Hunter v. Rohrer et al

Filing 96

ORDER ADOPTING 89 REPORT AND RECOMMENDATION by Judge Benjamin H. Settle. The parties shall submit a joint status report no later than 9/3/2021 regarding trial length and availability.(AMD)

Case 3:18-cv-05198-BHS-JRC Document 96 Filed 08/03/21 Page 1 of 16

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C18-5198 BHS-JRC

DARRICK L. HUNTER,
Plaintiff,

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

CHARLES N. ROHRER, et al.

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Defendants.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable J. Richard Creatura, United States Magistrate Judge, Dkt. 89, and

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Defendants Charles Rohrer and Timothy McCandless’s objections to the R&R, Dkt. 90.
I.

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FACTUAL & PROCEDURAL HISTORY

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Plaintiff Darrick Hunter brings claims arising from his incarceration at Stafford

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Creek Corrections Center (“SCCC”) against SCCC sergeants Rohrer and McCandless

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and SCCC superintendent Defendant Margaret Gilbert. 1 Hunter alleges violations of his

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rights under the Fourteenth Amendment’s Equal Protection Clause, Fourteenth

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The parties stipulated to the dismissal of Gilbert without prejudice. Dkt. 81.

ORDER - 1

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Amendment’s Due Process Clause, First Amendment (retaliation), Fourth Amendment,

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and Eighth Amendment. Dkt. 67. Defendants moved for summary judgment, Dkt. 72, and

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Hunter conceded the dismissal of his Eighth Amendment and Due Process claims, Dkt.

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82 at 24 n.10. Hunter additionally conceded his First Amendment retaliation claim

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against McCandless. Id. at 17 n.7, 18 n.8. The R&R thus considered Hunter’s claims for

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violations of the Equal Protection Clause, First Amendment, and Fourth Amendment

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against Rohrer and his claims for violations of the Equal Protection Clause and Fourth

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Amendment against McCandless. See Dkt. 89 at 2.

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Hunter alleges that Rohrer and McCandless were upset when SCCC custodial

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crew supervisor Mark Sherwood began hiring primarily black offenders for the custodial

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crew. Dkt. 67, ¶¶ 5.3–5.4. He further alleges that Rohrer then implemented a strip search

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policy that targeted only the SCCC custodial crew, that Rohrer and McCandless

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discriminated against him and the custodial crew on the basis of race, and that Rohrer

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retaliated against him when he protested the discriminatory treatment. See, e.g., id. ¶¶ 5.6,

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5.16, 5.19, 5.35.

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Defendants moved for summary judgment, arguing that Hunter had not exhausted

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his claims and that Hunter could not establish the requisite constitutional violations. Dkt.

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72. The R&R concluded that Hunter had exhausted his claims and that questions of

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material fact precluded summary judgment as to the unconceded claims. Dkt. 89.

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Defendants object to the R&R’s denial of their motion for summary judgment, Dkt. 90, to

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which Hunter responded, Dkt. 95.

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II.

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DISCUSSION

Defendants object to the R&R’s conclusion that there are questions of material

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fact precluding summary judgment as to Hunter’s Equal Protection Claim, Fourth

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Amendment Claim, and Retaliation Claim against Rohrer, as well as Hunter’s Equal

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Protection Claim against McCandless. Dkt. 90. They argue that the Court should reject

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the R&R, grant their motion for summary judgment in its entirety, and dismiss Hunter’s

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claims with prejudice.

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The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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A.

Exhaustion

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Defendants first object to the R&R’s conclusion that Hunter exhausted his claim

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about McCandless taking his gloves and glasses and Rohrer making Hunter’s custodial

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crew wear high visibility vests. Dkt. 90 at 1–3. In January 2016, Hunter signed a

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grievance stating that Defendants were harassing him based on his race. See Dkt. 77-6 at

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17. Neither the grievance, nor any of the other grievances, specifically raises the issues of

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McCandless taking Hunter’s gloves and glasses or Rohrer making his crew wear high

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visibility vests.

