Guzman-Martinez v. Corrections Corporation of America et al

Filing 87

ORDER, the CCA Defendants' Motion to Dismiss 73 by Corrections Corporation of America, Chuck DeRosa, T Mohn, and Captain Adams, joined by Defendant Justin Manford 75 , is granted, except that it is denied as to Defendant Justin Manford on Cou nt IV (battery); the Defendant City of Eloy's Motion to Dismiss 74 and the Motion to Dismiss First Amended Complaint 78 by Defendants Katrina S Kane, Robert Campbell, and Michael Leal are granted; Counts I, II, and III of the Amended Complai nt are dismissed with prejudice for failure to state a claim upon which relief can be granted; Count IV of the Amended Complaint is dismissed with prejudice for failure to state a claim upon which relief can be granted only with respect to Defendant Corrections Corporation of America; Count IV is not dismissed with respect to Defendant Justin Manford. Signed by Judge Neil V Wake on 11/26/12. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tanya Guzman-Martinez,

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Plaintiff,

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ORDER

vs.

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No. CV-11-02390-PHX-NVW

Corrections Corporation of America, et al.,

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Defendants.

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Before the Court are the CCA Defendants’ Motion to Dismiss (Doc. 73) by

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Corrections Corporation of America, Chuck DeRosa, T. Mohn, and Captain Adams

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(collectively, “CCA Defendants”), joined by Defendant Justin Manford (Doc. 75); the

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Defendant City of Eloy’s Motion to Dismiss (Doc. 74); and the Motion to Dismiss First

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Amended Complaint (Doc. 78) by Defendants Katrina S. Kane, Robert Campbell, and

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Michael Leal, employees of the United States Immigration and Customs Enforcement

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(“ICE”).

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I.

BACKGROUND

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On July 13, 2012, motions to dismiss claims against the CCA Defendants, the City

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of Eloy, and individual defendants were granted with leave to file an amended complaint.

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(“First Dismissal Order,” Doc. 68.) Defendant Manford did not file a motion to dismiss,

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and the Court did not decide whether any claims against Manford should be dismissed.

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On July 27, 2012, Plaintiff filed an Amended Complaint (Doc. 69), which alleges the

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following claims:

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Count I:
Deprivation of Constitutional Rights Under
Fifth & Fourteenth Amendments–Due Process (42
U.S.C. § 1983) (Against Manford, City of Eloy, CCA,
DeRosa, Mohn, Adams)

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Count II:
Deprivation of Constitutional Rights Under the
Fifth Amendment–Due Process (Bivens) (Against
Kane, Campbell, Leal)

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Count III:
Cruel, Inhuman, and Degrading Treatment in
Violation of 28 U.S.C. § 1350 (Against Manford and
CCA)

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Count IV:

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Count VI:1 Intentional Infliction of Emotional Distress
(Against Manford and CCA)

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Count VII: Negligent Supervision (Against CCA and
DeRosa)

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All of the defendants named in the Amended Complaint have filed motions to

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Battery (Against Manford and CCA)

dismiss. None of the motions seek dismissal of Count IV with respect to Manford or
Counts VI and VII.
II.

LEGAL STANDARD
On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all

allegations of material fact are assumed to be true and construed in the light most
favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.
2009). To avoid dismissal, a complaint need contain only “enough facts to state a claim
for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The principle that a court accepts as true
all of the allegations in a complaint does not apply to legal conclusions or conclusory
factual allegations. Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). “A claim has facial

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The Amended Complaint does not include a Count V.

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plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
III.

FACTS ASSUMED TO BE TRUE
The Court assumes the following facts pled by Plaintiff to be true for the purpose

of deciding the motions to dismiss.

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The Corrections Corporation of America (“CCA”) owns and operates the Eloy

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Detention Center (“Center”) in Eloy, Arizona, under a contract with the City of Eloy,

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which has a contract with the United States Immigration and Customs Enforcement

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(“ICE”) to house ICE detainees. On February 17, 2006, ICE executed an agreement that

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the City had signed on February 13, 2006, for the detention and care of ICE detainees.

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The agreement requires the City to house detainees in accordance with the most current

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editions of the ICE Detention Requirements, American Correctional Association

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Standards for Adult Local Detention Facilities, and National Commission on Correctional

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Health Care standards. It provides that ICE inspectors will conduct periodic inspections

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of the facility to assure compliance with the identified standards. It also provides that

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ICE will pay the City $68.45 per day per detainee accepted and housed by the City.

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Also on February 17, 2006, CCA executed an agreement that the City had signed

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on February 14, 2006. It provides that CCA will provide services in compliance with the

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terms of the agreement between the City and ICE for every federal inmate accepted into

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custody at the Center and the City will pay CCA the per diem fee paid to the City by ICE.

