Petition for Writ of Certiorari — Ortega v. Rowe
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Supreme Court, U.S.
86-1143 FILED
N 8 1987
No. ai
OSE Pt E SRANIOL, JR.
] TIERK
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1986
NABOR ORTEGA, AURELIO GONZALEZ,
and all other similarly situated,
Petitioners,
BiLL M. RowEg, et al.,
Respondents.
Petition For’ A Writ Of Certiorari To The
United States Court Of Appeals For The Fifth Circuit
EDWARD J. TUDDENHAM
P.O. Box 2238
Hereford, Texas 79045
(806) 364-1697
(202) 462-7744
Counsel of Record for Petitioners
TIMOTHY HOFFMAN
1008 S. Madison
Amarillo, Texas 79101
(806) 376-8903
Counsel For Petitioners
(Sa TTT CES. TIES RITA STMT, TNS aE tS
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
QUESTIONS PRESENTED
1. Whether the holding of Daniels v. Williams, 474
U.S. __(1986), applies to injuries caused by negligent
government policies?
2. Whether Daniels v. Williams, 474 U.S. __(19886),
overrules the Bell ». Wolfish, 441 U.S. 520 (1979),
standard for determining the constitutionality of gen-
eral conditions of confinement for civil detainees?
3. Whether Respondents’ actions in using local jails,
including their failure to assure that there was a re-
sponsible authority operating the Lubbock City Jail
prior to incarcerating thousands of detainees there,
demonstrated deliberate indifference sufficient to state
a claim under the Due Process clause of the Fifth
and Fourteenth Amendments?
4. Whether Respondents’ policies for the use of
local jails and the general conditions of confinement
in the Lubbock City jail, including the lack of super-
vision, mattresses, blankets, heat, and attorney ac-
cess, violated Petitioners’ Fifth and Fourteenth
Amendment rights?
PARTIES
The parties in the Court of Appeals, whose judg-
ment Petitioners seek to have reviewed, include
Petitioners Nabor Ortega and Aurelio Gonzalez and
the class they represent,’ as well as Respondents
United States of America, the Immigration and Nat-
uralization Service, the City of Lubbock, and various
officials of those government entities.’
1 Petitioners were certified to represent a Rule 23(b\2) class
defined as all persons ‘‘who are or will be incarcerated in city
and county jails by agents of the Lubbock Station of the United
States Border Patrol within its 28 county jurisdiction.”
2 These officials include: Bill M. Rowe, the Patrol-Agent-In-
Charge of the Lubbock Border Patrol Station; Hugh Ruston, the
Chief Patrol Agent of the Marfa Border Patrol Sector, who was
Rowe’s immediate supervisor; and the Mayor of the City of
Lubbock. The two Border Patrol agents were sued in their of-
ficial and personal capacities, the Mayor in his official capacity
only.
ill
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........ i
ES I RRO ii
TE SMPNPM TRIN ED cvcesescensccsecscssncccnssnessosnssses ili
A EN yy yy | + iv
rls, scansckekseenhesesavesdceraéniee 1
CONSTITUTIONAL AND STATUTORY PROVI-
isso ics ctescsevgitsgnaastadasssvanssinvereee 1
eae xasdacsuivceveaveisaninieasiasenssccsveve 1
STATEMENT OF THE CASE. ...............0cccssscsceeee 2
REASONS REVIEW SHOULD BE GRANTED .. 9
I. The Fifth Circuit Opinion Conflicts In Prin-
ciple With Daniels v. Williams ..........000..... 9
II. The Fifth Circuit Opinion Sets An Incorrect
Standard Of Deliberate Indifference ........... 18
III. The Fifth Circuit Opinion Conflicts With Bell
Nee ee css sicca Gin cenpsesedsereenesas 20
IV. INS’ Use Of Local Jails To House Suspected
Aliens Presents An Issue Of Great Impor-
Gee adnikidivedoubeisnexdssaressnnneecesvesnesess 23
iis canxetanedesssisavavecssene 25
APPENDIX A (Fifth Circuit Opinion) ...........0000... la
APPENDIX B (District Court Opinion) .......00000... 9a
APPENDIX C (Denial of Rehearing) ............000000... 34a
TABLE OF AUTHORITIES
CASES: Page
Anela v. City of Wildwood, 790 F.2d 1063 (8rd Cir.)
cert. den. ___U.S. —, 55 L.W. 3332
TINE, . ctass sneaddacunnceciinasscusia nectucsuadseewlinacsteseies 23
Bell v. Wolfish, 441 U.S. 520 (1979) ........0..... 8,11,20-23
City of Oklahoma City v. Tuttle, _ U.S. —_, 105
te EE RE, <cucetaes cea icesabieserpapiansivinndant 13-16
City of Springfield v. Kibbe, No 85-1217, cert.
granted 54 U.S.L.W. 3598 (March 11,
PTE * Achdundshucestigcdsdebinaséetaantsaasencseabeaursamaiooaseke 13
Daniels v. Williams, 474 U.S. —_, 106 S.Ct. 662
UII wis sendschibepeandcdadadtesnvpnedtcecsmeatacaebeols 8,9,20,21
Davidson v. Cannon, 474 U.S. —__, 106 S.Ct. 668
RITE. :adntehcaptnisseopasncsdveecsiinatunntsuetiae ainsi 8,9,16-20
Doe v. N.Y. Dept. of Social Services, 649 F.2d 134
(2nd Cir. 1981) after remand, 709 F.2d 782
(2nd Cir. 1983), cert. den. sub nom. Catholic
Home Bureau v. Doe, ___U.S. ___, 104 S.Ct.
Be RE, daknisiscateinsststcedninete aad nas 14,19
Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.
1985) petition for cert. filed 54 U.S.L.W. 3664
SEE Sis. NEE wdsasasdnesncscanunickseusseatonsetboneiitis 19
Hudson v. Palmer, 468 U.S. __, 104 S.Ct. 3194
SUE © phiniescalaclckstusndeusiiasvmeciacclienoaiiaseatend 24
Languirand v. Hayden, 717 F.2d 220 (5th Cir.
1983) cert. den. __. U.S. __, 104 S.Ct. 1687
TINE |. -saleehensiadevensdudanebpdgniauntecaenininbsmendeahdsluantss 13
Lareau v. Manson, 651 F.2d 96 (2nd Cir. 1981) _... 23
Logan v. Zimmerman Brush Co., 455 U.S. 422
SEINE. suds seudestunaboccndhhd\dscecdinueewhauicuasaosnveuanieke 13-15
Logue v. United States, 412 U.S. 521 (1978) _...... 3
Medina v. O’Neill, 589 F.Supp. 1028 (S.D.Tex.
UNE. \ coknsddidualiniiticnutinidetadeidccatomumd disconacéeadibisans 24
Monell v. New York City Dept. of Social Services,
BE els TE tndineciisnricsarieecenvseenss 16
Table of Authorities Continued
Page
Owen v. City of Independence, 445 U.S. 622
PRUE. ccseabsecamiherdeccahibenisscaudanmunibaaninatwuncasuaniean 12-17
Pembaur v. City of Cincinnati, __U.S. __, 106
Es BE REUEE - shdiscsincnaisacibaccinslesdssvausennens 10-15
Rhodes v. Chapman, 452 U.S. 337 (1981) ........... 17
Steagald v. United States, 451 U.S. 204 (1981)... 12
Union County Jail Inmates v. DiBuono, 713 F.2d
984 (3rd Cir. 1983) cert. den. 465 U.S. 1102
STOR (cassie dodncnin Geen aoe 23
Wolff v. McDonnell, 418 U.S. 589 (1974) .......... 11,14,15
Youngberg v. Romero, 457 U.S. 307 (1982) ......... 16
OPINIONS BELOW
The opinion of the Court of Appeals is reported at
796 F.2d 765 and is reprinted in Appendix A to this
petition. The opinion of the District Court for the
Northern District of Texas was not published and is
reprinted as Appendix B.
JURISDICTION
The judgment of the Court of Appeals was entered
on August 11, 1986. A timely Petition for Rehearing
and Rehearing en banc was denied on October 14,
1986, and this Petition was filed within 90 days of
that date. This Court’s jurisdiction is invoked under
28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS AT ISSUE
Fifth Amendment
No person shall be ... deprived of life, lib-
erty, or property, without due process of
ae
Fourteenth Amendment
... nor shall any State deprive any person of
life, liberty, or property without due process
of law; ...
42 U.S.C. § 1983
Every person who, under color of any stat-
ute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other per-
son within the jurisdiction thereof to the dep-
rivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity, or other
proper proceeding for redress...
STATEMENT OF THE CASE
This case? challenges the conditions of confinement
under which the Immigration and Naturalization Ser-
vice (INS) detained suspected aliens in the Lubbock
City Jail. Petitioners allege that the totality of con-
ditions in that jail, including the lack of supervision,
the absence of mattresses and blankets, filthy and
needlessly overcrowded cells, lack of heat, and effec-
tive denial of attorney access, violated the Fifth and
Fourteenth Amendment rights of Petitioners and
thousands of other suspected aliens held in the jail
between 1978 and 1981. Petitioners allege that these
unconstitutional conditions were caused, inter alia, by
the failure of INS and the City of Lubbock to adopt
adequate policies and procedures for using the jail.
Petitioners also allege that INS’ policy failure caused
it to inearcerate detainees under unconstitutional con-
ditions in other jails in the Lubbock area. Petitioners
sought damages for themselves from the City of Lub-
bock and the individual Defendants and injunctive re-
lief for their class against INS and the City.
Jurisdiction was based upon 28 U.S.C. §§ 1331,
1343(3), and 1361, and 8 U.S.C. § 1329.
The Border Patrol Station in Lubbock, Texas op-
erates no jails of its own in its 28 county jurisdic-
2 This statement of facts is based on the fact findings of the
district court which were accepted by the Court of Appeals, and
undisputed facts in the record with respect to which the district
court made no findings.
tion.*Like many other border patrol stations, it relies
on local city and county jails to detain suspected im-
migration law violators until they can be transported
south to another facility or removed to Mexico.
Respondent Rowe, acting under the supervision of
Respondent Rushton, was delegated policymaking au-
thority with regard to the detention of these sus-
pected aliens, including the authority to determine
which local jails the Station would use. INS had al-
most no written policies or procedures governing the
use of local jails to which Rowe could look for guid-
ance. INS did not require local jails to be inspected
for safety or compliance with any set of minimum
standards prior to use and did not require written
contracts with local authorities delineating the re-
spective responsibilities of INS and the local jail or
the INS detainees. INS provided Rowe with no train-
ing in the selection, use, or inspection of local jails,
or standards for evaluating the conditions in those
jails.‘
In conformance with those policies, Rowe did not
inquire into the conditions in the jails he selected.
3’ The United States Border Patrol is the uniformed enforce-
ment branch of the Immigration and Naturalization Service. The
Lubbock Station consists of a Patrol Agent In Charge and three
other agents.
‘The only written INS jail use policy required that a book-
keeping record, a form G-324, be filled out for each jail. This
policy was not followed or enforced in Lubbock. Respondent
Rushton issued a few brief jail policy statements regarding the
detention of minors, and persons with medical problems but
nothing more. See Plaintiffs’ Ex. 8. Compare Logue v. United
States, 412 U.S. 521 (1973\U.S. Marshals Service enters into
detailed written agreements with local jails it uses to hold federal
prisoner).
Neither did Rowe discuss the division of responsibil-
ities between INS and the jail. His discussions with
local authorities focused almost entirely on how much
money per man-day INS would pay for use of the
jails. Although Rushton was Rowe’s supervisor, nei-
ther he nor anyone else at INS checked on the con-
ditions in the jails used by Rowe prior to this lawsuit,
nor did he take other steps to supervise Rowe’s use
of local jails.
Between 1977 and 1982, the Lubbock INS Station
used the Lubbock City Jail as its primary jail facility,
holding approximately 7000 suspected aliens there
during that time.* When the Lubbock jail was first
selected by INS in 1977, the City housed its own
prisoners in the jail and the City jailer cared for the
INS detainees along with the City’s prisoners. How-
ever, in January 1978, the City Council decided to
cease operating its jail. The position of jailer was
permanently terminated and all of the City prisoners
were transferred to the new County jail.
