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E.D. v. Sharkey

United States District Court, E.D. Pennsylvania

May 16, 2017

E.D., Plaintiff,


          EDWARD G. SMITH, J.

         The Due 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.

         The 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.


         Beginning 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.

         The 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.

         E.D. 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.

         Upon 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.

         Shortly 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.

         Sharkey 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 ¶ 41.

         Starting 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 ¶¶ 38, 39.

         By 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.

         After 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 ¶ 47.

         E.D. 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.

         After 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.

         Due "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.

         Two of 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.


         A. Standard of Review for Rule 12(b)(6) Motions to Dismiss

         Federal 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).

         In 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.

         In 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 omitted).

         The 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).

         B. Petrey's ...

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