Natasha Whitley v. John Hanna

REVISED August 28, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2013

No. 12-10312

Lyle W. Cayce

Clerk

NATASHA WHITLEY,

Plaintiff-Appellant

v.

JOHN NICK HANNA; ROBERT BULLOCK; MICHAEL MURRAY;

ROBERT GRUBBS,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before KING, DAVIS, and ELROD, Circuit Judges.

KING, Circuit Judge:

Plaintiff-Appellant Natasha Whitley appeals the dismissal of her 42 U.S.C.

§ 1983 action and the denial of her motion to amend her complaint. Whitley’s

claims arise out of former City of Brownwood police sergeant Vincent Ariaz’s

sexual abuse of her. Defendants-Appellees John Hanna, Robert Bullock, Michael

Murray, and Robert Grubbs were state officers involved in the investigation and

arrest of Ariaz. Whitley argues that Appellees failed adequately to protect her

from Ariaz, and used her as “sexual bait” to strengthen their prosecutorial case

against him. The district court granted Appellees’ motions to dismiss after

No. 12-10312

finding that Whitley failed to state a § 1983 claim and that Appellees would be

entitled to qualified immunity. It also denied Whitley’s motion to amend her

complaint. For the following reasons, we AFFIRM the district court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2000, the City of Brownwood created Explorer Post 1150 as part of the

“Explorers” program—a school- and work-based program to introduce young

people to various vocations. Explorer Post 1150 was established to teach

participants about law enforcement, including police training and operations.

Vincent Ariaz, a then-sergeant with the City of Brownwood Police Department,

acted as Explorer Post 1150’s advisor. In January 2007, Ariaz was investigated

for alleged abuse of one of the program’s female participants (“A.M.”). A

Brownwood police officer, together with appellee Texas Ranger John Hanna,

conducted the investigation.

Hanna interviewed A.M., and learned that Ariaz would use her as an

example for activities like handcuffing and have her stay late when no one else

was around. Hanna also discovered from A.M. that Ariaz would rub his body

against hers and ask her about her sexual experiences. A.M. further informed

Hanna of an incident in which she and Ariaz were alone in a storeroom. Ariaz

allegedly closed the door, turned off the lights, and proceeded to kiss A.M. and

fondle her breasts. Despite A.M. telling him to stop, Ariaz continued until she

was able to make noise and escape. A.M.’s mother and her then-boyfriend also

told Hanna that Ariaz had sent A.M. numerous sexually suggestive text

messages, including proposing having sex in a motel room. The boyfriend also

lodged a complaint against Ariaz, to no apparent effect. An affidavit by another

police officer stated that Ariaz had expressed a desire to engage in different

sexual acts with a young girl.

Whitley’s allegations do not disclose what action, if any, the City of

Brownwood or the Brownwood Police Department took in response to Hanna’s

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investigation or Ariaz’s conduct. We do know that Ariaz continued as a police

officer for the City of Brownwood. Hanna, following his investigation, notified

his lieutenant, appellee Robert Bullock, that he had obtained a “written

statement detailing a pattern of sexual harassment, text messages of [a] sexual

nature, and one incident of sexual contact.” The report was approved by Bullock

on February 19, 2007, and stated that the investigation “would remain active.”

Sometime thereafter, Ariaz’s attention shifted to another Explorers

participant—fifteen-year-old appellant Natasha Whitley. Ariaz began

“grooming” Whitley by giving her gifts, promoting her to the highest position in

the Explorer post, repeatedly using her as his example in class, and writing her

love notes that she kept in her Explorers locker. Ariaz’s advances grew

progressively more intimate and eventually became sexual around June 2007.

Although various individuals were aware that Ariaz was engaging in

suspicious conduct, it does not appear that Hanna learned of this until July 3,

when another member of the Brownwood Police Department, Richard Williams,

noticed Whitley driving Ariaz’s truck and questioned her. In the course of

speaking with her, Williams learned that Ariaz and Whitley drove together on

a nightly basis. Williams thereupon contacted Hanna, who resumed his

investigation and quickly confirmed that Ariaz allowed Whitley to drive his

vehicle, rode with her almost every night, and spent hours with her parked in

locations that were secluded or known “make out” areas.

On July 9, Hanna met with the Brown County District Attorney, appellee

Michael Murray, and the Brown County Sheriff, appellee Bobby Grubbs. Also

present were Brown County’s Assistant District Attorney, a District Attorney

investigator, the Brown County Chief Deputy, a sergeant with the Texas

Department of Public Safety, a Brownwood police sergeant, and members of the

West Central Interlocal Drug Task Force. The group discussed Hanna’s

investigation into Ariaz’s conduct and agreed that Hanna would continue

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No. 12-10312

monitoring Ariaz to catch Ariaz in the act of abusing Whitley, and thus

strengthen the prosecutorial case against him. Bullock endorsed the plan after

Hanna informed him of the July 9 meeting.

Hanna proceeded to install video surveillance cameras in the hallways of

the Brownwood Annex building—one of the locations Ariaz was known to take

Whitley. Hanna also initiated GPS surveillance of Ariaz’s car. On July 10 and

11, Ariaz was observed with Whitley in the Annex building. Ariaz repeatedly

hugged and kissed Whitley. Ariaz also was observed entering an Annex building

courtroom where Whitley was waiting, and later exiting without his belt,

followed by Whitley, who emerged adjusting her shirt. Ariaz and Whitley were

known to spend lengthy periods of time in the Annex building courtroom. Hanna

informed Bullock, Murray, and Grubbs of these events.

On July 12, Hanna assembled three two-man teams to surveil Ariaz and

Whitley. Over the following days, Ariaz and Whitley repeatedly were observed

engaging in the previously documented conduct. On July 17, Hanna and another

investigator hid themselves in the closet of the courtroom Ariaz and Whitley

previously had entered. Sometime after 2:30 a.m., Hanna witnessed Whitley

sitting or lying on a table with Ariaz positioned over her. Ariaz and Whitley

then left, but returned at 6:13 a.m. Whitley lay down, and Ariaz proceeded to

kiss her for several minutes. He then placed his head in Whitley’s “crotch area,”

whereupon Hanna exited the closet and intervened. Ariaz was arrested and

indicted on more than twenty-five counts of sexual assault of a child and two

counts of indecency with a child.1 He ultimately pleaded guilty to two counts of

sexual assault of a child and no contest to indecency with a child. Ariaz

currently is serving a twenty-year prison sentence.

1

The indecency with a child counts appear related to Ariaz’s conduct with A.M. in

January 2007.

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No. 12-10312

On November 3, 2008, Whitley’s parents filed suit in federal district court

against, among others, the City of Brownwood, the Brownwood Police

Department, the Brownwood Chief of Police, and the Boy Scouts of America, in

an action styled Whitley v. Ariaz, et al., No. 6:08-CV-85-C. That lawsuit was

dismissed upon settlement.

On August 19, 2011, Whitley herself filed suit against Hanna and Bullock,

in their individual capacities, and against Murray and Grubbs in their

individual and official capacities (collectively, “Appellees”). Whitley also sought

declaratory and injunctive relief against Appellees in their official capacities.

Her complaint primarily contended that Appellees violated her constitutional

rights by failing timely to intervene to stop Ariaz’s abuse of her.

Murray and Grubbs filed a motion to dismiss for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6) on September 13. On the same

day, Hanna and Bullock filed a separate motion to dismiss for failure to state a

claim under Rule 12(b)(6), in which they asserted qualified immunity.

Subsequently, Murray and Grubbs filed an original answer in which they also

raised a qualified immunity defense. Following the filing of Appellees’ motions

to dismiss, Whitley filed a motion to amend her complaint.

In an order entered on February 21, 2012, the district court granted both

motions to dismiss and denied Whitley’s motion to amend her complaint. The

district court began by reviewing the proposed amended complaint and

concluded that the amendments were “nothing more than reiterations of the

original § 1983 claim premised upon substantive due process rights.” The court

viewed the proposed amendments only as alleging that Appellees engaged in a

conspiracy to deprive Whitley of her constitutional rights, a claim that was not

actionable under § 1983 without an underlying constitutional violation. Further,

it found that “the proposed additional facts that [Whitley] wishes to add to her

pleadings do nothing to change the claims brought by [her].” Accordingly, the

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No. 12-10312

district court held that granting Whitley’s motion to amend her complaint would

be futile and denied her motion.

Turning to Appellees’ motions to dismiss, the district court found that

dismissal was warranted. “At the heart of the allegations is [Whitley’s] claim

that the [Appellees] should have concluded their investigation sooner and

arrested Ariaz sooner, thus preventing further sexual acts against her.” The

court determined that Whitley’s § 1983 claims failed because there was no

constitutional right to have criminal charges filed against someone or to have

that person investigated.

The district court likewise was unpersuaded by what it construed as

Whitley’s attempts to establish supervisory liability over Appellees. First, to the

extent Appellees were involved in Ariaz’s misconduct, the district court found

that they actively were investigating him and thus their behavior did not fall

within the purview of cases that permitted claims against state actors who failed

to protect victims from harm. Second, the district court noted that Appellees did

not supervise Ariaz and actually were employed by completely separate entities.