The Lubbock Police Chief informed Agent Rowe of
these changes, but neither he nor Rowe discussed how
these changes would affect INS’ use of the jail. Rowe
simply continued to place his detainees in the jail on
the blind assumption that the City would take re-
sponsibility for them. The City, for its part, continued
to accept payment of $6.50 per man-day from INS,
but assumed it was “‘renting space’”’ to INS, not op-
erating a jail. Neither took responsibility for confirm-
ing their assumptions, and they claimed never to have
discovered their confusion.
5 The Lubbock Station used more than thirty other jails during
this same period.
For the next four years, from January 1978 until
December 1981 when this suit was filed, ‘federal
agents believed that Lubbock officials were respon-
sible for maintaining the jails, while local officials be-
lieved that operations were within the province of the
Border Patrol.” 796 F.2d at 767. With both the City
and INS “blindly assuming away [their] responsibili-
ties’ for the jail, 796 F.2d at 768-9, the jail was
effectively abandoned. No one took responsibility for
supervising the detainees.* No mattresses or bedding
of any kind were provided. Cells were filled with gar-
bage and trash and were not regularly cleaned or
maintained. No one even turned on the heat in the
winter.’
Without a jailer present, the Border Patrol agents
acted as jailers, physically placing the detainees in
the cells. However, neither Rowe nor anyone else at
INS developed guidelines or provided training as to
how these tasks were to be carried out. Neither INS
* The district court found that the City desk sergeants pro-
vided supervision. However, they were not assigned responsi-
bility for this task and did not perform it. Agent Rushton and
the INS Senior Staff Advisor for Detention both admitted that
the supervision in Lubbock was inadequate.
* The City continued to provide two meals a day as it had in
the past, but ‘‘[aJll other responsibility for detention was upon
the INS...” App. B at 32a. Individual border patrol agents
occasionally asked that the cells be swept out and occasionally
provided mattresses to detainees ‘“‘when they learned of any
deficiency.’’ App. B at 17a. That was not very frequently. Rowe
did not notice the absence of mattresses until December 1981,
although none of the detainee witnesses saw a mattress after
May 1978. The cotton mattresses which were occasionally pro-
vided were never cleaned; they were simply left in the cells
unwashed until they disintegrated.
nor Rowe set limits on the number of detainees who
could be placed in a cell, and no procedures for avoid-
ing or monitoring overcrowding were established. As
a result, even though there were enough cells avail-
able to assure that each detainee at least had a metal
bunk frame to sleep on, agents routinely placed all
of their detainees in one or two cells, senselessly over-
crowding them to the point that detainees had to
sleep on the concrete floor with only the trash for
bedding.®
Without a jailer, INS took charge of visitation as
well. Rowe’s only written jail policy required that all
visitors, including attorneys, obtain permission from
Border Patrol prior to any visit. Because the agents
were frequently out on patrol, this policy, as well as
others, severely limited visitation rights. As a result
many aliens were deported before their attorneys
were able to speak with them or before they knew
an attorney had been hired for them.
In December 1981, Petitioners, two detainees re-
leased on bond pending deportation proceedings,
brought this action challenging the conditions of con-
finement in the Lubbock City jail and the policies of
INS with regard to selecting, inspecting, and using
local jails for suspected aliens.
Within days after the suit was filed, INS left the
Lubbock City jail and moved to the Slaton City jail
8 Detainees testified to numerous incidents where 20 to 45
people were placed in a single 15 bunk cell, even though in
every one of these incidents there were more than enough empty
cells in the jail to accomodate all of the detainees. Twenty people
in the cell left only 14 square feet per person.
ca
as its primary holding facility. No contract was signed
with Slaton, and again Agent Rowe failed to clarify
who was responsible for the INS detainees. Slaton
officials assumed INS was responsible for booking and
placing the alien detainees in their cells, while INS
assumed that Slaton was in charge. With each think-
ing the other was responsible, neither Rowe nor the
Slaton officials set any limits on the number of INS
detainees that could be placed in the cells in Slaton.
Once again, senseless overcrowding resulted, over-
crowding the Slaton police chief was aware of, but
believed he could do nothing about because he thought
that INS was responsible for the detainees. In Sep-
tember 1982 a detainee broke his neck in a grossly
overcrowded cell in Slaton? and shortly thereafter INS
ceased using the Slaton jail. Similar overcrowding and
unsafe conditions occurred in other jails utilized by
INS.?°
At trial INS’ Senior Staff Advisor for Detention
admitted that prior to this suit INS’ policies for using
local jails were inadequate and that the lack of a
*On this occasion INS agents placed sixteen detainees in a
six-man cell, despite the fact that the cell right next door, which
was reserved for INS detainees, was empty. Even i this
incident, INS issued no policies to control or monitor overcrowd-
ing.
'° For example, INS used the Haskell County jail for several
years where the only ‘‘supervision” provided for detainees at
night was a metal pipe running through the cellblock, across the
ceiling, and through the Sheriff's bedroom on the second floor
of the jail. Detainees were expected to bang on the pipe to wake
the Sheriff in case of an emergency. The INS Senior Staff Ad-
visor for Detention admitted that this was inadequate supervi-
sion, but INS jail use policies were such that this inadequate
supervision was never discovered.
written contract had contributed to the confusion over
responsibility for the Lubbock City jail.
After a seven day trial, the district court entered
judgment for Defendants. The district court recog-
nized that “plaintiffs brought out by cross examina-
tion of the defendants witnesses that specific
conditions such as lack of fire warning devices, two
meals a day, no blankets and mattresses, and trashy
floors did not constitute a legitimate governmental
purpose.”’ App. B at 30a. Nevertheless, the district
court held that those conditions were related to the
“legitimate government purpose of detaining [aliens]
for a short period of time pending deportation,”’ Jd.,
and therefore were not unconstitutional under the
standard set forth in Bell v. Wolfish, 441 U.S. 520,
539 (1979). Nowhere in its opinion did the district
court address the admitted fact that neither INS nor
Lubbock made any effort to discover who was in
charge of the City jail during the four years that INS
used it.
The Fifth Circuit affirmed on other grounds. The
Court recognized that the conditions in the Lubbock
jail were ‘‘squalid’’ and assumed that those conditions
were caused by the policies and procedures of INS
and the City—i.e. the “‘sloppy system of cooperation”’
between INS and the City of Lubbock, the ‘‘lack of
specific rules under which INS would use local jails’’
and the failure to establish ‘“‘clear guidelines.” 796
F.2d at 768. Nevertheless, the Court refused to ana-
lyze the case under the Bell v. Wolfish standard, hold-
ing that the decisions in Daniels v. Williams, 474 U.S.
(1986), and Davidson v. Cannon, 474 U.S. —__ (1986),
“rendered much of Bell’s language surplusage.’’ 796
F.2d at 768. Instead, the Panel found that the
Respondents’ conduct in “blindly assuming away
[their] responsibilities’ for the INS detainees was
merely negligent, and that such conduct ‘“‘is not the
kind proscribed by the due process clauses of the fifth
and fourteenth amendments, as interpreted by Dan-
iels and Davidson.”’ 796 F.2d at 768-9."' Finally, the
Panel held that Respondents’ blind neglect of the
thousands of detainees held in Lubbock between 1978
and 1981 did not rise to the level of deliberate in-
difference “‘in light of the rather broad definition of
‘negligence’ in Davidson [v. Cannon]. ..”” 796 F.2d at
768 n.5.
REASONS FOR GRANTING THE WRIT
I. The Fifth Circuit’s Opinion Conflicts In Principle
with Daniels v. Williams
In Daniels v. Williams this Court held that ‘‘the
Due Process clause is simply not implicated by a neg-
ligent act of an official causing unintended loss of or
injury to life, liberty, or property.” 106 S.Ct. 662,
663 (1982). The Fifth Circuit’s opinion in this case
extends Daniels to hold that injuries caused by neg-
higent government policies do not state a due process
violation either. This extension of Daniels is directly
contrary to the reasoning of Daniels and is of such
11 The Court of Appeals opinion does not distinguish between
the conduct of Rowe and Rushton in their individual capacities,
and official conduct attributable to INS and the City—i.e. the
policies and customs of INS and the City. The Court of Appeals
simply holds that ‘appellees’ conduct” was negligent. 796 F.2d
at 769. In fact, all of the conduct at issue here represents official
policy attributable to the government defendants since even the
individual defendants, Rowe and Rushton, were policy-making
officials with respect to the jail procedures and practices at issue.
10
critical importance to the enforcement of the due
process clause as to warrant review by this Court.
Daniels recognizes that the ‘“‘touchstone of due
process is protection of the individual against arbi-
trary action of government.”’ 106 S.Ct. at 665. Neg-
ligent acts of individual officials are, by definition,
random and unauthorized. They are the result of hu-
man error and are only coincidentally connected with
the exercise of state power. For this reason, individ-
ual negligent conduct cannot be considered “‘arbitrary
action of government” and thus does not amount to
a deprivation in a constitutional sense.
This same logic compels the opposite conclusion with
respect to injuries caused by negligent policies. A gov-
ernment policy is, by definition, a deliberate, author-
ized action of government, regardless of whether the
policy is adopted wilfully, negligently, or in good
faith. The policies by which INS and the City of
Lubbock operated the City jail constituted the ‘‘action
of government” even if those policies were merely
negligent. Certainly those policies were not coinci-
dental to the exercise of government power in the
sense that the dropping of a pillow by the guard in
Daniels was coincidental to the fact that the guard
was a State official.
12 A policy is defined as ‘‘a deliberate choice to follow a course
of action ... made from among various alternatives. ..’’ Pem-
baur v. City of Cincinnati, ___ U.S. __, 106 S.Ct. 1292, 1300
(1986).
‘3 Of course the policies of INS and the City were policies of
omission: the failure to have a written contract, the failure to
assure that there was a responsible authority operating the jail
prior to placing prisoners there, and the failure to promulgate
lillian
11
Whenever a government policy deprives a person
of life, liberty, or property, government action itself
has caused injury. Individuals who suffer injury from
negligent policies are no less the victims of the “ar-
bitrary action of government” than individuals injured
by other kinds of government policies.‘ For this rea-
son, negligent government policies which cause injury
are actionable under the due process clause, even
though deprivations caused by the negligent conduct
of individual government officials are not.
That negligence is irrelevant to the question of
whether a policy violates due process is made clear
by the way the Daniels opinion distinguishes Wolff v.
McDonnell, 418 U.S. 539 (1974). In Wolff the Court
found that a policy to deprive inmates of good-time
credits without a hearing violated due process. Dan-
iels argued this was an example of individual negli-
gence violating due process. The Court responded,
We think the relevant action of the prison
officials in that situation is their deliberate
decision to deprive the inmate of good-time
credit, not their hypothetically negligent fail-
ure to accord him the procedural protections
of the Due Process clause.
106 S.Ct. at 666. That is, the prison officials were
liable because of the policy they were pursuing. The
fact that the constitutional flaw in the policy—the
procedures or policies for using local jails. But INS’ and the
City’s decision not to adopt policies was a deliberate choice on
their part just as a decision to adopt policies would have been.
4 Negligent policies which cause injury are, by definition, more
arbitrary than carefully thoughtout policies. Cf. Bell v. Wolfish,
441 U.S. 520, 539 (1979).
12
failure to provide for hearings—may have been the
result of negligence was irrelevant to the question of
whether the policy violated due process.
This Court has on other occasions held government
entities liable for injuries caused by negligent policies.
Most recently, in Pembaur v. City of Cincinnati, —
U.S. __, 106 S.Ct. 1292 (1986), the Court upheld
City liability for an unlawful entry because the City
Attorney, as a City policymaker, authorized the entry.
The facts of the case make clear that the City
Attorney’s ‘‘policy’’ was merely negligent and, given
the fact that Steagald v. United States, 451 U.S. 204
(1981), had not been decided at the time the advice
was given, it would be more accurate to say that the
policy was made in complete good faith. Yet, it is
clear from the Court’s opinion that the City
Attorney’s relative negligence or good faith in making
policy was irrelevant to the City’s liability for the
policy.
Similarly, in Owen v. City of Independence, 445 U.S.
622 (1980), the action of the city council which caused
the due process deprivation was at worst negligent.
Nevertheless, the Court denied the City the right to
claim good faith immunity and, in doing so, stressed
the importance of holding government entities liable
for all of their constitutional violations—including their
unintentional violations.