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In return, CCA will pay the City an administrative fee of $.25 per day per inmate held at

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the Center pursuant to the two agreements. The agreement between the City and CCA

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also provides that CCA will indemnify the City and its officers and employees from

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liability and any claims to the extent they arise as a result of CCA’s acts and omissions in

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the performance of the agreement.

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The ICE Detention Standard requires that detainees be screened for potential

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vulnerabilities upon arrival at a detention facility and that each detainee’s classification

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be reviewed at regular intervals or at any other time when additional relevant
information, such as an assault or victimization, becomes known.

The American

Correctional Association Standards require that single occupancy cells be available when
indicated for inmates likely to be exploited or victimized by others.

The National

Commission on Correctional Health Care has declared that custody staff should be aware
that transgender people are common targets for violence and should take appropriate
safety measures regardless of whether the individual is placed in male or female housing
areas.
In September 2009, Plaintiff was placed in federal immigration removal
proceedings and detained from September 29, 2009, until May 14, 2010, at the Center.
She applied for asylum, withholding of removal, and protection under the Convention
Against Torture because of past persecution and fear of future persecution in Mexico
because of her gender identity. Her application for withholding of removal was granted
by the Eloy Immigration Court on March 1, 2010.
Plaintiff Tanya Guzman-Martinez describes herself as a transgender woman, who
was born biologically male, but self-identifies as female.2 She has undergone surgical
alterations to her breasts, buttocks, hips, and legs to appear more feminine and, at the
time she was detained, was taking hormones and estrogen to prepare for gender
reassignment surgery. She does not claim to be biologically female presently.
Immediately after arriving at the Center, Plaintiff told officials that she wished to
be placed in protective custody because she feared for her safety because of her
transgender identity. Following her classification at intake, she was placed in North
Special Housing Unit, an administrative housing unit including protective custody for a
range of specially classified detainees.

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This Order uses the term “transgender woman” to identify a person who is
biologically male and self-identifies as female.

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Throughout her detention at the Center, Plaintiff was housed in a male special
housing unit (i.e., administrative segregation) where she was in daily, direct contact with
male detainees and detention officers. She was subjected to repeated verbal abuse and
harassment by male detainees and male detention officers. She was threatened with
disciplinary action. Plaintiff often was patted-down by male detention officers, but after
complaining to the Center staff, she was told she would no longer be subjected to patdowns by male detention staff.
On December 7, 2009, Defendant Justin Manford, a detention officer at the Center
employed by CCA, while on duty and in uniform, forced Plaintiff to watch him
masturbate into a styrofoam cup and then demanded that she ingest his ejaculated semen.
Manford threatened that he could have Plaintiff locked up in “the hole,” lengthen her
detention, or have her deported to Mexico if she did not comply with his demands. The
incident followed a history of Manford questioning Plaintiff regarding her sexuality,
whether she had a boyfriend, and whether other inmates had seen her breasts. Plaintiff
immediately reported the incident to CCA detention staff, ICE, and the Eloy Police
Department. On June 8, 2010, Manford was convicted in the Pinal County Superior
Court for Attempted Unlawful Sexual Contact in violation of A.R.S. § 13-1419(A)(2).
On April 23, 2010, a male detainee, Johnny Pereira Vigil pushed Plaintiff, grabbed
her breast, and slapped her on her buttocks. When Plaintiff told Vigil to stop, Vigil
threatened that he or other detainees would physically hurt her. This incident followed a
period of Vigil harassing Plaintiff by calling her a “faggot,” making sexual gestures,
following her in and out of her cell, and peeking into her cell when Plaintiff was using the
toilet or dressing. Because she was afraid of retaliation, Plaintiff did not report it to CCA
detention staff until April 30, 2010. The Eloy police were called to the Center on May 4,
2010, and completed an incident report. On the same day, Plaintiff was moved from
North Special Housing Unit to medical isolation where she was placed in a single cell.
She remained in medical isolation until her release on approximately May 15, 2010.

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After the incidents, Plaintiff experienced severe depression and anxiety and
required medication for anxiety and as a sleep aid. She has experienced episodes of
hyper-vigilance from fear of retaliation by officers or detainees. Since her release from
custody, Plaintiff continues to suffer from depression, anxiety, and fear of contact with
law enforcement. It is possible that Plaintiff could be detained by ICE/CCA in the future
because withholding of removal does not permit adjustment status to legal permanent
resident or naturalization to U.S. citizen.

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Defendant Chuck DeRosa was an employee of CCA and the Center’s warden,
responsible for setting its operational policies and implementing and approving its
practices for housing transgender detainees. Defendant T. Mohn was the unit manager at
the Center and responsible for determining Plaintiff’s classification status. Defendant
Captain Adams was a detention officer at the Center and responsible for overseeing
decisions about Plaintiff’s housing and classification status.

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Defendant Katrina Kane was the ICE Field Office Director in Phoenix, which
includes the Center. Defendant Bo Campbell was the ICE Supervisory Detention and
Deportation Officer at the Center. Defendant Michael Leal was the ICE Deportation
Officer responsible for matters relating to Plaintiff’s detention and removal proceedings
including issues regarding her custody and classification.