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Although the exact timing of the gloves and glasses events is unclear, the R&R

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concluded that Hunter had exhausted his remedies because he had already complained of

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Rohrer’s and McCandless’s racial harassment. See Dkt. 89 at 19–20. Other circuits have

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held that “prisoners need not file multiple, successive grievances raising the same issue . .

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. if the objectionable condition is continuing[,]” although the Ninth Circuit has not

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addressed this particular issue. Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013)

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(internal citations omitted). The R&R concluded that Hunter’s claims against Defendants

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in 2016 alleging racial discrimination were sufficient to put the prison officials on notice

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of the problems he was seeking to redress and that Hunter did not need to file a new

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grievance at the time of each alleged instance of discrimination. Dkt. 89 at 20 (citing

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Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010)).

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Defendants object to this conclusion, arguing that the principle under Turley does

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not apply to Hunter’s grievances. Dkt. 90 at 1–2. The Turley court noted that “[s]eparate

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complaints about particular incidents are only required if the underlying facts or the

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complaints are different.” 729 F.3d at 650. Defendants argue that, while Hunter’s

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complaints about the gloves, glasses, or vests could fall “under the racial discrimination

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claim ‘umbrella,’” these incidents were factually dissimilar from his grievance about

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Defendants’ alleged discriminatory statements. 2 Dkt. 90 at 2.

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The Court agrees with the R&R. Viewing the evidence in the light most favorable

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to Hunter, his complaints about Defendants’ alleged racial discrimination put SCCC

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officials on notice of Defendants’ objectionable conduct. The specific disparate treatment

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regarding gloves, glasses, or vests may differ, but the SCCC was on notice of the general

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Defendants additionally argue that Hunter “admits the gloves claim was unexhausted.”
Dkt. 90 at 2 (citing Dkt. 82 at 18 n.8). The Court disagrees with this assessment. The footnote, at
most, concedes that Hunter did not grieve the gloves or glasses incident; it is not a concession
that the claims are unexhausted under any legal principles.

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nature of Hunter’s claims—that Defendants were discriminating against him on the basis

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of his race. See Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (citing, inter alia,

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Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). Indeed, “once a prison has received

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notice of, and an opportunity to correct, a problem, the prisoner has satisfied the purpose

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of the exhaustion requirement.” Turley, 729 F.3d at 650. Hunter had previously raised the

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issue of Defendants’ racial discrimination, and SCCC officials had an opportunity to

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correct the problem but the discrimination continued. The Court thus agrees with the

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R&R that Hunter exhausted his claims for racial discrimination.

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The R&R is therefore ADOPTED as to this issue.

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B.

Claims against McCandless
Defendants next argue that Hunter expressly conceded “any independent claim”

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related to the gloves, glasses, or vests incidents, relying primarily on a footnote in

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Hunter’s response in opposition to their motion for summary judgment. Dkt. 90 at 3. The

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footnote at issue states that the incidents involving McCandless’s alleged confiscation of

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Hunter’s gloves and glasses and Rohrer’s requirement that Hunter’s crew alone had to

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wear safety vests “should be considered as further evidence of Rohrer’s and

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McCandless’s animus toward, and disparate treatment of, Hunter and his black

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crewmates, as well as further evidence of Rohrer’s retaliation against Hunter.” Dkt. 81 at

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18 n.8. Defendants argue that Hunter thus concedes these claims as a basis for his Equal

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Protection claim and that the amended complaint’s Equal Protection allegations focus on

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the strip searches. Defendants assert that, therefore, there are no remaining claims against

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McCandless and that McCandless should be dismissed.

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The Court disagrees with Defendants’ characterization of the R&R and of

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Hunter’s amended complaint. Hunter makes explicit references to the safety glasses

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incident, Dkt. 67, ¶ 5.34, and gloves incident, id. ¶ 5.35, which Hunter re-alleged in

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stating his Equal Protection claim for relief, id. ¶¶ 6.1–6.3. The R&R did not

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“manufacture claims related to the gloves, vests, and glasses” as Defendants suggest. Dkt.