[T]he knowledge that a municipality will be
liable for all of its injurious conduct, whether
committed in good faith or not, should create
an incentive for officials who may harbor
doubts about the lawfulness of their intended
actions to err on the side of protecting cit-
13
izens’ constitutional rights. Furthermore, the
threat that damages might be levied against
the city may encourage those in a policy-
making position to institute internal rules and
programs designed to minimize the likelihood
of unintentional infringements on constitu-
tional rights. Such procedures are particu-
larly beneficial in preventing those
“systemic” injuries that result not so much
from the conduct of any single individual, but
from the interactive behavior of several gov-
ernment officials, each of whom may be act-
ing in good faith.
Owen, 445 U.S. at 651-52 (emph. added). See also
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)
(state procedure which unintentionally deprived party
of cause of action for employment discrimination vi-
olates due process). This case presents precisely the
sort of “unintentional ... systemic injur[y]’’ caused
by “‘the interactive behavior of several government
officials each of whom may be acting in good faith”’
for which the Court sought to provide a remedy in
Owen. The Fifth Circuit’s decision to excuse ‘neglli-
gent’ policies directly contradicts Owen.
On the other hand, this Court has on occasion re-
quired that government policies manifest more than
mere negligence in order to establish a due process
violation. See e.g. City of Oklahoma City v. Tuttle, -
U.S.__, 105 S.Ct. 2427 (1985\inadequate police
training must amount to ‘deliberate indifference’ or
‘gross negligence’ to establish constitutional violation);
City of Springfield v. Kibbe, S.Ct. No. 85-1217, cert.
granted 54 U.S.L.W. 3598 (March 11, 1986). See also,
Languirand v. Hayden, 717 F.2d 220 (5th Cir. 1983)
14
cert. den. 104 S.Ct. 1687 (1984); Doe v. N.Y.Dept. of
Social Services, 649 F.2d 134 (2nd Cir. 1982), after
remand, 709 F.2d 782 (2nd Cir. 1982), cert. den. sub
nom. Catholic Home Bureau v. Doe, __ U.S. —__, 104
S.Ct. 195 (1988).
This case provides an opportunity to resolve the
apparent conflict between cases like Wolff, Pembaur,
and Owen, in which the negligence or good faith of
a policy is irrelevant to the finding of a due process
violation, and cases like Tuttle and the others cited
above in which a policy must manifest deliberate in-
difference in order to constitute a due process vio-
lation.
This case makes clear that the contradiction be-
tween these two lines is more apparent than real. It
represents a problem of causation rather than a dis-
agreement as to the elements of a due process claim
against a government entity. The question of delib-
erate indifference arises in cases where the causal
link between the policy and the constitutional injury
is attenuated. For example, in Tuttle the injury was
caused directly by the unlawful act of an individual
police officer which was in turn caused by the city’s
failure to train the officer. Thus, the unlawful act of
the individual police officer stood as an intervening
cause between the policy of the city and the injury.
The causal link was further attenuated by the fact
that the policy at issue, a failure to train, was a policy
of omission, rather than an affirmative policy. For
these reasons, something more than negligence had
to be shown to establish a causal link between the
policy and the injury.
On the other hand, where the policy itself directly
causes the injury and there is no intervening cause
aaa
15
between the policy and the injury, deliberate indif-
ference should not have to be shown to establish that
the injury resulted from ‘‘arbitrary action of govern-
ment.” Thus, for example, in Wolff, Pembaur, Logan,
and Owen it was not necessary to discuss whether
the government entity acted deliberately or negli-
gently because in each of those cases the policy in
question directly caused the plaintiff's injury.
The facts of this case place it between cases like
Tuttle, on the one hand, and those like Logan, Owen,
and Pembaur, on the other. Like Tuttle, this case
generally involves policies of omission rather than af-
firmative policies such as those in Logan or Pembaur.
Yet, like Logan, Owen, and Pembaur, the causal link
between the Respondents’ policies and the constitu-
tional deprivation is direct: The deplorable conditions
in the jail were systematic and pervasive problems
which resulted directly from Respondents’ deliberate
policy not to take responsibility for the jail.'
Because this case combines the factual elements of
cases like Tuttle which require deliberate indifference,
and cases like Logan, Owen, and Pembaur which do
not, it provides a particularly appropriate vehicle for
clarifying the apparent contradiction between those
two lines of cases with respect to the state of mind
‘5 This case is, in this respect, the opposite of Tuttle. The
individual border patrol agents, unlike the officer who shot Tut-
tle, were not intervening causes of Petitioners’ injury. Rather,
the individual border patroi agents attempted, at least on oc-
casion, to alleviate the aliens’ suffering as best they could. Un-
fortunately, the occasional efforts of individual agents could not
substitute for the lack policies or procedures for operating the
jail.
16
necessary to establish government liability for injuries
caused by official policies.
Finally, this case presents an opportunity to ad-
dress the question, left open in City of Oklahoma City
v. Tuttle, whether a policy of omission, such as in-
adequate training or inadequate jail procedures, can
be a policy under Monell v. Dept. of Social Services,
486 U.S. 658 (1978). Compare Tuttle, 105 S.Ct. at
2436 n. 7, with 105 S.Ct. at 2441 n. 8 (Brennan, J.,
concurring). Certainly where a government engages
in activity as inherently dangerous as operating a jail,
the government has a constitutional duty to adopt
adequate procedures, and its failure to do so must be
subject to constitutional review. Youngberg v. Romero,
457 U.S. 307 (1982). For, in such circumstances, the
“risk of injury is so high that the government’s failure
to make efforts to avoid the injury is unacceptable,
even if its omission still might be characterized as
negligent.’’ Davidson, 106 S.Ct. at 673 n.2 (Blackmun,
J., dissenting).'*
All of these questions are of great national impor-
tance affecting virtually all Section 1983 actions
against government entities. The Fifth Circuit opinion
in this case is particularly threatening to Due Process
enforcement insofar as it appears to limit Owen v.
‘6 In many respects, Respondents’ policies of omission repre-
sent a far more egregious abuse of government power than
affirmative policies, such as those at issue in Wolff v. McDonnell,
418 U.S. 539. At least in the latter case, the government is
taking some responsibility and attempting to exercise profes-
sional judgment, however flawed that judgment may be. Cf.
Youngberg. Here, the Respondents simply abdicated ail respon-
sibility for the detainees in their custody; they made no attempt
to exercise professional judgment at all.
17
City of Independence, 445 U.S. 662 (1980). As noted
above, this case presents precisely the sort of ‘“‘sys-
temic’”’ “unintentional infringement’ of constitutional
rights which the Court intended to deter by denying
municipalities good faith immunity. Owen, 445 U.S.
at 651-652. Yet the Fifth Circuit has now held that
government entities are not liable for these violations.
The Fifth Circuit’s refusal to recognize that neg-
ligent government policies can violate the Due Proc-
ess clause will have an especially profound impact
upon the rights of those incarcerated by the govern-
ment. Unconstitutional conditions in jails and other
institutions, more often than not, are the result of
negligent omissions such as those at issue here:
Many conditions of confinement . . . including
overcrowding, poor sanitation, and inade-
quate safety procedures arise from neglect
rather than policy. There is no reason of com-
ity, judicial restraint, or recognition of ex-
pertise for courts to defer to negligent
omissions of officials who lack resources or
motivation to operate prisons with limits of
decency. Courts must and do recognize the
primacy of the legislative and executive
authorities in the -administration of prisons;
however, if prison authorities do not conform
to constitutional minima, the courts are un- |
der an obligation to take steps to remedy the
violations.
Rhodes v. Chapman, 452 U.S. 337, 362
(1981\Brennan, J., concurringXemph. added).
The Fifth Circuit’s decision raises the spectre of
undoing years of law defining minimum acceptable
18
jail conditions and paves the way for a return to the
days when prisons and prisoners’ rights were largely
ignored by the federal judiciary.
II. THE FIFTH CIRCUIT’S DEFINITION OF DELIB-
ERATE INDIFFERENCE IS CONTRARY TO THE
REASONING OF DAVIDSON v. CANNON
The Fifth Circuit relied upon what it perceived as
the “rather broad definition of negligence” in Dav-
idson v. Cannon, —_— U.S. __, 106 S.Ct. 668 (1986),
to find that INS and the City of Lubbock were merely
negligent in “blindly assuming away [their] respon-
sibilities’”’ for the alien detainees. This holding is con-
trary to Davidson and creates a standard of
negligence which will be virtually impossible to prove.
Contrary to the Court of Appeals, Davidson does
not establish a standard of negligence. The question
of negligence or deliberate indifference was not before
the Court in that case. As the majority opinion em-
phasized,
petitioner does not challenge the District
Court’s finding that respondents ‘did not act
with deliberate or callous indifference to
[petitioner’s] needs.’ Instead he claims only
that respondents ‘negligently failed to pro-
tect him from another inmate.’
106 S.Ct. at 670. Since Davidson conceded the issue
of negligence, the Court did not need to decide
whether the same actions might have been charac-
terized as deliberate or reckless indifference.
The Fifth Circuit’s comparison of this case to Dav-
idson also reflects a fundamental error in the defi-
nition of deliberate indifference used by the court.
Davidson involved a single isolated incident. In con-
19
trast, the “blind neglect’’ at issue in this case con-
tinued for more than four years and even continued
after this suit was filed. Such repeated failure to take
corrective action should give rise to a presumption of
deliberate indifference. Doe v. NY Dept. of Social Ser-
vices, 649 F.2d at 142-143; Grandstaff v. City of Bor-
ger, 767 F.2d 161 (5th Cir. 1985), petition for cert.
filed 54 U.S.L.W. 3664 (March 27, 1986).
Moreover, the record is clear that INS and the City
of Lubbock knew or should have known of the squalid
conditions in the Lubbock jail. Agent Rowe and the
City knew as early as January 1978 that the City
had fired its jailer and was no longer housing its own
prisoners in the jail—yet over the next four years
they never discussed who was in charge of the jail.
Both had every opportunity to discover the problems.
Rowe placed detainees in the jail every week during
that period but, as a matter of routine procedure, did
not look into the cells to check their condition. Chief
of Police Alley and his Assistant Chief were stationed
in the same building as the cells and accepted pay-
ment for every alien in the jail, yet during those four
years they never looked into the cells to see what
conditions were like. Even after this suit was filed
alleging overcrowding and confusion over responsi-
bility for detainees, INS took no steps to correct either
of these problems when it moved to Slaton. That the
government could operate this way, placing thousands
of detainees in a jail without taking minimal steps to
assure that someone was in charge of the jail is as
shocking as it is incredible. If such extraordinary dis-
regard for the lives and safety of those in the gov-
ernment’s custody does not amount to deliberate
indifference, it is difficult to imagine what would.
20
In the wake of Davidson, the appropriate definition
of deliberate indifference has become a critical issue,
particularly in the context of systematic policy failures
such as occurred in this case. The Court should grant
certiorari in this case to provide the courts with guid-
ance on this issue.
Ill. THE FIFTH CIRCUIT’S DECISION CONFLICTS
WITH BELL v. WOLFISH
INS detainees, such as Petitioners, are civil detai-
nees. They have not been charged with a crime. Thus,
although they may be confined, the Fifth Amendment
protects their right to be held in conditions which do
not inflict punishment. In Bell v. Wolfish, 441 U.S.
520 (1979), this Court adopted the following standard
for determining whether jail conditions inflict uncon-
stitutional punishment:
[I]f a particular condition or restriction of
pretrial detention is reasonably related to a
legitimate governmental objective, it does
not, without more, amount to “‘punishment.”’
Conversely, if a restriction or condition is not
reasonably related to a legitimate goal—if it
is arbitrary or purposeless—a court permis-
sibly may infer that the purpose of the gov-
ernmental action is punishment that may not
constitutionally be inflicted on detainees qua
detainees.
441 U.S. at 539 (footnotes omitted).
The Fifth Circuit opinion in this case holds that
Daniels overrules this standard in part:
[I]n cases involving only simple negligence of
the officials responsible, Daniels and David-
son render much of Bell’s language surplu-
21
sage. Only if the evidence suggests that the
appellees knew of the jails conditions, or in-
tended to force the detainees to endure such
conditions, would a Bell analysis retain vi-
tality.
796 F.2d at 767. This conclusion misapplies Bell with
ominous implications for the rights of civil and pre-
trial detainees.
