Rogers-Hall v. Cloutier et al

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
JESSICA ROGERS-HALL,
Plaintiff,
v.
DOUGLAS CLOUTIER, MS.
MONTGOMERY, STATE OF OREGON,
JOHN/JANE DOE SECURITY STAFF
Defendants.
Case No. 3:19-cv-01415-AR
FINDINGS AND
RECOMMENDATION
_____________________________________
ARMISTEAD, United States Magistrate Judge
Plaintiff Jessica Rogers-Hall, who was formerly in the custody of the Oregon Department
of Corrections (ODOC) and housed at Coffee Creek Correctional Facility (CCCF), sues
defendants Douglas Cloutier, Victoria Montgomery, and unnamed CCCF supervisory and
security staff, asserting Eighth Amendment claims under 42 U.S.C. § 1983. She also brings a
negligence claim against all defendants and the State of Oregon. Those claims stem from her
allegations that Cloutier sexually abused her—including one incident when Cloutier isolated her
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in the veggie room of the kitchen they worked in and forced her to perform fellatio on him. The
court now considers defendants’ motion seeking partial summary judgment as to Rogers-Hall’s
allegation that Cloutier forced her to perform fellatio in the veggie room, arguing that Rogers-
Hall failed to exhaust her administrative remedies for that allegation. As explained below,
Rogers-Hall did exhaust and that motion should be denied. The state makes the same failure-to-
exhaust argument for defendant Montgomery. Rogers-Hall concedes that argument, and that part
of the motion should be granted. Finally, defendants assert that, because the state does not
consent to being sued in federal court for the negligence claim, its Eleventh Amendment
immunity requires dismissal of that claim. Again, Rogers-Hall does not contest that argument
and the court recommends dismissal of the negligence claim. Accordingly, defendants’ motion
for summary judgment should be GRANTED in part and DENIED in part.
BACKGROUND
Rogers-Hall entered ODOC custody on July 18, 2017, and when she filed her complaint,
Rogers-Hall was incarcerated at CCCF, an Oregon correctional facility for women. (Compl. ¶¶
12, 43, ECF 1; Answer ¶ 1, ECF 5.) At CCCF, Rogers-Hall was provided with a psychological
evaluation and assessment as well as treatment from a qualified mental health provider. (Id. ¶
45.) Because Rogers-Hall was sexually abused when she was in foster care as a child, she has
depression and post-traumatic stress disorder, which have led to hospitalization and suicidal
ideation. (Id. ¶ 44.)
On August 24, 2017, Rogers-Hall was assigned to work in CCCF’s kitchen under the
supervision of Cloutier, a Food Service Coordinator (FSC). Her position as “salad preparer”
required her to be alone in a separate walk-in refrigerator called “the veggie room.” (Id. ¶ 46.)
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Rogers-Hall alleges that, while working in the kitchen, Cloutier “inappropriately touch[ed] her
on the buttocks and brush[ed] against her breasts.” (Id. ¶ 47.) At one point, Cloutier isolated
Rogers-Hall in the veggie room, where he forced her to perform oral sex on him. (Id. ¶ 49.)
After the alleged sexual abuse, Rogers-Hall reported the incident to Montgomery, another
FSC at CCCF. Rogers-Hall alleges that Montgomery accused her of making a false report and
threatened Rogers-Hall’s job privileges. (Id. ¶ 50.) Rogers-Hall next filed a grievance with
CCCF. On September 17, 2017, Rogers-Hall filed Grievance #CCF_2017_09_048, which was
accepted on September 21, 2017. (MSJ at 7, ECF 94.) Among other allegations, Rogers-Hall
alleged in the grievance that Cloutier
repeatedly touched my breasts as he was looking at my lanyard. He would graze
my butt when walking behind me while I was chopping vegetables. His rages
involved pan throwing screaming at all the girls and locking us in the vegy room
& meat room. These occasions have triggered my PTSD, and I sought every
excuse to avoid working with him.
(Grievance 048, ECF 97 at 28.) When prompted with the question, “what action you want taken
to resolve the grievance,” she wrote, “I want no contact with CCCF kitchen or the coordinators. I
want a job with equal pay and counseling for my PTSD.” (Id.)
