Sarah Doe v. Jerald Neveleff

Case: 13-50459 Document: 00512619827 Page: 1 Date Filed: 05/06/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 6, 2014

No. 13-50459

Lyle W. Cayce

Clerk

SARAH DOE, on behalf of herself and all others similarly situated;

KIMBERLY DOE, on behalf of herself and all others similarly situated;

RAQUEL DOE, on behalf of herself and all others similarly situated; ANNA

ROE, on behalf of herself and all others similarly situated; GEORGINA ROE,

on behalf of herself and all others similarly situated; EMILY ROE, on behalf

of herself and all others similarly situated; BETH ROE, on behalf of herself

and all others similarly situated; CONSTANCE ROE, on behalf of herself and

all others similarly situated,

Plaintiffs - Appellees

v.

GEORGE ROBERTSON, ICE Contracting Officer’s Technical Representative

(COTR); JOSE ROSADO, ICE COTR,

Defendants - Appellants

Appeal from the United States District Court

for the Western District of Texas

Before STEWART, Chief Judge, and GARZA and SOUTHWICK, Circuit

Judges.

EMILIO M. GARZA, Circuit Judge:

Sarah Doe and several other anonymous female immigrants

(“Plaintiffs”) were sexually assaulted while being transported from an

immigration detention center. They brought a Bivens action against federal

officials George Robertson (“Robertson”) and Jose Rosado (“Rosado”) for

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violation of their Fifth Amendment due process right to freedom from

“deliberate indifference to a substantial risk of serious harm,” Farmer v.

Brennan, 511 U.S. 825, 828 (1994) (quotation marks omitted), alleging that the

officials knew of violations of a contractual provision requiring that

transported detainees be escorted by at least one officer of the same gender,

and that the officials understood the provision aimed to prevent sexual assault.

Robertson and Rosado moved to dismiss the action, arguing inter alia that they

are entitled to qualified immunity. The district court denied their motion.

Robertson and Rosado now appeal, and we reverse and remand with

instructions to dismiss.

I

Plaintiffs are female immigrants who, while waiting to be interviewed

by asylum officers, were each detained by U.S. Immigration and Customs

Enforcement (“ICE”) at the T. Don Hutto Residential Center (“Hutto”), an

immigration detention center in Texas. After each Plaintiff presented a prima

facie case for asylum, she was released from Hutto on her own recognizance

while her asylum claim remained pending. Upon each Plaintiff’s release,

Donald Dunn (“Dunn”), a male employee of the private entity Corrections

Corporation of America (“CCA”), transported her from Hutto to the airport or

bus station with no other officers present. During these transports, Dunn

sexually assaulted each Plaintiff. He subsequently pleaded guilty to state and

federal criminal charges arising from these assaults.

ICE contracts the operation of Hutto to Williamson County, Texas,

pursuant to an Intergovernmental Service Agreement (“Service Agreement”).

Williamson County, in turn, subcontracts this task to CCA, under an

agreement incorporating the Service Agreement’s terms. The Service

Agreement requires that “[d]uring all transportation activities, at least one (1)

transportation officer shall be of the same sex as the residents being

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transported.” Second Amended Complaint at ¶ 3 [hereinafter Complaint]

(citing Service Agreement, art. III.D). 1

Plaintiffs sued Robertson, Rosado, and others in district court for money

damages. During the period of Dunn’s assaults, Robertson and Rosado were

federal officials who worked at Hutto as ICE Contracting Officer’s Technical

Representatives (“COTRs”). Plaintiffs alleged that Robertson and Rosado,

as COTRs, were “employee[s] of ICE responsible for

monitoring all technical aspects and assisting in

administering the [Service Agreement].” [The COTR

is] an on-site official, tasked with regular inspections

and assessing overall performance by reviewing

specific items in the areas covered by the relevant

performance standards and by monitoring relevant

activities at Hutto.

Id. at ¶¶ 221–22 (quoting Service Agreement, attachment 1). Furthermore,

the Complaint recounted “numerous reports of sexual abuse and assault” in

ICE facilities nationwide and alleged that in light of these incidents, “ICE and

its officials and employees were inarguably acutely aware of the relevant risks

female immigrant detainees faced from detention center officers and staff.” Id.

at ¶ 52. The Complaint further alleged that in 2007, a CCA-employed male

guard had sex with a female detainee in her cell at Hutto, and that the guard

was subsequently terminated. Id. at ¶ 42, 61.