Bell is concerned with conditions of confinement
which result from official government custom or pol-
icy. When the government deprives an individual of
his or her liberty by locking that individual in jail,
the government has a constitutional duty to assure
that the conditions in the jail comply with minimum
standards of decency, that is conditions which do not
inflict punishment. The government may not infringe
upon these substantive due process rights and nothing
in Daniels suggests otherwise. To the contrary, Dan-
vels reaffirms that “certain government actions’’ are
barred by the Due Process clause ‘“‘regardless of the
fairness of the procedures used to implement them.”’
106 S.Ct. at 665.
The Fifth Circuit decision effectively eliminates the
substantive due process rights of detainees. By hold-
ing that Bell has been overruled in part by Daniels,
the Court of Appeals replaces the government’s duty
to protect detainees from squalid jail conditions with
a standard that excuses the government from liability
as long as the government can avoid actual knowledge
of how bad the conditions are. Even where, as here,
the government “‘should have known”’ that its policies
were inadequate to protect detainees from senseless
22
punishment, the Fifth Circuit would impose no lia-
bility.27
This is not the law. The Constitution’s guarantee
that the government shall not subject detainees to
punishment imposes an affirmative duty on govern-
ment to establish policies and procedures adequate to
assure non-punitive jail conditions.'* The government
may not blindly assume away its Constitutional re-
sponsibility to assure that detainees are held under
conditions reasonably designed to be free from pun-
ishment by cultivating an ostrich-like ignorance of the
actual conditions under which it confines its detai-
nees.!?
The conditions at issue in this case clearly amount
to punishment under the Bell standard. Blind neglect
is not reasonably related to any legitimate govern-
ment goal; it is by definition arbitrary and purposeless
and Defendants admitted as much. The District
Court’s finding that the conditions of confinement
were related to the “‘legitimate government purpose
‘7 The Fifth Circuit decision states that liability may only be
affixed if the ‘‘appellees knew of the jail conditions, or intended
to force the detainees to endure such conditions...’ 796 F.2d
at 768. It pointedly does not say “knew or should have known.”’
18 Of course, where the government has established policies
and procedures adequate to protect detainees from punishment,
the negligent failure of individual officials to follow those pro-
cedures does not rise to the level of a constitutional violation.
Daniels. But that is not what happened in this case.
19 The Fifth Circuit blames the Petitioners for not complaining
to the Border Patrol about the conditions in the jail. That is
tantamount to denying Petitioners and other aliens their Fifth
Amendment rights simply because they are aliens unfamiliar
with their rights.
i
;
23
of detaining [aliens] for a short period of time pending
deportation”’ App. B at 30a, is also unavailing. Such
a purpose justifies the fact of incarceration, but it
cannot justify the specific conditions of that confine-
ment, such as the lack of supervision, heat, mat-
tresses, blankets, and fire protection. The opinion in
this case with respect to specific conditions, such as
the absence of mattresses, conflicts with other courts
which have found such conditions unconstitutional,
Anela v. City of Wildwood, 790 F.2d 1063, 1069 (8rd
Cir. 1986) cert. den. __ U.S. __ (1986\holding de-
tainees overnight without mattresses violates due
process); Union County Jail Inmates v. DiBuono, 713
F.2d 984, 996-97 (8rd Cir. 1983) cert. den. 465
U.S.1102 (1984\use of floor mattresses violates due
process); Lareau v. Manson, 651 F.2d 96 (2nd Cir.
1981\same, regardless of length of detention). This
conflict should be resolved. At the very least the Court
of Appeals should be directed to evaluate the condi-
tions in the Lubbock jail in light of the Bell v. Wolfish
standard.
IV. INS TREATMENT OF ALIENS IN CUSTODY
PRESENTS AN ISSUE OF GREAT NATIONAL
IMPORTANCE WHICH THIS COURT SHOULD
ADDRESS
The substantive issues in this case, INS’ treatment
of suspected aliens in custody and INS’ coordination
with local jail facilities, are issues of great national
importance. INS uses hundreds of local jails through-
out the United States under the same policies and
procedures as used in the Lubbock Border Patrol Sta-
tion. Thus, the problems posed by those policies are
not unique to this case, but are raised everyday
throughout the country. This is not the first time
24
serious problems have arisen with INS’ use of local
jails. Remarkably similar problems were reported in
Medina v. O'Neill, 589 F.Supp. 1028 (S.D.Tex.
1984\INS use of a private security service’s detention
facility without inspecting it or assuring that it pro-
vided safe conditions violated due process). The prob-
lems caused by INS’ inadequate jail use procedures
are likely to get worse with the recent passage of
the Immigration Reform Act, 55 U.S.L.W. 275 (Dec.
23, 1986), which vaxtly increases the size of the Bor-
der Patrol as well‘’as the number of aliens who will
be incarcerated by INS in the future.
INS’ treatment of suspected aliens while they are
in custody deserves this Court’s attention. As Justice
Stevens noted in Hudson v. Palmer,
The courts have a special obligation to pro-
tect prisoners. Prisoners are truly the out-
casts of society. Disenfranchised, scorned and
feared, often deservedly so, shut away from
public view, prisoners are surely a ‘discrete
and insular minority.’
104 S.Ct. at 3216 (Stevens, J., dissenting). That spe-
cial duty to protect prisoners is of critical importance
where the prisoners are suspected aliens. Undocu-
mented aliens, even more than ordinary prisoners, are
a “shadow population” ignorant of their rights and
unable to call public attention to their plight. This is
no doubt why INS and the City of Lubbock were able
to get away with operating the Lubbock City Jail in
such a sloppy and indifferent manner for as long as
they did. The lack of any public scrutiny of the INS’
treatment of suspected aliens or other means for al-
iens to protect themselves from the abuses of gov-
25
ernment makes it critical that this Court give full
consideration to this case.
CONCLUSION
For the foregoing reasons, the Petition for a Writ
of Certiorari should be granted and the judgment of
the Court of Appeals for the Fifth Circuit reversed
or, alternatively, vacated with directions to evaluate
Petitioners claims under the Bell v. Wolfish standard.
Respectfully submitted,
EDWARD J. TUDDENHAM
P.O.Box 2238
Hereford, Texas 79045
(806) 264-1697
(202) 462-7744
Counsel of Record for Petitioners
TIMOTHY HOFFMAN
1008 S. Madison
Amarillo, Texas 79101
(806) 376-8903
Counsel for Petitioners
APPENDIX
a Ms
SST:
oN tear:
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 85-1531
NABOR ORTEGA, AURELIO GONZALEZ,
on behalf of themselves and ail others similary situated,
Plaintiffs-A ppellants,
v.
BILL M. Rowe, Individually and as
U.S. Border Patrol Agent, et al.,
Defendants-A ppellees.
OPINION
Filed August 11, 1986
Before: Thomas Gibbs Gee, Henry A. Politz, and
Will Garwood, Circuit Judges.
Opinion by Judge Thomas Gibbs Gee
Appeal from the United States District Court
for the Northern District of Texas
Halbert O. Woodward, District Judge, Presiding
THOMAS GIBBS GEE, Circuit Judge:
Appellants in this class action challenge conditions that
existed in jails used by the United States Border Patrol
in the late 1970s and early 1980s to detain illegal aliens
before deporting them. Alleging that detention did, or
would, violate their due process rights, appellants seek
both damages and injunctive relief from federal agents and
local officials. We affirm the district court’s judgment for
appellees, concluding that, in the light of recent Supreme
2a
Court cases requiring due process violations to be based
on more than government officials’ mere negligence, the
class failed to demonstrate the existence of unconstitu-
tional behavior.
In summarizing the facts we look to the district court’s
findings, which we deem to be plausible in light of the
evidence presented. See Anderson v. Bessemer City, 470 U.S.
—__., 84 L.Ed.2d 518, 528 (1985). We look especially to
conditions in the Lubbock city jail, the primary facility |
used by the Border Patrol for these purposes. In 1977,
the City of Lubbock began allowing the Border Patrol to
house detainees in its jail. Later that year, the city ceased
using the city jail, housing its prisoners instead in Lubbock
County jail. The Border Patrol was accordingly allowed to
expand its use to all cells of the city facility. Although
the city no longer housed its prisoners there, it continued
to assume the responsibility of feeding the detainees. Bor-
der Patrol agents, meanwhile, actually booked detainees
into the facility. Between 1977 and December 1981, the
Border Patrol detained over 7,000 illegal aliens in the city
jail. be
The police of Muleshoe, Texas arrested both named
appellants—Nabor Ortega in September 1981 and Amelio
Gonzalez in December 1981—on suspicion of being illegal
aliens. Transferred into the custody of the Border Patrol,
both spent between one and three days in the city jail.
They later testified that the jail was squalid; trash filled
the cells and showers because of infrequent cleanings.
Lacking mattresses and blankets, they were forced to sleep
on cardboard boxes or sheet metal bunks. The absence of
towels and soap, moreover, precluded bathing. Neither pro-
tested about these conditions; uninformed of the problems,
federal agents and local officials failed to improve condi-
tions except when an agent, noticing Gonzalez’s plight,
provided him with a mattress and blanket. With the tes-
timony of others corroborating these remembrances, it be-
3a
came clear that the city jail’s conditions were unpleasant
in those days.
Ortega and Gonzalez—in an action perhaps unusual for
illegal aliens—therefore brought this action based on their
rights under the Constitution and laws of the United States
against Border Patrol agents William Rowe and Hugh
Rushton, the Immigration and Naturalization Service, the
City of Lubbock, and the United States of America. Rowe
was the agent in charge of the Lubbock Station’ of the
Border Patrol from July 1977 to August 1984, and Rush-
ton has been Chief Patrol Agent of the Marfa Sector, the
administrative area that includes the Lubbock Station, since
1980. Appellants based their suit against federal appellees
on the claim that the conditions described violated their
due process rights under the fifth amendment. The federal
appellees also allegedly violated 8 U.S.C. § 1252 and 18
U.S.C. §§ 4002 and 4042. Appellants alleged that the city
conspired with federal authorities in violation of the four-
teenth amendment’s due process clause. Ortega and Gon-
zalez sought damages for past wrongs inflicted; they
coupled these individual claims to a class action? against
appellees, seeking injunctive relief against the allegedly
unconstitutional conditions. At first, only the city jail was
the target of this suit, but appellants amended their com-
plaint to seek injunctive relief against the other jails of
the Lubbock Station that the Border Patrol used. Con-
sequently, they were allowed to introduce evidence of other
jails’ conditions.
The district court entered judgment in appellees’ favor.
It first concluded that, contrary to appellants’ assertion,
18 U.S.C. § 4002 does not require a written agreement
! The Lubbock station covers a 28-county area around Lubbock, Texas.
2 Ortega and Gonzalez were the representatives of a certified class
of all people “who are or will be incarcerated in city and county jails
by agents of the Lubbock Station of the United States Border Patrol
within its 28-county jurisdiction.”
4a
between federal and local officials regarding the use of
local jails to house illegal aliens. Having found the other
statutory bases for appellants’ complaint unavailing, the
court then ruled that no due process violations occurred.
Noting the short stay of most detainees in these jails (usu-
ally two or three days before they are deported), it con-
cluded that conditions were not serious enough to be
constitutional violations.
On appeal, Ortega and Gonzalez continue to insist that
18 U.S.C. § 4002 requires the INS to execute written
agreements with local officials for use of local jails.* To
understand this argument, it is first necessary to recognize
their perception of this case. To appellants, all the prob-
lems discussed result from insufficient deiegation of re-
sponsibility. Federal agents believed that Lubbock officials
were responsible for maintaining the jails, while local of-
ficials believed that operations were within the province
of the Border Patrol. Resulting from informal, oral agree-
ments, this confusion has in turn caused the problems
about which the class complains. By bringing this action,
appellants hope that the federal courts will force appellees
to cease assuming away their responsibilities; one way to
do this is to interpret § 4002 as requiring written agree-
ments, agreements that presumably would detail the duties
of both federal and local officials.
We cannot interpret § 4002 in such a manner; rather,
we conclude that appellants may not use this statute as
the basis for a cause of action. Other courts have held
’ This statute provides in part the following:
For the purpose of providing suitable quarters for the safekeeping,
care, and subsistence of all persons held under authority of any
enactment of Congress, the Attorney General may contract, for a
period not exceeding three years, with the proper authorities of
any state, territory, or political subdivision thereof, for the im-
prisonment, susistence, care, and proper employment of such per-
sons.