Properly construed, the district court reasoned, Whitley’s allegations really fell

under a “state-created-danger theory,” because Appellees—as state

actors—allegedly acted with deliberate indifference in creating or increasing a

danger to her. But such a theory also requires that the state actors create an

opportunity that otherwise would not have existed, which the district court

found was not the case. Further, it noted that this circuit has declined to adopt

a state-created-danger theory to trigger affirmative duties under the Due

Process Clause. The district court thus granted Appellees’ motions to dismiss.

Whitley timely filed a notice of appeal on March 15, 2012, asserting that

the district court erroneously granted Appellees’ motions to dismiss her § 1983

claims and denied her motion to amend her complaint.

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II. STANDARD OF REVIEW

This court reviews a district court’s grant of a motion to dismiss de novo.

Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012). The grant

of a motion to dismiss based on qualified immunity similarly is reviewed de

novo. Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). We accept all

well-pleaded facts as true and view those facts in the light most favorable to the

plaintiff. Bowlby, 681 F.3d at 219 (citation omitted). The facts taken as true

must, however, “state a claim that is plausible on its face.” Amacker v.

Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). “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). A complaint is insufficient

if it offers only “labels and conclusions,” or “a formulaic recitation of the

elements of a cause of action.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)).

We review a district court’s denial of a motion for leave to file an amended

complaint for abuse of discretion. City of Clinton, Ark. v. Pilgrim’s Pride Corp.,

632 F.3d 148, 152 (5th Cir. 2010). However, where a district court’s denial solely

was based on futility, this court applies a de novo standard identical, in practice,

to the standard used for reviewing a motion to dismiss for failure to state a

claim. See Wilson v. Bruks–Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010).

III. APPLICABLE LAW

A. Section 1983

Section 1983 provides a claim against anyone who “under color of any

statute, ordinance, regulation, custom, or usage, of any State” violates another’s

constitutional rights. 42 U.S.C. § 1983. “To state a section 1983 claim, ‘a

plaintiff must (1) allege a violation of a right secured by the Constitution or laws

of the United States and (2) demonstrate that the alleged deprivation was

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No. 12-10312

committed by a person acting under color of state law.’” James v. Tex. Collin

Cnty., 535 F.3d 365, 373 (5th Cir. 2008) (quoting Moore v. Willis Indep. Sch.

Dist., 233 F.3d 871, 874 (5th Cir. 2000)).

B. Qualified Immunity

“The doctrine of qualified immunity protects government officials from

civil damages liability when their actions could reasonably have been believed

to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).

Qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), and

courts will not deny immunity unless “existing precedent . . . placed the

statutory or constitutional question beyond debate,” Ashcroft v. al-Kidd, 131 S.

Ct. 2074, 2083 (2011). Therefore, a plaintiff seeking to overcome qualified

immunity must show: “(1) that the official violated a statutory or constitutional

right, and (2) that the right was ‘clearly established’ at the time of the

challenged conduct.” Id. at 2080 (citation omitted). A court has discretion to

decide which prong to consider first. Pearson v. Callahan, 555 U.S. 223, 236

(2009).

IV. DISCUSSION

On appeal, Whitley presents two theories of liability she asserts warrant

reversal of the district court’s decision. First, relying on our decision in Doe v.

Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994) (en banc),

Whitley argues that Appellees are liable under § 1983 for acting with deliberate

indifference to her constitutional rights by engaging in an investigation

premised on catching Ariaz (the primary constitutional wrongdoer) in the act of

abusing her. Second, citing to Hale v. Townley, 45 F.3d 914 (5th Cir. 1995),

Whitley asserts that Appellees are liable under § 1983 under a theory of

bystander liability because they failed to stop Ariaz, a fellow officer, from

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No. 12-10312

violating Whitley’s fundamental liberty interest in her bodily integrity.2 Lastly,

Whitley contends that the district court erred in denying her motion to amend

her complaint.

We address each of her theories below, and conclude that Whitley fails to

state a claim under either her deliberate indifference or bystander liability

theory.3 Our conclusion that Whitley fails to state a claim as to any of the

Appellees also resolves the question of qualified immunity raised in Hanna and

Bullock’s motion to dismiss.4 See Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410

(5th Cir. 2009) (“If we determine that the alleged conduct did not violate a

constitutional right, our inquiry ceases because there is no constitutional

violation for which the government official would need qualified immunity.”);

2

Whitley also asserts that she has sufficiently stated a constitutional violation under

Rochin v. California, because Appellees’ conduct shocked the conscience. See 342 U.S. 165,

166, 172–74 (1952) (conduct “shock[ed] the conscience” and violated the Due Process Clause

where arresting police officers ordered doctors to pump suspect’s stomach to induce him to

vomit two morphine capsules). During oral argument, Whitley expressly limited the grounds

on which she sought relief and it thus is unclear whether she is still pursuing a claim under

Rochin’s shocks-the-conscience standard.

As will be discussed, however, the alleged facts do not rise to the level of shocking the

conscience: Whitley has not alleged that Appellees themselves sexually abused her; at best, she

has shown that Appellees conducted a deficient investigation and failed to intervene earlier.

Such circumstances do not conform to the extreme cases in which the shocks-the-conscience

standard typically has been satisfied. See, e.g., Morris v. Dearborne, 181 F.3d 657, 668 (5th

Cir. 1999) (teacher fabricated sexual abuse charges against a student’s father); Rogers v. City

of Little Rock, Ark., 152 F.3d 790, 797 (8th Cir. 1998) (police officer raped woman in her house

after stopping her for traffic violation).

3

To the extent Whitley asserts claims against Appellees in their official capacities, we

find such claims also fail for lack of an underlying constitutional violation. See Piotrowski v.

City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (municipal liability under § 1983 requires

“a policymaker; an official policy; and a violation of constitutional rights whose ‘moving force’

is the policy or custom.” (citation omitted)).

4

The district court seemingly conflated Appellees’ motions to dismiss as “Motions to

Dismiss Based Upon Qualified Immunity,” despite only Hanna and Bullock asserting qualified

immunity in their motion. Importantly, however, the district found that Whitley “failed to

state a claim under § 1983 against the [Appellees], and certainly not such that would overcome

their assertion of qualified immunity.” Accordingly, it appears that the district court

sufficiently addressed both motions to dismiss.

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Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007).

Finally, we hold that the district court correctly denied Whitley’s motion to

amend her complaint.

A. Deliberate Indifference

Whitley’s first basis for establishing liability under § 1983 is “the decision

by [Appellees] as part of their investigation, to knowingly allow Whitley to be

repeatedly raped by another police officer.” Put another way, Appellees

purportedly acted with deliberate indifference by agreeing on a plan that would

allow Ariaz to continue sexually abusing Whitley for the sake of gathering

additional evidence to secure his conviction.5 In support, Whitley primarily

relies on our decision in Taylor, 15 F.3d 443.6

In Taylor, we considered whether a school’s principal and the district’s

superintendent could be held liable under § 1983 for failing to prevent a high

school coach from manipulating a fifteen-year-old student over several months

into repeatedly having sexual intercourse with him. Id. at 446–49. In affirming

5

Whitley’s allegations resemble—and the district court actually understood her to

assert—a claim under a state-created-danger theory of liability, by which state actors may be

held liable when “the state actor played an affirmative role in creating or exacerbating a

dangerous situation that led to the individual’s injury.” McClendon v. City of Columbia, 305

F.3d 314, 324 (5th Cir. 2002). Given Whitley’s allegation that Appellees put her in harm’s way

in order to secure Ariaz’s conviction, the district court’s interpretation is understandable.

However, this court has not adopted the state-created-danger theory, Doe ex rel. Magee v.

Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 865 (5th Cir. 2012) (en banc), and

Whitley wisely has disclaimed reliance on it.

6

Whitley also relies on the Supreme Court’s decision in Pembaur v. City of Cincinnati,

475 U.S. 469 (1986). Whitley first refers to this case in her reply brief and then only for the

proposition that “a § 1983 case should not be dismissed when the allegation is that a

prosecutor and police officers made decisions and carried out actions as part of a criminal

investigation that violated constitutional rights.” The problem with Whitley’s argument is that

it assumes the very thing she seeks to prove—that it was a constitutional violation for

Appellees to delay removing Whitley from Ariaz’s presence to collect additional evidence. By

contrast, the county prosecutor in Pembaur ordered deputy sheriffs to forcibly enter a clinic in

violation of a doctor’s Fourth Amendment rights. Id. at 484.

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the district court’s denial of qualified immunity to the principal, but reversing

the denial of qualified immunity to the superintendent, we held that:

A supervisory school official can be held personally liable for a

subordinate’s violation of an elementary or secondary school

student’s constitutional right to bodily integrity in physical sexual

abuse cases if the plaintiff establishes that:

(1) the defendant learned of facts or a pattern of inappropriate

sexual behavior by a subordinate pointing plainly toward the

conclusion that the subordinate was sexually abusing the

student; and

(2) the defendant demonstrated deliberate indifference toward

the constitutional rights of the student by failing to take

action that was obviously necessary to prevent or stop the

abuse; and

(3) such failure caused a constitutional injury to the student.

