minutes” until they were “cut open and bleeding.” CP at 1181. According to Denton, Scholl “did not contact medical staff or make any other attempt to stop [him] from injuring [himself]. Instead, [Scholl] laughed and encouraged [Denton] to commit suicide, saying ‘Make sure you do a good job and kill yourself, retard.’” CP at 1181. Denton also claims he began banging his head against the glass for “a total of three hours” without intervention. CP at 1182.
In response to Denton’s opposition to summary judgment, the Defendants submitted evidence that in a 2019 deposition, Denton acknowledged that Sergeant Fletcher and Moore both told him to stop self-harming, but Denton ignored their directions. The Defendants also submitted evidence that showed once Scholl started his shift on December 31, 2017, Scholl logged updates about Denton every 15 minutes. For instance, at 5:00 p.m., Scholl’s logbook proceeded as follows:
1700 [Denton] laying down, rapping 1715 [Denton] laying down, talking to [inmates] down the tier 1728 [Denton] peeling paint off the wall 1731 [Denton] peeled paint, using the paint chips to attempt self-harm, staff dialoguing with [inmate] Denton to get him to talk and uncover
CP at 1356.
According to the logbook, which was contemporaneous with an event, Sergeant Fletcher arrived less than five minutes later to speak with Denton. Denton refused to talk to Sergeant Fletcher.
Scholl then noted Denton scraping his hand or wrist with the paint chip. While this was occurring, corrections staff were monitoring Denton’s conduct and consulting with Davis, the mental health duty officer that day.
Lieutenant Bayer instructed correctional staff to limit their engagement with Denton. In a declaration, Lieutenant Bayer stated that correctional staff will limit their conversation with inmates “because some individuals are agitated by conversations that do not go their way, or they escalate their behavior if they hear a response or comment they do not like. . . . Limiting the conversation to what is necessary decreases the likelihood that the individual might escalate his behavior in an unsafe way.” CP at 56.
The Defendants’ evidence further showed that Denton’s self-harming behavior was not continuous. Moreover, the Defendants’ evidence showed that correctional staff continued attempts to speak with Denton to get him to stop his behavior, contradicting Denton’s contention that no corrections staff attempted to intervene or prevent him from self-harming.
1911 inmate Denton hitting his head on the door 1915 inmate Denton given directive to stop hitting his head, he is threatening staff to break their hands
1928 Sgt. Fletcher talking to inmate Denton 1931 [Denton] hitting his head on the door 1933 Per Sgt. Fletcher directed that we were not to do anything unless [Denton’s] self-harm was life threatening
1936 [Denton] pushing on his cell door 1945 [Denton] laying on the ground talking to other [inmates], giving out a phone # and name 2000 [Denton] laying on the floor, yelling to the other [inmates] 2006 [Denton] hitting his head on the door 2009 [Denton] scratching his hand with a paint chip 2015 [Denton] laying on the floor, yelling to the other [inmates] 2019 inmate Denton threatening to shoot all the staff on the floor
CP at 1357-58.
The Defendants’ evidence also showed that correctional staff had several conversations regarding use of the least restrictive means to keep Denton safe. Correctional staff engaged with Denton several times over the course of three hours, directing him to stop harming himself. Moreover, the Defendants’ evidence showed that once Denton demonstrated that he would not discontinue his self-harming behaviors, correctional staff placed Denton in restraints following consultation with Davis. Once restrained, Denton was in a climate-controlled room, unaffected by temperatures outside.
Although there is strong evidence in the record showing the Defendants conducted themselves in a reasonable manner, the totality of the evidence in the record, when viewed in a light most favorable to Denton, raises genuine issues of material fact regarding outrageous and extreme conduct on the part of the Defendants for the events relating to Denton’s self-harm on December 31, 2017.
b. Denton fails to show Defendants caused severe emotional distress Denton argues that following the events of December 31, 2017, he experienced “severe, enduring, and mentally crippling” psychological distress. Br. of Appellant at 42. The Defendants argue that Denton fails to establish “a causal link between any claimed severe emotional distress and” the December 31 incident. Br. of Resp’t at 41. We agree with the Defendants.