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On December 5, 2011, Plaintiff initiated this lawsuit. She seeks money damages,
punitive damages, and declaratory judgment that “the policies and practices concerning
the housing and treatment of transgendered detainees in [the Center] are inadequate, and
unlawfully and unreasonably expose detainees to harm.”
IV.

ANALYSIS
A.

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Claim Against Federal Defendants Katrina S. Kane, Bo Campbell, and
Michael Leal

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Count II is the only claim pled against ICE employees Kate, Campbell, and Leal.

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The Amended Complaint identifies it as a Bivens claim, which therefore the Court

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construes as seeking only money damages against these defendants.
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Kane, Campbell, and Leal contend that qualified immunity bars Count II.
“Qualified immunity shields federal and state officials from money damages unless a
plaintiff pleads facts showing (1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, __ U.S. __, 131 S. Ct. 2074, 2080 (2011). Courts have
discretion to decide which of the two prongs of the qualified immunity analysis should be
addressed first and may grant qualified immunity on the basis of the second prong alone
without deciding the first prong. Pearson v. Callahan, 555 U.S. 223, 236 (2009); James
v. Rowlands, 606 F.3d 646, 651 (9th Cir. 2010).
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The Constitutional Standard for Classifying, Housing, and
Supervising Transgender Women Was Not Clearly Established.

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“A Government official’s conduct violates clearly established law when, at the

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time of the challenged conduct, the contours of a right are sufficiently clear that every

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reasonable official would have understood that what he is doing violates that right.”

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Ashcroft v. al-Kidd, 131 S. Ct. at 2083 (internal quotation and alteration marks omitted).

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For a right to be “clearly established,” there need not be a case directly on point, but

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“existing precedent must have placed the statutory or constitutional question beyond

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debate.” Id. “The principles of qualified immunity shield an officer from personal

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liability when an officer reasonably believes that his or her conduct complies with the

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law.” Pearson, 555 U.S. at 244.

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Relying on Farmer v. Brennan, 511 U.S. 825 (1994), Plaintiff contends that “it is

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a violation of the United States Constitution for federal officials to confine persons while

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disregarding a substantial risk of serious harm to their health and safety.” As a detained

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alien, Plaintiff has a constitutional right that officials not consciously disregard or act

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with deliberate indifference toward her safety by knowingly placing her in harm’s way.

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Papa v. United States, 281 F.3d 1004, 1010 (9th Cir. 2002). Plaintiff contends her

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constitutional right that detention officials not act with deliberate indifference to a

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substantial risk of serious harm was clearly established. That may be true, but to hold
detention officials liable for violating a constitutional right, “the contours of [the] right
must be sufficiently clear that every reasonable official would have understood that what
he is doing violates that right.” Ashcroft v. al-Kidd, 131 S. Ct. at 2083.

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In the First Dismissal Order, the Court found that the Complaint failed to allege
what the constitutional standard is for housing detainees who are transgender women or
any consensus regarding classification, housing, training, and supervision policies and
practices to protect transgender women detainees. (Doc. 68 at 13.) The Amended
Complaint alleges specific recommendations included in the 2011 ICE PerformanceBased National Detention Standards and the 2012 Prison Rape Elimination Act National
Standards, but those were not adopted until after Plaintiff’s period of detention and
therefore do not represent standards that were clearly established at the time of the
alleged constitutional violation. Moreover, Plaintiff expressly does not allege that any of
the specific recommendations are constitutionally required. The Amended Complaint
alleges:

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Plaintiff is not claiming that any one particular procedure or
practice is constitutionally required. Rather, she asserts that
the Defendants’ failure to institute any protective practices,
despite the known vulnerability of transgender female
detainees and despite actual knowledge of Plaintiff’s
vulnerability and prior abuse, constitutes deliberate
indifference.

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(Doc. 69 at ¶ 6.) Plaintiff also states she is not “asserting a clearly established right to
female-only supervision and/or housing for transgender women detainees.” (Doc. 82 at
7.)
The Amended Complaint alleges that following Plaintiff’s classification at intake,
she was placed in a special housing unit that included protective custody. This fact alone
contradicts her allegation that Defendants failed “to institute any protective practices.”
Further, the Amended Complaint alleges that she remained in protective custody or

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administrative segregation until she was moved to a single cell on May 4, 2010, after
detainee Vigil pushed, grabbed, and slapped her. But the Amended Complaint does not
allege what more was constitutionally required.
Therefore, the Amended Complaint fails to allege that Defendants Kane,
Campbell, or Leal violated a clearly established constitutional right for which, at the time
of the challenged conduct, the contours of the right were sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.

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Plaintiff Has Not Alleged that Each ICE Defendant Violated the
Constitution Through His or Her Own Individual Actions.