In addition to contract-monitoring responsibilities, Plaintiffs alleged

that Robertson and Rosado had responsibilities pertaining to detainee

transport. Under the terms of the Service Agreement,

1 CCA Policy 9-101 similarly mandates that “[o]nly staff of the same gender as the

residents being transported will be assigned to transport residents that bond out.” Complaint

at ¶ 70. Moreover, the Service Agreement contained performance standards regarding sexual

assault prevention, and the Complaint accordingly alleged that COTRs had a “direct and

personal responsibility to take the measures necessary to prevent such sexual assaults.” Id.

at ¶¶ 228–30.

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CCA would provide, “upon request and as scheduled

by the COTR or Contracting Officer, necessary escort

and transportation services for residents to and from

designated locations.” . . . Pursuant to Attachment 1

[to the Service Agreement], “[t]ransportation routes

and scheduling [had to] be accomplished in the most

economical manner as approved by the COTR.”

Moreover . . . , CCA “had to establish a communication

system that [had] direct and immediate contact with

all vehicles . . . .” . . . Thus, the [Service Agreement]

contemplated the ICE Defendants having direct and

personal involvement with the details of transports.

Id. at ¶¶ 226–27 (quoting Service Agreement, art. III.D, attachment 1).

Plaintiffs further alleged that COTRs had access to logbooks and reports

related to Hutto’s operations. Id. at ¶ 223. These documents indicated that

during the period relevant to this action, at least 22 male officers made a total

of 77 transport trips with female detainees without a female officer present.

Id. at ¶¶ 72–74.

In summarizing their cause of action, Plaintiffs alleged that Robertson

and Rosado

exhibited deliberate indifference in their respective

capacities by (1) willfully blinding themselves to the

need to implement steps to prevent sexual assault

during transport activities, even when those steps

were required by applicable contracts, policies, and

standards; and (2) failing appropriately to monitor

transport activities which they knew to be proceeding

in violation of applicable contracts, policies, and

standards, under circumstances in which they knew

that the applicable contracts, policies, and standards

were designed to prevent sexual assault on the named

plaintiffs and on the other members of the Class.

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Id. at ¶ 242. Additionally, Plaintiffs alleged that Robertson and Rosado

showed “deliberate indifference” to the “risk of assault and sexual assault” on

Plaintiffs, which risk was “clear, obvious, and ongoing.” Id. at ¶ 243–44.

Before the district court, Robertson and Rosado moved to dismiss on

grounds that a Bivens action could not be brought against COTRs and that

they were entitled to qualified immunity. A magistrate judge recommended

that the motion be denied, and the district court approved and accepted the

recommendation. Robertson and Rosado now appeal, contending that they are

entitled to qualified immunity.

II

We review de novo a district court’s denial of a motion to dismiss on

qualified immunity grounds. Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir.

2011) (en banc). Although we “construe facts in the light most favorable to the

nonmoving party,” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011), we

must “identify[] pleadings that, because they are no more than conclusions, are

not entitled to the assumption of truth,” Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009). “When there are well-pleaded factual allegations, a court should

assume their veracity and then determine whether they plausibly give rise to

an entitlement to relief.” Id. A complaint must fail if it offers only “naked

assertions devoid of further factual enhancement.” Id. at 678 (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557 (2007)) (internal quotation marks and

alterations omitted).

III

Robertson and Rosado contend that because they are entitled to qualified

immunity, the district court erred in denying their motion to dismiss.

An action alleging that a federal government actor committed

constitutional violations must be brought under Bivens v. Six Unknown Named

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Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 2 However, the

government actor may be entitled to qualified immunity protecting him “from

civil damages liability unless the official violated a statutory or constitutional

right that was clearly established at the time of the challenged conduct.”

Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012). “[E]valuating qualified

immunity is a two-step process, and the burden is on the plaintiff to prove that

a government official is not entitled to qualified immunity.” Wyatt v. Fletcher,

718 F.3d 496, 502 (5th Cir. 2013). First, the plaintiff must allege “a violation

of a clearly established constitutional or statutory right.” Id. A right is clearly

established if “existing precedent [has] placed the statutory or constitutional

question beyond debate.” Morgan, 659 F.3d at 371 (citation omitted). If the

first step is satisfied, we must “determine whether the defendant’s conduct was

objectively reasonable.” Wyatt, 718 F.3d at 503.