Denton broadly states that he was “vulnerable to emotional distress due to his mental illness.” Br. of Appellant at 45. Denton also points to “a declaration from a renowned psychologist,”—presumably that of Dr. Kupers—as providing evidence of his severe emotional distress, which should have precluded the superior court’s summary judgment dismissal of his IIED claim. Br. of Appellant at 45.
Here, the question is whether Denton demonstrates a genuine issue of material fact as to whether he suffered severe emotional distress as a result of the verbal abuse and conduct of corrections staff on December 31, 2017. In a declaration, Denton stated that he felt “humiliation, fear, anxiety and deep despair” following the verbal abuse. CP at 1181. He further declared that as a result of the events of December 31, he has recurring nightmares and anxiety, headaches, flashbacks, and that he is “now paranoid often and completely distrustful.” CP at 1186. However, the record also shows that the symptoms Denton describes are the same symptoms as those he experienced from his mental health issues prior to the events of December 31. For instance, the record shows that as far back as 2008 and generally well before December 2017, Denton had attempted suicide several times, had been diagnosed with major depression and schizophrenia, among other mental illnesses, had delusions of persecution, and was unable to sleep.
Significantly, the record is devoid of any evidence that the alleged verbal abuse and conduct on December 31 caused Denton severe emotional distress beyond what he was already experiencing. Dr. Kupers’ declaration and evaluation of Denton focused both on the effects of solitary confinement generally and the effects of “solitary confinement” on Denton. CP at 869 (emphasis added). Neither Dr. Kupers’ declaration nor his evaluation of Denton included discussion of any effects of the December 31 incident. But Denton’s IIED claim is based on the events of December 31. While we are empathetic about Denton’s predicament of solitary confinement exacerbating his mental illness symptoms, based on the record before this court, Denton fails to establish that the events of December 31 caused him severe emotional distress that he was not already experiencing.
Thus, while Denton may demonstrate a genuine issue of material fact regarding whether the Defendants’ alleged conduct was extreme and outrageous, Denton fails to establish a genuine issue of material fact regarding whether the conduct caused Denton severe emotional distress. Therefore, we hold that Denton’s claim for IIED cannot survive summary judgment. Christian, 191 Wn. App. at 735. Accordingly, the superior court did not err when it granted summary judgment in the Defendants’ favor and dismissed Denton’s claim for IIED. C. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)
1. Legal Principles In claims for NIED, a party may recover damages if he or she can prove duty, breach, proximate cause, damage, and “‘objective symptomology’” of emotional distress. Kumar v. Gate Gourmet Inc., 180 Wn.2d 481, 505, 325 P.3d 193 (2014) (quoting Strong v. Terrell, 147 Wn. App. 376, 387, 195 P.3d 977 (2008), review denied, 165 Wn.2d 1051 (2009)). A party’s liability for NIED “is measured ‘by the strictures imposed by negligence theory, i.e., foreseeable risk, threatened danger, and unreasonable conduct measured in light of the danger.’” Snyder v. Med. Serv. Corp. of E. Wash., 98 Wn. App. 315, 323, 988 P.2d 1023 (1999) (quoting Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 962, 577 P.2d 580 (1978)), aff’d, 145 Wn.2d 233, 35 P.3d 1158 (2001).
To satisfy the “objective symptomology” requirement, “a plaintiff’s emotional distress must be susceptible to medical diagnosis and proved through medical evidence.” Hegel v. McMahon, 136 Wn.2d 122, 135, 960 P.2d 424 (1998). In other words, there must be “objective evidence regarding the severity of the distress, and the causal link between the [conduct] . . . and the subsequent emotional reaction.” Id.