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90 at 3. Further, the footnote in Hunter’s response does not concede these claims; rather it

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makes explicit that these incidents support Hunter’s Equal Protection claim. The R&R

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properly considered Hunter’s Equal Protection claim against McCandless as alleged in

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the amended complaint. The Court agrees with the R&R that issues of fact preclude

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summary judgment.
The R&R is therefore ADOPTED as to Hunter’s claims against McCandless, and

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Defendants’ motion for summary judgment is DENIED as to this issue.

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C.

Equal Protection Claim

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Defendants next argue that the R&R erred in finding genuine issues of fact

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precluding summary judgment as to Hunter’s Equal Protection strip search claim against

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Rohrer. They assert that the R&R made unreasonable inferences, relied on Hunter’s

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“sham” declaration, relied on Hunter’s conclusory statements, and failed to consider the

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uniqueness of the custodial crew. Dkt. 90 at 4.

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Similarly Situated Group

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The R&R concluded that Hunter created factual issues regarding whether other

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prisoners who were not strip searched were similarly situated to Hunter’s custodial crew

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in relevant aspects. Dkt. 89 at 23–24. Defendants argued that multiple factors—

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predictability and frequency of access, scope of work, lack of direct supervision, and

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predictability of which prisoners would be present—rendered the custodial crew unique

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from other crews entering the Extended Family Visit (“EFV”) area of the SCCC HUB

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(who were not strip searched). The R&R concluded that Hunter created issues of material

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fact regarding whether the factors asserted by Defendants are truly unique. For example,

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the R&R determined that there were other regular activities performed in the EFV units

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by other crews related to daily sanitation and garbage pickup.

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Defendants launch several objections, which are without merit. First, they argue

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that the R&R erred in finding a question of fact about the custodial crew’s supervision

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because Hunter stated that he was unaware that he left his supervisor’s (Sherwood) line

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of sight. But Defendants do not explain how the R&R erred in considering the statement.

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They also reiterate their arguments that the R&R considered about the timing of other

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crews entering the EFV units and reiterate that the custodial crew was unique. But

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viewing the evidence in the light most favorable to Hunter, there are questions of fact

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about whether the custodial crew is truly unique or whether there is a similarly situated

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group.

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They also argue that when “properly viewing the evidence,” the Court should

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conclude that Hunter cannot identify any similarly situated group. Dkt. 90 at 4.

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Defendants, in part, argue that the R&R incorrectly understood the evidence they

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provided in support of their motion. But a court must resolve any factual issues in favor

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of the nonmoving party when the facts specifically attested by that party contradict facts

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specifically attested by the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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253–54 (1986). The R&R’s and the Court’s view of the evidence submitted by the parties

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must be done in the light most favorable to Hunter. The Court agrees that viewing the

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work orders in the light most favorable to Hunter creates issues of fact as to whether

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Hunter has identified other, similarly situated groups that were treated differently based

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on race. The arguments and evidence raised in the Defendants’ objections only further

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support the R&R’s conclusion that this dispute must be resolved by a factfinder.

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Finally, Defendants argue that the R&R improperly credited Hunter’s “conclusory

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statement” in his declaration that other crews accessed the EFV units on a regular and

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predictable basis. Dkt. 90 at 7. They assert that his declaration is contradicted by his

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deposition. See Dkt. 30-1 at 52:1–6 (“[we] went out there all the time to for the cleaning,

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but [the other work crews] would go out there as needed.”). They argue that a question of

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fact cannot be created by Hunter’s affidavit contradicting his prior testimony. See Van

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Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). But it is not Hunter’s

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testimony or declaration alone that creates the questions of fact regarding similarly

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situated groups—the work orders, other SCCC documents, and Defendants’ testimony

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(all of which the R&R considered) evidence that other crews entered the EFV regularly.

