Doe v. Neveleff, A-11-CV-907-LY

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtANDREW W. AUSTIN
PartiesSARAH DOE, et al. Plaintiffs, v. JERALD NEVELEFF, et al. Defendants.
Decision Date08 February 2013
Docket NumberA-11-CV-907-LY

SARAH DOE, et al. Plaintiffs,



SIGNED: February 8, 2013



Before the Court are: Defendants Corrections Corporation of America and Evelyn Hernandez's Amended Motion to Dismiss, filed June 15, 2012 (Clerk's Doc. No. 133); Plaintiffs' Response (Clerk's Doc. No. 135) filed June 28, 2012; and Defendants' Reply (Clerk's Doc. No. 142) filed July 5, 2012.

Also before the Court are: Defendant Williamson County's Motion to Dismiss for Failure to State a Claim for Which Relief Can Be Granted, filed July 5, 2012 (Clerk's Doc. No. 143); Plaintiffs' Response filed July 17, 2012 (Clerk's Doc No. 151); and Defendant Williamson County's Reply (Clerk's Doc. No. 157) filed July 27, 2012. On November 2, 2012, Defendant Williamson County also filed a Motion for Summary Judgment (Clerk's Doc. No. 172). Plaintiffs filed ita Response (Clerk's Doc. No. 176) on November 16, 2012, with a two-part Appendix (Clerk's Docs. No. 177 and 178). Williamson County filed its Reply (Clerk's Doc. No. 179) and a Motion to Strike Plaintiffs' Summary Judgment Evidence (Clerk's Doc. No. 180) on November 29, 2012. Plaintiffs filed a Response (Clerk's Doc. No. 184) on December 6, 2012, and Williamson County filed a Reply (Clerk's Doc. No. 187) on December 13, 2012.

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The last in this series of motions now before the Court are the Federal Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint, filed July 6, 2012 (Clerk's Doc. No. 145); Plaintiffs' Response, filed July 18, 2012 (Clerk's Doc. No. 153); and the Federal Defendants' Reply, filed August 3, 2012 (Clerk's Doc. No. 161).

All of these motions were referred by United States District Judge Lee Yeakel to the undersigned for a Report and Recommendation as to the merits, pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. After reviewing the parties' pleadings, relevant case law, as well as the entire case file, the undersigned issues the following Report and Recommendation to the District Court.


The Bureau of Immigration and Customs Enforcement ("ICE") is the federal agency "responsible for the apprehension and detention of inadmissible and deportable aliens." Safety Nat'l Cas. Corp. v. U.S. Dep't of Homeland Sec., 711 F.Supp.2d 697, 703 (S.D. Tex. 2008) (citing 8 U.S.C. § 1103(a) and 8 C.F.R. Part 236). Aliens in ICE custody are usually detained in facilities owned and operated by either state/local entities or by private prison contractors. Second Amended Complaint at ¶ 32 (Doc. No. 122). The T. Don Hutto Residential Center ("Hutto") is located in Taylor, Texas, and is owned and operated by Corrections Corporation of America ("CCA"). Id., ¶¶ 3, 56, 59.

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Female ICE detainees are housed at Hutto pursuant to an Intergovernmental Services Contract ("IGSC") between ICE and Williamson County, and a Subcontract between Williamson County and CCA. Id., ¶¶ 3, 19, 25, 56-59, 65; see Doc. No. 82, Exhibits 1 and 2. The federal government pays Williamson County, which then pays CCA, a monthy fee to house detainees. Williamson County charges CCA a monthly administrative fee. In addition, CCA pays Williamson County a monthly fee to defray the costs of the Williamson County representative hired to serve as the County's monitor. Id. at ¶¶ 53-54.

Plaintiffs are eight female ICE detainees2 who were apprehended at or near the United States/Mexico border, and detained at Hutto pending a determination of removal. Doc. No. 122, ¶¶ 10-17, 79, 86, 93. They each allege that their "asylum claim was [subsequently] deemed sufficiently meritorious to seek release from detention and pursue it before the immigration court," and that during their transport to the airport or bus station, the male officer escorting them—Donald Dunn, then a CCA employee—stopped at a gas station or house, or pulled off to the side of the road and touched, fondled, and/or groped their "bodies," "arm area," waist, breasts, buttocks, and/or "crotch area." Id., ¶¶ 10-17, 77-131. Plaintiffs allege that Dunn was the only officer transporting them each time. Id. These events allegedly occurred between October 19, 2009, and May 7, 2010. Id. at p. 6.

Plaintiffs filed their Second Amended Complaint on behalf of themselves and all others similarly situated. The defendants who remain in the suit are:

(1) Defendant Jerald Neveleff ("Neveleff"), the Contracting Officer at ICE responsible for administering the contract between ICE and Williamson County governing the detention of female immigrant detainees at Hutto;

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(2) George Robertson ("Robertson"), the Contracting Officer's Technical Representative ("COTR") from the beginning of the Class Period until April 23, 2010;
(3) Jose Rosado ("Rosado"), the COTR from April 23, 2010, until the end of the Class Period;
(4) Williamson County, which contracted directly with, and received federal funds from ICE for the housing of federal detainees within the Hutto facility;
(5) Corrections Corporation of America ("CCA"), which managed the Hutto facility during all time periods relevant to the allegations in this Complaint;
(6) Former CCA Facility Administrator Evelyn Hernandez ("Hernandez"); and
(7) Donald Dunn ("Dunn"), an employee of CCA with the title of Escort Officer and Resident Supervisor at the Hutto facility, who is accused of sexually assaulting the Plaintiffs.3

In their Second Amended Complaint, Plaintiffs bring a Bivens claim against Neveleff, Robertson and Rosado ("the Federal Defendants") alleging that the Plaintiffs' Fifth Amendment rights were violated by these defendants' deliberate indifference in monitoring the Hutto facility. Against Williamson County, Plaintiffs bring a 42 U.S.C. § 1983 claim, asserting violations of their Fifth and Fourteenth Amendment rights. Plaintiffs also raise various federal and state claims against CCA and CCA employee Evelyn Hernandez, the facility administrator at Hutto during the alleged incidents. Doc. No. 122, ¶¶ 28, 245-253, 258-275.4 Plaintiffs also bring various state and federal claims against Dunn, who has not moved to dismiss those claims.

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A. Rule 12(b)(6)

When evaluating a motion to dismiss under Rule 12(b)(6) the complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be taken as true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S. Ct. 1160, 1161 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief," this standard demands more than unadorned accusations, "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Bell Atlantic v. Twombly, 550 U.S. 544, 555-57, 127 S. Ct. 1955, 1965-66 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., 550 U.S. at 570, 127 S. Ct. at 1974. The Supreme Court has recently made clear this plausibility standard is not simply a "probability requirement," but imposes a standard higher than "a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S.662, ___, 129 S. Ct. 1937, 1949 (2009). The standard is properly guided by "[t]wo working principles." Id. First, although "a court must accept as true all of the allegations contained in a complaint," that "tenet" "is inapplicable to legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949-50. Second, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, in considering a motion to dismiss the court must initially identify pleadings that are no more than legal conclusions not

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entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations plausibly give rise to an entitlement to relief. If not, "the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. at 1950. (quoting FED. R. CIV. P. 8(a)(2)).

B. Summary Judgment

Under Federal Rule of Civil Procedure 56, a motion for summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "An issue is material if its resolution could affect the outcome of the action." Commerce and Indus. Ins. Co. v. Grinell Corp., ...

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