Taylor, 15 F.3d at 454.

Subsequently, in Doe v. Rains County Independent School District, 66 F.3d

1402 (5th Cir. 1995), we expanded our holding in Taylor to include non-

supervisory state officers. We determined that “once . . . a constitutional

violation has occurred, we are no longer barred from finding another person

liable under § 1983 for committing a state-law breach that caused the

constitutional injury, even if the breach itself does not independently satisfy the

elements of a constitutional claim.” Id. at 1409. We reached this conclusion by

“ask[ing] what it is about a supervisor’s duties and functions that renders a state

supervisory official liable for a constitutional deprivation by a subordinate.” Id.

at 1410. We concluded that “it is state law’s grant of a right of legal control over

the immediate perpetrator of an injury that establishes that a state supervisor

possessed and exercised state authority.” Id. at 1413. The “critical question” in

determining whether a non-supervisory state actor may be held liable thus is

“whether state law has reposed in a defendant enough responsibility for the

underlying conduct that she can be said to have caused the injury herself.” Id.

at 1408.

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Accordingly, Whitley must show that (1) Appellees knew of a pattern of

constitutional deprivations; (2) the abuse was caused by a state actor over whom

they had supervisory authority or a state-law created right of legal control; (3)

Appellees’ failure to act demonstrated deliberate indifference to the victim’s

constitutional rights; and (4) their failure to act resulted in a constitutional

injury. Because we conclude that Appellees were not deliberately indifferent, we

limit our analysis to the third element, and hold that Whitley’s § 1983 claims fail

under her deliberate indifference theory.7

“The deliberate indifference standard is a high one.” Doe v. Dall. Indep.

Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). “To act with deliberate

indifference, a state actor must ‘know[] of and disregard[] an excessive risk to

[the victim’s] health or safety.’” McClendon, 305 F.3d at 326 n.8 (alterations in

original) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “The state

actor’s actual knowledge is critical to the inquiry”—a “failure to alleviate ‘a

significant risk that he should have perceived but did not,’ while ‘no cause for

7

Although disposing of this case on deliberate-indifference grounds, we note that

Appellees seriously call into question whether law enforcement officers in cases like the one

sub judice can be said to have what we term “the linchpin in all cases in which we have found

§ 1983 liability based on breach of a duty to act” namely, “the existence of a legal right of

control,” i.e., state-conferred control “over the persons or events giving rise to the injury

complained of.” Rains, 66 F.3d at 1414–15; see also Taylor, 15 F.3d at 452 n.6 (the “mere right

to control without any control or direction having been exercised and without any failure to

supervise is not enough to support § 1983 liability” (quoting Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 694 n.58 (1978)). Appellees forcefully argue that the Supreme Court’s decision in

Town of Castle Rock v. Gonzales, entirely forecloses Whitley’s deliberate indifference theory of

liability because, although Gonzales denied an individual’s purported entitlement to police

enforcement of a restraining order against a private party, the same principle should apply

where the violative agent is a state actor. See 545 U.S. 748, 768 (2005) (“In light of today’s

decision . . . the benefit that a third party may receive from having someone else arrested for

a crime generally does not trigger protections under the Due Process Clause, neither in its

procedural nor in its ‘substantive’ manifestations.”). To do otherwise, they assert, would

deprive law enforcement officers of the very discretion the Supreme Court repeatedly has

recognized them to possess. See id. at 760 (“A well established tradition of police discretion has

long coexisted with apparently mandatory arrest statutes.”). Expressing no opinion, we leave

for another day the extent to which Gonzales supplements or supplants our analysis under

Rains.

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commendation,’ does not rise to the level of deliberate indifference.” Id. (quoting

Farmer, 511 U.S. at 837). While we previously have observed that the terms

“gross negligence” and “deliberate indifference” are sometimes used

interchangeably, understood properly, “the former is a ‘heightened degree of

negligence,’ [while] the latter is a ‘lesser form of intent.’” Taylor, 15 F.3d at 453

n.7 (citation omitted).

In this case, the district court found that Appellees did not act with

deliberate indifference because they were “acting on facts and investigating

Ariaz.” Whitley contends that the district court’s finding was erroneous because

Appellees’ investigation clearly was flawed, and identifies multiple indicators

Appellees had that Ariaz—even before meeting Whitley—was engaging in sexual

misconduct. Whitley also highlights purported deficiencies in the investigation

itself.

We agree with the district court that neither Hanna and Bullock, nor

Grubbs and Murray, were deliberately indifferent.

1. Hanna and Bullock

a) Hanna

We begin our analysis by considering Hanna’s investigation, which, while

possibly subject to criticism and charges of deficiency, cannot be said to have

been conducted with deliberate indifference. Hanna began investigating Ariaz

in January 2007, and spoke with A.M., A.M.’s mother, and her boyfriend.

Although the investigation did not, at that time, result in the arrest and

prosecution of Ariaz, the investigation remained open.

Over the next several months, there were numerous incidents indicating

that Ariaz’s attention had shifted to a new victim—Whitley. Ariaz repeatedly

used Whitley as his example in class, and made her his Explorers captain. He

also ate with Whitley in view of other Brownwood Police Department officers.

It apparently was well-known that Ariaz and Whitley would ride together during

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the night shift. But while the Brownwood Police Department may have been

aware of Ariaz’s conduct, Hanna was not. Hanna had no reason to think that

the Brownwood Police Department, as Ariaz’s supervisor, would fail to respond

to evidence that Ariaz again was targeting a minor, including sharing such

evidence with Hanna.8

Hanna’s failure to discover Ariaz’s new relationship earlier thus is no

ground for finding him deliberately indifferent. In Taylor, we found a school

superintendent not deliberately indifferent partly because he reacted promptly

to new evidence of a high school coach’s sexual misconduct. 15 F.3d at 457–58.

Similarly here, when Hanna received word that Ariaz again was seen with a

minor, he immediately resumed his investigation. From that point on, Hanna

undertook a series of measures that appropriately responded to the evidence

available to him, including:

• learning that Ariaz was riding with Whitley almost every night, and

allowing her to drive his vehicle;

• discovering that Ariaz, accompanied by Whitley, would park for two to

three hours in remote areas such as the Brownwood airport, a wooded

area by the Brownwood Hospital, and an old police department;

• meeting with Murray, the Brown County District Attorney, and Grubbs,

the Brown County Sheriff, and others to discuss Ariaz’s behavior;

• installing video surveillance cameras in the Brownwood Annex building,

one of the isolated locations Ariaz was known to take Whitley;

• placing GPS surveillance on Ariaz’s vehicle, despite Ariaz previously

having requested vehicles without GPS tracking;

• assembling three two-man teams to surveil Ariaz and Whitley;

• organizing a sting operation that resulted in the arrest and prosecution of

Ariaz.

8

We again note that the Brownwood Police Department would later be involved in a

suit brought by Whitley’s parents resulting in a settlement.

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Whereas Hanna’s previous investigation into Ariaz did not result in a

prosecution, Hanna’s actions upon learning that Ariaz was seen with Whitley

demonstrate that, while the Brownwood Police Department apparently had been

unable to stop Ariaz, Hanna was committed to putting an end to Ariaz’s abuses

once and for all.

Whitley criticizes various aspects of Hanna’s investigation, but these do

not amount to a showing of deliberate indifference. She accuses Hanna of

improperly placing surveillance cameras in the Brownwood Annex building’s

hallways, instead of in its courtroom. But the mere “haphazard” or “negligent”

deployment of security measures does not establish deliberate indifference.

Johnson v. Dall. Indep. Sch. Dist., 38 F.3d 198, 202 (5th Cir. 1994). Whitley also

criticizes Hanna for conducting an excessively long investigation. Yet, in light

of Ariaz’s persistent conduct, even in the face of other members of the

Brownwood Police Department knowing of the suspicious activity, we cannot

fault Hanna for wanting to ensure that this time the investigation would

conclude with Ariaz’s successful prosecution. At most, Whitley has shown that

Hanna’s actions were comparable to those of Taylor’s superintendent. After

observing that the superintendent had directed the principal to talk with the

coach suspected of sexual abuse, contacted parents, spoken with the victim, and

verbally reprimanded the coach, we determined that although the

superintendent’s actions had been “ineffective,” they were not “deliberately

indifferent.” 15 F.3d at 457–58. As in that case, although we do not deny the

possibility that Hanna could have conducted the investigation differently,

perhaps even gathering enough evidence to make an arrest in less than the two

weeks it took him, Hanna’s failure to immediately end the abuse does not make

him deliberately indifferent. See Dall. Indep. Sch. Dist., 153 F.3d at 219

(“Actions and decisions by officials that are merely inept, erroneous, ineffective,

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or negligent do not amount to deliberate indifference and thus do not divest the

official of qualified immunity.”).9

Hanna had to decide what evidence would suffice to secure a conviction.