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To establish liability under 42 U.S.C. § 1983, a plaintiff must plead that each

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government official defendant has violated the Constitution through the official’s own

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individual actions. Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012). Count II

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alleges that Kane, Campbell, and Leal “exhibited deliberate indifference in their

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respective capacities by (1) willfully disregarding the necessity of policies and measures

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to prevent assault, sexual assault, and abuse of transgender detainees under ICE custody

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in the [Center]; and (2) failing to appropriately monitor and supervise housing and

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detention conditions which they knew were proceeding in violation of applicable

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contracts, policies, and standards designed to prevent assault, sexual assault, and abuse of

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transgender detainees, including Ms. Guzman-Martinez.”

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2.

The Amended Complaint alleges the following individual actions by Kane,
Campbell, or Leal:
Campbell had a duty and failed to act to protect Ms. GuzmanMartinez from ongoing harm by safely housing her in a
manner that protected her bodily integrity and complied with
applicable standards. (Doc. 69 at ¶ 25.)
Defendant Leal . . . failed to act to protect Ms. GuzmanMartinez from ongoing harm by safely housing her in
accordance with applicable standards. (Id. at ¶ 26.)

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Defendants . . . Campbell and Leal’s failures to conduct an
adequate risk assessment about the placement and
classification of Ms. Guzman-Martinez at [the Center], and to
properly and safely supervise . . ., and to protect her before
and even after she was assaulted the first time, enabled these
assaults and made her extremely fearful and vulnerable to
further harm. (Id. at ¶ 90.)
As a result of Defendants . . . Kane, Campbell, . . . []’s failure
to adopt procedures to protect transgender female detainees
from harassment and sexual abuse and their failure to institute
appropriate screening, education, training, monitoring and
supervision, Ms. Guzman-Martinez experienced harassment,
sexual assault, great fear and significant emotional distress
while she was detained. (Id. at ¶ 92.)
Defendants . . . Kane, Campbell . . . failed to implement the
contractually required standards including the ICE Detention
Standards, the American Correctional Association (ACA)
Standards for Adult Local Detentional Facilities and the
National Commission on Correctional Health Care (NCCHC),
to protect the welfare of vulnerable detainees, such as Ms.
Guzman-Martinez at [the Center]. (Id. at ¶ 99.)

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Defendants . . . Campbell and Leal were deliberately
indifferent by not following any of these [ICE, ACA,
NCCHC] standards upon initial booking at [the Center] and
after Ms. Guzman-Martinez was assaulted for the first time.
(Id. at ¶ 108.)

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Thus, the Amended Complaint alleges only that Campbell and Leal failed to conduct an

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adequate risk assessment at intake and to place Plaintiff in safe housing and that Kane

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and Campbell failed to adopt procedures and implement certain standards that were not

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constitutionally required.

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Other allegations refer to failures by “ICE and CCA Defendants,” “ICE

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Defendants,” or “individual ICE Defendants,” but do not allege any actions or omissions

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by Kane, Campbell, or Leal specifically. For example, the Amended Complaint alleges:

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Throughout her detention at [the Center], Ms. GuzmanMartinez was housed in a male “special housing unit” or
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“SHU” where the established or professionally recommended
procedures for keeping transgender female detainees safe
were not in place, and where the officers who supervised her
had inadequate monitoring, supervision, education and
training, even after knowing that she had been sexually
assaulted. The decisions by Defendants CCA, DeRosa,
Mohn, Adams, Manford and the individual ICE Defendants to
allow her to be housed in this manner enabled the abusive and
assaultive actions against Ms. Guzman-Martinez.

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(Id. at ¶ 55.)

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Although the Amended Complaint alleges that Campbell and Leal failed to

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conduct an adequate risk assessment at intake and to place Plaintiff in safe housing, it

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also alleges that Plaintiff was assessed at intake and placed in protective custody.

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Although the Amended Complaint alleges that Kane and Campbell failed to adopt

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procedures and implement certain standards, those procedures and standards were not

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constitutionally required. Moreover, the Amended Complaint does not allege that had

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Kane and Campbell done so, the Manford and Vigil incidents likely would have been

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prevented.3

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Therefore, Count II against Kane, Campbell, and Leal is barred by qualified
immunity.

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B.

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Count I is the only claim pled against the City of Eloy. “To bring a § 1983 claim

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against a local government entity, a plaintiff must plead that a municipality’s policy or

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custom caused a violation of the plaintiff’s constitutional rights.” Ass’n for Los Angeles

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Deputy Sheriffs v. Cnty. of Los Angeles, 648 F.3d 986, 992-93 (9th Cir. 2011). A plaintiff

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must show (1) he possessed a constitutional right of which he was deprived, (2) the

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municipality had a policy, (3) the policy amounts to deliberate indifference to the

Claim Against the City of Eloy

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3

Although the Amended Complaint alleges repeated verbal abuse and harassment,
the alleged verbal abuse and harassment does not rise to the level of a substantial risk of
serious harm to Plaintiff’s health and safety.

