United States District Court, E.D. Pennsylvania
G. SMITH, J.
Process Clause of the Fifth Amendment provides immigration
detainees with the right to be free from physical attack,
including sexual assault. The plaintiff has brought
allegations of institutional sexual assault by a staff member
while she was detained at a county immigration family center.
The plaintiff has sued the assaulting staff member, the
immigration family center, the county, various county
employees, and two federal immigration officers. She
contends, inter alia, that the employees at the
county immigration family center knew of the alleged sexual
assaults but failed to protect her. The two federal
immigration officers, an "employee" and a regional
field office director, have moved to dismiss the claims
against them, asserting, inter alia, that the
plaintiff has failed to state a claim upon which relief can
be granted against them and that they are entitled to
qualified immunity from suit.
court has reviewed the second amended complaint and the
parties' submissions, and will grant both motions to
dismiss. As to the regional field office director, against
whom the plaintiff has asserted claims of failure to protect,
failure to implement policies and practices, and retaliation,
the court will grant the motion to dismiss on qualified
immunity grounds and because a retaliation claim in this
context is not cognizable. Accordingly, the court will
dismiss those claims with prejudice. As to the other federal
defendant, against whom the plaintiff has asserted a failure
to protect claim, the court will grant the motion to dismiss
for failure to state a claim upon which relief can be
granted, but without prejudice.
ALLEGATIONS AND PROCEDURAL HISTORY
in May 2014, the plaintiff, E.D., was a female immigration
detainee at the Berks County Residential Center-Immigration
Family Center ("BCRC-IFC"). BCRC-IFC is operated by
Berks County, pursuant to a contract with United States
Immigration and Customs Enforcement ("ICE") to hold
immigration detainees at the BCRC-IFC. See Second
Am. Compl. at ¶¶ 5, 19. Thus, E.D. was detained by
ICE, a federal agency, but was housed in a county facility
run by county employees. The BCRC-IFC housed approximately
ninety women and children. Id. at ¶25.
defendants in this action are: Daniel Sharkey
("Sharkey"), a former Berks County employee at the
BCRC-IFC, id. at ¶ 7; Thomas Decker
("Decker"), the ICE Field Office Director for the
region that includes the BCRC-IFC, id. at ¶ 8;
Diane Edwards ("Edwards"), the Director of the
BCRC-IFC, id. at ¶ 9; Jeremiah Petrey
("Petrey"), an ICE employee working at the
BCRC-IFC, id at ¶ 10; and John Behm, Jamie
Himmelberger, Erika Taylor, Matthew Malinowski, and Brittany
Rothermel, current Berks County employees at the BCRC-IFC.
Id. at ¶¶ 11-15.
filed a second amended complaint, the operative complaint at
this stage in the proceedings, on October 21, 2016, in which
she alleges that she sought to escape domestic violence and
sexual assault by entering the United States in or around May
2014. Id. at ¶ 16. Upon her entry, E.D. was
detained in an immigration facility in Texas for
approximately one week until she was transferred to the
BCRC-IFC, which is located in Leesport, Pennsylvania.
Id. at ¶¶l7, 18.
her detention at the BCRC-IFC, E.D. was placed in a room with
three adults and three children. Id. at ¶ 21.
There was a staff area in the center of the room, and the
residents' rooms were located on the sides of the staff
area. Id. at ¶ 24. Although there were
surveillance cameras in the common areas and recreation yard,
there were no cameras in the sleeping areas. Id. at
¶ 23. Despite the lack of cameras in the sleeping areas,
security personnel conducted three "counts" during
the day and made rounds every ten to fifteen minutes at
night. Id. at ¶ 22.
after E.D.'s arrival at the BCRC-IFC, she met Sharkey.
Id. at ¶ 26. After approximately a month,
Sharkey attempted to befriend E.D. by giving her and her son
treats, such as chocolate and extra food. Id. at
¶ 27. Sharkey continued to groom E.D. by continuing to
bestow favors upon her, including allowing her to use his
cell phone to call her mother and take pictures, and giving
her and her son toys and clothes. Id. at ¶ 28.
Sharkey even promised to assist E.D. with her immigration
issues by helping her get released from the BCRC-IFC.
Id. at ¶ 29. Other residents and facility
staff, including Petrey, John Behm, Jamie Himmelberger, Erika
Taylor, Matthew Malinowski, and Brittany Rothermel,
"noticed the attention [E.D.] was receiving."
Id. at ¶ 30.
then began touching and kissing E.D. on various occasions.
Id. at ¶¶ 31, 32. Although E.D. did not
want Sharkey to touch her, she feared that he would retaliate
against her if she protested. Id. at ¶ 33. She
refused to touch him, which angered him and led to Sharkey
insulting her. Id. at ¶ 34. Sharkey also told
E.D. that if she told anyone about their relationship, she
would be deported back to Honduras. Id. at ¶
in July 2014, Sharkey began forcing E.D. to engage in sexual
intercourse. Id. at ¶¶ 35, 36. On one
occasion when they were having intercourse in a bathroom, a
seven-year-old girl walked in on them and reported what she
saw to her mother. Id. at ¶ 37. On another
occasion in August 2014, E.D. and Sharkey were having
intercourse in another resident's room. The resident
returned to the room, but it appears that E.D. was able to
convince the resident to leave the room and the resident did
not observe any sexual activity. Id. at ¶¶
August 2014, BCRC-IFC staff members, including Petrey, John
Behm, Jamie Himmelberger, Erika Taylor, Matthew Malinowski,
and Brittany Rothermel, "were aware of [Sharkey and
E.D.'s] intimate relationship but failed to take any
steps to protect [E.D.]" Id. at ¶ 43. In
addition, several witnesses to E.D. and Sharkey's
intimacy complained to the staff about the relationship.