When a detainee alleges that a federal government official’s episodic act

or omission violated her Fifth Amendment due process right to basic human

needs, we must decide whether the official exhibited deliberate indifference

under Farmer v. Brennan, 511 U.S. 825 (1994). Cf. Hare v. City of Corinth, 74

F.3d 633, 636, 648–49 (5th Cir. 1996) (en banc) (applying Farmer’s Eighth

Amendment deliberate indifference test to pretrial detainee’s Fourteenth

Amendment due process claim against state officials). In Farmer, a

transsexual inmate brought a Bivens action against federal prison officials who

2 We assume without deciding that Bivens is an appropriate vehicle for Plaintiffs’ Fifth

Amendment claim. Before the district court, Robertson and Rosado contended that under

Minneci v. Pollard, 132 S. Ct. 617 (2012), a Bivens action is unavailable against Hutto

COTRs, who lacked direct custodial responsibility for detainees. The district court disagreed,

concluding that Minneci does not govern this case because Robertson and Rosado are federal

officials, not employees of a private entity. On appeal, Robertson and Rosado have abandoned

the argument that a Bivens action is categorically unavailable, and we need not consider it

further. See United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (“It is a well worn

principle that the failure to raise an issue on appeal constitutes waiver of that argument.”).

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allegedly failed to prevent a sexual assault, in violation of the inmate’s Eighth

Amendment rights. The court of appeals affirmed the district court’s grant of

summary judgment to the defendants on the grounds that the victim had failed

to put authorities on notice of any potential danger. The Supreme Court held

that a prison official violates an inmate’s Eighth Amendment rights by

showing “deliberate indifference” to a substantial risk of serious harm when

the official “knows of and disregards an excessive risk to inmate health or

safety.” Farmer, 511 U.S. at 837. The court adopted a requirement of

subjective indifference and explained that “the official must both be aware of

facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Id. This standard requires

more than negligence, but less than a “purpose of causing harm” or “knowledge

that harm will result.” Id. at 835. Concluding that the district court erred in

requiring that the victim notify the defendants in advance about a risk of harm,

the Supreme Court reversed and remanded the case.

A

Under Iqbal, we first look to Plaintiffs’ Complaint, distilling the well-

pleaded factual allegations—whose truth we are bound to presume at this

stage—from any unsupported legal conclusions—whose truth we cannot

assume. We conclude that the Complaint contains well-pleaded factual

allegations that Robertson and Rosado had actual knowledge both of the

Service Agreement violations and of the violated provision’s objective of

preventing sexual assault.

In the statement of their Bivens claim, Plaintiffs alleged that Robertson

and Rosado “exhibited deliberate indifference” in violation of Plaintiffs’ Fifth

Amendment rights. At the outset, we observe that this allegation of “deliberate

indifference” is merely a legal conclusion. See Farmer, 511 U.S. at 837

(articulating deliberate indifference test). Although this conclusion might

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have been “couched as a factual allegation,” we cannot accept its truth for

purposes of evaluating the sufficiency of the pleadings. Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 555).

However, the Complaint did make two relevant factual allegations: 1)

that Robertson and Rosado “willfully blind[ed]” themselves to violations of the

Service Agreement pertaining to sexual assault prevention, and 2) that

Robertson and Rosado failed to monitor detainee transports that they “knew

to be proceeding in violation of applicable contracts, policies, and standards,”

whose purpose they understood. Complaint at ¶ 242. Stated simply, the

Complaint alleged that Robertson and Rosado were aware both of violations of

the Service Agreement provision requiring at least one transport officer to be

the same gender as that of transported detainees, and of the provision’s

assault-preventing rationale. 3

These factual claims are “well-pleaded factual allegations” and not

merely legal “conclusions.” Iqbal, 556 U.S. at 679. To support their claims,

Plaintiffs further alleged that Robertson and Rosado, in addition to their duties

to administer the Service Agreement, had on-site operational duties to arrange

for detainee transportation, Complaint at ¶¶ 221–22, 226–27; had access to

records showing that lone male officers transported female detainees on

numerous occasions, id. at ¶¶ 74, 223; and understood the purpose of the

Service Agreement provision given their awareness of ICE’s history, id. at ¶

52. Although these supporting allegations do not conclusively establish that

Robertson and Rosado knew of the Service Agreement violations and of the

violated provision’s rationale, we assume—without deciding—the truth of

3 Although other policies and standards are relevant, see supra n.1, they have the

same legal significance in this case as the violated provision of the Service Agreement: They

are obligations to prevent sexual assault during detainee transport, of which Robertson and

Rosado were aware, and whose rationale they understood. To simplify our discussion, we

focus our discussion on the violation of the Service Agreement provision.