Washington courts recognize a special relationship between jailers and inmates, “particularly the duty [of jailers] to ensure [the] health, welfare, and safety [of inmates].” Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 635, 244 P.3d 924 (2010). This duty extends to instances of self-inflicted harm. Id. at 639.
2. No Breach of Duty Denton argues that he raised an issue of material fact as to whether the Defendants, as Denton’s jailers, breached their duty to ensure Denton’s health, welfare, and safety. Specifically, Denton asserts the Defendants breached their duty to him “by not having him examined or having an assessment done, both as to the harm he was suffering and as to whether he truly was a threat,” and on December 31, 2017, when corrections staff “allowed Denton to self-harm for hours because they did not wish to be disturbed.” Br. of Appellant at 50-51.
The parties do not appear to dispute the existence of a duty between the Defendants and Denton. Gregoire, 170 Wn.2d at 635. We agree that the Defendants, as Denton’s jailers, owed Denton a duty to ensure his health, welfare, and safety. Id. Rather, the issue here is whether Denton raised a genuine issue of material fact as to the breach of that duty. The crux of Denton’s argument is that DOC failed to appropriately consider Denton’s mental health when it made certain housing decisions and in its response to his self-harming conduct on December 31, 2017.
First, with regard to the events of December 31, 2017, the record shows that Scholl was assigned to observe Denton one-on-one during the 2 p.m. to 10 p.m. shift. As part of the one-to- one observation, Scholl and other officers would make logbook entries every 15 minutes and report Denton’s actions to their superiors as needed.
The record also shows that Denton’s self-harming behavior was not continual. Moreover, correctional staff made several attempts to speak with Denton to get him to stop his behavior. Denton previously acknowledged this. And correctional staff regularly consulted with Davis, the mental health duty officer, regarding Denton’s actions. Davis and other staff had several conversations regarding use of the least restrictive means to keep Denton safe.
The record further shows that once Denton demonstrated that he would not discontinue his self-harming behaviors, correctional staff placed Denton in restraints following consultation with Davis. Once Denton was restrained, Davis continued to be consulted and Davis made recommendations based on Denton’s mental state.
Thus, the record shows that corrections staff did not “allow[] Denton to self-harm for hours because they did not wish to be disturbed,” as Denton baldly asserts. Br. of Appellant at 50-51. “A nonmoving party cannot defeat a motion for summary judgment with conclusory statements of fact.” Baldwin v. Silver, 165 Wn. App. 463, 471, 269 P.3d 284 (2011). Indeed, the record shows the opposite of what Denton contends—Denton was a source of considerable activity for DOC staff both the night and morning of December 31, 2017, and January 1, 2018, respectively. Again, Denton even acknowledged that multiple corrections staff directed him to stop self-harming. Based on the record, even when the evidence is viewed in a light most favorable to Denton, Denton fails to demonstrate a genuine issue of material fact regarding a breach of the Defendants’ duty to keep Denton safe. Accordingly, Denton’s claim for NIED for the events of December 31, 2017 cannot survive summary judgment.
Second, Denton appears to make a more general argument regarding the circumstances of his housing when he contends that the Defendants breached their duty to him when they did not
examine or assess him regarding “the harm he was suffering.” Br. of Appellant at 50. Denton argues that the Defendants were aware of his mental illness and that his mental illness worsened when he was placed in solitary confinement.
However, here, there is nothing in the record suggesting, nor does Denton point to anything in the record showing, that DOC did not take Denton’s mental health into consideration when it came to his housing placement. Instead, the record shows that the Defendants regularly offered Denton mental health services and screenings, which Denton consistently refused. While housed in MAX custody, Denton had access to behavioral programming, and his MAX custody status was reviewed on a regular basis.