On September 25, 2017, Rogers-Hall received a “Grievance Response Form,” which
offered condolences for her past experiences with “trauma and/or sexual abuse,” and encouraged
her to “take advantage of the confidential, community-based advocacy services available to
[her].” (Grievance 048 Resp., ECF 97 at 30.) As to the substance of her grievance, the response
stated:
With regards to your grievance alleging sexual abuse, this matter has been
referred to the Oregon State Police, and the employee is not currently working in
the facility.
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(Id.) Rogers-Hall alleges that after she filed her grievance “she was [again] met with hostility
over her complaints and told that she would lose her job.” (Compl. ¶ 52.) Rogers-Hall believes
unnamed supervisory and correctional staff retaliated against her. She claims that “she was
subject to disrespectful conduct” and met with threats “of being put in the hole” and “losing her
privileges.” (Id. ¶ 57.) She also alleges that CCCF staff destroyed her “journals, legal papers and
other information” regarding “complaints she made about this incident, and her attempts to
notify upper management, the press, and other outside sources.” (Id.)
Rogers-Hall’s first claim for relief is an Eighth Amendment failure-to-protect claim in
which she alleges that CCCF staff members violated her Eighth Amendment rights because they
failed to take “any steps to protect women inmates from Mr. Cloutier” and failed to prevent
Cloutier’s violent sexual assault against her. (Id. ¶ 55; 58.) Rogers-Hall’s second claim for relief
alleges that unnamed CCCF supervisors violated her Eighth Amendment rights because they did
not supervise their subordinate employees in a way that would have prevented Cloutier from
sexually abusing her. (Id. ¶¶ 59-62.) In her third claim for relief, Rogers-Hall brings a state-law
claim for negligence against all defendants for their failure to prevent her sexual abuse. (Id. ¶¶
63-66.)
LEGAL STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
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the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255
(1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (simplified).
DISCUSSION
A. 	Exhaustion
The PLRA mandates that an adult in custody (AIC) exhaust “such administrative
remedies as are available” before bringing an action “with respect to prison conditions under
section 1983 of this title, or any other Federal law.” 42 U.S.C. § 1997e(a). “Requiring exhaustion
provides prison officials a ‘fair opportunity to correct their own errors’ and creates an
administrative record for grievances that eventually become the subject of federal court
complaints.” Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (quoting Woodford v. Ngo, 548
U.S. 81, 94 (2006)). The PLRA requires “proper” exhaustion, meaning an AIC “must complete
the administrative review process in accordance with the applicable procedural rules, including
deadlines, as a precondition to bringing the suit in federal court.” Woodford, 548 U.S. at 88. Even
so, “the primary purpose of a grievance is to alert the prison to a problem and facilitate its
resolution, not to lay groundwork for litigation.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.
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2009). A grievance need not contain “every fact necessary to prove each element of an eventual
legal claim.” Id.
Cloutier. Defendants move for partial summary judgment on Rogers-Hall’s Eighth
Amendment claim as to Rogers-Hall’s allegation that Cloutier isolated Rogers-Hall in the
“veggie room” and forcing her to perform oral sex because that particular allegation was not
mentioned in any of her grievances and therefore failed to exhaust her administrative remedies
under the PLRA for that allegation. (MSJ at 10) That argument depends on defendants’
characterization of the veggie room assault as a separate claim:
Plaintiff’s specific claim against Cloutier regarding isolation and forced [oral sex]
cannot move forward as she never grieved them in her prison grievance and
subsequent PREA investigation. Accordingly, the Court should dismiss her claim
for this against Cloutier. 1
(Id.)
