Monte C. Hoisington v. Robin Williams

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONTE C. HOISINGTON,
Plaintiff - Appellant,
v.
ROBIN WILLIAMS; SUSAN N.
DREYFUS, Secretary, Dept. of Social and
Health Services; HENRY RICHARDS;
KELLY CUNNINGHAM, Superintendent,
Secretary, Dept. of Social and Health
Services; RONALD VAN BOENING,
Superintendent, McNeil Island Correction
Center,
Defendants - Appellees.
No. 10-35917
DC No. 3:09 cv-5630 RJB
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted October 10, 2012
Seattle, Washington
Before: TASHIMA, M. SMITH, and CHRISTEN, Circuit Judges.
FILED
NOV 28 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Monte Hoisington, a sex offender and civil detainee at Washington State’s
Special Commitment Center (“SCC”), appeals the entry of summary judgment in
favor of current and former state officials (collectively, the “Defendants”). The
district court ruled that Defendants’ policies for transporting detainees – which
included pre- and post-transport strip searches – did not violate Hoisington’s
Fourth Amendment or substantive due process rights. We remand the injunctive
claim for further proceedings in light of changed circumstances, but we affirm the
denial of monetary relief.
1. Hoisington’s claims turned, in part, on the fact that transportation of
SCC residents was conducted by officials of the Washington State Department of
Corrections (“DOC”) pursuant to DOC policies that apply to prisoners. This
collaboration arose, in part, because both the SCC and a DOC detention facility
were located on McNeil Island off the Washington coast. Thus, Hoisington argued
that he, as a civil detainee, was improperly subject to the same treatment as
criminal inmates. DOC participation was also potentially relevant because SCC
residents were transported on the same ferries as prisoners. Defendants contended
that this mixing of SCC residents and prison inmates heightened the risk of
contraband exchange.

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After the district court issued its summary judgment ruling, Defendants filed
a motion to supplement the record and submitted a declaration from an SCC
official in support, explaining that: (1) the DOC had terminated all operations on
the island; and (2) transportation of SCC residents was now performed by SCC
staff pursuant to SCC policies. The district court denied the motion to supplement;
nevertheless, Defendants included the new declaration as an appendix to their
answering brief on appeal. Defendants’ counsel also reiterated the relevance of the
changed circumstances during oral argument.
We decline to take judicial notice of the facts discussed in the declaration
and at oral argument. Instead, in light of these changed circumstances, we remand
to the district court for further proceedings on Hoisington’s request for injunctive
relief. See Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 857 n.19 (1982)
(reviewing court should remand for further proceedings rather than make its own
factual determination).
2. But the claim for monetary relief stands on a different footing because
the issue of liability for damages is determined on the facts and the law as they
existed as of the time of the events recited in the complaint. Although courts have
addressed analogous policies as applied to pretrial detainees, see, e.g., Florence v.
Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012), no precedent clearly

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establishes the scope of a civilly-committed sex offender’s Fourth Amendment and
substantive due process rights in the circumstances that prevailed on McNeil Island
at the time of the events alleged in the complaint. Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2080 (2011). We conclude, therefore, that Defendants are entitled to
qualified immunity on the claim for monetary damages; accordingly, we affirm the
district court’s grant of summary judgment to Defendants on that claim.
Each party shall bear his or its own costs on appeal.
AFFIRMED in part, VACATED in part and REMANDED.

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