His decision to wait two or three days longer to make a stronger case to

permanently stop Ariaz’s misconduct does not bring this case within Taylor’s fact

pattern, where we denied qualified immunity to a school principal on the ground

that he “fail[ed] to take action that was obviously necessary to prevent or stop”

the sexual misconduct of a subordinate high school coach. 15 F.3d at 457. Far

from failing to take action, Hanna led an ongoing effort to put Ariaz out of

business. In this, Hanna was successful. His failure to be successful earlier does

not make him deliberately indifferent to Whitley’s plight.

Whitley also appears, however, to allege that Hanna was deliberately

indifferent because he failed to intervene when Ariaz sexually abused her in

Hanna’s presence. This argument refers to Hanna’s failure immediately to

emerge from his courtroom hiding place upon witnessing Ariaz positioned atop

her the morning of July 17, 2007. We find it worthwhile to quote this part of

Whitley’s complaint in its entirety:

9

Instead of looking to whether Hanna’s conduct was appropriate in light of the

available evidence, see Rains, 66 F.3d at 1413 (school official “fail[ed] to take appropriate action

to prevent or stop the abuse”); Taylor, 15 F.3d at 458 (superintendent “responded

appropriately”), the concurrence instead would look to whether “the purpose of [the

defendant’s] actions was to interfere with the alleged abuse,” and criticizes us for suggesting

that Hanna faced a “binary choice: arrest Ariaz, or do nothing to intervene in the absence of

conclusive evidence of abuse.” We do not dispute that Appellees had other options available

to them, but we refuse to find Appellees deliberately indifferent for choosing one permissible

course of action—conducting an investigation intended to effectuate the arrest of Ariaz—over

another. Cf. Taylor, 15 F.3d at 457–58 (describing superintendent’s investigation into alleged

abuse as sufficient based on the available evidence); Atteberry v. Nocona Gen. Hosp., 430 F.3d

245, 256 (5th Cir. 2005) (deliberate indifference sufficiently alleged where defendants allegedly

knew that a dangerous drug was missing and patients were dying at an unusually high rate,

but failed to investigate or change hospital policy). Even applying the concurrence’s standard,

and accepting that better policing might have led to a speedier conclusion to the investigation,

we are hard-pressed to see how the arrest and prosecution of Ariaz cannot be said to have had

the purpose of “interfer[ing] with” the alleged abuse.

16

No. 12-10312

• At approximately 2:30 a.m. on July 17, 2007, Hanna hid in

the courtroom’s closet with another investigator.

• He observed [Whitley] sitting or lying on a table with Ariaz

positioned over her in a clearly inappropriate and sexual

manner.

• Yet Hanna still did not intervene.

• Instead, he let Ariaz continue and then let them leave.

• According to Hanna, he remained at the Annex so that he

would be more ready the next time to catch Ariaz in the midst

of a more prolonged act.

• Then, according to Hanna, Ariaz and [Whitley] arrived back

at the Annex at 6:13 a.m. Ariaz began kissing [Whitley] in the

courtroom for several minutes while [Whitley] was lying

down. Then, Hanna observed him place his head in

[Whitley’s] “crotch area.”

Whitley’s proposed amended complaint, which we separately address

infra, elaborates only slightly on these facts: “[Hanna] observed Plaintiff sitting

or lying on a table with Ariaz positioned over her in a clearly inappropriate and

sexual manner. Ariaz was touching Plaintiff’s genitalia.” Hanna ultimately

emerged and arrested Ariaz when he observed Ariaz placing his head in

Whitley’s genital area after the two returned at 6:13 a.m.

Several aspects of Whitley’s complaint, as well as the relevant parts of her

proposed amended complaint, draw our attention. Although Whitley’s brief

repeatedly describes Appellees as exposing Whitley to statutory rape (even going

so far as accusing them of effectively raping Whitley herself by failing to act), the

closest Hanna came to actually seeing Ariaz sexually abuse Whitley was to

observe her sitting or lying while Ariaz was positioned over her. Whitley does

not describe what Ariaz was doing other than to say it was “clearly

inappropriate” and done in a “sexual manner.” Additionally, while specifically

describing what Hanna observed in every part of her complaint, Whitley

noticeably omits in her proposed amended complaint whether or not Hanna

17

No. 12-10312

observed Ariaz touching her genitals.10 Hanna apparently could not even see

whether Whitley was sitting or lying down.

While we must view the facts in the light most favorable to Whitley, we

also cannot ignore what she has, and has not, pled. Nor can we ignore that

Hanna, after tracking Ariaz by camera, GPS, and officer surveillance, emerged

from cover to arrest Ariaz after observing him engage in a clearly sexual act.

Whitley may have alleged facts sufficient to show that Hanna made an error of

judgment, but we refuse to find that Hanna’s failure to act, after viewing some

unspecified conduct that was “clearly inappropriate,” transformed his otherwise

proper investigation into one that was deliberately indifferent. See Callis v.

Sellars, 931 F. Supp. 504, 519 (S.D. Tex. 1996) (officers’ failure to timely

intervene in sting operation amounted to isolated instance of negligence or error

of judgment that did not amount to deliberate indifference).

Whitley thus has failed to allege facts sufficient to show that Hanna was

deliberately indifferent.

b) Bullock

Having found that Hanna did not act deliberately indifferent, we similarly

conclude that Whitley has not demonstrated that Bullock was deliberately

indifferent in entrusting the investigation to Hanna. As with Hanna, the

Brownwood Police Department’s failure to notify the Texas Rangers of Ariaz’s

renewed involvement with a minor cannot be imputed to Bullock. Indeed,

Bullock’s involvement in the investigation was limited to receiving updates from

Hanna on how the investigation was progressing, and approving Hanna’s

continuation of that investigation. Bullock was not even involved in the meeting

in which Hanna, Murray, and Grubbs discussed Ariaz, and which resulted in the

10

The proposed amended complaint also states that Ariaz “had his hand in [Whitley’s]

crotch area for several minutes while [she] was lying down,” but again does not state that

Hanna could observe this conduct.

18

No. 12-10312

decision to continue surveilling Ariaz until there was actual evidence of sexual

abuse. Whitley has alleged no facts suggesting that Bullock knew Hanna was

acting improperly in seeking to collect additional evidence, especially as the prior

investigation into Ariaz’s conduct towards A.M. had not resulted in a

prosecution. Whitley thus also has failed to show that Bullock was deliberately

indifferent.

2. Grubbs and Murray

Whitley’s primary reason for claiming Grubbs and Murray acted with

deliberate indifference is that they participated in formulating, and endorsed,

a plan dependent on catching Ariaz in the act of committing an act of sexual

abuse. However, far from being the product of deliberate indifference, this plan

was responsive to the requirements of the Texas penal code. Ariaz eventually

was charged with sexual assault of a child and indecency with a child. Under

Texas law, the crime of sexual assault requires sexual contact or penetration.

Tex. Penal Code Ann. § 22.011(a)(1)–(2). Similarly, the offense of indecency with

a child requires exposure or “sexual contact,” defined as “(1) any touching by a

person, including touching through clothing, of the anus, breast, or any part of

the genitals of a child; or (2) any touching of any part of the body of a child,

including touching through clothing, with the anus, breast, or any part of the

genitals of a person.” Id. § 21.11. Video evidence only showed Ariaz hugging

and kissing Whitley, actions which Appellees could not be certain a jury would

find sufficient to violate the applicable criminal statutes. As Whitley

acknowledges, Appellees only “had video proof that [Whitley] was likely being

abused.”

Grubbs and Murray also did not ignore Whitley’s plight—to the contrary,

they agreed that Hanna would investigate allegations of Ariaz’s sexual

misconduct in order to prosecute Ariaz. They were aware that Hanna was

pursuing the investigation by setting up surveillance cameras, tracking Ariaz’s

19

No. 12-10312

movements, and devoting three two-man teams to surveilling him. Moreover,

Grubbs and Murray were not telling Hanna to allow Ariaz to abuse Whitley, but

rather to gather evidence and stop Ariaz from doing so. Although Whitley

alleges that, based on the evidence available to them, Grubbs and Murray must

have known that Ariaz was sexually abusing her, there is no allegation that they

actively facilitated Ariaz’s behavior in order to gather more evidence.

Accordingly, although the decision to gather additional evidence may have

been imprudent in light of that already available, we cannot say that Grubbs

and Murray were deliberately indifferent to Whitley’s peril. It is unclear, for

example, what they should have done that was any more certain to safeguard

Whitley’s well-being or result in a favorable outcome to the investigation. They

did not supervise Ariaz. They also did not have the authority to order the

Brownwood Police Department to remove Ariaz from duty. At oral argument,

Whitley’s counsel admitted that Appellees, including Grubbs and Murray, also

lacked the power to end the Explorers program. Further, while Grubbs and

Murray arguably had the power to effectuate the arrest of Ariaz earlier in the

investigation, Whitley has made clear that she is not premising her claim on

Appellees’ arresting Ariaz. Thus, although we easily can imagine some

alternatives to the choice that Appellees made—including confronting Whitley

or contacting her parents—the fact remains that Appellees successfully brought

about Ariaz’s arrest approximately two weeks after Hanna first learned of a

potential relationship between Ariaz and Whitley.