5a
that § 4002 provides no implicit private cause of action.
See Owens v. Haas, 601 F.2d 1242, 1247-48 (2nd Cir. 1979)
cert. denied 444 U.S. 980 (1979); Hampton v. Holmesburg
Prison Officials, 546 F.2d 1077, 1082 (8rd Cir. 1976); Wil-
liams v. United States, 405 F.2d 951, 954 (9th Cir. 1969).
The reasoning of Owens is particularly persuasive: of cen-
tral importance is the absence of any indication in the
language or legislative history of § 4002 that Congress
intended to provide a private cause of action for prisoners
or detainees. 601 F.2d at 1247-48. No indication exists,
moreover, that Congress enacted the statute for the ben-
efit of prisoners. Jd. at 1247. These reasons require us to
reject § 4002 as a vehicle for detainees such as Ortega
and Gonzalez to compel the federal government’s compli-
ance. See Cort v. Ash, 422 U.S. 66, 78 (1975). We also
conclude that 8 U.S.C. § 1252 and 18 U.S.C. § 4042 are
equally unavailing to appellants, for the reasons stated by
the district court.
We turn now to appellants’ constitutional claims. In its
memorandum opinion, the district court regarded Bell v.
Wolfish, 441 U.S. 520 (1979), as the starting point of its
constitutional analysis. Bell first directs us to the due proc-
ess clause rather than the eighth amendment in consid-
ering the claims of pretrial detainees. 441 U.S. at 535 &
n.16. The parties also regard this as a due process case;
Ortega and Gonzalez, for example, seek relief against the
federal appellees directly under the fifth amendment’s due
process clause, while bringing the city in on a 42 U.S.C.
§ 1983 claim of conspiracy to violate detainees’ due process
rights as guaranteed by the fourteenth amendment. We
agree with this assessment. Because the detainees’ im-
prisonment did not result from their conviction for any
crimes, the eighth amendment’s prohibition of cruel and
unusual punishment is inapplicable. See id. at 535 n.16,
quoting Ingraham v. Wright, 430 U.S. 651, 671-72 n.40
(1977).
6a
At trial and on appeal, the parties have devoted much
attention to Bell. Recent Supreme Court cases, however,
dramatically change the law of due process. In Daniels v.
Williams, 474 U.S. __, 88 L.Ed.2d 662, 666 (1986), the
court concluded that ‘‘the Due Process Clause is simply
not implicated by a negligent act of an official causing
unintended loss of or injury to life, liberty, or property.”’
Although Daniels was a procedural due process case, the
court’s ruling goes further; ‘‘(a)s we held in Daniels, the
protections of the Due Process Clause, whether procedural
or substantive, are just not triggered by lack of due care
by prison officials.” Davidson v. Cannon, 474 U.S. __, 88
L.Ed.2d 677, 683 (1986). Had these cases not come down,
we would have resolved this case by following Bell’s dic-
tates, focusing on the purpose of the jails’ conditions to
decide whether unconstitutional punishment occurred. After
Daniels and Davidson, however, we cannot resolve the
case in this way if the conditions resulted from the neg-
ligence of the appellees. Indeed, in cases involving only
simple negligence of the officials responsible, Daniels and
Davidson render much of Bell’s language surplusage. Only
if the evidence suggests that the appellees knew of the
jails’ conditions, or intended to force the detainees to en-
dure such conditions, would a Bell analysis retain vitality.
The district court found that the individual appellees
lacked any intent to punish the detainees. Border Patrol
agents, for example, provided blankets and cleaned up the
cells. The court concluded that, in general, ‘‘those agents
and officials corrected shortcomings in jail conditions when
they learned of any deficiency.’’ We certainly cannot ques-
tion the court’s findings because the record shows no evi-
dence of officials’ desire to punish the detainees, of their
knowledge of their continuing discomfort, or of their reck-
less disregard of the squalid conditions. The most that can
be said is that, objectively speaking, they were unreason-
able—in other words, negligent—in failing to inspect the -
jails regularly.
eEeo7~
7a
On appeal, furthermore, the appellants really assert
nothing more. than negligent supervision. As mentioned
before, they view this case as one in which the lack of
specific rules under which the INS would use local jails,
and the resulting confusion over who was responsible for
the jails’ upkeep, led to the lamentable conditions that the
detainees were forced to endure.‘ By characterizing the
problem in this way, appellants can only be saying that
the appellees unreasonably neglected to establish clear
* The following excerpts from appellants’ brief reflect’ this position:
(I)n virtually all aspects of the jail’s operation, the city and INS
each thought the other was in charge. As a consequence of this
extraordinary confusion, plaintiffs and other detainees were left
without supervision, their cells were not cleaned, no bedding was
provided, and no one even bothered to turn on the heat in winter.
-_* *
After the city left the jail, responsibility for cleaning the cells was
not clearly assigned to anyone. At the time INS was using the
jail, Asst. Chief Bartley did not think the city had any responsi-
bility for sanitation ... Predictably, the cells were not cleaned.
Agent Rowe assumed that the city was responsible for providing
mattresses and blankets for INS’s detainees, but, as with other
matters, he did nothing to confirm that assumption ... For its
part, the city left cotton mattresses in the cells when its prisoners
were removed in 1978, but assumed that INS took over respon-
sibility for replacing and cleaning the mattresses after
that ... Because no one took responsibility for them, the mat-
tresses left by the city were never cleaned and eventually dete-
riorated until there were none left, forcing detainees to sleep on
the metal bunks or on the concrete floors of the cells.
At oral argument, counsel for appellants maintained this tack: the
detainees’ injuries resulted from the appellees’ failure to divvy up the
duties involved in maintaining the jails. This failure, moreover, arose
from confusion more than anything else; in its brief, appellants allege
that “‘by failing to clearly delineate responsibility for INS detainees
placed in the custody of local facilities, INS procedures invited the kind
of confusion which prevailed in Lubbock.”’
8a
guidelines. Apparently trying to avoid Daniels and Dav-
idson, appellants characterize this confusion as ‘willful in-
difference.’’ The facts of this case, however, show no more
than a sloppy system of cooperation between federal and
local authorities.’ Blindly assuming away one’s responsi-
bilities without first discovering others’ expectations can
be seen as unreasonable—nothing more. This being so,
appellees’ conduct is not the kind proscribed by the due
process clauses of the fifth and fourteenth amendments,
as interpreted by Daniels and Davidson.
Appellants raise other issues: for example, they argue
that the district court erred in not allcwing the discovery
of documents relating to the injury of a detainee. Even
here, however, they apparently claim that the appellees
were only negligent in incarcerating the detainee. Daniels
and Davidson therefore render consideration of this alle-
gation unnecessary. Similarly, we need not focus on other
facts or issues arising from this complex case. The district
court’s judgment is AFFIRMED.
‘This is true especially in the light of the rather broad definition of
“negligence” the Davidson Court makes. Petitioner there informed
prison officials that other inmates had threatened him. The officials
thus knew of possible dangers, yet did nothing to protect Davidson,
whom another inmate eventually wounded seriously. While the officials’
conduct could have easily been deemed reckiess, the Court agreed with
the district court’s assessment that they had been only negligent. 88
L.Ed.2d at 682. If ‘‘negligence’’ describes the conduct there, it must
surely do so here.
|
SS
9a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
CIVIL ACTION NO. CA-5-81-198
NABOR ORTEGA, et al.,
Plaintiffs,
V.
BILL M. Rowe, et al.,
Defendants.
FILED
JUL 22 1985
MEMORANDUM OPINION
The named plaintiffs, Nabor Ortega (Ortega), and Au-
relio Gonzalez (Gonzalez),' have filed their complaint against
Bill M. Rowe (Rowe) and Hugh J. Rushton (Rushton), in-
dividually and as United States Border Patrol agents; the
Immigration and Naturalization Service (INS); the Hon-
orable Alan B. Henry, Mayor of the City of Lubbock; the
City of Lubbock; and the United States of America as
defendants. The defendant Rowe was Patrol Agent in
charge of the Lubbock Station of the Border Patrol from
_ July 1977 to August 1984, and the defendant Rushton has
' Juan Zavala was originally named as a plaintiff, but his claim as a
plaintiff in the case was dismissed with prejudice pursuant to the agree-
ment and stipulation of the parties. He remains in the case as a member
of the class only. Also as a result of this stipulation and agreement,
Zavala’s testimony concerning the conditions and operation of the Sla-
ton City Jail was removed from the court’s consideration. (Tr. 992).
10a
been Chief Patrol Agent of the Marfa Sector, the admin-
istrative area that includes the Lubbock Station, since 1980.
The named plaintiffs bring their action on behalf of them-
selves individually and as representatives of a class con-
stituting all persons who are or who will be incarcerated
in city and county jails by agents of the Lubbock Station
of the United States Border Patrol within its 28-county
jurisdiction.
Plaintiffs base their suit on the allegations that they
nave been deprived of their due process rights under the
Fifth Amendment to the Constitution of the United States
and that the defendants have violated 8 U.S.C. § 1252
and 18 U.S.C. §§ 4002 and 4042. They also allege a con-
spiracy and violation by some of the defendants of 42
U.S.C. § 1983 and the Fourteenth Amendment to the U.S.
Constitution.
The court has determined that jurisdiction is proper un-
der 28 U.S.C. §§ 1331, 1343(3), and 1361 and 8 U.S.C. §
1329.
The case first came on for trial on September 19-23,
1983. The trial was suspended after this first session fol-
lowing an announcement by the parties that a settiement
had been agreed upon. Because of the failure of settlement
negotiations, however, the trial was recommenced on Jan-
uary 28, 1985, and an additional evidentiary hearing was
held on May 14, 1985. The court has now received and
considered all of the evidence, the pleadings in the case,
and the briefs and arguments of the parties.
This Memorandum Opinion shail constitute the court’s
findings of fact and conclusions of law. Further, the stip-
ulations of the parties contained in the Pre-Trial Order
entered by the court on September 15, 1983 are incor-
porated herein as a part of the findings of fact.
The plaintiffs allege that upon their apprehension and
detention by the Border Patrol as illegal aliens, they were
lla
incarcerated in various county and city jails lying within
a 28-county area which is under the jurisdiction of the
United States Border Patrol, Lubbock Station. Plaintiffs
argue that the jails in which they were incarcerated do
not meet minimal constitutional and statutory standards
and that their detention in these jails under these circum-
stances amounts to a deprivation of their due process rights
under the Fifth and Fourteenth Amendments to the U.S.
Constitution.
CLAIMS OF THE NAMED PLAINTIFFS
The evidence established that Ortega was arrested by
local police officers in Muleshoe, Texas on September 4,
1981. On September 7, after spending three nights and
two days in the Bailey County Jail, he was removed from
there by a Border Patrol Agent and transported to a jail
in Lubbock, Texas which belonged to and was operated
by the City of Lubbock. At that time the City of Lubbock
no longer held prisoners in this jail, but instead incarcer-
ated them in the Lubbock County Jail. Ortega testified
that there were no mattresses or blankets in his cell at
the Lubbock jail and that his cell was trashy with papers
and old food cartons strewn on the floor. (Tr. 214-15). He
stayed in the cell for three nights and two days, sleeping
or. a sheet metal bed in his work clothes. (Tr. 215). During
his stay, Ortega had no access to a shower, soap, or tow-
els. (Tr. 216). However, he never tried to take a shower
in his cell, so he could not say whether or not it worked.
(Tr. 242). He assumed that it did not work because the
stall was covered with trash. (Jd). The issue of shower
availability during the period when Ortega was detained
is unclear since some of the cells had showers that worked,
and some were capped off and did not work. (Tr. 248).
He also stated that the toilet in the cell was in working
condition. (Tr.242). Finally, he testified that he never re-
ported to any officials that the shower did not work or
that he lacked any type of bedding supplies. Jd.
12a
While in custody, he received two meals a day that
included eggs and bread for breakfast and chicken and
potatoes for supper. (Tr. 216). Jail records indicate that
there were nine other aliens in custody with Ortega in his
cell between 4:00 P.M. on September 7 and 4:00 P.M. on
September 8, 1981. (Plaintiff's Ex. 81.9). Ortega stated
that the other nine detainees were removed from his cell
on the day after he arrived. (Tr. 230). Ortega stayed in
the cell an extra day until September 9 so that he could
make a bond. (Tr. 231). The record indicates that the Con-
sul of the Government of the Republic of Mexico visited
Ortega while he was in the cell, (Tr. 229), and it also
discloses that an attorney, Ms. Maria Mercado, met with
Ortega on the same day. (Jd).