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Whether this regularity meets the same level of predictability Defendants assert Hunter’s

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crew had is a question of material fact.

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The Court thus agrees with the R&R that genuine issues of fact prevent summary

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judgment as to Hunter’s Equal Protection claim regarding strip searches on the basis that

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Hunter has not identified a similarly situated comparison group.

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2.

Racial Animus

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Defendants, in the alternative, moved for summary judgment on Hunter’s Equal

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Protection claim arguing that Hunter failed to provide evidence that the strip search

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policy was pretext for racial discrimination. Hunter argued in response that Rohrer

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ordered strip searches of only his custodial crew, which was primarily composed of black

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offenders, even though the facility manager, Chris Idso, requested a policy to strip search

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all porter crews who accessed the EFV units. He also argued that Rohrer implemented the

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strip search policy only after Sherwood began hiring black custodial crew employees.

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The R&R concluded that there were material issues of fact precluding summary

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judgment, specifically as to whether “porter crews” incorporated other crews or was just

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the custodial crew and whether and when Rohrer became aware of Sherwood’s practice

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of hiring primarily black offenders. Dkt. 89 at 25–29. In sum, the R&R reached the

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conclusion that there are “genuine issues of material fact regarding whether Rohrer in

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fact used the stirp search policy as pretext to harass the primarily black custodial crew.”

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Id. at 27.

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Defendants first object to the R&R’s conclusion that there are questions of fact

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about whether a “porter” describes only a custodial worker or includes workers from

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other crews. Dkt. 90 at 8. They argue that all the evidence shows that “porters” are only

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the custodial crew. They assert that Hunter’s testimony that his understanding of the term

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“porter” cannot create a genuine question of fact and that his understanding is blatantly

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contradicted by the record. But Hunter’s crew supervisor Sherwood testified that there

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were unit porters separate and distinct from his custodial crew. See Dkt. 86-3 at 115:24–

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116:17. Viewing the evidence in the light most favorable to Hunter, the Court agrees with

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the R&R that there are questions of fact as to what crews fell under the strip search policy

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and what crews were considered “porters.”

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Defendants also argue that the R&R erroneously concluded that Sherwood hired

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the first black custodian crew member, but the Court does not agree that the R&R

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reached such a conclusion. Defendants provide new evidence that black offenders were

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hired prior to Sherwood began his hiring practice. See Dkt. 92-1. It is unclear how this

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new evidence alters the R&R’s analysis—rather, the new evidence only further supports

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the R&R’s conclusion that there are questions of fact. Even if black offenders were

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occasionally hired prior to Sherwood becoming the custodial crew supervisor, Hunter

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alleges and provides evidence that the strip searches only began after Sherwood began

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hiring primarily black offenders. The Court agrees that there is a question of fact as to

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whether the strip searches were implemented as pretext to harass the primarily black

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custodial crew.

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Defendants’ remaining objections fair no better. They simply reiterate arguments

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that the R&R thoroughly considered. Compare Dkt. 87 at 7–8 with Dkt. 90 at 9–10.

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Objections to a R&R are not a vehicle to relitigate the same arguments carefully

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considered and rejected by the Magistrate Judge. See, e.g., Fix v. Hartford Life &

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Accident Ins. Co., CV 16–41–M–DLC–JCL, 2017 WL 2721168, at *1 (D. Mont. June 23,

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2017) (collecting cases). The Court agrees with the R&R that there are genuine issues of

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fact about whether Rohrer was aware of the racial composition of the custodial crew. And

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as discussed above, there are genuine issues of fact about the custodial crew’s

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predictability. A factfinder must determine whether the strip searches were pretext for

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racial discrimination.
Therefore, the R&R is ADOPTED as to these issues, and Defendants’ motion for

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summary judgment is DENIED as to Hunter’s Equal Protection claim.

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D.

