                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 28 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MONTE C. HOISINGTON,                             No. 10-35917

              Plaintiff - Appellant,             DC No. 3:09 cv-5630 RJB

  v.
                                                 MEMORANDUM *
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.



                   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.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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


                                          -3-
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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