The court disagrees with that characterization. Rogers-Hall’s claim alleges an ongoing
pattern of sexually abusive behavior by Cloutier from which supervisors and others responsible
for preventing such abuse failed to protect her. (See Compl. ¶¶ 53-58.) That is, Rogers-Hall
alleges that Cloutier repeatedly engaged in sexual abuse and operated “with impunity” as part of
a then-ongoing violation of her rights under the Eighth Amendment. (Id.) Her claim against
Cloutier describes multiple instances of sexual abuse, but those allegations are framed not as
1 	Congress enacted the Prison Rape Elimination Act (PREA) to “establish a zero-tolerance
standard for the incidence of prison rape in the United States[,] make the prevention of prison
rape a top priority in each prison system[,]” and “protect the Eighth Amendment rights of
Federal, State, and local prisoners[.]” 34 U.S.C. § 30302(1), (2), (7). ODOC establishes various
policies to enforce PREA. Under the relevant ODOC policies, Rogers-Hall’s sexual abuse
allegation was referred to OSP. (MSJ at 10.)
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separate legal claims but as multiple factual allegations supporting a single Eighth Amendment
claim against Cloutier.
Although Rogers-Hall alleges behavior that is a single Eighth Amendment violation, she
still must properly grieve that behavior under the PLRA. 42 U.S.C. § 1997(e)(a). Rogers-Hall
exhausted her administrative remedies as to her Eighth Amendment claims because under the
relevant policies, her grievance put CCCF and ODOC officials on notice of sexual abuse by
Cloutier. A grievance satisfies the PLRA so long as it “alerts the prison to the nature of the wrong
for which redress is sought.” Griffin, 557 F.3d at 1120. A grievance “also need not contain every
fact necessary to prove each element of an eventual legal claim.” Id. Instead, the operative act is
whether the grievance included “enough information . . . to allow prison officials to take
appropriate responsive measures.” Id. at 1121 (quoting Johnson v. Testman, 380 F.3d 691, 697
(2d Cir. 2004)).
In this case, what constitutes “enough information” to allow CCCF and ODOC to take
“appropriate response measures” is determined by the grievance process available to Rogers-Hall
at the time. In 2017, grievances were processed in accordance with the Oregon Administrative
Rules, which defined “sexual abuse” as:
(b). 	Sexual abuse of an [AIC] by a DOC or OCE employee . . .
includes any of the following acts, with or without consent of the
[AIC], detainee, or resident . . .
B. 	Contact between the mouth and the penis, vulva, or anus;
C. 	Contact between the mouth and any body part where the
DOC or OCE employee, contractor, or volunteer of the
department or OCE has the intent to abuse, arouse or
gratify sexual desire. . .
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E. 	Any other intentional contact, either directly or through
the clothing, of or with the genitalia, anus, groin, breast,
inner thigh, or the buttocks that is unrelated to the official
duties or where a DOC or OCE employee, contractor, or
volunteer of the department or OCE has the intent to abuse,
arouse or gratify sexual desire . . .
OAR 291-109-0175 (2014).2 OAR 291-109-0140 (Grievance Review System) guided AICs on
filing grievances. The Grievance Review System directed AICs to “include a complete
description of the incident, action, or application of the rule being grieved, including date and
approximate time.” (OAR 291-109-0140(1)(b) (2014), ECF 97 at 26.) The Grievance Review
System also provided that “an [AIC] may file a single grievance concerning . . . [s]exual contact,
solicitation or coercion between an employee, contractor or volunteer of the ODOC or OCE, and
an [AIC].” OAR 291-109-0140(2)(f) (2014). Rogers-Hall’s description of Cloutier’s intentional
contact—through her clothing and with her breasts and buttocks—fits ODOC’s definition of
sexual abuse. Thus, her grievance placed the relevant officials on notice of the alleged sexual
abuse. Oregon Administrative Rules do not differentiate between forms of sexual abuse but
define sexual abuse broadly. See OAR 291-109-0175 (2014).
Here, the prison’s procedures only required that Rogers-Hall provide a single grievance
alleging “sexual contact, solicitation or coercion” and “a complete description of the incident” to
trigger an investigation by CCCF, ODOC, and OSP. OAR 291-109-0140(1)(b), (f) (2014).
Rogers-Hall did just that in Grievance #CCF_2017_09_048, where she described “Cloutier
2 	In 2017, when Rogers-Hall filed her grievances, OAR 29-109-0120 to 109-0200
governed the grievance process. The Oregon legislature repealed and replaced those rules in
2019. See OAR 291-109-205 to 109-250. The rules relevant to Rogers-Hall’s grievance are in the
record at ECF 97 11-26.