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Plaintiffs’ factual allegations because they are not “naked assertions devoid of

further factual enhancement.” Iqbal, 556 U.S. at 678 (citation, quotation

marks, and alterations omitted). 4

Robertson and Rosado submit that “alleged access to information” falls

short of an allegation of subjective awareness of the Service Agreement

violations. Furthermore, they read Newton v. City of Henderson, 47 F.3d 746

(5th Cir. 1995), to mean that access to information cannot prove constructive

knowledge of that information, and rely on Hare, 74 F.3d at 650, for the

proposition that constructive knowledge cannot establish the actual knowledge

required by Farmer.

We disagree. First, Plaintiffs did allege that Robertson and Rosado had

actual, subjective knowledge of the Service Agreement violations. Complaint

at ¶ 242. And as already explained, this allegation is not a mere “naked

assertio[n]”; it is supported—though not proven—by the additional factual

allegations recounted above. Iqbal, 556 U.S. at 678. Although it is possible

that Robertson and Rosado were mere dispatchers ignorant of the number or

gender of assigned officers, or that they never reviewed the logbooks to which

they had access, our task is not to weigh evidence at the motion to dismiss

stage. Robertson and Rosado either misread the Complaint as alleging only

access to information, or else misunderstand Iqbal to require us to assess the

plausibility of factual allegations—as opposed to that of legal claims.

The cases that Robertson and Rosado invoke are also unavailing. In

Newton, we reviewed the full record underlying a district court’s bench trial

4 If Plaintiffs had merely recited the legal test in Farmer by alleging that Robertson

and Rosado were “aware of facts from which the inference could be drawn that a substantial

risk of serious harm existed, and also drew the inference,” then their allegation would be no

more than “a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678. Here,

by contrast, Plaintiffs allege specific knowledge on the part of Robertson and Rosado—they

knew about the Service Agreement violations and the rationale behind the violated provision.

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findings, and we reasoned that the fact of access to information alone was

“insufficient” because of other evidence showing that knowledge could not be

so imputed. Newton, 47 F.3d at 749. And in the portion of Hare that Robertson

and Rosado invoke, we merely articulated the well-established rule of Farmer:

an officer is liable under the Eighth Amendment only if he actually disregards

subjective awareness of a substantial risk, and not where he objectively

“should have been aware” of the risk. Hare, 74 F.3d at 650.

We accordingly conclude that Plaintiffs properly alleged that Robertson

and Rosado had actual knowledge both of the violations of the Service

Agreement provision and of that provision’s assault-preventing objective. 5

B

Accepting the truth of the facts as alleged, we next consider whether

these facts are sufficient to nudge the Bivens claim across the “plausibility”

threshold. Iqbal, 556 U.S. at 678. That is, we must decide whether Robertson

and Rosado’s knowledge of violations of the Service Agreement provision

prohibiting a lone male officer from transporting female detainees, where they

also knew the provision aimed to prevent sexual assault, 6 make plausible

Plaintiffs’ claim that Robertson and Rosado were deliberately indifferent to a

substantial risk of serious harm, in violation of “clearly established” law.

5 During the briefing schedule, the district court issued an order granting the United

States’ motion to dismiss Plaintiffs’ separate claim under the Federal Tort Claims Act

(“FTCA”), on grounds that the claim falls within the discretionary-function exception to the

FTCA’s waiver of sovereign immunity. Certain language in this later order seems to be in

tension with the order at issue in this appeal. See Order on the United States’ Motion to

Dismiss, No. 1:12-cv-00605-LY, at *6 (W.D. Tex. Aug. 7, 2013) (“Plaintiffs have failed to allege

that any inherently discretionary function was performed in a deliberately indifferent

manner.”). However, this later order is not before us, and we decline to consider it.

6 Because we accept the facts as alleged, we reject Robertson and Rosado’s suggestion

that this case concerns only the negligent monitoring of a contract. Plaintiffs alleged

knowledge of the Service Agreement violations, and of the violated provision’s purpose.

