E.A.F.F. v. United States

Decision Date05 July 2013
Docket NumberCivil Action No. SA–08–CA–124–XR.
Citation955 F.Supp.2d 707
PartiesE.A.F.F., et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — Western District of Texas

955 F.Supp.2d 707

E.A.F.F., et al., Plaintiffs,
v.
UNITED STATES of America, et al., Defendants.

Civil Action No. SA–08–CA–124–XR.

United States District Court,
W.D. Texas,
San Antonio Division.

July 5, 2013.


[955 F.Supp.2d 710]


Kevin Lashus, Tindal & Foster, Austin, TX, for Plaintiffs.

Aaron David Nelson, Arthur Laverne Rizer, Glenn S. Greene, Laura Katherine Smith, U.S. Department of Justice, Washington, DC, for Defendant.


ORDER

XAVIER RODRIGUEZ, District Judge.

On this date, the Court considered Defendants James De La Cruz and Jose Gonzalez's Motion for Summary Judgment on Deliberate Indifference Claim (docket no. 276) and Tsegaye Wolde's Motion for Summary Judgment On Count Four (“Deliberate Indifference”) (docket no. 287), and the responses and replies thereto.1 After

[955 F.Supp.2d 711]

careful consideration, the Court grants the motions.

I. Background

Plaintiffs are eleven 2 young men born in Central America who were detained in the United States by Border Patrol agents as undocumented and placed in federal custody pending their immigration proceedings. Each of the Plaintiffs was a minor at the time of his detention, and each was placed at a facility located in Nixon, Texas 3 (“the Nixon facility”) operated by Away From Home, Inc. (“AFH”).4 AFH contracted with the federal government to house unaccompanied, undocumented minors while they awaited the final adjudication of their immigration status. Plaintiffs allege that they suffered “grave and repeated sexual, physical and emotional abuse” at Nixon.

Defendants are employees of the Office of Refugee Resettlement (“ORR”), a federal agency. On March 1, 2003, the Homeland Security Act of 2002 transferred functions under the U.S. immigration laws regarding the care and placement of “unaccompanied alien children” (sometimes referred to as “UAC” 5) from the INS to the Director of ORR. 6 U.S.C. § 279; Pl. Ex. 1. Pursuant to statute, ORR has responsibility for, among other things, “coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status”; ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child; making and implementing placement determinations for all unaccompanied alien children who are in Federal custody by reason of their immigration status; identifying a sufficient number of qualified individuals, entities, and facilities to house unaccompanied alien children; overseeing the infrastructure and personnel of facilities in which unaccompanied alien children reside; and conducting investigations and inspections of facilities and other entities in which unaccompanied alien children reside, including regular follow-up visits to such facilities, placements, and other entities, to assess the continued suitability of such placements. 6 U.S.C. § 279.

ORR created a new office called the Division of Unaccompanied Children's Services (“DUCS”) to carry out these responsibilities. Pl. Ex. 1. DUCS has developed a network of care options for unaccompanied minors, including shelter care, staff secure, foster care, and residential treatment care. Pl. Ex. 1. Although INS had existing facilities in place, most of these were detention facilities, and ORR/DUCS wanted to use alternatives such as shelter

[955 F.Supp.2d 712]

care facilities (like Nixon) in order to better comply with the Flores Settlement Agreement.6 Pl. Ex. 4 (Tota depo.) at 24; Pl. Ex. 1. These facilities generally operate under cooperative agreements and contracts with ORR. A cooperative agreement “is an instrument contemplated by and awarded in accordance with the Federal Grant and Cooperative Agreement Act and the Government Performance and Results Act.” Pl. Ex. 11. “The principal purpose of this relationship is to transfer money, property, services, or anything of value to the Recipient to accomplish a public purpose of support or stimulation. There is substantial involvement anticipated between the Government and the Recipient during performance of the activity, establishing ORR and the Recipient as partners during performance ....” Pl. Ex. 11. Under the Cooperative Agreement, AFH agreed to provide shelter care and other child welfare related services in a state-licensed shelter care program to UAC in the least restrictive setting possible, in accordance with state licensing provisions, ORR/DUCS policies and procedures, and the Flores Agreement. Id.