Ortega claims that he suffered substantial physical in-
juries because of his detention in the Lubbock jail, but the
record indicates that he went back to work within several
days of his release. (Tr. 232). The evidence shows that he
did not go to see a doctor or seek other medical treatment,
and the court concludes that he does not suffer from any
physical or emotional ailment resulting from his period of
detention in the Lubbock jail facility.
The plaintiff Gonzalez was arrested by police officers of
the Muleshoe City Police Department on December 5, 1981
and placed in the Bailey County Jail. Three days later on
December 8, he was released to the custody of the Border
Patrol and transferred to the same jail in Lubbock where
Ortega had previously been held. He arrived in Lubbock
at about 11:00 A.M., spent the night there, and left the
cell at approximately 5:00 or 6:00 P.M. the following day,
totaling approximately thirty hours spent in the Lubbock
jail. (Tr. 321). There was no one in the cell with him during
his detention in Lubbock. (Tr. 319, 333). He testified that
this cell was cold and dirty with trash, papers, and old
paper plates on the floor. (Tr. 319). The toilet and water
fountain both worked, but there was no toilet paper. (Tr.
341, 343). There was no mattress or blanket in the cell,
13a
and he slept on a sheet metal bed in his clothes that
included a heavy jacket. (Tr. 319, 339). Rowe testified that
he provided a mattress and blanket to Gonzalez after ob-
serving that he was in the cell with out these items.(Tr.
119-20).
Gonzalez received two meals between the time of his
arrival on the morning of December 8 and his departure
on the afternoon of December 9. (Tr. 333). Upon his re-
lease from custody, he returned to work in Muleshoe im-
mediately and did not go to see a physician. (Tr. 334). He
also testified that he was allowed to speak with an attorney
the day after he arrived in Lubbock. (Tr. 335). Although
the officers of the Border Patrol did not mistreat him in
any way, (Tr. 340), Gonzalez claims that he was humiliated
and suffers mental anguish because of his detention. Based
on the evidence, the court concludes that Gonzalez received
no physical or emotional injury stemming from his short
stay in the Lubbock jail.
CLAIMS OF THE CLASS MEMBERS
I. Jail conditions
Members of the class in this case attack the condition
of local facilities used by the Lubbock Station, but not
operated by the INS, to detain illegal aliens. It is therefore
necessary to describe the evidence presented concerning
each of these non-service facilities to determine whether
the plaintiffs’ statutory or constitutional rights have been
violated.
LUBBOCK CITY JAIL
The Lubbock City Jail was the main non-service deten-
tion facility used by the Lubbock Station of the Border
Patrol between July 1977 and December 1981. (Plaintiff's
Ex. 77-81). In 1977 an agreement was reached between
officials of the Border Patrol and the City of Lubbock
which allowed the Border Patrol to house detainees in the
l4a
Lubbock City Jail. The price charged for each detainee
was $6.50 per day. (Tr. 180-83). Later in 1977, the City
of Lubbock ceased using the City Jail and began housing
their prisoners in the Lubbock County Jail. At this time
the Border Patrol was allowed to expand its use of the
City Jail to include the downstairs holding cells as well as
the two upstairs cells. This gave the Border Patrol a ca-
pacity of 72 bunks. (Tr. 612). The two upstairs holding
cells are approximately 280 square feet in area and have
15 metal bunks, a toilet, water fountain, and shower.
Downstairs in the facility are a number of smaller cells
including four holding facilities. These holding cells vary
in square footage from 139.4 square feet to 183 square
feet. (Tr. 895). Although the city no longer housed its
prisoners in this jail facility, it continued to provide per-
sonnel to supervise the jail as well as food, maintenance,
and bedding. (Tr. 190, 418-21, 626, 186).
The Lubbock City Jail is located in the Lubbock Police
Department, and after the city ceased using this jail fa-
cility, a police desk sergeant and other police officers were
in close proximity to the cells and provided supervision.
(Tr. 61-63, 70-71, 107). Since no jailer was any longer on
duty, Border Patrol agents booked detainees into the fa-
cility themselves, unlocked the jail cells, and placed them
in the cells themselves. (Tr. 589-90). Between 1977 and
December 1981, the Border Patrol detained over 7,000
illegal aliens in the Lubbock City Jail, and there were no
reports of personal injuries or fires. (Tr. 155-56). Although
the Consul for the Republic of Mexico visited the Lubbock
jail facility several times, he never complained about the
conditions that he found there. (Tr. 167-69). In fact, during
the entire period in which the Lubbock jail was utilized
for detaining illegal aliens, there were no complaints con-
cerning jail conditions made to the City of Lubbock, the
Lubbock Station, or any other Border Patrol office. (Tr.
192-93, 625, 701).
15a
A number of witnesses testified concerning conditions
in the Lubbock jail facility, and the plaintiffs claim that
this testimony proves that the conditions in the jail were
unconstitutional. Isidro Ruiz testified that he and 40 to 45
other people were held in one upstairs cell in the Lubbock
City Jail in August 1981. (Tr. 290-91). It is important to
note, however, that Ruiz and the other detainees spent
only three to four hours in this small cell together before
being separated and moved to another cell downstairs.
Ruiz testified that 15 or 16 other people were housed in
the downstairs cell after the move. (Tr. 293). Ruiz was
removed from the jail after spending only seven to eight
hours there. (Tr. 294). He did not suffer any type of in-
juries while he was in detention, but he stated that the
cells were trashy and unsanitary. (Tr. 292). Armando An-
drade testified that there were more detainees than there
were bunks in his cell during his period of detention in
the jail. He stated that there were nine or ten other aliens
held in the cell, and he was released from the cell after
one and one-half to three and one-half hours when he was
placed on a bus and transported back to Mexico. (Tr. 361,
365). Andrade testified that his cell was trashy and had
a bad odor, but the toilet worked. (Tr. 362). As with Ruiz,
Andrade suffered no injuries during his period of deten-
tion.
Although Ruiz and Andrade spent only a very short
period in the Lubbock City Jail, there is some deposition
testimony reflecting conditions over a longer period of
time. Reyes Gardea was held in the Lubbock jail from
February 27, 1981 at 6:00 P.M. until 9:00 P.M. on March
2, a period of 75 hours. (Plaintiff's Ex. 81.3). Gardea stated
that he was in a cell with approximately 19 other aliens,
so many that some had to sleep on the floor. (Deposition
of Reyes Gardea at 4). There was no bedding to sleep on,
and the cell was cold. (Jd. at 5). Gardea suffered no injuries
while in custody at the Lubbock City Jail. (/d. at 3-9).
Cruz Estrada, his father Clemente Estrada, and two broth-
l6a
ers were held in the Lubbock City Jail from July 4, 1981
at approximately 8:00 P.M. until 4:00 P.M. on July 6, 1981.
(Plaintiff's Ex. 81.7). Cruz Estrada testified that there
were 12 other persons in his cell, and about four of those
had to sleep on the floor. (Deposition of Cruz Estrada at
11). His father, Clemente, estimated that there were 15
other persons in the cell, but he was not sure if any of
them had to sleep on the floor. (Deposition of Clemente
Estrada at 100). The Estradas suffered no injuries while
in the jail facility. Martin Burrola was in the City Jail
from May 29, 1978 at 5:00 P.M. until May 31 at 9:00
A.M., a total of forty hours. (Plaintiff's Ex. 78). He stated
that there were more detainees in the cell than there were
bunks. (Deposition of Martin Burrola at 85). Burrola suf-
fered no injuries while detained in the Lubbock City Jail.
Ramon Balderama testified in a July 28, 1983 deposition
that he was held in the Lubbock City Jail for two days
“last year.”’ (Deposition of Ramon Balderama at 57-58).
Border Patrol records indicate that he was actually de-
tained on December 1-2, 1981 along with 13 other aliens.
(Plaintiff's Ex. 81). Balderama suffered no injuries during
his detention.
All of these witnesses stated that there were no mat-
tresses or blankets in the cells where they were detained.
They also testified that the cells were trashy, no person
in charge cleaned out the cells, and the cell temperature
was uncomfortable. They agreed that they received two
meals per day while detained in Lubbock. In addition, they
stated that officials of the Border Patrol and jail facility
did not oblige their requests for bedding, cleaning assist-
ance, or altered temperatures in the cells.
The court finds as facts that detention cells in the Lub-
bock City Jail were sometimes trashy, that cells were
cleaned up infrequently, and that the cell temperature was
not as warm in winter as some detainees would have liked
or as cool in summer as some would have liked. The evi-
dence contained in the depositions described above sug-
17a
gests that Border Patrol agents or officials of the City of
Lubbock disregarded or ignored aliens’ requests for nec-
essary services or supplies, but the great weight of credible
testimony is to the contrary and the court finds that these
agents and officials corrected shortcomings in jail condi-
tions when they learned of any deficiency.
Rowe testified that he obtained a mattress and blanket
for the plaintiff Gonzalez once he learned that he required
those items, (Tr. 119-20), and that this was the only in-
cident when a detainee requested a mattress and bedding.
(Tr. 165). He further testified that on 10 or 12 occasions
he asked city personnel to clean certain locations in the
jail, and the personnel involved complied with his requests.
(Tr. 162-63). Border Patrol Agent Dwayne Mings reported
a lack of mattresses or blankets to the desk sergeant when
he observed such a situation. (Tr. 414). He observed city
personnel carry mattresses up to certain cells where mat-
tresses were missing. (Tr. 415). He also divided detainees
into groups and placed them in different cells if he ob-
served that there were more detainees than bunks. (Tr.
417). He often cleaned out the cells himself, though city
janitors usually did so. (Tr. 418). He reported a broken
shower facility that a detainee mentioned, and the shower
was repaired. (Tr. 419). He checked on the temperature
in the cells, requested temperature adjustments, and once
repaired a broken window. (Tr. 423). Border Patrol Agent
Donald Vaughan checked for trash in the cells before plac-
ing aliens there and would alert city personnel to have
janitors clean the cell. (Tr. 626). He often cleared trash
out of the cells himself before placing detainees there. (Tr.
627). Vaughan stated that the aliens themselves were in
part responsible for the conditions in their cells since they
sometimes destroyed mattresses and toilets. (Tr. 623). This
evidence clearly indicates that Border Patrol agents and
city personnel cared for detainee comfort and safety and
took steps to make the aliens’ short stay more comfortable.
18a
The plaintiffs have raised serious complaints concerning
lack of fire safety and inadequate detainee supervision in
the Lubbock City Jail. It is true that there was no or-
ganized fire safety plan. However, the Lubbock Fire Mar-
shal inspected the jail and all other city facilities every
year. (Tr. 196). The record reflects no serious or minor
injuries resulting from fire or smoke emergencies during
the entire period of Border Patrol usage of the jail. The
court concludes that fire provisions utilized by the Lubbock
City Jail adequately protected the Border Patrol’s detai-
nees and did not expose them to a risk of injury by fire.
It was apparent from the testimony that the supervision
provided by the City of Lubbock through its desk sergeant
and other personnel within hearing range of the detention
cells was adequate to provide supervision of the aliens.
Again, there was no organized plan for regular or constant
supervision of the aliens other than the presence of the
desk sergeant and other officials of the Lubbock City Po-
lice Department within close proximity to the detention
cells. However, the Border Patrol agents stated that they
looked in on aliens when they passed by the cells or moved
the aliens. The easy access of Lubbock Police personnel
to the detention facility protected the detainees from any
harm that might have occurred. Of course, there is no
instance reflected in the record of an incident involving
any personal injury to a detainee in the Lubbock jail re-
sulting from a lack of supervision or any other reason.
SLATON CITY JAIL
The Slaton City Jail was used to house Border Patrol
detainees between December 1981 and December 1982.
The agreement between the City of Slaton and the Border
Patrol was not reduced to writing, but the Border Patrol
understood that it could use a cell with six beds and an
additional cell with four beds if that cell was available.