We conclude that Whitley has not alleged facts sufficient to establish that

Grubbs and Murray acted with deliberate indifference.

B. Bystander Liability

Whitley’s second basis for establishing liability under § 1983 is Appellees’

“failure . . . to attempt to intercede to protect [her] from further abuse at the

hands of another officer.” Whitley cites this court’s decision in Hale, 45 F.3d 914,

20

No. 12-10312

for the proposition that Appellees were required to intervene and stop Ariaz from

further sexually abusing her.

In Hale, a plaintiff brought a § 1983 action for, inter alia, the use of

excessive force during a search and arrest. Id. at 916. One of the police officer

defendants allegedly stood by, laughed, and shouted encouragement while

another officer assaulted the plaintiff. Id. at 919. Characterizing the plaintiff’s

claim as one of bystander liability, this court agreed that “an officer who is

present at the scene and does not take reasonable measures to protect a suspect

from another officer’s use of excessive force may be liable under section 1983.”

Id. We further observed that the fact that the police officers “were from different

law enforcement agencies does not as a matter of law relieve [an officer] from

liability for a failure to intervene.” Id. In light of the allegations and evidence

in that case, we concluded that there was sufficient evidence to create a genuine

issue of material fact concerning the bystanding officer’s “acquiescence in the

alleged use of excessive force.” Id.

Our holding in Hale is consistent with other circuits’ determination that

an officer may be liable under § 1983 under a theory of bystander liability where

the officer “(1) knows that a fellow officer is violating an individual’s

constitutional rights; (2) has a reasonable opportunity to prevent the harm; and

(3) chooses not to act.”11 Randall v. Prince George’s Cnty., Md., 302 F.3d 188, 204

(4th Cir. 2002) (footnote omitted); see, e.g., Lewis v. Downey, 581 F.3d 467, 472

(7th Cir. 2009); Smith v. Mensinger, 293 F.3d 641, 650–51 (3d Cir. 2002); see also

11

Although Hale most often applies in the context of excessive force claims, other

constitutional violations also may support a theory of bystander liability. See Richie v.

Wharton Cnty. Sheriff Dep’t Star Team, No. 12-20014, 2013 WL 616962, at *2 (5th Cir. Feb.

19, 2013) (per curiam) (unpublished) (noting that plaintiff failed to allege facts suggesting that

officers “were liable under a theory of bystander liability for failing to prevent . . . other

member[s] from committing constitutional violations”); accord Anderson v. Branen, 17 F.3d

552, 557 (2d Cir. 1994) (“[A]ll law enforcement officials have an affirmative duty to intervene

to protect the constitutional rights of citizens from infringement by other law enforcement

officers in their presence.”).

21

No. 12-10312

Nowell v. Acadian Ambulance Serv., 147 F. Supp. 2d 495, 507 (W.D. La. 2001).

However, liability will not attach where an officer is not present at the scene of

the constitutional violation.12 See Snyder v. Trepagnier, 142 F.3d 791, 801 n.11

(5th Cir. 1998) (citing Hale, 45 F.3d at 919); see also Gilbert v. French, 364 F.

App’x 76, 83 (5th Cir. 2010) (per curiam) (unpublished); Ibarra v. Harris Cnty.

Tex., 243 F. App’x 830, 835 & n.8 (5th Cir. 2007) (per curiam) (unpublished) (“A

bystander liability claim requires the plaintiffs to show that the officer was

present at the scene and did not take reasonable measures to protect a suspect

from excessive force.”). In resolving whether a plaintiff has sufficiently alleged

a bystander liability claim we also consider whether an officer “acquiesce[d] in”

the alleged constitutional violation. Hale, 45 F.3d at 919; see Baker v. Monroe

Twp., 50 F.3d 1186, 1193–94 (3d Cir. 1995) (premising liability on senior officer’s

knowledge of, and acquiescence in, treatment of victim); see also Peavy v. Dall.

Indep. Sch. Dist., 57 F. Supp. 2d 382, 390 n.4 (N.D. Tex. 1999) (Hale inapplicable

where defendant did not acquiesce in any conduct violating plaintiff’s

constitutional rights).

Applying this analysis to each of the Appellees, Whitley has failed to state

a claim of bystander liability.

1. Hanna and Bullock

12

Whitley disputes that this is a requirement for bystander liability. In support,

Whitley’s counsel referred us during oral argument to a case not cited in Whitley’s

briefs—United States v. McKenzie, 768 F.2d 602 (5th Cir. 1985). In that case, defendant police

officers appealed their convictions for conspiring to deprive citizens of their civil rights and for

illegally depriving one victim of his liberty, as well as failing to keep him free from harm while

in official custody. Id. at 604. In addressing whether the evidence was sufficient to support

a jury’s guilty verdict as to one defendant, we observed that the defendant “admitted that he

was in and out of the room while [the victim] was being interrogated,” and found that this was

“sufficient to support the conclusion that he was aware of what was transpiring and did not

stop it.” Id. at 605. McKenzie, however, was a criminal case and did not address bystander

liability. Moreover, the detective in that case was in and out of the room, and thus arguably

could be said to have been present while the alleged constitutional violation took place. See

id.

22

No. 12-10312

We observe at the outset that Whitley has failed to state a claim against

Bullock because she has not alleged that he was in Ariaz’s presence when Ariaz

was sexually abusing Whitley. As a result, Bullock is not within the scope of a

bystander liability claim. See Hale, 45 F.3d at 919; Ibarra, 243 F. App’x at 835

& n.8. Even were we merely to require knowledge, Bullock still would not be

liable because he acted reasonably in entrusting Hanna with investigating and

arresting Ariaz.

Turning to Hanna, although Whitley has alleged that Hanna was in

Ariaz’s presence (unbeknownst to Ariaz) the morning of July 17, she

nevertheless has failed to state a claim because she has not alleged that Hanna

acquiesced in Ariaz’s conduct. Hanna was investigating Ariaz with the intent

of gathering evidence to secure Ariaz’s conviction for sexual abuse of a minor.

Far from being a bystander to Ariaz’s conduct, Hanna was accumulating

evidence for Ariaz’s prosecution. This is in no way comparable to the factual

scenario in Hale, where there was a genuine dispute over whether an officer’s

laughing and shouting encouragement to another officer who was committing a

constitutional violation constituted acquiescence in the latter’s conduct. Hanna’s

subsequent arrest of Ariaz after Ariaz began to engage in a clearly sexual act

dispels all doubt as to whether Hanna acquiesced in Ariaz’s misconduct. Cf.

Randall, 302 F.3d at 204 n.24 (“The rationale underlying the bystander liability

theory is that a bystanding officer, by choosing not to intervene, functionally

participates in the unconstitutional act of his fellow officer.”).

Accordingly, we reject Whitley’s bystander liability claims against Hanna

and Bullock.13

13

Even if bystander liability did apply, we nevertheless would be compelled to affirm

the district court’s judgment as to Hanna and Bullock on the second prong of the qualified

immunity analysis because Whitley has failed to identify clearly established law requiring an

officer immediately to intervene while engaged in covert surveillance of a perpetrator. See

Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (central concept of second prong

23

No. 12-10312

2. Grubbs and Murray

Like Bullock, neither Grubbs nor Murray was in Ariaz’s presence during

Ariaz’s abusive conduct. They thus also are not bystanders for purposes of a

bystander liability claim. See Hale, 45 F.3d at 919; Ibarra, 243 F. App’x at 835

& n.8. Further, they acted reasonably in attempting to stop Ariaz from further

abusing Whitley and other minors by endorsing a plan that would lead to the

arrest of Ariaz. As discussed supra, it is unclear exactly what other actions

Whitley would have required from Grubbs and Murray that were more certain

to permanently remove her and others from Ariaz’s reach.

For these reasons, we reject Whitley’s bystander liability claims as to

Grubbs and Murray.

C. Motion to Amend the Complaint

Rule 15 of the Federal Rules of Civil Procedure provides that leave to

amend should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2).

A motion to amend ordinarily should be granted absent some justification for

refusal. Foman v. Davis, 371 U.S. 178, 182 (1962).

