Knowledge of contract term violations designed to prevent sexual assault does not equate to knowledge of constitutional violation

Doe v. Robertson, No. 13-50459 (5th Cir. May 6, 2014).

This is an interlocutory appeal in a qualified immunity case. It arises from allegations by several female immigrants under 42 U.S.C. §1983 (5th and 8th Amendment claims) that they were sexually assaulted while being transported from an immigration detention center.

Plaintiffs are female immigrants who, while waiting to be interviewed by asylum officers, were each detained by U.S. Immigration and Customs Enforcement (“ICE”). While this is a federal Bivens action, the qualified immunity analysis is the same for state and local officials. Upon release, each Plaintiff was with a driver from Corrections Corporation of America (“CCA”) to transport to airport or bus station. During these transports the driver, Dunn, allegedly assaulted each Plaintiff. Plaintiffs sued the ICE officers in charge of contract monitoring with CCA. Additionally, the ICE officers, Robertson and Rosado, allowed male drivers to escort female detained without female officers present contrary to ICE policies. Robertson and Rosado moved to dismiss the claim which the trial court denied.

After analyzing the pleadings and taking them as true under Rule 12, the U.S. Court of Appeals for the Fifth Circuit held the Complaint contained well-pleaded factual allegations that both Defendants had actual knowledge of the contractual violations requiring female officers being present during female transports. However, knowledge of violations of contractual terms does not equate to a clearly established law providing that such knowledge can lead to an inference a substantial risk of harm. In other words knowledge of an actual, substantial risk of harm must be more clearly linked than merely knowledge of policy violations designed to prevent such harm. The court expressly declined to hold “If an official knows of a contractual violation, then the risk of sexual assault automatically becomes constitutionally ‘substantial.’” The holding provides a good reference point for how much actual knowledge and knowledge of what an official must have in order to establish liability. The court next determined that since it was taking the pleadings as true, the Plaintiffs’ argument they were not permitted discovery to defeat immunity is misplaced. The court dismissed all of Plaintiffs’ claims on qualified immunity grounds.

If you would like to read this opinion click here. Panel: Chief Justice Garza, Justice Steward and Justice Southwick. The attorney listed for Robertson is Jonathan Heuer Levy.  The attorney listed for Doe is Mark S. Whitburn.