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plaintiff’s constitutional right, and (4) the policy is the “moving force behind the
constitutional violation.” Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006).
“For a policy to be the moving force behind the deprivation of a constitutional right, the
identified deficiency in the policy must be closely related to the ultimate injury,” and the
plaintiff must establish “that the injury would have been avoided had proper policies been
implemented.” Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1190 (9th Cir. 2006).
In dismissing the Complaint, the Court found:

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Plaintiff does not allege any specific custom or policy of the
City that allegedly amounted to deliberate indifference to
Plaintiff’s constitutional rights. Plaintiff does not allege that
the City was deliberately indifferent by delegating its
responsibility to CCA generally or by failing to impose
certain requirements on CCA. The Complaint alleges only
that the City maintained policies, practices, and/or customs of
failing to prevent assault, sexual assault, and abuse and failing
to appropriate monitor and supervise detention conditions.
Further, the City’s custom or policy of failing to
implement unspecified policies and practices is not closely
related to the ultimate injury, notwithstanding the
Complaint’s conclusory allegations of direct and proximate
causation.
The Court does not assume as true the
Complaint’s legal conclusions and conclusory factual
allegations that the City’s failure to adopt and implement
unspecified policies directly and proximately caused
Plaintiff’s injuries. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The agreement between ICE and the City requires the
City to house immigration detainees in accordance with
certain standards, which Plaintiff does not allege require the
City to house transgender women in single-occupancy cells or
women’s facilities or to keep them away from contact with
male detention officers. At most, the Complaint alleges that
NCCHC recommends that custody staff be aware that
transgender people are common targets for violence and
appropriate safety measures should be taken and that the
ACA Standards provide that single-occupancy cells should be
available for inmates likely to be exploited or victimized.
The Complaint does not allege that if custody staff had been
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provided awareness training or if Plaintiff had been provided
a single-occupancy cell, neither detention officer Manford nor
detainee Vigil would have subjected Plaintiff to the
December 7, 2009 and April 23, 2010 incidents from which
Plaintiff’s claims of deprivation of constitutional rights arise.
Causation is even more attenuated because even if the City
were to adopt certain unidentified policies, they could only be
implemented by CCA. Thus, the City’s failure to adopt
policies regarding housing and protecting transgender women
immigration detainees is not the “moving force” behind the
December 7, 2009 and April 23, 2010 incidents from which
Plaintiff’s claims of deprivation of constitutional rights arise.

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(Doc. 68 at 17-18.) Because the Amended Complaint does not include any amended

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allegations regarding the City, the foregoing analysis continues to apply.

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Further, Plaintiff’s response to the City’s motion to dismiss states that her injuries

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resulted from being housed with a male population: “At the Eloy Detention Center,

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despite her female appearance, Plaintiff was housed with the male population and, as a

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result, suffered regular harassment and threats and fell victim to multiple sexual assaults.”

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(Doc. 80 at 2.) Yet the Amended Complaint expressly disclaims that a different housing

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policy or practice is constitutionally required (Doc. 69 at ¶ 6), and Plaintiff affirmatively

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states that she is not asserting a right to female-only supervision and/or housing for

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transgender women detainees (Doc. 82 at 7).

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The City’s contention that acting under federal authority eliminated its character

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as a state actor is no more persuasive than in its previous motion to dismiss, and the Court

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does not dismiss Count I of the Amended Complaint on that ground.

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Therefore, for the reasons stated in the First Dismissal Order (Doc. 68), Count I
fails to state a claim upon which relief can be granted against the City.
C.

Claims Against CCA, DeRosa, Mohn, and Adams
1.

Count I (§ 1983) (Constitutional Rights)

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To plead a claim under § 1983 against CCA, DeRosa, Mohn, and Adams, Plaintiff

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“must allege the violation of a right secured by the Constitution and laws of the United

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States, and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Further, because
Monell v. Dep’t of Soc. Servs., 36 U.S. 658, 691 (1978), applies to suits against private
entities under § 1983, to state a claim against CCA, Plaintiff must allege not only that
CCA was acting under color of state law, but also that the constitutional violation was
caused by an official policy or custom of CCA. Tsao v. Desert Palace, Inc., __ F.3d __,
2012 WL 5200336 at *7 (9th Cir. Oct. 23, 2012). CCA cannot be held liable under
§ 1983 solely because it employed a tortfeasor. Id. at *6.
a.

Plaintiff Has Not Alleged a Violation of a Constitutional
Right.