The liberal amendment policy underlying Rule 15(a) affords the

court broad discretion in granting leave to amend and,

consequently, a motion for leave to amend should not be denied

unless there is “undue delay, bad faith or dilatory motive on the part

of the movant, repeated failure to cure deficiencies by amendments

of qualified immunity analysis is whether law provided “fair warning” that the conduct at issue

violated constitutional rights). Whitley cites no case that would put Appellees on notice that

they were required to intervene in some unspecified way before arresting Ariaz. Cf. Callis, 953

F. Supp. at 799 (S.D. Tex. 1996) (“Even today, the application of the doctrine of bodily integrity

to voluntary civilian participants in a ‘sting’ is an untrodden area of the law.”). The only case

she cites is Hale, but, as discussed, that case is factually inapposite. See 45 F.3d at 919; see

also Deshotels v. Marshall, 454 F. App’x 262, 264, 269 (5th Cir. 2011) (per curiam)

(unpublished) (distinguishing facts in Hale from case in which law enforcement officers failed

to stop another officer from using a stun weapon to subdue an arrestee the officers were

attempting to restrain). We do not find that Hale put Hanna and the other Appellees on notice

that they could not solidify their evidence against Ariaz to secure a conviction by surveilling

him and arresting him upon commission of a felony.

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No. 12-10312

previously allowed [or] undue prejudice to the opposing party by

virtue of allowance of the amendment, . . .”

United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375,

386 (5th Cir. 2003) (alteration in original) (citation omitted). Leave to amend

also may be denied when amendment would be futile. Id. at 387.

We find that, even under Rule 15’s liberal standard, the district court

appropriately denied as futile Whitley’s motion to amend her complaint. First,

the amended complaint adds no new substantive factual allegations. As already

discussed, even if we read her complaint to allege that Hanna witnessed Ariaz

sexually abusing Whitley, liability would not extend to Hanna—nor the other

Appellees because Hanna was not deliberately indifferent and did not acquiesce

in Ariaz’s conduct.

Second, the amended complaint’s new causes of action are meritless.

Whitley adds supervisory liability claims, including for inadequate supervision

and failure to train. She also adds policy, custom, and practice claims, alleging,

inter alia, that it was “the practice of the Texas Rangers to permit minor sexual

assault victims to be used as bait to catch their assailants.” Finally, the

amended complaint adds a series of “Secondary Liability Claims” including

“Assisting and Encouraging / Aiding and Abetting sexual abuse and invasions

of bodily integrity,” “Assisting and Participating in violations of bodily integrity

and sexual abuse,” and “Conspiracy to violate Plaintiff’s right to be free from

violations of her bodily integrity and . . . sexual abuse,” all in violation of § 1983.

All of Whitley’s inadequate supervision, failure to train, and policy,

practice, or custom claims fail without an underlying constitutional violation.

See Bustos v. Martini Club, Inc., 599 F.3d 458, 467 (5th Cir. 2010) (“Because

[plaintiff] has alleged no constitutional injury attributable to the Officers,

[plaintiff] has failed to state a claim that a City policy was the moving force

behind a violation of his constitutional rights.”). Even if we assume that Whitley

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No. 12-10312

has sufficiently alleged a § 1983 claim, her municipal liability claims still would

fail. “To establish municipal liability under § 1983, a plaintiff must show that

(1) an official policy (2) promulgated by the municipal policymaker (3) was the

moving force behind the violation of a constitutional right.” Peterson v. City of

Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir. 2009). The proposed amended

complaint makes no specific factual allegations of the county’s policies and

simply adds the words “policies, practices, and/or customs” to Whitley’s perceived

wrongs. Such allegations are insufficient to survive dismissal. See Spiller v.

City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (conclusory

description of policy or custom insufficient).

Her secondary liability claims similarly fail for lack of a § 1983 violation

by Appellees. See Hale, 45 F.3d at 920 (“[A] conspiracy claim is not actionable

without an actual violation of section 1983.” (internal quotation marks and

citation omitted)). Additionally, her aiding and abetting, assisting and

participating, and conspiracy claims merely restate her § 1983 allegations. For

the same reasons we are unpersuaded by her § 1983 claims, we also reject her

secondary liability claims.

We agree with the district court that amendment of her complaint would

be futile and that Whitley’s motion to amend correctly was denied.

V. CONCLUSION

For the aforementioned reasons, the district court’s judgment is

AFFIRMED.

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No. 12-10312

JENNIFER WALKER ELROD, Circuit Judge, concurring only in the judgment:

I write separately to address Whitley’s § 1983 deliberate-indifference claim

against Ranger Hanna. Taking Whitley’s allegations as true, Hanna made a

conscious decision to allow a fifty-five-year-old law enforcement official to engage

in predictable, preventable, and yet repeated sexual assaults on a fifteen-

year-old participant in a law-enforcement-learning program. Thus, at this early

stage of the case, I would hold that Whitley states a plausible § 1983 claim. I

concur in the judgment, however, because Whitley cannot overcome Hanna’s

assertion of qualified immunity.

I.

We must take Whitley’s allegations as true at this 12(b)(6) stage of the

case. Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). Although

the majority opinion offers a careful and thorough description of the complaint,

some critical points bear repeating and, in some respects, reframing in the light

most favorable to Whitley.

By January 2007, Hanna knew that Ariaz was a threat to the young

female participants in the Explorer program. Although Hanna obtained credible

evidence that Ariaz had kissed, fondled, sent numerous sexually suggestive text

messages to, and expressed an intent to engage in “several different sexual acts”

with his first victim (A.M.), Whitley alleges that Hanna “essentially stopped

investigating.” Over the next several months, Whitley asserts that Hanna did

nothing “to protect any of the young girls Ariaz was supervising.”

Shortly after A.M.’s complaint, Ariaz began “grooming” Whitley, a fifteen-

year old Explorer student, to be his next victim. The relationship turned sexual

in June 2007. Whitley alleges that, had Hanna “actually investigated Ariaz . . .

[he] would have learned what Ariaz was up to and would have prevented him

from abusing” her. But Hanna did not, in fact, learn of Ariaz’s conduct until

July 3, 2007, when an officer with the Brownwood Police Department reported

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No. 12-10312

suspicious activity. Hanna quickly confirmed that Ariaz was “spending hours

at a time alone with [Whitley] in the middle of the night,” often parked in known

“make out” areas. Yet, says Whitley, Hanna did not seek “to separate the

predator from his prey.”

To the contrary, Hanna decided to continue monitoring Ariaz to “catch him

in the act of abuse.” To accumulate evidence for an eventual prosecution, Hanna

and a Brownwood officer placed a GPS-tracking device on Ariaz’s car and

installed surveillance cameras in the hallways of the Brownwood Annex, a

common meeting place for Whitley and Ariaz. By July 12, 2007, Hanna had

“video proof that [Whitley] was likely being abused.” Specifically, Hanna

observed Ariaz kissing and hugging Whitley several times in the Annex hallway,

entering a courtroom where Whitley was waiting, and exiting the same

courtroom without his duty belt thirteen minutes later. Despite this knowledge,

Hanna allegedly made no effort to “put a stop to the abuse.” Rather, says

Whitley’s complaint, Hanna “continued to use [her] as bait to catch Ariaz in the

act of sexual offense,” and thereby “knowingly allowed and provided substantial

assistance to a fifty-five year old man to abuse a fifteen year old to better [his]

chance at a conviction and make [his] investigation easier.”

Ariaz continued to abuse Whitley for days, with bits and pieces of his

inappropriate conduct captured on Brownwood Annex video cameras. In the

early morning of July 17, 2007, Hanna hid in the courtroom closet with another

investigator, where he observed Ariaz positioned over Whitley in a “clearly

inappropriate and sexual manner.” Hanna did not intervene to stop Ariaz’s

conduct, but “remained at the Annex so that he would be more ready the next

time to catch Ariaz in the midst of a more prolonged act.” Ariaz left the Annex

with Whitley at around 2:30 in the morning. Hours later, at 6:13 a.m., Ariaz

returned with Whitley; Hanna observed Ariaz kiss her for several minutes while

28

No. 12-10312

she was lying down, and ultimately place his head in Whitley’s “crotch area.”

Only then did Hanna emerge from the closet and place Ariaz under arrest.

Taking these allegations as true, I would conclude that Hanna plausibly

acted with deliberate indifference to Whitley’s constitutional right to bodily

integrity.

II.

As a threshold matter, there is no reasonable debate that Ariaz violated

Whitley’s constitutional rights when he sexually assaulted her. We have long

held that the Fourteenth Amendment affords a person “[t]he right to be free of

state-occasioned damage to . . . bodily integrity.” Doe v. Taylor Indep. Sch. Dist.,

15 F.3d 443, 450–51 (5th Cir. 1994) (en banc) (quoting Shillingford v. Holmes,

634 F.2d 263, 265 (5th Cir. 1981)).1 Sexual abuse by a state official is an

undeniable violation of this liberty interest. See Taylor, 15 F.3d at 451 (“[S]urely

the Constitution protects a schoolchild from physical sexual abuse—here,

sexually fondling a 15-year old school girl and statutory rape—by a public

schoolteacher. . . . Thus, Jane Doe clearly was deprived of a liberty interest

recognized under the substantive due process component of the Fourteenth

Amendment.” (footnote omitted)). We have called it “incontrovertible” that a

state actor violates bodily integrity when s/he sexually abuses a child; “such

1

As the Fourth Circuit explained, “[t]he existence of this right to ultimate bodily

security . . . is unmistakably established in our constitutional decisions as an attribute of the

ordered liberty that is the concern of substantive due process. Numerous cases in a variety of

contexts recognize it as a last line of defense against those literally outrageous abuses of

official power . . . .” Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980). For example, in a case

involving rape by a police officer after a traffic stop, the Eighth Circuit emphasized that the

officer’s sexual assault “was a violation of the most intimate kind of bodily integrity,” and

concluded that the district court did not err in concluding that the officer’s “egregious sexual

violation” deprived the victim of a due process right. Rogers v. City of Little Rock, 152 F.3d

790, 796 (8th Cir. 1998). In a case with nearly identical facts, the Fourth Circuit described the

due process right at issue as a “right . . . not to be subjected by anyone acting under color of

state law to the wanton infliction of physical harm.” Jones v. Wellham, 104 F.3d 620, 628 (4th

Cir. 1997).