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repeatedly [touching her] breasts” and groping her “when walking behind [her].” (ECF 97 at 28.)
And indeed, that grievance triggered an investigation by OSP. (MSJ at 6.)
The fact that Rogers-Hall’s legal complaint includes more factual details, including an
allegation of forced oral sex, does not defeat exhaustion. The court rejects the underlying
premise of Cloutier’s motion—that Rogers-Hall must exhaust as to each discrete fact alleged in
her complaint. The PLRA requires an exhaustion of claims—not an inventory of every
supporting fact. See Porter v. Nussle, 534 U.S. 516, 530 (2002) (holding that the PLRA’s
exhaustion requirement applies to all claims regarding prison life, “whether they involve general
circumstances or particular episodes”).
Consequently, defendants’ motion for summary judgment should be DENIED as to
Rogers-Hall’s claim against Cloutier.
B. 	Defendant Montgomery
Montgomery moves for summary judgment as to Rogers-Hall’s Eighth Amendment
failure to protect claim. She argues that, to the extent Rogers-Hall alleges retaliation by
Montgomery, she failed to exhaust her administrative remedies under the PLRA. (MSJ at 10-11.)
Rogers-Hall does not contest Montgomery’s motion. (Resp. at 7.) Because it is undisputed that
Rogers-Hall failed to exhaust her administrative remedies against Montgomery, defendants’
motion for summary judgment should be GRANTED as to Rogers-Hall’s claim against
Montgomery.
C. 	Defendant State of Oregon
As to Rogers-Hall’s negligence claims, defendants argue that under the OTCA, all
relevant defendants are substituted by the State of Oregon, and that the state declines to waive its
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sovereign immunity under the Eleventh Amendment. (MSJ at 11.) When state-law claims are
lodged against a public body or its officers, employees, or agents, the only proper defendant is
the State of Oregon. ORS § 30.265. Because the OTCA properly supplants all relevant
defendants with the state, and because the state has not waived its sovereign immunity, this court
lacks jurisdiction to hear those negligence claims. So, defendants’ motion for summary judgment
should be GRANTED as a matter of law on Rogers-Hall’s state-law claims.
D. 	Defendants John/Jane Doe
Rogers-Hall brings various claims against unnamed food service supervisors and security
staff at CCCF (Doe Defendants). (See Compl. ¶¶ 8-9, 11, 55-62.) The court, on its own initiative,
may recommend dismissal of all claims against all unserved defendants under Federal Rule of
Civil Procedure 4(m):
If a defendant is not served within 90 days after the complaint is filed, the court--
on motion or on its own after notice to the plaintiff--must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
FED. R. C IV. P. 4(m). Rogers-Hall has not moved to amend her complaint since filing it in 2019,
even though she retained new counsel in 2022. To date, no party has addressed the various Doe
Defendants or the claims brought against them in any meaningful way. Accordingly, the court
recommends DIRECTING Rogers-Hall to file a stipulated notice voluntarily dismissing all
unnamed Doe Defendants per Rule 41(a)(1)(A)(ii), within 14 days of the subsequent Opinion
and Order. Alternatively, if Rogers-Hall plans to proceed with her claims against the Doe
Defendants, the court recommends DIRECTING her to move for leave to amend her complaint
and identify any unnamed defendant within 14 days of the subsequent Opinion and Order.
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Otherwise, this court will recommend the dismissal of all claims against all Doe Defendants
under Rule 4(m).
CONCLUSION
For the above reasons, Defendants’ motion for summary judgment (ECF 94) should be
GRANTED in part and DENIED in part. Plaintiff’s claims against Montgomery and the State of
Oregon should be DISMISSED without prejudice.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any,
are due within fourteen days. If no objections are filed, the Findings and Recommendation will
go under advisement on that date. If objections are filed, a response is due within fourteen days.
When the response is due or filed, whichever date is earlier, the Findings and Recommendation
will go under advisement.
DATED: November 12, 2025.
___________________________
JEFF ARMISTEAD
United States Magistrate Judge
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