The Amended Complaint does not allege that Plaintiff’s constitutional rights were
violated by an official policy or custom of CCA. It alleges that CCA and DeRosa failed
to implement policies and practices to prevent assault, sexual assault, and abuse by
detainees and guards and failed to appropriately monitor and supervise detention
conditions. It further alleges that the “individual CCA Defendants failed to institute
appropriate standards addressing the treatment and care of transgender immigrant
detainees and failed to adequately screen, train, supervise, and monitor CCA officers in
charge of vulnerable detainees including Defendant Manford.” It also alleges that Mohn
and Adams failed to adequately evaluate the risk to Plaintiff as a transgender woman
detainee and that they failed to properly classify and place Plaintiff in safe housing with
adequate supervision. But Plaintiff was classified at intake and was placed in a special
housing unit; she was moved to a single occupancy cell after she reported the Vigil
incident. The Amended Complaint does not allege, even generally, what classification
and housing she should have received instead or what policies CCA should have adopted
to avoid the risk of either the Manford incident or the Vigil incident. Plaintiff does not
contend that she had a constitutional right to female-only supervision and/or housing for
transgender women detainees. In fact, the Amended Complaint affirmatively disclaims
that any one particular procedure or practice is constitutionally required.
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Instead, the Amended Complaint alleges, referring to all Defendants collectively,
that “Defendants should have taken steps to protect Plaintiff from harm,” such as
practices now identified in the Prison Rape Elimination Act National Standards, 28
C.F.R. 115 (2012). The Amended Complaint further alleges that Defendants could have
provided enhanced monitoring of contact Plaintiff had with males in the special housing
unit, provided her “solitary housing, placed her with similarly situated vulnerable
detainees, or placed her in a female facility (whether in her own cell or with other
detainees),” but “Plaintiff is not asserting that any one of these is constitutionally
required.” (Doc. 69 at ¶ 111.) Therefore, DeRosa, Mohn, and Adams cannot have been
deliberately indifferent to Plaintiff’s constitutional rights if they did not know what was
required beyond placing her in a special housing unit. Moreover, CCA could not have
had an official policy or custom of refusing to adopt a policy or custom when it was
unclear what policy or custom was constitutionally—or practically—required to protect
Plaintiff from the Manford and Vigil incidents.
The Amended Complaint does not allege that either the Manford incident or the
Vigil incident would have been avoided had different policies been implemented. It does
not allege that a constitutional violation was caused by an official policy or custom of
CCA and does not allege facts to support its legal conclusion that Plaintiff’s injuries were
caused by all Defendants’ “failure to implement reasonable procedures and follow the
law and governing standards.” Therefore, the Amended Complaint does not allege facts
showing that CCA, DeRosa, Mohn, or Adams violated a right secured by the Constitution
and laws of the United States.

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b.

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CCA, DeRosa, Mohn, and Adams Were Not Acting Under
Color of State Law.4

To plead a claim under § 1983 against CCA, DeRosa, Mohn, and Adams, Plaintiff
must allege that these Defendants deprived her of constitutional rights while acting
“under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia.” 42 U.S.C. § 1983. “The traditional definition of
acting under color of state law requires that the defendant in a § 1983 action have
exercised power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” West, 487 U.S. at 49 (internal
quotation marks and citation omitted). “To constitute state action, the deprivation must
be caused by the exercise of some right or privilege created by the State . . . or by a
person for whom the State is responsible.” Id.
“Whether a private party engaged in state action is a highly factual question. . . .
Only by sifting facts and weighing circumstances can we hope to ferret out obvious as
well as non-obvious State involvement in private conduct.” Brunette v. Humane Soc’y of
Ventura Cnty., 294 F.3d 1205, 1209 (9th Cir. 2002) (internal quotation marks and citation
omitted). The inquiry must begin by identifying the function at issue, i.e., the specific
conduct of which the plaintiff complains, because an entity may be a state actor for some
purposes, but not for others. Caviness v. Horizon Cmty. Learning Ctr., 590 F.3d 806,
812-13 (9th Cir. 2010).
The criteria for determining what constitutes state action “lack rigid simplicity.”
Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003). No specific set of circumstances
is absolutely sufficient because there may be some countervailing reason against
attributing the action to the government. Id. At least four different tests are recognized:
(1) public function, (2) joint action, (3) compulsion, and (4) nexus. Id. Any one of the

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4

The First Dismissal Order declined to decide whether CCA, DeRosa, Mohn, and
Adams acted under color of state law as an alternate ground for dismissal. (Doc. 68 at
18.)

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four tests is sufficient to find state action as long as no countervailing factor exists. Id.
However, the central question is whether the alleged violation of constitutional rights is
fairly attributable to state government. Id. at 1096.

4

(i)

Public Function

5

Plaintiff contends that the public function test is satisfied. “Under the public

6

function test, when private individuals or groups are endowed by the State with powers or

7

functions governmental in nature, they become agencies or instrumentalities of the State

8

and subject to its constitutional limitations.” Kirtley, 326 F.3d at 1093. The theoretical

9

underpinnings of the public function test have been summarized as follows:

10

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The theory is that if the government must satisfy certain
constitutional obligations when carrying out its functions, it
cannot avoid those obligations and deprive individuals of
their constitutionally protected rights by delegating
governmental functions to the private sector. The delegation
of the function should be accompanied with a delegation of
constitutional responsibilities.