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Wyatt, 718 F.3d at 502. 7 Even presuming the truth of their factual allegations,

we conclude that Plaintiffs’ claim is not plausible because no clearly

established law provides that violations of contractual terms that aim to

prevent sexual assault are “facts from which the inference could be drawn that

a substantial risk of serious harm exists.” Farmer, 511 U.S. at 837. 8

In Farmer, the Supreme Court held that in order for an official to be

constitutionally liable for showing deliberate indifference, “the official must

both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.”

Id. (emphasis added). Thus, the plausibility of Plaintiffs’ claim turns on the

threshold question of whether, under clearly established law, the alleged

Service Agreement violations constitute “facts from which the inference could

be drawn that a substantial risk of serious harm exists.” Id.

Farmer teaches that such facts must be more indicative of an actual,

substantial risk of harm than are the violations of contractual terms designed

to minimize harm, which are here alleged. At one extreme, an official need not

anticipate the precise identity of an attacker or victim; it is enough that he is

aware of the substantial risk. Id. at 843. But by the same token, the Court

recognized that the “excessive risk to . . . health or safety,” id. at 837, must

reveal itself to the official in concrete form—e.g., prison inmates who forgo

7 On appeal, Robertson and Rosado do not contend that their actions were “objectively

reasonable” under the second step of qualified immunity analysis. Wyatt, 718 F.3d at 503.

8 We decline to address Plaintiffs’ suggestion that the fact of a lone male officer’s

transporting a female detainee, standing alone, supports an inference of a “substantial risk

of serious harm.” They proffer a range of reasons—the “extreme level of authority” exercised

by transportation officers, the detainees’ lack of English skills and familiarity with regions

through which they were transported, the “fears and stresses endemic to [the detainees’]

tenuous status,” and the history of sexual assault informing the Service Agreement provision.

All but the last of these factors could manifest themselves throughout the detention facility.

As both parties recognize, what distinguishes this case is the alleged violations of the Service

Agreement provision, and we base our legal analysis on the significance of this alleged fact.

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sleep and spend nights next to the guards’ station out of a fear of rape, signs of

exposure to infectious disease, id. at 843–44. In Farmer itself, the victim was

a transsexual placed into a facility known specifically for its history of sexual

assault. Id. at 848–50. 9

Here, even if Robertson and Rosado knew of the Service Agreement

violations, no clearly established law demonstrates that these contractual

violations are sufficiently proximate to a substantial risk of serious harm. To

be sure, the relevant Service Agreement provision creates a background legal

obligation that, if fulfilled, likely helps minimize the risk of sexual assault

during detainee transport. But Plaintiffs, in effect, want us to ratify the

inverse statement: If an official knows of a contractual violation, then the risk

of sexual assault automatically becomes constitutionally “substantial.”

Farmer, 511 U.S. at 837. This we decline to do. Even if we were to construe

the Fifth Amendment to extend so far, no established authority at the time of

the assaults would have enabled Plaintiffs to overcome qualified immunity.

Wyatt, 718 F.3d at 503 (explaining that clearly established law must derive

from “controlling authority—or a robust consensus of persuasive authority—

that defines the contours of the right in question with a high degree of

particularity” at the time of challenged conduct (citation omitted)). The law at

the time was not “beyond debate,” and neither is it today. Morgan, 659 F.3d

at 371 (citation omitted). 10

9 See also United States v. Gonzales, 436 F.3d 560, 573–74 (5th Cir. 2006) (upholding

finding of deliberate indifference based on evidence that officers failed to seek medical

assistance for a pretrial detainee who was “foaming at the mouth,” begging for help, and

yelling “take me to a hospital,” and with whom they had “close physical contact”).

10 The authorities relied upon by the district court and Plaintiffs are unpersuasive. In

Hostetler v. Green, 323 F. App’x 653 (10th Cir. 2009) (unpublished), although the Tenth

Circuit noted that a guard’s knowing violation of a policy, which he knew “was enacted

specifically to prevent sexual assault” did support “an inference that he was aware of an

increased risk of sexual assault,” id. at 658, the court also explained that it had “no occasion

to decide whether this fact [of a knowing policy violation] alone is sufficient to create an

