The U.S. Court of Appeals for the Fifth Circuit denied claims brought by women who were sexually assaulted while being transported from the notorious T. Don Hutto Residential Center, an immigration prison in central Texas. Doe v. Robertson, No. 13-50459, slip op. (5th Cir. May 6, 2014) (Stewart, Garza, and Southwick). Judge Garza wrote the panel’s opinion.
This case involved complaints by several women who were detained at Hutto and sexually assaulted by Donald Dunn, an employee of the private prison company Corrections Corporation of America (CCA), while being transported by Dunn from Hutto to a local airport or bus station. There is no question that Dunn committed these assaults. In a separate criminal proceeding, Dunn pleaded guilty to state and federal charges related to sexually abusing women. Id. at 2. Named after CCA’s co-founder, the Hutto facility was notorious for housing detained children and women.
The only question before the Fifth Circuit was whether two ICE officers, George Robertson and José Rosado, could be held liable for violating the women’s’ “Fifth Amendment due process right to freedom from ‘deliberate indifference to a substantial risk of serious harm.’” Id. at 1-2. The women “alleg[ed] that the officials knew of a contractual provision requiring that transported detainees be escorted by at least one officer of the same gender, and that the officials understood the provision aimed to prevent sexual assault.” Id. at 2. Ultimately, the Fifth Circuit concluded that having that knowledge was not equivalent to violating the plaintiffs’ right to be free of substantial risk of serious harm.
The legal test for measuring whether deliberate indifference exists requires gauging whether the government official had a subjective indifference to the plaintiff’s basic human need. In Farmer v. Brennan, 511 U.S. 825, 837 (1994), the Supreme Court explained that subjective indifference requires that “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
The migrants claimed that ICE officials Robertson and Rosado were aware of a provision in ICE contract with CCA “requiring at least one transport officer to be the same gender as that of transported detainees, and of the provision’s assault-preventing rationale.” Doe, No. 13-50459, slip op. at 8. Because the Fifth Circuit was reviewing whether the trial court properly denied the officers’ motion to dismiss, the panel did not have to assess these claims except to decide whether they were sufficiently supported to constitute well-pleaded factual allegations rather than merely legal conclusions as required by Aschroft v. Iqbal, 556 U.S. 662, 679 (2009). The court concluded that they were well-plead factual allegations. Doe, No. 13-50459, slip op. at 8-9 & n.4.
The problem for the plaintiffs was that they failed to convince the Fifth Circuit that knowledge of that contract provision and its purpose were enough to show Robertson and Rosado’s indifference to a substantial risk of serious harm in violation of clearly established law. Id. at 10. It was not, the Fifth Circuit concluded, “because no clearly established law provides that violations of contractual terms that aim to prevent sexual assault are ‘facts from which the inference could be drawn that a substantial risk of serious harm exists.’” Id. at 11. The plaintiffs needed to have pointed to more “concrete form[s]” of Robertson and Rosado’s indifference than mere knowledge of a provision in the CCA-ICE contract. Id.
Because the migrants failed to do so, Roberston and Rose were entitled to qualified immunity from liability. Id. at 15.