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Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 826 (7th Cir. 2009) (quoting

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Martin A. Schwartz, 1 Section 1983 Litigation Claims and Defenses § 5.14 [A] at 5-100

17

(4th ed. 2003)).

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13

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“The public function test is satisfied only on a showing that the function at issue is

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both traditionally and exclusively governmental.” Kirtley, 326 F.3d at 1093. “[T]he

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relevant question is not simply whether a private group is serving a ‘public function,’”

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but “whether the function performed has been ‘traditionally the exclusive prerogative of

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the State.’” Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982); see also Brunette, 294

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F.3d at 1210 (“[T]he ‘public functions’ test inquires whether the private actor performs

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functions traditionally and exclusively reserved to the States.”); Vincent v. Trend Western

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Technical Corp., 828 F.2d 563, 569 (9th Cir. 1987) (repair and maintenance of military

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aircraft or facilities was a traditional function of government, but not one of the

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government’s “exclusive prerogatives”); Dobyns v. E-Systems, Inc., 667 F.2d 1219, 1225-

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26 (5th Cir. 1982) (the United States delegated to a private contractor a broad
governmental role that included a peacekeeping function, which was traditionally
exclusively reserved to the government).
It is undisputed that CCA operates the Center under a contract with the City,
which transfers to CCA the City’s obligations and benefits obtained through a contract
with ICE. It also is undisputed that operating a prison traditionally is a governmental
function and private operators of a state prison generally are considered as acting under
color of state law. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71 n.5 (2001) (Bivens
remedy was not extended to state prisoners housed in private correctional facility because
they already had a right of action against private correctional providers under § 1983);
Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003) (“private
prison-management companies and their employees are subject to § 1983 liability
because they are performing a government function traditionally reserved to the state”);
Street v. Corr. Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996) (“[D]efendants were
‘acting under color of state law’ in that they were performing the ‘traditional state
function’ of operating a prison.”).

However, it is disputed whether CCA and its

employees “exercised power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.” West, 487 U.S. at 49.
Whether the CCA operates the immigration detention center under color of state law or
under color of federal law is determinative because, “by its very terms, § 1983 precludes
liability in federal government actors.” Morse v. N. Coast Opportunities, Inc., 118 F.3d
1338, 1343 (9th Cir. 1997) (§ 1983 was completely barred where no state action was
implicated).
The CCA Defendants contend they were not state actors because Plaintiff was in
ICE custody at the time of the alleged incidents, detention of aliens is exclusively within
federal authority, and CCA’s authority derived from the federal government. Plaintiff

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contends that “CCA Defendants are state actors by virtue of CCA’s contractual
relationship with [the City of] Eloy.”
The specific conduct complained of is:

implement policies and practices to prevent assault, sexual assault, and abuse of
transgender immigrant detainees by detainees and guards and failure to appropriately
monitor and supervise detention conditions of transgender immigrant detainees and (2)
Mohn’s and Adams’ failure to adequately evaluate the risk to Plaintiff as a transgender
woman detainee and failure to properly classify and place Plaintiff in safe housing with
adequate supervision. Even if the specific conduct complained of deprived Plaintiff of a
constitutional right, Plaintiff was detained at the Center by ICE under federal law, not by
the City under state law. Adopting policies and practices regarding ICE detention of
immigrants is “both traditionally and exclusively governmental,” see Kirtley, 326 F.3d at
1093, but it is traditionally the “exclusive prerogative” of federal government, not state
government. See Rendell-Baker, 457 U.S. at 842. CCA’s authority and obligation to
adopt policies and practices regarding the classification, housing, monitoring, and
supervision of transgender immigrant detainees, if any, is delegated by ICE through
contracts with the City. Thus, the public function test is not met under the circumstances
alleged here.

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(1) CCA’s and DeRosa’s failure to

(ii)

Joint Action

Under the joint action test, courts consider whether the state has knowingly

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accepted

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interdependent with the private entity and a joint participant in the challenged activity.

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Kirtley, 326 F.3d at 1093. Without more, governmental funding and extensive regulation

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do not establish governmental involvement in the actions of a private entity. Morse, 118

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F.3d at 1341. To be liable under the joint action test, not only must the private party be a

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willful participant with the State or its agents in an activity that deprives a plaintiff of her

benefits

derived

from

unconstitutional

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conduct,

thereby

becoming

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constitutional rights, but also the private party’s actions must be “inextricably
intertwined” with those of government. Brunette, 294 F.3d at 1211.
Here, the Amended Complaint does not allege that the state or the City have
knowingly accepted benefits derived from unconstitutional conduct or that the City and
CCA or its employees acted jointly in the challenged activity. Even if the contract
between the City and CCA imposed extensive regulation and provided governmental
funding, it would be insufficient to establish joint action. The contract merely acted as a
conduit for transferring regulation and funding from ICE to CCA.
(iii)

Compulsion

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Under the compulsion test, courts consider whether the coercive influence of the

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state effectively converts a private action into a state action. Kirtley, 326 F.3d at 1094.