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Crucially, the Complaint does not allege that any concrete facts betrayed

a heightened risk of sexual assault during the transports—for example, that

during the period of the assaults, Robertson and Rosado had knowledge of prior

incidents of transport-related sexual assault at Hutto; of complaints, fears, or

protests by transported detainees; or of the assaults themselves (in time to

prevent them). The 2007 incident at Hutto in which the CCA-employed guard

allegedly had sex with a detainee in her cell is also insufficient; the guard was

terminated and the incident did not stem from any persistent risk related to

detainee transport. Although Robertson and Rosado were allegedly aware of

ICE’s past struggles with sexual assault in general, the Complaint fails to

allege any “longstanding, pervasive, well-documented, or expressly noted” risk

of assaults either at Hutto or during detainee transports. Farmer, 511 U.S. at

842. Here, we simply cannot equate knowledge of the Service Agreement

violations with the violation of a “clearly established” constitutional right.

The requirement that “facts from which the inference could be drawn

that a substantial risk of serious harm exists” be proximate to the risk at issue

accords with Farmer’s teaching that deliberate indifference has a subjective

inference of deliberate indifference,” given that other facts indicated a substantial risk of

harm, id. at 658 n.2. Here, we consider the question that Hostetler reserved. Similarly, in

Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008), while the Tenth Circuit observed that a

“knowing failure to enforce policies necessary to the safety of inmates may rise to the level of

deliberate indifference,” id. at 919, in that case, ample evidence demonstrated that the policy

was indeed “necessary” given the jail’s troubled history, of which the defendant was fully

aware, id. Here, by contrast, the violated policy aimed to minimize a risk of sexual assault,

but no other allegations established that strict enforcement was “necessary” to protecting the

detainees during transport. Lastly, Cash v. County of Erie, 654 F.3d 324 (2d Cir. 2011), did

not concern knowledge of a rule violation. Rather, Cash held that despite a rule (and laws)

prohibiting any sexual contact between inmates and jail staff, a jury could have concluded

that, based on evidence of a prior rule violation, the county was deliberately indifferent in

failing to do more to prevent assaults. Id. at 334–38. Furthermore, the holding of Cash

turned on its review of a judgment notwithstanding the verdict: The court based its decision

on issues of “fact” and evidence before the jury rather than “as a matter of law” on the

meaning of deliberate indifference. Id. at 339. Additionally, because Cash was decided after

the events at issue here, it cannot constitute “clearly established” law for this appeal.

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component absent from the civil law standards of negligence and objective

recklessness. Id. at 837. 11 As the Supreme Court explained in Farmer,

deliberate indifference is neither mere negligence nor an objective standard

defined by whether an official “should have perceived” a risk. Id. at 838.

Rather, here, we must ask whether Robertson and Rosado “consciously

disregard[ed]” the substantial risk. Id. at 839 (citation omitted). 12

Accepting the truth of Plaintiffs’ factual allegations, we hold that no

clearly established law provides that an official’s knowledge of contractual

breaches and of the breached provision’s aim to prevent sexual assault of

detainees, standing alone, amounts to deliberate indifference in violation of a

detainee’s Fifth Amendment rights, because no controlling authority provides

that such breaches are “facts from which the inference could be drawn that a

substantial risk of serious harm exists.” Farmer, 511 U.S. at 837. 13

11 An objective test of deliberate indifference applies to claims challenging a

municipality’s policies or customs, not acts or omissions of individual defendants as we have

here. See Farmer, 511 U.S. at 840–42; Hare, 74 F.3d at 649 n.4.

12 See also Farmer, 511 U.S. at 837 (describing test as “consistent with recklessness

in the criminal law”); id. at 839–40 (“[S]ubjective recklessness as used in the criminal law is

a familiar and workable standard . . . , and we adopt it as the test for ‘deliberate indifference’

under the Eighth Amendment.”).

13 Neither is there clearly established law to support Robertson and Rosado’s

contention that knowingly permitting violations of a contractual provision known to prevent

harm do not constitute deliberate indifference. Robertson and Rosado mistakenly rely on

Scott v. Moore, 114 F.3d 51 (5th Cir. 1997) (en banc). In Scott, a pretrial detainee was sexually

assaulted by the lone male jailor on duty and brought a § 1983 action against the city. We

reasoned that the city failed to take additional precautions to prevent sexual assault, but

that no evidence showed it was aware of any resulting substantial risk. We concluded that

there was no genuine dispute of fact about the municipality’s lack of objective deliberate

indifference. Id. at 54–55. Here, by contrast, Plaintiffs allege that Robertson and Rosado

knowingly permitted violations of existing legal obligations, whose purpose they understood

as preventing sexual assault. Hovater v. Robinson, 1 F.3d 1063 (10th Cir. 1993), is also

unpersuasive because here, we assume the truth of Plaintiffs’ factual allegation that