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No. 12-10312

misconduct deprives the child of rights vouchsafed by the Fourteenth

Amendment.” Id. (footnotes omitted).

Critically, the existence of an underlying constitutional violation

differentiates this case from Gonzalez and DeShaney, which examined the scope

of a state official’s duty to interfere with private violence. See Town of Castle

Rock v. Gonzales, 545 U.S. 748, 750–51 (2005) (analyzing whether an individual

had a constitutionally protected property interest in the enforcement of a state-

law restraining order against a private party); DeShaney v. Winnebago Cnty.

Dep’t of Soc. Servs., 489 U.S. 189, 195–96 (1989) (analyzing whether a child had

a substantive due process right to protection from violent physical abuse by his

father). As the Supreme Court explained in DeShaney, the Fourteenth

Amendment was enacted to “protect the people from the State, not to ensure that

the State protected them from each other.” 489 U.S. at 196. Thus, although the

substantive component of the Due Process Clause does not “requir[e] the State

to protect the life, liberty, and property of its citizens against invasion by private

actors,” it does protect against “state-occasioned damage to a person’s bodily

integrity.” Id. at 195; Taylor, 15 F.3d at 450–51 (citing Shillingford, 634 F.2d

at 265) (emphasis added).2

2

The Supreme Court has cautioned that the Due Process Clause “does not entail a

body of constitutional law imposing liability whenever someone cloaked with state authority

causes harm.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998). Instead, for the

conduct of a state actor to give rise to liability under the Due Process Clause, “the threshold

question is whether the behavior of the governmental officer is so egregious, so outrageous,

that it may fairly be said to shock the contemporary conscience.” Id. at 847 n.8 (citing

Washington v. Glucksberg, 521 U.S. 702 (1997)). In many contexts, what shocks the conscience

is “deliberate indifference.” Id. at 851; see Hernandez ex rel. Hernandez v. Tex. Dep’t of

Protective & Regulatory Servs., 380 F.3d 872, 880 (5th Cir. 2004) (“Consistent with those

principles [in Lewis], we have generally required plaintiffs to demonstrate that ‘the defendant

state official at a minimum acted with deliberate indifference toward the plaintiff.’” (citation

and internal quotation marks omitted) (collecting cases)). “As the very term ‘deliberate

indifference’ implies, the standard is sensibly employed only when actual deliberation is

practical.” Lewis, 523 U.S. at 851 (citing Whitley v. Albers, 475 U.S. 312, 320 (1986)); see

Brown v. Nationsbank Corp., 188 F.3d 579, 592 (5th Cir. 1999) (applying a deliberate-

indifference standard where “the FBI made decisions which harmed the Plaintiffs after ample

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Where, as here, a case involves an underlying constitutional violation like

state-occasioned violence, the court must ask whether the state actor treated the

violation with deliberate indifference. See Doe v. Rains Cnty. Indep. Sch. Dist.,

66 F.3d 1402, 1413 (5th Cir. 1995) (noting that, in Taylor, “the supervisor’s

failure to act, coupled with his deliberate indifference, was tantamount to a

conscious decision to allow the alleged constitutional injury to occur or persist”);

see also Taylor, 15 F.3d at 463 (Higginbotham, J., concurring) (“An omission that

evinces deliberate indifference toward the violation of an individual’s

constitutional rights may amount to an act that causes the violation.”).3 My

primary concern here is with the majority opinion’s approach to the deliberate

indifference inquiry.

III.

The deliberate indifference standard is a high bar, but it is not

insurmountable. At this stage, Whitley must plausibly allege that Hanna made

a “‘conscious’ choice to endanger [her] constitutional rights.” Mesa v. Prejean,

543 F.3d 264, 274 (5th Cir. 2008) (quoting Snyder v. Trepagnier, 142 F.3d 791,

799 (5th Cir. 1998)). Taking Whitley’s allegations as true, that is precisely what

happened here: Hanna decided to allow Ariaz, a state official, to continue

opportunity for cool reflection”).

3

For example, in the context of alleged abuse to foster children, we have held that “an

obvious showing that state social workers exhibited a conscious disregard for known severe

physical abuses in a state-licensed foster home by itself sufficiently demonstrates deliberate

indifference to a child’s right to personal security.” Hernandez, 380 F.3d at 881 (concluding

that two social workers did not act with deliberate indifference where, after an investigation,

both concluded that there was no substantial risk to the children at issue). We have allowed

a deliberate-indifference claim against hospital officials who turned a blind eye to a

subordinate’s alleged intentional poisoning of patients. Atteberry v. Nocona Gen. Hosp., 430

F.3d 245, 256 (5th Cir. 2005) (holding that plaintiffs sufficiently pled deliberate indifference

against two supervisors who allegedly “knew both that a dangerous drug was missing and that

patients were dying at an unusually high rate,” and noting that although they “could have

investigated the deaths and missing drugs or changed hospital policy, they did nothing for a

considerable period of time”).

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sexually assaulting Whitley in the hopes of obtaining stronger evidence against

Ariaz. Whitley contends that Hanna was well-aware of the risk to her at the

time; the plan was predicated on the fact that Ariaz had abused, and would

continue to abuse, his young Explorer student.4 In other words, Hanna allegedly

knew that Ariaz was “highly likely to inflict the particular injury” that Whitley

suffered, and Hanna chose not to act. Cf. Brown v. Bryan Cnty., Okla., 219 F.3d

450, 461 (5th Cir. 2000) (citation omitted).

Moreover, Hanna’s alleged conduct goes beyond mere haphazard or

negligent investigation. The majority opinion analogizes Hanna’s behavior to

that of the superintendent in Taylor, highlighting that Hanna immediately

resumed his investigation (after months of stagnation) when he learned that

Ariaz was cavorting with another minor in the Explorers program.5 But Hanna’s

conduct here is fundamentally different from that of the Taylor superintendent.

In Taylor, the superintendent took affirmative, albeit ineffective, steps to end

the abuse. 15 F.3d at 457–58. He directed the principal to talk with the coach

suspected of sexual abuse, contacted the victim’s parents, spoke with the victim,

and verbally reprimanded the coach. Id. The purpose of these actions was to

interfere with the alleged abuse, thereby mitigating the risk of continued

constitutional injury. Id. Indeed, we distinguished the Taylor superintendent’s

4

This is especially true in light of A.M.’s prior complaints about Ariaz’s conduct and the

information Hanna obtained in the very early stages of his investigation regarding Whitley.

Moreover, Hanna himself observed Whitley and Ariaz engaging in sexually suggestive

behavior at the Brownwood Annex. Thus, there is no question that Hanna was aware of the

risk to Whitley’s constitutional rights.

5

The majority opinion emphasizes that Hanna could have conducted the investigation

differently by, for example, moving at a faster pace, or placing video cameras in the courtroom

(rather than the public hallway) of the Brownwood Annex. But it concludes that such mistakes

are not enough to plausibly support § 1983 liability. If Whitley’s claim turned on arguably

minor investigatory failures in a typical criminal investigation, I would agree wholeheartedly.

But it does not. Rather, Whitley’s allegations center on Hanna’s deliberate choice to prolong

the risk of constitutional injury for the perceived greater good of Ariaz’s conviction.

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actions from those of the deliberately-indifferent school principal, who “failed to

take action that was obviously necessary to prevent or stop” the abuse.6 Id. at

457. We focused on the principal’s failure to take actions that may have

“derailed the relationship.” Put another way, the constitutional violations would

not have been as “severe or prolonged” absent his deliberate choice not to act.

Id. If the Taylor principal’s nonfeasance is sufficient to show deliberate

indifference, then Hanna’s allegedly purposeful subrogation of Whitley’s

constitutional rights must be enough to survive 12(b)(6) dismissal.

The implicit message in the majority opinion’s deliberate-indifference

analysis is that an officer can escape § 1983 liability for a conscious

endangerment of a victim’s constitutional rights, provided that he acted with

good intentions. For example, the majority opinion emphasizes that Hanna “had

to decide what evidence would suffice to secure a conviction,” and notes Hanna’s

commitment “to putting an end to Ariaz’s abuses once and for all.” But this

ignores the fact that, in his zeal to put Ariaz behind bars for good, Hanna

allowed—in fact, expected7—Whitley to suffer additional instances of sexual

abuse at the hands of a fifty-five year old police officer. No matter how well-

intended, investigatory and prosecutorial strategies must yield to the inviolable

6

Moreover, the Taylor superintendent was new to the school, and had no prior

knowledge of the teacher’s behavior. Still, he acted immediately when he learned of the abuse.