ORR was to be substantially involved in the programmatic development and ongoing activities, including monitoring and evaluating the provision of services and providing consultation and guidance regarding programmatic issues or concerns as well as technical assistance on ORR's policies and procedures. Pl. Ex. 11. ORR was to conduct program monitoring (including desk monitoring) and site visits to ensure that Nixon's performance was in accord with program requirements and the Agreement. Id. After a monitoring, the ORR Project Officer was to “follow up to ensure the timely resolution of issues that need corrective actions or to confirm the implementation of recommendations made during monitoring.” Id. AFH was required to submit quarterly financial reports and quarterly Program Progress Reports. The Project Officer was to also review all Quarterly Program Progress Reports and other information submitted by Nixon. Financial monitoring and management was coordinated by a Grants Officer. AFH was required to immediately notify ORR of any changes in the status or condition of any child, including any medical emergencies and any abuse or neglect incident handled under state law, and to report serious incidents to ORR/DUCS through a “Serious Incident Report” or “SIR.”

ORR utilized the Nixon facility to house children from 2003 to 2007, when ORR terminated the grant. It is undisputed that the minors remained at all relevant times in the custody of ORR. Plaintiffs were housed at Nixon, and claim they were physically or sexually abused between September 2006 and March 2007. Plaintiffs allege that “the widespread sexual, physical and emotional abuse at the Nixon facility was rampant, open and notorious and either was known or should have been known to all Defendants.” Sixth Am. Compl. ¶ 131.

[955 F.Supp.2d 713]

Seven Plaintiffs, O.B., J.A.A.L., E.A.F.F., P.A.S.G., E.R.J., D.A.E.F., and J.C.C.B., allege that they were sexually abused by a female AFH staff member, Belinda Leal. Leal was employed as a direct care worker at Nixon from December 2006 to February 2007. Leal has since pled guilty and is serving a prison sentence for the molestation of four residents, including Plaintiffs J.C.C.B. and P.A.S.G. and former Plaintiff L.M.V.F., between January 15 and February 7, 2007. Def. EX. 6.7 Plaintiff E.H.C. alleges that Leal approached him, but he rebuffed her. Another Plaintiff, W.O.G., alleges that he was approached by a different female staff member, Lesvia Monreal, who attempted to sexually abuse him, but he rebuffed her.8 W.O.G. alleges that Monreal retaliated against him by forcing him to sleep on the floor, withholding food, and otherwise punishing him.

Plaintiffs O.E.F., J.M.R., and W.O.G. allege that they were physically abused by Nixon staff. The Sixth Amended Complaint alleges that O.E.F. was assaulted and beaten by Ruben Velasquez on two unspecified dates. However, O.E.F.'s deposition testimony states that Velasquez only abused him once, and another staff member, Vasquez, abused him the second time. J.M.R. alleges that Efraen Garcia assaulted and battered him severely in November 2006. Garcia was charged with a class A misdemeanor for injury to a minor as a result of this incident. Pl. Ex. 109 (ORR014236). W.O.G. alleges that he was “beaten by an [unspecified] adult staff member when he attempted to use the telephone on an unspecified date.9

Plaintiffs assert nineteen causes of action against various Defendants. At issue here are the Bivens claims asserted in the Fourth Cause of Action against the individual federal defendants Jose Gonzalez, James De La Cruz, and Tsegaye Wolde. Jose Gonzalez was an ORR Federal Field Specialist (“FFS”) based in San Antonio. Gonzalez Depo. at 8. He became an FFS, assigned to Nixon and two other facilities in Seguin and Corpus Christi, in August 2006. Id. An FFS oversees the services that are provided to the unaccompanied alien children. Id. at 7. An FFS was also to assist the Project Officer “with local related or program compliance issues.” Pl. Ex. 34. In this regard, the FFS “visits

[955 F.Supp.2d 714]

facilities and provides oversight and guidance to facility staff regarding policies and procedures, works with the facilities on administrative issues, and provides follow-up information to the Project Officer.” Id. The FFS also “ensures that the facilities are in compliance with the Cooperative Agreement, Statement of Work, the Flores Agreement, and DUCS Policies and Procedures.” Id. Gonzalez visited the Nixon facility frequently and had an office there. Gonzalez depo. at 23. Gonzalez estimated that he spent about sixty percent of his time at Nixon, and had a staff meeting about once a week with the Nixon director, case managers, clinicians, and other interested parties such as attorneys and the DUCS field coordinator,10 to talk about all of the children in the facility. Id. at 24–26. Gonzalez also testified that he met with the children at Nixon when they requested it. Id. at 40–41. James De La Cruz was an ORR Federal Field Specialist Supervisor (and Gonzalez's supervisor) and was based in Houston.

Tsegaye Wolde became an ORR/DUCS Project Officer in March 2004, and was the Project Officer assigned to monitor and supervise the Nixon facility. Wolde Aff. ¶ 16. He was based in Washington, D.C. According to the Cooperative Agreement, the Project Officer “oversees day-to-day operations of grant and cooperative agreements including but not limited to program...

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