(Tr. 124-25). Rowe furnished fire retardant mattresses for
use in the Slaton City Jail, (Tr. 529, 550 and 579), and
19a
the City of Slaton provided additional mattresses. (Tr. 528-
29). Border Patrol officers booked detainees into the fa-
cility, (Tr. 126, 429-30, 551, 596), and supervision was
provided by the dispatcher at the front desk of the jail
facility who was within hearing range of the cells. The
dispatcher was a female police officer who was instructed
to call on a male officer in case any disturbance occurred.
Slaton police officials conducted periodic walk-through in-
spections of the jail to check on Border Patrol detainees,
(Tr. 532, 551-52), and the response time in case an officer
had to be called was less than three minutes. (Tr. 552).
Also contained within the same building as the jail was
the emergency medical service established to provide am-
bulance service to citizens of the City of Slaton. (Tr. 553).
While in the Slaton jail, Border Patrol detainees were
allowed visitation privileges and the use of telephones. (Tr.
547-48). Although there were no regular fire inspections
ever performed at the jail, the record indicates that there
were no fires during the period of use during 1982.
It is true that one Border Patrol detainee, Manuel Za-
vala, was injured while in custody in the Slaton City Jail.
The circumstances surrounding his injury on September 7,
1982 are in dispute and are the subject of two civil actions
presently pending in this court, Civil Action Nos. CA-5-
84-56 and CA-5-84-157. However, for purposes of this suit,
it is important to note that medical aid was provided to
Zavala by the Slaton City Police Department, (Tr. 539-40),
and that he received treatment for his injuries.
Zavala’s injury was the only reported injury to a Border
Patrol detainee involving the Slaton City Jail or any other
non-service jail facility. The Consul for the Republic of
Mexico visited the Slaton City Jail on a number of occa-
sions and did not object to the conditions he found there.
(Tr. 167-69 and 557). The officials of the Slaton City Jail
received no complaints concerning the conditions during
the period of Border Patrol use.
-
20a
The record indicates that the cells in the Slaton City
Jail were overcrowded on several occasions, but there is
no credible evidence to indicate that such overcrowded:
conditions occurred over an extended period of time or
were the standard practice in this jail.
PLAINVIEW CITY JAIL
The Plainview City Jail, located in the Plainview Police
Department, was used by the Border Patrol to house de-
tainees between 1977 and 1982. During this time, 30 de-
tainees were held in 1977, 83 in 1978, 69 in 1979, 10 in
1980, 24 in 1981, and 56 in 1982. (Plaintiff's Exs. 77-82).
Of the 272 aliens held at Plainview over that period, only
32 were held in excess of 72 hours. Jd. The Border Patrol
had access to the Plainview facility pursuant to an agree-
ment entered into by Plainview officials and the Border
Patrol. As with other agreements concerning non-service
jails, there was no written contract describing in detail
the requirements for use of the Plainview jail. Supervision
in the Plainview jail consisted of a female police dispatcher
who had a link to the jail through an audio intercom sys-
tem. Also, there were periodic walk-throughs and inspec-
tions conducted by officers of the Plainview Police
Department. (Tr. 499-500). There was no organized fire
inspection procedure worked out between the Border Pa-
trol and the Plainview officials, but the record indicates
that there were no fire emergencies or any other type of
medical emergencies during the period of the Border Pa-
trol use of the Plainview jail. As with the Slaton City Jail,
the Plainview City Jail is not currently used by the Border
Patrol and has not been used since November 1982. (Tr.
512).
HASKELL COUNTY JAIL
The Border Patrol used the Haskell County Jail to de-
tain illegal aliens in 1977, 1978, and 1981. (Plaintiff’s Exs.
2la
77-82). During that time, only one detainee was held for
longer than 72 hours. Supervision of the jail facility at
night was accomplished by a sheriff who lived upstairs in
the jail, and if prisoners or detainees in the jail needed
help or any service they were instructed to hit a pipe
which ran through the cells into the sheriff's bedroom.
(Depositon of G. T. Garrett at 29). Haskell County officials
and the Border Patrol furnished detainees with a mattress.
Id. at 15.
In 1981, 26 aliens were detained in the jail on one
occasion, but these aliens were placed in jail at 8:00 P.M.
on May 18, 1981 and were released on May 19 at 10:00
A.M., a total of only 14 hours. (Plaintiff’s Ex. 81.5). During
the period of use of the Haskell County Jail by the Border
Patrol, there were no reports of fires or other types of
emergencies affecting Border Patrol detainees.
VERNON CITY JAIL
Border Patrol officials used the Vernon City Jail to house
detainees during 1977, 1978, 1980, 1981, and 1982. A total
of 217 aliens were held during that period, with only six
detained in excess of 72 hours. (Plaintiff's Exs. 77, 78,
80, 81 and 82). The jail is located in the Vernon Police
Department, and supervision was provided by a person in
the radio room and other police officers who were within
hearing range. (Deposition of Wayne Hendrix at 14). There
was no policy of requiring walk-through inspections of the
detainees. As with other use of jail facilities by the Border
Patrol, there was an agreement, although not a written
agreement, governing Border Patrol use of the Vernon
City Jail. (/d. at 5-6). Border Patrol agents booked detai-
nees into the Vernon Jail facility, and local authorities
were responsible for determining whether there was a suf-
ficient number of mattresses for the detainees. (Jd. at 18).
When the Border Patrol needed to house a large number
of detainees, Vernon officials opened doors connecting in-
dividual cells, giving the detainees access to the entire jail
22a
facility. (Id. at 37). There were six metal bunks in the
cells for detainee use along with 12 to 15 mattresses that
could be used to lie on. (Jd. at 7, 12). It is true that at
times there were more detainees than bunks or mattresses.
However, these periods were short in duration. The long-
est periods were 14 hours on January 19-20, 1982, when
18 persons were detained, and 14 hours on January 18-
19, 1982, when 14 were detained. (Plaintiff's Ex. 87.1). A
larger number were housed in the jail in June 1982, but
these persons were in the custody of a different station
of the Border Patrol. (Tr. 885-86). During the period of
Border Patrol use of the jail, there were no fires or other
emergencies involving detainees in the Vernon City Jail.
LUBBOCK COUNTY JAIL
In 1983, the Border Patrol began using the Lubbock
County Jail as its primary facility for the detention of
illegal aliens. (Tr, 134). The Border Patrol detains aliens
in this facility pursuant to an oral agreement entered into
by Rowe and the Sheriff of Lubbock County in 1983. (Tr.
1139). Border Patrol Agents fill out cards on detainees
placed into the facility. (Tr. 1104). The Lubbock County
officials set aside one holding cell for Border Patrol use,
but other cells were available for its use if needed and if
the Sheriff was not using the space. (Tr. 1101). Any re-
quirement for additional space is minimized since the Board
Patrol operates a bus to transport aliens to the border
every day. (Transcript of May 14, 1985 evidentiary hearing
at 77) [hereinafter cited as Tr. Part II.} The record indi-
cates that there have been no medical emergencies in the
Lubbock County Jail during the period of Border Patrol
use, (Tr. 1133), or any other types of emergencies. Su-
pervision in the jail was entirely adequate.
The plaintiffs have presented evidence that the holding
facilities in the jail were overcrowded on numerous oc-
casions. (Plaintiffs’ Ex. A). This exhibit is unreliable for
a number of reasons. The record reflects that aliens were
23a
often transferred from one holding cell to another, and
this move was not always reflected on the daily roster or
booking cards relied on for the preparation of the exhibit.
(Tr. Part II 10, 15). The policy in the jail was to house
no more than eight persons in a holding cell and place
any detainees over that number in an additional cell or
cells. (Tr. Part II 12). Additionally, certain aliens detained
in the jail were held on state charges for several days
before passing to the custody of the Border Patrol, (Tr.
Part II 38-36, 64-75), and this fact inflated the calculation
of time spent in Border Patrol custody.
Despite these uncertainties, the court concludes that the
holding cells in the Lubbock County Jail were not over-
crowded for more than a short period of time at most,
and the credible evidence indicates that these instances
occurred rarely, if ever.
OTHER JAILS
Between 1977 and 1982, the Border Patrol used 35 local
jails for the purpose of detaining illegal aliens. The only
evidence in the record other than the evidence concerning
the jails mentioned above to indicate jail conditions in these
facilities is the rosters of Border Patroi detainees.
(Plaintiffs’ Exs. 77-82). These records reflect that detai-
nees were only held for short periods of time and do not
indicate any constitutional or statutory violation. Accord-
ingly, the court will not engage in speculation concerning
the conditions in these jails, and it determines that no
constitutional violation occurred in these jail facilities.
II. Attorney Access
The plaintiffs assert that the Border Patrol denied them
access to legal counsel and that this action violated their
constitutional rights. The record indicates, however, that
no plaintiff who wished to meet with an attorney was
denied this right. It is true that attorneys were sometimes
not able to meet with detainees at times of the lawyers’
24a
choosing. This happened because of logistical problems as-
sociated with having only four Border Patrol agents work-
ing in an office responsible for a 28-county area. There
were occasions when all of the agents were away from
the Lubbock office, and attorneys would have to rely on
a telephone answering machine on which to leave mes-
sages. (Tr. 158-59). In addition, agents in the field could
be contacted by radio from other law enforcement agencies
or by telephone at their homes. (Tr. 158, 307, 459).
There were times when an alien could not be located
and contacted by an attorney who wanted to see his pro-
spective client until after he had already voluntarily left
this country. (Tr. 344-47, 485). However, the record also
showed Border Patrol agents would allow aliens to meet
with an attorney, make a bond, and remain in this country
even if the alien was scheduled to depart. (Tr. 460).
The record indicated that the Border Parol required lo-
cal jail officials to not permit attorneys to meet with de-
tainees unless the Border Patrol gave its permission. This
created some inconvenience since it was sometimes diffi-
cult for attorneys to locate the Border Patrol agents to
secure permission. However, the record does not indicate
one instance when agents of the Border Patrol withheld
permission for an attorney to contact an alien. On the
contrary, the record reflects that attorneys often met with
aliens. What inconvenience that arose concerning attorney
access resulted from attorneys calling the Border Patrol
office, not talking to an agent directly, and not following
up on the attorney’s desire to meet with an alien. In some
of these instances, when the Border Patrol agent returned
the lawyer’s call after returning from the field, the alien
would already have departed this country.
This evidence indicates that aliens who wished to meet
with lawyers were able to do so and that Border Patrol
personnel did not interfere with this right. Although lo-
gistical problems presented slight inconveniences to law-
25a
yers who wanted to contact prospective clients, there is
absolutely no evidence to suggest a denial or serious infr-
ingment by Border Patrol personnel of the detainees’ rights
to contact and meet with attorneys.
III. Current Jail Procedures
Beginning in 1979, the INS determined that it would
be advisable to establish uniform procedures for the use
of service and non-service detention facilities by the Border
Patrol across the United States. (Tr. 1022-25). The INS
attempted to coordinate a joint program with the United
States Marshals Service for the streamlining of jail pro-
cedures by the Border Patrol. (Tr. 1028). Nothing much
else was done on this plan until the fall of 1982 because
of the influx of Cuban and Haitian refugees into this coun-
try and the diversion of Border Patrol resources caused
by this immigration. (Tr. 1032). In November and Decem-
ber 1982, the Border Patrol prepared and issued a first
draft of policies and guidelines to be followed in detention
facilities used by the Border Patrol. (Tr. 1032-33). On
March 4, 1983, the INS issued a teletype that further
described the guidelines established in December 1982. (Tr.
1037). These guidelines, patterned after those used by the
United States Marshals Service, include four mandatory
items concerning supervision, safety, emergency food ser-
vice, and emergency medical care that each facility used
by the Border Patrol had to meet. (Government’s Ex. 23).
These guidelines set a minimum required for any facility
used by the Border Patrol to detain illegal aliens. (Tr.
1035).
After the issuance of the March 4, 1983 teletype, the
Border Patrol began a program of inspecting the approx-
imately 900 non-service jail facilities it used. As of January
1985, it had inspected approximately 300 of those facilities
with 27 of them failing to pass inspection. (Tr. 1039-1040).
Since 1983, the Lubbock Station of the Border Patrol has
detained illegal aliens at the Hale County, Hockley County,
ee
26a
Lubbock County, and Wichita Falls City Jails, each of
which meets standards established by the Texas Jail Stand-
ards Commission or has contracts with the United States
Marshals Service for the incarceration or detention of fed-
eral prisoners. (Tr. 153, 618-19, 1147).