In 2016, Denton was placed in MAX custody based on his history of violence towards correctional staff. The record shows that Denton’s infractions included regular assaults on and threats to correctional staff. Per DOC policy, inmates are housed in MAX custody when they present “a serious threat to the safety of employees, contract staff, volunteers, or other offenders through a pattern of violent or seriously disruptive behavior,” or are “[d]esignated offenders with serious mental illness.” CP at 321. Moreover, at one time, Denton even requested to be housed in MAX custody because he did “not get along well with other offenders and want[ed] to have his own cell.” CP at 424.
Denton cannot defeat summary judgment with conclusory statements about DOC’s conduct in regard to his housing placement. Baldwin, 165 Wn. App. at 471. Nor does Denton provide any legal basis supporting the notion that the Defendants owed Denton an additional duty of care beyond his general safety, health, and welfare. Instead, the record shows that housing Denton in MAX custody, based on Denton’s history, was in accordance with DOC policy and was
not unreasonable. A party cannot be liable for NIED when it acts reasonably. See Snyder, 98 Wn. App. at 323.
Because Denton fails to establish a genuine issue of material fact as to whether the Defendants breached their duty to Denton, Denton’s NIED claim cannot survive summary judgment. Accordingly, the superior court did not err when it dismissed Denton’s claim for NIED on summary judgment.7 D. ENTRY OF SUMMARY JUDGMENT ORDER Denton argues that the superior court erred by entering a summary judgment order without oral argument and for failing to enter findings of fact and conclusions of law. We hold that Denton’s challenge fails.
First, because our review on orders for summary judgment is de novo, it is not necessary for a trial court to enter findings of fact or conclusions of law. Nelson, 198 Wn. App. at 109 (stating that “‘[f]indings of fact and conclusions of law are not necessary on summary judgment and, if made, are superfluous’” (quoting Concerned Coupeville Citizens v. Town of Coupeville, 62 Wn. App. 408, 413, 814 P.2d 243, review denied, 118 Wn.2d 1004 (1991))). Indeed, CR 52(a)(5)(B) explicitly states that findings of fact and conclusions of law are unnecessary “[o]n decisions of motions under rules 12 or 56 or any other motion, except as provided in rules 41(b)(3)
7 Both Denton and the Defendants spend portions of their brief arguing about the extent of Denton’s emotional distress and whether that emotional distress was manifested by objective symptomology. First, for the reasons stated in the preceding section, Denton fails to show that the events of December 31, 2017 caused him severe emotional distress. Second, because Denton fails to demonstrate a breach of duty, his claim for NIED fails as a matter of law and we need not address whether Denton exhibited objective symptomology.
and 55(b)(2).” Thus, Denton’s argument that the superior court erred by not entering findings and conclusions is unavailing.
Second, in the case of written motions, “oral argument is a matter of discretion, so long as the movant is given the opportunity to argue in writing his or her version of the facts and law.” Bandura, 85 Wn. App. at 93. Here, the record shows that both parties submitted extensive written materials in the form of motions, declarations and exhibits, oppositions, and replies. Thus, while the superior court did not hear oral argument, both parties were afforded the opportunity to argue their versions of the facts and law in written form. Therefore, we hold that the superior court did not err when it decided the Defendants’ motion for summary judgment without oral argument. E. MOTION TO AMEND COMPLAINT 1. Legal Principles A party may move to amend a complaint and “[l]eave to amend is to be ‘freely given when justice so requires.’” Karlberg v. Otten, 167 Wn. App. 522, 529, 280 P.3d 1123 (2012) (quoting CR 15(a)). Appellate courts review a trial court’s denial of a motion to amend a complaint for abuse of discretion. Grothe v. Kushnivich, 24 Wn. App. 2d 755, 764, 521 P.3d 228 (2022). “To constitute an abuse of discretion, the trial court’s decision must be manifestly unreasonable, based on untenable grounds, or made for untenable reasons.” Id.