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The Amended Complaint does not allege that the state or the City coerced CCA or its

13

employees to take any action.

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(iv)

Nexus

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Under the nexus test, courts consider whether there is such a close nexus between

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the state and the challenged action that the action may be fairly treated as that of the state

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itself. Kirtley, 326 F.3d at 1095. The Amended Complaint does not allege that the

18

challenged action may be fairly treated as that of the state or the City itself.

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(v)

Countervailing Factors

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A countervailing factor is “some value at odds with finding public accountability

21

in the circumstances.” Kirtley, 326 F.3d at 1095 (quoting Brentwood Acad. v. Tennessee

22

Secondary Sch. Athletic Ass’n, 531 U.S. 288, 303 (2001)). Because none of the tests

23

favor finding CCA, DeRosa, Mohn, or Adams acted under color of state law, it is not

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necessary to examine any countervailing factors.

25

The Amended Complaint does not allege facts sufficient to demonstrate that CCA,

26

DeRosa, Mohn, or Adams deprived Plaintiff of a constitutional right while acting under

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color of state law. Therefore, Count I fails to state a claim upon which relief can be

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granted against CCA, DeRosa, Mohn, or Adams.
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1

2.

Count III (§ 1350) (Alien Tort Claim Act)

2

For the reasons stated in the First Dismissal Order (Doc. 68 at 18-21), the

3

Amended Complaint fails to state a claim upon which relief can be granted under the

4

Alien Tort Claim Act, 28 U.S.C. § 1350, against CCA.

5

3.

Count IV (Battery)

6

For the reasons stated in the First Dismissal Order (Doc. 68 at 22-26), the

7

Amended Complaint fails to state a claim upon which relief can be granted for battery

8

against CCA.
D.

9

Claims Against Manford
1.

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Count I (§ 1983) (Constitutional Rights)

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To plead a claim under § 1983 against Manford, Plaintiff must allege that he

12

deprived her of constitutional rights while acting “under color of any statute, ordinance,

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regulation, custom, or usage, of any State or Territory or the District of Columbia.” 42

14

U.S.C. § 1983. As found above, CCA and its employees were not acting under color of

15

state law when allegedly violating Plaintiff’s constitutional rights. The same analysis

16

applies to Manford. Therefore, Count I of the Amended Complaint fails to state a claim

17

against Manford upon which relief can be granted.
2.

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Count III (§ 1350) (Alien Tort Claim Act)

19

For the reasons stated in the First Dismissal Order (Doc. 68 at 18-21) regarding

20

Plaintiff’s claim under the Alien Tort Claim Act, 28 U.S.C. § 1350, against CCA,

21

DeRosa, Mohn, and Adams, Count III of the Amended Complaint fails to state a claim

22

against Manford upon which relief can be granted.
3.

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Manford has not moved to dismiss Count IV, battery, or Count VI, intentional

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Count IV (Battery)

infliction of emotional distress.
V.

COUNTS I, II, III, AND IV WILL BE DISMISSED WITH PREJUDICE.
Although leave to amend should be freely given “when justice so requires,” Fed.

R. Civ. P. 15(a)(2), the Court has “especially broad” discretion to deny leave to amend
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where the plaintiff already has had one or more opportunities to amend a complaint.
Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir. 1989). “Leave to
amend need not be given if a complaint, as amended, is subject to dismissal.” Moore v.
Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989). “Futility of amendment
can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59
F.3d 815, 845 (9th Cir. 1995).
Plaintiff already has had an opportunity to amend her complaint. Because further
amendment would be futile, Counts I, II, and III against all Defendants and Count IV
against CCA only will be dismissed without leave to amend.
IT IS THEREFORE ORDERED that the CCA Defendants’ Motion to Dismiss
(Doc. 73) by Corrections Corporation of America, Chuck DeRosa, T. Mohn, and Captain
Adams, joined by Defendant Justin Manford (Doc. 75), is granted, except that it is denied
as to Defendant Justin Manford on Count IV (battery).
IT IS FURTHER ORDERED the Defendant City of Eloy’s Motion to Dismiss
(Doc. 74) and the Motion to Dismiss First Amended Complaint (Doc. 78) by Defendants
Katrina S. Kane, Robert Campbell, and Michael Leal are granted.
IT IS FURTHER ORDERED that Counts I, II, and III of the Amended Complaint
are dismissed with prejudice for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that Count IV of the Amended Complaint is
dismissed with prejudice for failure to state a claim upon which relief can be granted only
with respect to Defendant Corrections Corporation of America.
dismissed with respect to Defendant Justin Manford.
Dated this 26th day of November, 2012.

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Count IV is not