The record indicates that the Border Patrol began con-
templating a reorganization of its guidelines for use of
non-service detention facilities as far back as 1980. Mr.
Robert Schmidt, Senior Staff Advisor for Detention Op-
erations to the Assistant Commissioner of INS, testified
that the guidelines established in December 1982 were not
drafted in response to the instant lawsuit. (Tr. 1036). The
court specifically finds that these new procedures were the
result of a nationwide change that had absolutely nothing
to do with this lawsuit and certainly was not caused by
this lawsuit. Accordingly, the plaintiffs cannot be prevail-
ing parties to any extent under the test established in
Hennigan v. Ouachita Parish School Board, 479 F.2d 1148
(5th Cir. 1985).
LIABILITY CLAIMS AGAINST THE DEFENDANTS
I. Failure to execute a written contract
The plaintiffs claim that they should recover from the
INS and other federal defendants because they failed to
enter into written contracts with all authorities that pro-
vided facilities for the detention of aliens within the Lub-
bock Station. As described above, Border Patrol agents
entered into oral agreements with local officials to secure
detention areas.
Under 18 U.S.C. § 4002 (1982), the Attorney General
of the United States is authorized to contract with state
and local agencies for the purpose of providing facilities
for the detention and imprisonment of federal prisoners.
The plain wording of the statute itself does not indicate
that such a contract executed by the Attorney General
must be written, and the court is aware of no legislative
27a
history or other authority to the contrary. The court there-
fore determines that any claim the plaintiffs might have
under 18 U.S.C. § 4002 is not substantiated in this case
since in each instance in which the border Patrol used a
local jail, there was a contractual understanding between
officers of the Border Patrol and the officials in charge
of the local jail which permitted use of that jail by the
Border Patrol, even though the agreement was not re-
duced to writing.
II. Claim under 8 U.S.C. § 1252 and 18 U.S.C. § 4042
The plaintiffs also claim a right of action against the
defendants under 8 U.S.C. § 1252 (1982). This statute
establishes a procedure for the orderly apprehension, de-
tention, and deportation of illegal aliens. It authorizes the
Attorney General to detain an alien pending deportation,
§ 1252(a), and permits detention following a final order of
deportation in certain situations. Section 1252(c). There is
no reference in the statute to any requirements for the
condition of detention facilities or standards of detention
procedures. Neither does it provide for any civil action to
an alien detained in an allegedly substandard detention
facility. The court therefore determines that the plaintiffs
cannot recover from the defendants under 8 U.S.C. § 1252.
The court reaches the same conclusion concerning the
claims raised under 18 U.S.C. § 4042 (1982). This statute
is unavailable to the plaintiffs for two reasons. First, it
applies to the responsibilities of the Bureau of Prisons,
and as stated above, the plaintiffs were detained by the
Attorney General in local jails pursuant to his authority
to contract under 18 U.S.C. § 4002. The Bureau of Prisons
at no time had charge of the plaintiffs, so § 4042 does
not apply. Second, even if § 4042 was applicable, there is
no private right of action authorized under it. Owens v.
Haas, 601 F.2d 1242 (2d Cir.) cert. denied, 444 U.S. 980
(1979); Williams v. United States, 405 F.2d 951 (9th Cir.
1969). Assuming that § 4042 is available to the plaintiffs,
28a
the court determines that the conditions of detention and
procedures used by the defendants in this case did not
violate the duty imposed by § 4042 and described in United
States v Muniz, 374 U.S. 150 (1963).
III. Constitutional claims
The plaintiffs in this case had not been convicted of any
crime when they were detained by the Border Patrol.
Therefore, in determining the constitutionality of their con-
finement, the court must apply the due process clause of
the Fifth Amendment to the United States Constitution,
not the cruel and unusual! punishment clause of the Eighth
Amendment. Bell v. Wolfish, 441 U.S. 520 (1979). Under
this standard, the court must determine whether the con-
ditions of confinement in this case amount to punishment
as to the named plaintiffs and as to the class members.
Id. In a case such as this one where a number of jail
conditions and procedures are challenged, the court should
apply the constitutional standard after considering the to-
tality of the circumstances surrounding the plaintiffs’
claims. See Ruiz v. Estelle, 679 F.2d 1115, 1139 (5th Cir.
1979).
As the Court in Bell noted,
Not every disability imposed during ,_.etrial de-
tention amounts to “punishment” in the consti-
tutional sense, however. Once the Government
has exercised its conceded authority to detain a
person pending trial, it obviously is entitled to
employ devices that are calculated to effectuate
this detention. Traditionally, this has meant con-
finement in a facility which, no matter how mod-
ern or how antiquated, results in restricting the
movement of a detainee in a manner in which
he would not be restricted if he simply were free
to walk the streets pending trial. Whether it be
called a jail, a prison, or a custodial center, the
purpose of the facility is to detain. Loss of free-
29a
dom of choice and privacy are inherent incidents
of confinement in such a facility. And the fact
that such detention interferes with the detainee’s
understandable desire to live as comfortably as
possible and with as little restraint as possible
during confinement does not convert the condi-
tions or restrictions of detention into “‘punish-
ment.”
441 U.S. at 537. The Court also provided guidance to those
lower courts that must at the first instance determine
whether conditions of confinement amount to unconstitu-
tional punishment. In the absence of allegations that a
condition was intended as punishment, the court must look
to see if the conditions of detention were related to a
legitimate government purpose. As the Court formulated
the test,
(If a particular condition or restriction of pretrial
detention is reasonably related to a legitimate
governmental objective, it does not, without more,
amount to ‘“‘punishment.’’ Conversely, if a re-
striction or condition is not reasonably related to
a legitimate goal—if it is arbitrary or purpose-
less—a court permissibly may infer that the pur-
pose of the governmental action is punishment
that may not constitutionally be inflicted upon
detainees qua detainees.
Id. at 539 (footnotes omitted). The Court also recognized
in formulating this test that de minimus violations do not
trigger liability, Ingraham v. Wright, 430 U.S. 651 (1977),
and the Court implied thereby that each and every con-
dition of confinement would not have to be evaluated under
a legitimate government interest test.
Applying the Bell standard to the claims of the named
plaintiffs, the court determines that no constitutional vi-
olation has occurred. The record discussed above clearly
shows that both Ortega and Gonzalez were detained in the
30a
Lubbock City Jail for a very short period of time, and the
conditions of their confinement, though mildly unpleasant,
were not so overcrowded, uncomfortable, or unclean as to
rise to a constitutional deprivation.
However, even if these conditions did approach imper-
missible punishment, it is clear that they were associated
with legitimate governmental goals. The purpose of the
incarceration of Ortega and Gonzalez was to detain them
so that they could be transported to an INS processing
center in E] Paso, Texas subject to their right to be re-
leased on bond. The detention of the plaintiffs by the
agents of the Border Patrol was an incident of a legitimate
governmental purpose, and no express intent has been
shown on the part of the defendants to punish the
plaintiffs. There was nothing arbitrary or purposeless about
their detention, but the actions taken with respect to de-
tention in the Lubbock City Jail were reasonable and nec-
essary to carry out such legitimate governmental purpose.
The court recognizes that the plaintiffs, by cross-ex-
amination of the defendants’ witnesses, brought out that
specific conditions such as the lack of fire warning devises,
two meals a day, no blankets or mattresses, and trashy
floors, did not constitute a legitimate governmental pur-
pose. While this may be so, in a strict sense, the fact of
their detention and the totality of circumstances surround-
ing the detention served the legitimate governmental pur-
pose of detaining them for a short period of time pending
deportation. The court concludes that these conditions did
not rise to a deprivation of constitutional rights or amount
to punishment in any degree.
The court reaches the same determination with respect
to the claims raised by members of the class. The evidence
presented showed that aliens were detained for very short
periods of times in conditions that were sometimes un-
pleasant, but never so totally unacceptable as to offend
the Constitution. Even assuming that the conditions were
serious enough to approach impermissible punishment, no
3la
evidence was presented that the Border Patrol intention-
ally imposed conditions on detainees to punish, and the
court concludes that such conditions were related to the
same legitimate governmental interest of apprehending il-
legal aliens and detaining them for a short time until they
can be deported or make a bond that was just discussed.
With the exception of the Zavala incident in Slaton that
is the subject of two other pending actions in this court,
no alien detained in the jails used by the Border Patrol
during the period that is under consideration was ever
injured. The plaintiffs strenuously attack the lack of or-
ganized emergency and fire plans in the non-service jail
facilities. However, the court concludes based on the ab-
sence of emergencies or injuries in the past coupled with
the fact that the detention facilities at issue were in each
instance in close proximity to or part of a police depart-
ment that the plaintiffs were not subjected to an unrea-
sonable risk of harm. There was adequate supervision in
case the need arose for the aliens to be cared for.
The court concludes that the voluminous record accu-
mulated at trial wholly fails to reveal constitutional vio-
lations such as those identified in Jones v. Diamond, 636
F.2d 1364 (5th Cir. 1981), and Medina v. O'Neill, 589
F.Supp. 1040 (S.D.Tex. 1984). The conditions of detention
were mildly uncomfortable, and Border Patrol procedures
were slightly inconvenient. They certainly were not vio-
lative of any constitutional rights since they were closely
related to legitimate governmental! interests and were not
imposed in an attempt to punish.
LIABILITY OF THE CITY OF LUBBOCK
As indicated by the discussion of the defendants’ liability
above, it appears to the court that the City of Lubbock
is not liable to the named plaintiffs or the members of
the class for violation of constitutional or statutory rights.
Since no constitutional or statutory violation was commit-
32a
ted against the plaintiffs, the City would not be liable
under the plaintiffs § 1983 conspiracy theory. However,
the court determines that the City was not responsible to
the plaintiffs for the conditions of the jail cells. Lubbock
did not operate a jail, but only agreed to permit the Border
Patrol to detain illegal aliens there after apprehension until
they could be transported to an INS processing center.
The evidence established that the plaintiff detainees, in-
cluding the two named plaintiffs, were booked into the
cells by the Border Patrol agents. Under the agreement
between the City and the Border Patrol, the Government
was to pay so much per day per detainee, and the City
would furnish the cells and two meals a day. All other
responsibility for the detention was upon the INS and not
upon the City of Lubbock or its mayor. Therefore a judg-
ment wil! be entered denying any recovery against the
City of Lubbock or its mayor in favor of the plaintiffs.
INJUNCTIVE RELIEF
Since the court concludes that no violation of statutory
or constitutional rights occurred in this case, an injunction
will not issue. Therefore, the court need not determine
the standing or mootness issues raised by the defendants
in opposition to the plaintiffs’ request for equitable relief.
CONCLUSION
Based on the consideration of the evidence, the briefs
of the parties, and a painstaking review of all matters on
file herein, the court determines that the individual and
class action claims of the plaintiffs herein are without
merit, and the defendents are not liable in any respect for
the claims pressed by the plaintiffs. It appears based on
a consideration of the totality of circumstances surround-
ing the confinement of Immigration and Naturalization
Service detainees in the 28-county area encompassing the
Lubbock Station of the United States Border Patrol, that
33a
use of non-service detention facilities did not amount to
any deprivation of statutory or constitutional rights of the
named plaintiffs or members of the class action in this
case.
The plaintiffs’ requests for damages and equitable in-
tervention are accordingly Denied.
A Judgment will be entered accordingly.
The Clerk will furnish a copy hereof to each attorney.
ENTERED this 23rd day of July, 1985.
/s/ HALBERT O. WOODWARD
HALBERT O. WOODWARD
Chief Judge
Northern District of Texas
34a
APPENDIX C
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 85-1531
NABOR ORTEGA, AURELIO GONZALEZ, on behalf of
themselves and all others similarly situated,
Plaintiffs-A ppellants,
versus
Bit M. Rowe, individually and as U.S. Border Patrol
Agent, et al.,
Defendants-A ppellees.
Appeal from the United States District Court for the
Northern District of Texas
ON PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
(Opinion August 11, 1986)
Before GEE, POLITZ and GARWOOD, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is DENIED and no member
of this panel nor Judge in regular active service on the
Court having requested that the Court be polled on re-
hearing en banc, (Federal Rules of Appellate Procedure
and Local Rule 35) the Suggestion for Rehearing En Banc
is DENIED.
ENTERED FOR THE COURT:
35a
/s)/ THOMAS GEE
United States Circuit Judge
Filed October 14, 1986
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.