Fourth Amendment Claim

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Defendants additionally object to the R&R’s recommendation that the Court deny

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their motion as to Hunter’s Fourth Amendment claim against Rohrer. Dkt. 90 at 10–11. It

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is noteworthy that Defendants did not provide any argument in their motion for summary

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judgment about why it was reasonable or necessary to dispense with Department of

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Corrections strip search policies, see Dkt. 89 at 31, and now raise arguments and submit

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new evidence about why the searches were reasonable. A district court has discretion to

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consider evidence presented for the first time in a party’s objections. See United States v.

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Howell, 231 F.3d 615, 621–22 (9th Cir. 2000). The Court will consider the new

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arguments and evidence raised by Defendants as they do not alter the Court’s ultimate

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conclusion and will not prejudice Hunter.

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Hunter alleges that Rohrer violated his Fourth Amendment rights because there

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was no valid penological justification for the strip search policy and it was objectionably

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unreasonable. Dkt. 67, ¶¶ 6.14–6.15. The Fourth Amendment applies to the invasion of

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bodily privacy in prisons. See, e.g., Bull v. City & Cty. of San Francisco, 585 F.3d 964,

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974–75 (9th Cir. 2010). “Whether a search is reasonable under the Fourth Amendment

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requires a case-by-case ‘balancing of the need for the particular search against the

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invasion of personal rights that the search entails . . . .’” Byrd v. Maricopa Cty. Sheriff’s

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Dept., 629 F.3d 1135, 1141 (9th Cir. 2011) (quoting Bell v. Wolfish, 441 U.S. 520, 559

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(1979)). “The required factors for courts to consider include: (1) the scope of the

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particular intrusion, (2) the manner in which it is conducted, (3) the justification for

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initiating it, and (4) the place in which it is conducted.” Id. (quoting Bell, 441 U.S. at 559

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(internal quotation marks omitted)).

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The R&R concluded that Hunter provided evidence “from which a fact finder

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could conclude that Rohrer implemented a policy of strip searching only the custodial

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crew, without requiring documentation or that the strip searches be conducted in the

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appropriate location, as a pretext for racial discrimination.” Dkt. 89 at 31. Further, the

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R&R concluded that Hunter presented evidence creating factual disputes material to “the

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manner of the searches, the justifications for them, and the place in which they were

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conducted[.]” Id.

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Defendants argue that the R&R conflates the material questions of fact regarding

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Hunter’s Equal Protection claim with his Fourth Amendment claim. It is true that “[a]n

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action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s

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state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’”

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Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006) (quoting Scott v. United States,

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436 U.S. 128, 138 (1978)) (second alteration and emphasis in original). But Rohrer can

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violate the Equal Protection clause by treating Hunter and the custodial crew differently

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than similarly situated individuals through targeting the strip searches only to them, and

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the strip search itself can violate Fourth Amendment if it is an objectively unreasonable

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search. The strip search can be both a pretext for racial discrimination under a subjective

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standard and unreasonable under an objective standard. The R&R correctly applied the

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factors laid out in Byrd to the facts here. See Dkt. 89 at 31–32.

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Indeed, the Defendants’ new arguments and evidence only further support the

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R&R’s conclusion that issues of material fact preclude summary judgment. For example,

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Defendants argue that the R&R erred in finding that the location of the searches was

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unreasonable because they were conducted in the EFV units. Dkt. 90 at 10. They provide

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evidence of SCCC policy that allows for stirp searches to be conducted at other locations

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throughout the facility if “measures are taken to ensure the privacy.” Dkt. 92-2. But the

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R&R did not conclude that the location of the search was unreasonable—rather it

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concluded that questions of fact preclude determining that the searches did not violate

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Hunter’s Fourth Amendment rights. Hunter provided evidence that the strip searches did

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not conform with SCCC policy. See, e.g., Dkt. 86-4 at 57:13–58:8. Defendants’ new

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evidence does not alter the analysis. Whether the searches did in fact conform with SCCC

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policy must be determined by a fact finder.