Robertson and Rosado knew of both the violations and the assault-preventing objective of the

violated provision. See id. at 1068 (noting that the “asserted rationale for the policy [to

prevent sexual assault was] not supported by any evidence in [the] record.”). Lastly, Gagne

v. City of Galveston, 805 F.2d 558 (5th Cir. 1986), did not address a knowledge of a rule

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Accordingly, because the Complaint did not plausibly allege the violation of a

“clearly established” constitutional right, Robertson and Rosado are entitled to

qualified immunity, Wyatt, 718 F.3d at 502, and the district court erred in

denying their motion to dismiss. 14

C

Plaintiffs claim that assessing the Service Agreement violations in

isolation is not our task, as discovery has not been taken. In Plaintiffs’ view,

focusing solely on the contractual violations presumes that no other evidence

could support their Bivens claim. Plaintiffs accordingly assert that they have

a “right to seek discovery . . . to build the necessary record in the case at hand.”

Plaintiffs misunderstand our standard of review at the motion to dismiss

stage. We recognize that the question of whether an official “had the requisite

knowledge of a substantial risk is a question of fact” generally best resolved by

discovery and fact-finding, should a claim survive a motion to dismiss. Farmer,

511 U.S. at 842. But here, at the motion to dismiss stage, we are tasked with

deciding whether Plaintiffs have stated a plausible “claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). In so doing, we cannot accept

Plaintiffs’ invitation to apply the “no set of facts” test, which the Supreme

Court has firmly rejected. Twombly, 550 U.S. at 562–63; see also Iqbal, 556

U.S. at 670. It is, of course, conceivable that some set of facts could make

Plaintiffs’ claim plausible. Hypothetically, for example, Robertson and Rosado

might have known of Dunn’s dangerous proclivities, or they might have

violation, so we find unhelpful its proposition that the mere violation of a rule preventing

prisoner suicide does not amount to the violation of a clearly established constitutional right.

14 We hold only that it is not clearly established that Farmer extends to the facts

alleged here, and do not decide whether this case presents any constitutional violation. See

Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that courts need not decide the

constitutional violation before reaching the question of whether the alleged right is “clearly

established,” overruling in part Saucier v. Katz, 553 U.S. 194 (2001)).

15

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No. 13-50459

ignored contemporaneous distress calls from victims of or witnesses to the

assaults. But “a plaintiff armed with nothing more than conclusions” cannot

“unlock the doors of discovery.” Iqbal, 556 U.S. at 678–79. Here, Plaintiffs

have proffered a legal conclusion that Robertson and Rosado were deliberately

indifferent, and for the reasons detailed above, their factual allegations, even

assumed as true, do not make this conclusion plausible. 15 Accordingly, the

Complaint gives Plaintiffs no right to discovery.

At oral argument, Plaintiffs further suggested that to require

heightened, particularized indications of substantial risk at the pleading stage

would run afoul of Farmer. Farmer reasons that “a subjective approach to

deliberate indifference does not require a prisoner seeking a remedy for unsafe

conditions to await a tragic event such as an actual assault before obtaining

relief.” Farmer, 511 U.S. at 845 (alterations and internal quotations omitted).

Similarly, an official need not know the victim’s or attacker’s identity in

advance. Id. at 843.

But our holding today fully accords with Farmer. Indeed, we recognize

that an action alleging subjective deliberate indifference can proceed without

a completed attack or confirmed potential victims or aggressors. Such

requirements would set the bar far too high to make this constitutional

protection meaningful. Today, however, we observe that clearly established

law has not set this bar as low as Plaintiffs would have it. No clearly

established law provides that violations of a contractual provision aiming to

minimize risk are “facts from which the inference could be drawn that a

substantial risk of serious harm exists.” Id. at 837.

15 See also Iqbal, 556 U.S. at 684–86 (rejecting claim that lower court’s promise of

limiting discovery to qualified immunity issue, in anticipation of summary judgment motion,

permits relaxed pleading standard).

16

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No. 13-50459

IV

For the foregoing reasons, we conclude that Robertson and Rosado are

entitled to qualified immunity, and we REVERSE the district court and

REMAND with instructions to dismiss.

17