A trial court’s primary consideration with a motion to amend is whether the amendment would cause the nonmoving party prejudice. Karlberg, 167 Wn. App. at 529. Courts may consider “potential delay, unfair surprise, or the introduction of remote issues” when determining whether prejudice would result. Id.; accord Oliver v. Flow Int’l Corp., 137 Wn. App. 655, 664, 155 P.3d 140 (2006). Generally, “[w]here a new claim can be litigated with the same evidence that is
already in the case, it may be proper for a trial court to allow an amendment even when the motion to amend is made shortly before trial.” Karlberg, 167 Wn. App. at 529. However, “‘[w]hen a motion to amend is made after the adverse granting of summary judgment, the normal course of proceedings is disrupted and the trial court should consider whether the motion could have been timely made earlier in the litigation.’” Ensley v. Mollmann, 155 Wn. App. 744, 759, 230 P.3d 599 (alteration in original) (quoting Doyle v. Planned Parenthood of Seattle–King County, Inc., 31 Wn. App. 126, 130-31, 639 P.2d 240 (1982)), review denied, 170 Wn.2d 1002 (2010).
2. No Abuse of Discretion Denton argues that the superior court erred when it denied his motion to amend his complaint to add a general negligence claim. Specifically, Denton asserts that the proposed amendment was “based on the same facts as the original complaint,” that he merely sought to clarify his prior theory of recovery under institutional negligence/negligent supervision, and that the Defendants would not be prejudiced. Br. of Appellant at 56. We disagree that the superior court erred.
Here, the record shows that Denton first filed his complaint in February 2020, alleging claims of IIED, NIED, false imprisonment, battery, and negligent supervision and training. The Defendants brought their first motion for summary judgment on October 13, 2022. Denton filed an opposition to the Defendants’ summary judgment motion on November 3, 2022. In Denton’s opposition, he wrote: “Although not specifically stated as a distinct cause of action in the complaint, Denton seeks to pursue a straight negligence claim. To the extent the Complaint is interpreted as not adequately stating a negligence claim against all of the defendants, Denton seeks leave to amend.” CP at 932. However, Denton did not file a motion to amend at that time.
On November 30, 2022, the superior court entered the order granting partial summary judgment, dismissing the bulk of Denton’s claims based on res judicata. On December 9, 2022, the Defendants filed their motion for reconsideration and/or clarification, requesting the superior court to clarify its order for partial summary judgment. Then, on December 13, 2022, Denton filed his motion to amend his complaint, seeking to add a general negligence claim against only some of the Defendants.
The superior court granted the Defendants’ motion for reconsideration and/or clarification, dismissing all of Denton’s claims based on res judicata. Based on the dismissal of Denton’s claims, the superior court denied Denton’s motion to amend.
Denton appealed to this court, and we reversed summary judgment. Denton, slip op. at 2.
We remanded “for the trial court to consider anew [Denton]’s motion to amend the complaint” in light of the reversal. Id.
In June 2024, Denton re-filed his motion to amend his complaint. In Denton’s proposed amended complaint, his claim for general negligence alleged in part:
30. The State of Washington has a special relationship with inmates housed in its prisons and as such owes a common law duty to protect the health and welfare of each inmate by virtue of the fact that it has complete control over an inmate’s liberty and the ability for an inmate to properly care for themselves. It owed a further duty to [Denton] by virtue of the fact that he suffered, and still suffers, from mental illness of which all defendants were aware when they allowed him to self-harm.
31. The defendants were negligent in not protecting [Denton] from self-
harm and for not treating him properly for his injuries as described above. They are also responsible for forcing him to live in unsanitary conditions while housed in the COA.
CP at 1065.
The Defendants opposed the motion, arguing that Denton’s actions had been dilatory, that he brought the motion after several critical deadlines and almost three years after his complaint was first filed. The Defendants again asserted that the amendment would prejudice them because it would require additional discovery, as well as time and expense to defend against the new claim. Moreover, the Defendants argued, “[t]he prejudice to [the] Defendants is further highlighted by Denton’s language related to his negligence claim” because it was “amorphous[,] leaving any specific factual claims available, and unknown to [the] Defendants, over the course of several years.” CP at 1101.