Here, on the other hand, Hanna declined to complete his investigation of A.M.’s complaint and

then, after learning that Ariaz was likely abusing Whitley, decided to allow the abuse to

continue.

7

Indeed, Hanna’s plan did more than just allow Ariaz to continue to abuse Whitley;

rather, it required further acts of sexual abuse before Hanna would arrest Ariaz or directly

intervene. For example, Whitley alleges that “[Hanna] observed Plaintiff sitting or lying on

a table with Ariaz positioned over her in a clearly inappropriate and sexual manner” at or near

2:30 a.m. on July 17, 2013. The majority opinion’s fine parsing of this allegation extends

beyond the requirements of Twombly and Iqbal. Certainly, Hanna was aware of a substantial

risk to Whitley’s constitutional rights when he saw Ariaz positioned over Hanna in a “clearly

inappropriate and sexual manner.” Whitley alleges that, despite this known risk, Hanna

allowed the contact to continue.

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constitutional rights of those involved (typically the defendant, but here the

victim).8 “While the difficulties of law enforcement are great, police

investigations cannot be allowed to subordinate the rights of men and women

under our Constitution. This principle runs deep in our jurisprudence, and we

will stand by it until time has tolled its last bell.” Melear v. Spears, 862 F.2d

1177, 1186–87 (5th Cir. 1989).

Moreover, the majority opinion’s deliberate-indifference analysis suggests

that Hanna faced a binary choice: arrest Ariaz, or do nothing to intervene in the

absence of conclusive evidence of abuse. See, e.g., Op. at 16 (“Hanna had to

decide what evidence would suffice to secure a conviction.”).9 It focuses on the

fact that Hanna had only “[v]ideo proof that [Whitley] was likely being abused,”

which may not have been sufficient to obtain a conviction under the Texas Penal

8

As Whitley’s counsel rightly noted at oral argument, there are many tactics that an

officer could employ to secure stronger evidence in the course of an investigation: a coerced

confession, an illegal search, an improper wiretap, and so on. See, e.g., Crawford v.

Washington, 541 U.S. 36, 69 (2004) (reversing the judgment of the Washington Supreme Court

based on the unconstitutional denial of a defendant’s Sixth Amendment right to confront a

witness against him); Kyles v. Whitley, 514 U.S. 419, 454 (1995) (reversing a defendant’s

conviction and remanding for a new trial based on the state’s unconstitutional failure to turn

over exculpatory evidence); Blackburn v. Alabama, 361 U.S. 199, 211 (1960) (reversing a

robbery conviction of a mentally incompetent defendant after his confession was found to be

involuntary and in violation of the Fourteenth Amendment); Giordenello v. United States, 357

U.S. 480, 488 (1958) (reversing a conviction for the possession of narcotics when the arrest

warrant lacked probable cause in violation of the Federal Rules of Criminal Procedure); see also

Wilson v. Lawrence Cnty., 260 F.3d 946 (8th Cir. 2001) (holding that a defendant could state

a § 1983 claim where “a reasonable factfinder could determine that Defendants recklessly or

intentionally chose to force Wilson to confess instead of attempting to solve the murder through

reliable but time consuming investigatory techniques designed to confirm their suspicions,” and

noting that there is “no counterveiling equally important governmental interest that would

excuse the appellants from fulfilling their responsibility”). We bar law enforcement from this

conduct because, no matter how valuable the conviction, the constitutional rights at issue are

paramount. See Blackburn, 361 U.S. at 206 (“As important as it is that persons who have

committed crimes be convicted, there are considerations which transcend the question of guilt

or innocence.”).

9

See also Op. at 20 (“Thus, although we easily can imagine some alternatives to the

choice that Appellees made—including confronting Whitley or contacting her parents—the fact

remains that Appellees successfully brought about Ariaz’s arrest approximately two weeks

after Hanna first learned of a potential relationship between Ariaz and Whitley.”).

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Code. But whether Hanna could or should have arrested Ariaz is an entirely

different question from whether Hanna’s failure to intervene in state-occasioned

violence constitutes deliberate indifference. The deliberate-indifference

standard requires only conscious disregard to a “risk that a violation of a

particular constitutional right . . . will follow the decision.” Bd. of Cnty. Comm’rs

of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 411 (1997) (emphasis added)

(analyzing the deliberate-indifference standard in the context of municipal

liability, and evaluating whether a police officer’s use of excessive force would

have been a plainly obvious consequence of the sheriff’s hiring decision). In

other words, as soon as Hanna knew that Whitley was in danger of further

sexual abuse, he could not choose to ignore the risk, regardless of whether he

had direct evidence for a conviction.

In short, while Hanna may have preferred perfect proof of Ariaz’s sexual

abuse, video or eyewitness evidence was by no means a mandatory prerequisite

to Whitley’s rescue. I would hold at this preliminary stage that Hanna’s alleged

deliberate choice to prioritize Ariaz’s eventual prosecution over Whitley’s

immediate safety plausibly constitutes deliberate indifference to a known risk

of constitutional violations.

IV.

Of course, the inquiry does not end with the plausibility of Whitley’s

§ 1983 claim, as Hanna asserted a qualified-immunity defense. “Qualified

immunity shields federal and state officials from money damages unless a

plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time

of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011).

Relevant here is the second prong of the inquiry: whether the

constitutional right at issue was “clearly established” at the time of the

challenged conduct. Id. In considering this prong, the court asks whether the

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law so clearly and unambiguously prohibited his conduct that “every ‘reasonable

official would understand that what he is doing violates [the law].’” Id. at 2083

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The court will not

deny immunity unless “existing precedent . . . placed the statutory or

constitutional question beyond debate.” Id. at 2083. This doctrine protects “all

but the plainly incompetent or those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986).

The “clearly established” requirement does not depend on the existence of

a case directly on point, however. See al-Kidd, 131 S. Ct. at 2083; see also

Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377 (2009) (“To be

established clearly, however, there is no need that the ‘very action in question

[have] previously been held unlawful.’” (quoting Wilson v. Layne, 526 U.S. 603,

615 (1999))). “Rather, ‘[t]he central concept is that of fair warning: The law can

be clearly established despite notable factual distinctions between the

precedents relied on and the cases then before the Court, so long as the prior

decisions gave reasonable warning that the conduct then at issue violated

constitutional rights.’” Morgan v. Swanson, 659 F.3d 359, 412–13 (5th Cir. 2011)

(en banc) (Elrod, J., dissenting) (quoting Kinney v. Weaver, 367 F.3d 337, 350

(5th Cir. 2004) (en banc)) (internal quotation marks omitted). The fair notice

requirement is satisfied if controlling authority—or a “robust ‘consensus of

persuasive authority’”—defines the contours of the right in question with a high

degree of particularity. See al-Kidd, 131 S. Ct. at 2083 (quoting Wilson, 526 U.S.

at 617).

Here, I would hold that Hanna lacked fair notice that his conduct would

amount to a constitutional violation.10 Although there is no debate that a child

10

The court looks not to whether the underlying constitutional violation is clearly

established, but rather to whether an officer would have known that his conduct in

addressing—or failing to address—the underlying violation, in and of itself, creates a

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has an inviolable right to bodily integrity, see supra Part II, our case law

regarding an individual’s obligation to intervene in incidents of child sexual

abuse arises almost exclusively in the context of school officials. See Taylor, 15

F.3d at 450–51; Rains, 66 F.3d at 1413. The other analogous body of law arises

in bystander-liability cases, in which we require both actual presence at and

acquiescence in the underlying constitutional violation. See Hale v. Townley, 45

F.3d 914 (5th Cir. 1995). There simply is not enough controlling or persuasive

authority to conclude that every reasonable official in Hanna’s position would

understand that what he was doing violated the law. For that reason, Hanna

is entitled to qualified immunity.

V.

This case is about a state actor’s knowing, deliberate choice not to

intervene despite a substantial risk of continued statutory rape by a public

official, in hopes of obtaining direct evidence for a conviction. While the

underlying law-enforcement goal may be laudable, it must bend where a

constitutional right is in play. Therefore, I would hold that Whitley states a

plausible deliberate-indifference claim under § 1983. Nevertheless, I concur in

the judgment because Hanna is entitled to qualified immunity.

constitutional injury. See, e.g., al-Kidd, 131 S. Ct. at 2084 (explaining that “[t]he general

proposition . . . that an unreasonable search or seizure violates the Fourth Amendment is of

little help in determining whether the violative nature of particular conduct is clearly

established” (citing Saucier v. Katz, 533 U.S. 194, 201–02 (2001); Wilson, 526 U.S. at 615)).

37