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Defendants also argue that there is no evidence that Rohrer was personally

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involved in any of the allegedly abusive strip searches. But as the R&R notes, Rohrer

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testified that he directed his staff to start the strip searches, see Dkt. 86-5, at 189:15–22,

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which creates a question of material fact as to what extent Rohrer directed searches that

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violated SCCC and DOC policy (and Hunter’s Fourth Amendment rights). In sum, the

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R&R correctly concluded that questions of fact preclude summary judgment, and

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Defendants’ new arguments and evidence do not alter that conclusion.

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Therefore, the R&R is ADOPTED as to this issue, and Defendants’ motion for

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summary judgment is DENIED as to Hunter’s Fourth Amendment claim.

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E.

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Retaliation Claim
Finally, Defendants argue that the R&R erred in not recommending that the Court

dismiss Hunter’s retaliation claim against Rohrer.
They first argue that Hunter has not presented evidence that retaliation was the

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“substantial” or “motivating” factor behind Rohrer’s conduct. Dkt. 90 at 11 (citing

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Brodheim v. Cry, 584 F.3d 1261, 1271 (9th Cir. 2009)). Defendants are correct that, to

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prevail on a retaliation claim, a plaintiff must show that their protected conduct was the

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“substantial” or “motivating” favor behind the defendant’s conduct. Brodheim, 584 F.3d

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at 1271 (internal citations omitted). But, importantly, “[t]o show the presence of this

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element on a motion for summary judgment, [Hunter] need only ‘put forth evidence of

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retaliatory motive, that, taken in the light most favorable to him, presents a genuine issue

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of material fact as to [Rohrer’s] intent’ . . . .” Id. (quoting Bruce v. Ylst, 351 F.3d 1283,

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1289 (9th Cir. 2003)). The R&R correctly applied this standard and correctly concluded

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that Hunter provided sufficient evidence of a retaliatory motive.

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Defendants additionally assert that the R&R wrongly concluded that “Rohrer’s

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asserted justifications for his actions are false” because Hunter presented evidence

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contradicting Rohrer’s justifications. Dkt. 90 at 12. The R&R did not make any findings

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of fact about the falsity or truthfulness of the evidence submitted. See, e.g., Anderson,

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477 U.S. at 250 (“at the summary judgment stage the judge’s function is not himself to

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weigh the evidence and determine the truth of the matter but to determine whether there

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is a genuine issue for trial”). Rather, the R&R again applied the correct retaliation

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summary judgment standard: “prison officials may not defeat a retaliation claim on

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summary judgment simply by articulating a general justification for a neutral process,

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when there is a genuine issue of material fact as to whether the action was taken in

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retaliation for the exercise of a constitutional right.” Bruce, 351 F.3d at 1289. The Court

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agrees with the R&R’s careful and thorough analysis that issues of material fact preclude

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any determination at this stage whether Rhorer’s actions were justified, advanced

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legitimate penological goals, or were retaliatory.

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Therefore, the R&R is ADOPTED as to this issue, and Defendants’ motion for
summary judgment is DENIED as to Hunter’s First Amendment retaliation claim.
III.

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ORDER

The Court having considered the R&R, Defendants’ objections, and the remaining
record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED;

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(2)

Defendants’ motion for summary judgment, Dkt. 72 is GRANTED in part
and DENIED in part;

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(3)

Plaintiff’s claims for violations of the Eight Amendment and Due Process

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against all Defendants are DISMISSED without prejudice, and his claims

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for violations of the Fourth Amendment against McCandless is

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DISMISSED with prejudice;

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(4)

Plaintiff’s claims against Defendant Margaret Gilbert are DISMISSED

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without prejudice, and the Clerk shall terminate Gilbert as a defendant;

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and

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(5)

The referral to Judge Creatura is terminated, and the parties shall submit a

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joint status report no later than September 3, 2021 regarding trial length and

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availability.

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Dated this 3rd day of August, 2021.

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A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 16