The superior court denied Denton’s motion “for the reasons stated in the Defendants’
opposition materials.” CP at 1110. The order denying the motion to amend further stated: “Given the late stage of the requested amendment, there is undue prejudice to the Defendants.” CP at 1110.
Here, Denton first filed his motion to amend his complaint almost three years after he filed the original complaint. The record also shows that when Denton filed his motion to amend on December 13, 2022, several important deadlines had passed: the witness disclosure deadlines fell between July and October of 2022. The discovery cutoff was December 9, 2022. As the Defendants pointed out in their opposition materials, Denton’s general negligence claim was “amorphous” and vague. CP at 1101. While Denton’s proposed amended complaint appeared to focus on the events of December 31, 2017, it was not to the exclusion of other possible incidents during Denton’s incarceration. Further, the proposed amended complaint appeared to suggest that the Defendants owe a different duty to inmates who suffer from mental illness than those who do
not. Thus, the addition of Denton’s general negligence claim, as drafted, would likely require a new round of discovery or possible additional expert witnesses, as the Defendants argue.
Denton could have brought a negligence claim far sooner than three years after the filing of his original complaint, after the passing of several witness disclosure and discovery deadlines, and two weeks after the superior court’s first summary judgment ruling. See Ensley, 155 Wn. App. at 759. Moreover, as discussed above, given the nature of Denton’s proposed amendment, the parties would likely have needed to engage in additional discovery or procure new expert witnesses, increasing the time and expense of the case, and resulting in prejudice to the Defendants. See Karlberg, 167 Wn. App. at 530; accord Oliver, 137 Wn. App. at 664. These all serve as sufficient grounds for the superior court to have denied Denton’s motion to amend. Accordingly, we hold the superior court did not abuse its discretion when it denied Denton’s motion to amend his complaint. F. MOTION TO STRIKE EVIDENCE 1. Legal Principles A trial court’s summary judgment ruling is based on “the pleadings, depositions, answers to interrogatories, and admissions on file,” as well as supporting affidavits. CR 56(c). “Supporting and opposing affidavits must (1) be made on personal knowledge; (2) set forth facts as would be admissible in evidence; and (3) show that the affiant is competent to testify on the matters contained therein.” Burmeister v. State Farm Ins. Co., 92 Wn. App. 359, 365, 966 P.2d 921 (1998).
We review de novo a trial court’s ruling to strike evidence made in conjunction with a summary judgment motion. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998); Farrow v. Alfa Laval, Inc., 179 Wn. App. 652, 660, 319 P.3d 861, review denied, 181 Wn.2d 1003
(2014). “Evidence submitted on summary judgment must be admissible.” Shavlik v. Dawson Place, 11 Wn. App. 2d 250, 271, 452 P.3d 1241 (2019), review denied, 195 Wn.2d 1019 (2020); Int’l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774 (“‘[C]ourt[s] may not consider inadmissible evidence when ruling on a motion for summary judgment.’” (quoting King County Fire Prot. Dist. No. 16 v. Hous. Auth. of King County, 123 Wn.2d 819, 826, 872 P.2d 516 (1994))), review denied, 153 Wn.2d 1016 (2004); CR 56(e). “Unauthenticated or hearsay evidence does not suffice.” SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 141, 331 P.3d 40 (2014); see generally ER 801-802, ER 901-902.
Authentication is a threshold requirement for admissibility. ER 901(a); Int’l Ultimate, 122 Wn. App. at 746. The proponent seeking to admit a document “must make only a prima facie showing of authenticity.” Id. The authenticity requirement is met “if the proponent shows proof sufficient for a reasonable fact finder to find in favor of authenticity.” Id. “The rule does not limit the type of evidence allowed to authenticate a document; it merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be.” Id.
Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” ER 801(c). Hearsay is inadmissible. ER 802. However, evidence that might otherwise constitute inadmissible hearsay may be admissible for a limited purpose, such as showing notice or state of mind. State v. Lass, 55 Wn. App. 300, 303-04, 777 P.2d 539 (1989); see also Price v. State, 96 Wn. App. 604, 618, 980 P.2d 302 (1999) (allowing out-of-court statements because they were offered to establish notice), review denied, 139 Wn.2d 1018 (2000).
“An erroneous exclusion of evidence is harmless where that evidence is merely cumulative.” Jones v. City of Seattle, 179 Wn.2d 322, 360, 314 P.3d 380 (2013). An error is harmless if it was not prejudicial to the substantial rights of the party assigning it and did not affect the final outcome of the case. Budd v. Kaiser Gypsum Co., 21 Wn. App. 2d 56, 79, 505 P.3d 120, review denied, 199 Wn.2d 1030 (2022).
2. Any Error was Harmless Denton challenges the superior court’s order striking the Eusanio Report.8 Denton argues that the Eusanio Report “was not offered to prove that Denton suffered from mental illness but to show that, after an examination, such was Eusanio’s conclusion and thus it is relevant to show notice.” Br. of Appellant at 62. The Defendants argue that the Eusanio Report is inadmissible because it is not authenticated, Denton did not designate Dr. Eusanio as an expert witness, and the Eusanio Report constitutes hearsay and does not fall under any hearsay exception. Even assuming without deciding that the superior court erred in striking the Eusanio Report, any error was harmless.
Denton intended the Eusanio Report to merely show notice; thus, the report would not have supported Denton’s IIED or NIED claims. As discussed above, Denton failed to demonstrate a genuine issue of material fact regarding whether he suffered severe emotional distress following the events of December 31, 2017 on his IIED claim. Notice of the Eusanio Report would not
8 The Defendants had moved to strike several items in addition to the Eusanio Report. Denton appears to challenge only the superior court’s decision related to the Eusanio Report. Thus, this opinion addresses the superior court’s ruling on the motion to strike only as it pertains to the Eusanio Report.
create any issue of fact with regard to whether Denton suffered severe emotional distress as a result of the December 31, 2017 incident.
Similarly, Denton failed to show a genuine issue of material fact with regard to decisions relating to Denton’s housing within MAX custody for his NIED claim. Inclusion of the Eusanio Report for the limited purpose of notice would not have created a genuine issue of material fact. In fact, the record shows that Dr. Rainer and the mental health staff who worked with Denton considered the Eusanio Report in conjunction with DOC’s own behavioral health records and assessments of Denton. Moreover, the Defendants had their own extensive documentation that Denton suffered from mental illness, and it can be reasonably inferred from those records that solitary confinement likely contributed to Denton’s mental health deterioration. Furthermore, the portions of Dr. Kupers’ declaration and expert report that were not stricken9 generally arrived at the same conclusion as the Eusanio Report—that Denton should not be housed in solitary confinement. Accordingly, the exclusion of the Eusanio Report for the limited purpose of notice was not prejudicial because the same information, notice of the report and Denton’s history of mental illness, was available from other evidence. “An erroneous exclusion of evidence is harmless where that evidence is merely cumulative.” Jones, 179 Wn.2d at 360. Thus, we hold any error in striking the Eusanio Report was harmless.
9 The superior court’s order striking evidence included Kupers’ declaration at ¶14 and “[i]mproper legal opinions/conclusions” in Kupers’ declaration at ¶¶9-10. Br. of Resp’t at 52.
CONCLUSION
We affirm the superior court’s summary judgment dismissal of Denton’s claims for IIED and NIED and affirm the superior court’s orders denying Denton’s motion to amend his complaint and striking evidence.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
Lee, J.
We concur:
Veljacic, C.J.
Glasgow, J.
Michael Denton, V. State Of Washington (Michael Denton, V. State Of Washington) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.