Id. at ¶ 44.
an incident in August 2014 where Sharkey unsuccessfully
attempted to pull down E.D.'s pants because she refused
to submit, Sharkey's employment at the BCRC-IFC ended.
Id. at ¶¶ 40, 45. Prompted by the
residents' complaints, BCRC-IFC staff started
investigating E.D. and Sharkey's relationship.
Id. at ¶ 46. They interviewed E.D., who denied
the sexual assaults because she feared deportation.
Id. Neither BCRC-IFC staff nor ICE officers informed
E.D. that she had not broken any state or federal laws, that
she was a victim under state and federal laws, or that
Sharkey would be considered an abuser. Id. at ¶
continued to conceal her relationship with Sharkey until she
eventually informed her immigration attorney and the
attorney's assistant in the fall of 2014. Id. at
¶ 48. The attorney and his assistant contacted various
ICE employees and offices, including Decker's Field
Office, and informed them of the incidents. Id. at
¶ 49. They also informed Edwards and the BCRC-IFC.
Id. at ¶ 50. At this point, ICE officials took
E.D. to the Berks County District Attorney's office where
a detective and an ICE special agent interviewed her.
Id. at ¶ 51. E.D. informed her interviewers
about her relationship with Sharkey. Id.
E.D. reported the incidents with Sharkey through her
attorney, the defendants "began denying [her] and her
son privileges, such as denying a request for a haircut for
[her] son, even though other children were permitted
haircuts." Id. at ¶ 56. In approximately
November 2014, Edwards directed the BCRC-IFC and staff to
take "many of the women's and girls' clothing,
place  them in garbage bags, and g[i]ve the residents other
clothing that they claimed were more appropriate."
Id. at ¶ 57. In addition, Edwards and the
BCRC-IFC began prohibiting women residents from wearing any
skirts, dresses, tight clothing, or clothing that revealed
any cleavage. Id. at ¶ 58. The other BCRC-IFC
residents blamed E.D. for the change in clothing policy and
isolated her. Id. at ¶ 59.
"in large part to the above-related incidents, "
E.D. formally requested immediate parole in October and
December 2014. Id. at ¶¶ 60, 61. On both
occasions, Decker denied her parole. Id. at
¶¶ 60, 61. Nonetheless, E.D. was eventually
released from the BCRC-IFC on an order of supervision and she
moved to Georgia. Id. at ¶ 62. Sharkey was
later arrested and convicted of institutional sexual assault
for his conduct with E.D. Id. at ¶ 63.
the defendants-Petrey and Decker, both federal ICE
employees-filed motions to dismiss the second amended
complaint. Doc. Nos. 36, 44. The remaining defendants, the
BCRC-IFC, County of Berks, Edwards, John Behm, Jamie
Himmelberger, Matthew Malinowski, Brittany Rothermel, and
Erika Taylor filed an answer with affirmative defenses to the
second amended complaint. Doc. No. 37.
Standard of Review for Rule 12(b)(6) Motions to
Rule of Civil Procedure 12(b)(6) allows a party to move for
dismissal of a complaint or a portion of a complaint for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule
12(b)(6) tests "the sufficiency of the allegations
contained in the complaint." Kost v.
Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation
omitted). As the moving party, "[t]he defendant bears
the burden of showing that no claim has been presented."
Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005) (citation omitted).
general, a complaint is legally sufficient if it contains
"a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). "The touchstone of [this] pleading standard is
plausibility." Bistrian v. Levi, 696 F.3d 352,
365 (3d Cir. 2012). Although Rule 8(a)(2) does "not
require heightened fact pleading of specifics, " it does
require the recitation of "enough facts to state a claim
to relief that is plausible on its face." Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). In other words, "[t]he
plausibility standard is not akin to a 'probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Id. (quotation omitted). Ultimately, a complaint
must contain facts sufficient to nudge any claim "across
the line from conceivable to plausible."
Twombly, 550 U.S. at 570.
implementing the overarching plausibility standard, the court
is required to conduct a three-part inquiry. First, the court
must "outline the elements a plaintiff must plead to a
state a claim for relief." Bistrian, 696 F.3d
at 365 (citations omitted). Second, the court must identify
allegations that are not "entitled to the assumption of
truth" because they "are no more than
conclusions." Id. (citations omitted). Thus,
legal conclusions, whether in pure form or "couched as
factual allegation[s], " and conclusory factual
allegations are not entitled to be assumed true. See
Iqbal, 556 U.S. at 678, 681 (quoting Twombly,
550 U.S. at 555); Siwulec v. J.M. Adjustment Servs.,
LLC, 465 F.App'x 200, 202 (3d Cir. 2012). Finally,
the court must "look for well-pled factual allegations,
assume their veracity, and then 'determine whether they
plausibly give rise to an entitlement to relief"
Bistrian, 696 F.3d at 365 (quotations omitted). This
determination is "a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense." Iqbal, 556 U.S. at 679 (citation
court generally limits this three-part inquiry to "the
allegations contained in the complaint, exhibits attached to
the complaint and matters of public record." Pension
Benefit Guar. Corp. v. White Consol Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993) (citations omitted). However,
the court may also properly consider "an undisputedly
authentic document that a defendant attaches as an exhibit to
a motion to dismiss if the plaintiffs claims are based on the
document." Id. (citations omitted).