Fabian et al v. Dunn et al

Filing 189

ORDER GRANTING IN PART AND DENYING IN PART 167 Motion to Dismiss ; GRANTING 170 Motion to Dismiss. Signed by Judge Xavier Rodriguez. (rf)

In the United States District Court for the Western District of Texas
E m e r s o n Gaitan Fabian v. M a u r e e n Dunn, et. al. § § § § §

SA-08-cv-269-XR

ORDER

O n this day came on to be considered the Individual Federal Defendants' m o t io n to dismiss (docket no. 167) and the United States and Official Capacity F e d e ra l Defendants' motion to dismiss (docket no. 170). B a c k g ro u n d T h e Plaintiffs in this case were unaccompanied minors who entered the U n it e d States illegally. They were apprehended by U.S. immigration authorities a n d detained at the Abraxas Hector Garza Center (hereinafter "Abraxas"). P la in t iffs allege that the U.S. Department of Health and Human Services, Office o f Refugee Rights (hereinafter "ORR") and the Division of Unaccompanied C h i ld r e n 's Services (hereinafter "DUCS") and Department of Homeland S e c u r it y , Immigration and Customs Enforcement (hereinafter "ICE") share r e s p o n s ib ility for protecting and caring for unaccompanied minors. Cornell C o m p a n ie s , Inc. owns and operates the Abraxas facility, which is located in San A n t o n io , Texas. Cornell is licensed and monitored by the Texas Department of

F a m ily and Protective Services (TDFPS) to house and provide care to children. D U C S contracted with Cornell to shelter and care for the unaccompanied minors in this lawsuit. In their Fifth Amended Complaint, Plaintiffs allege that they were s u b je c te d to the following abuses while they were being detained at Abraxas: · P l a in t iff Carlos Acosta Ceballos alleges that in the Fall of 2007,

D e fe n d a n t Jose Chapa "tackled him, using excessive force and injuring [his] a rm ." Acosta Ceballos reported the assault to Defendant Ariana Penalosa and D e fe n d a n t Jesus Gutierrez, Jr. He alleges nothing was done and he received no m e d ic a l treatment for his injury. Acosta Ceballos also alleges that he was a s s a u lte d by Defendant Jesus Ibarra, "who beat him and struck him in the face, le a v in g him with a visible black eye." Plaintiff also alleges that he was abruptly tr a n s fe r r e d to Houston shortly before a scheduled appointment with his a t to r n e y s and Defendant James DeLaCruz told him he was "talking too much w ith his attorneys." · P la in t iff C.C. alleges he was detained by Border Patrol agents in

E a g l e Pass, Texas for "nearly a week, given little food, and no showers, all in v io la t io n of the Flores v. Reno class action settlement...." At the Abraxas facility, C . C . alleges that Defendant Charles Saldana "severely battered [him], punching a n d kicking him, then beating him with a chair as he lay on the floor." On a n o t h e r occasion, he saw "a number of guards beating another child" and when h e went to that child's defense he alleges Defendants Mario Gomez and Jose C h a p a placed him "in a restraint hold with [his] arms hoisted behind his back, 2

a n d punched him repeatedly in the back, causing severe pain and injury." He a lle g e s that during this beating he lost consciousness. He was taken to a h o s p it a l for treatment. He alleges that after he informed his attorneys of the b e a tin g , the ORR Defendants transferred him to an Indiana facility. · P l a in t iff Gregorio Ruiz Mejia alleges that in December of 2007,

D e fe n d a n t s Jose Chapa, Mario Gomez and Hector Ruiz awoke him from his sleep a n d when he "failed to comply with sufficient speed, they grabbed him by one a r m and threw him to the floor with such force that his arm was badly injured a n d he suffered a blow to the head." Plaintiff alleges he reported the assault to D e fe n d a n t s Jesus Gutierrez, Jr. and Ariana Penalosa, but nothing was done. He a lle g e s that he was subsequently assaulted by Chapa on another occasion (p u llin g Plaintiff's hands behind his back and forcing them high into the air). I n March 2008, he alleges that four guards (Chapa, Gomez, Jesus Mendoza and R e y n a ld o Flores) "tackled him and, even after being physically subdued, once a g a in hurt his arm." · P l a i n t i ff D.B.G. alleges that from 2007 to early 2008 he was

"a s s a u lte d on more than one occasion by Defendants Ibarra, Gomez and Flores." H e alleges that one assault left him with "an arm injury so severe that he was s e n t to a medical facility for emergency treatment." · P l a in t iff Selvin Hernandez Escobar alleges that in February 2008

h e was assaulted and severely beaten by Defendant Mendoza and two other g u a r d s . Plaintiff alleges that he was slammed against a piece of furniture so h a r d that it broke into pieces, that he was punched in the mouth with a metal 3

r in g , and slammed against a wall. · P la in tiff Jose Alejandro Flores Cruz alleges he was verbally

h a r a s s e d and taunted by Abraxas staff and as a result he attempted suicide. He a ls o claims he was denied appropriate mental health care and punished by being m a d e to sleep in the hallway after his suicide attempt. He also alleges that he w a s placed in total isolation for a week and such treatment was improper and c r u e l punishment. He also alleges that Defendants Mendoza and Joel Pardo a s s a u lte d him and used excessive force against him in February 2008. He also a lle g e s that on another occasion another guard stepped on his neck and twisted h is arm which caused great pain. · P la in t iff L.L.C. alleges that on February 18, 2008 a disturbance He alleges that even though he was not

o c c u r r e d at the Abraxas facility.

in v o lv e d in the disturbance, Defendants Pardo, Erik Quinones, Ruiz and M e n d o z a along with San Antonio Police Officers (Juan Torres, Abel Balderas, G e o r g e Sexton, and Michael Fletcher) assaulted him. He also alleges that SAPD o ffic e r s tasered him when he was handcuffed. · P la in t iff Emerson Gaitan Fabian alleges that in the Fall of 2007, he

w a s assaulted by Defendants Gomez, Ibarra, Chapa, Pardo and Charles S a ld a n a . He alleges that at one point he was "face down on the ground with one o f the Defendants holding his arms, another his legs while a third Defendant r e p e a te d ly punched him in the back with his fists." · P la in t iff Edwin Joel Ramirez Aguilar alleges that he was assaulted

b y Defendants Chapa and Flores (grabbed by the neck, thrown violently to the 4

g r o u n d , hands held behind his back into the air, and Chapa sat on his knees for a n hour causing him to lose sensation). T h e Plaintiffs all allege that they have seen other children assaulted and h a v e reported the abuse to Abraxas staff. Plaintiff Ramirez and Ruiz allege that t h e y reported such abuse to Defendant Jose Gonzalez. The Plaintiffs allege that D e fe n d a n t Cornell has a custom, practice and policy of authorizing such abuse. P la in tiffs allege that Defendant Gonzalez informed other federal government a u t h o r i t ie s of the abuse. Plaintiffs also allege that the TDFPS Defendants r e c e iv e d reports of child abuse at the Abraxas facility from a number of sources fr o m the Fall of 2007 through April 2008. Plaintiffs further allege that the T D F P S Defendants notified the ORR Defendants, but no governmental agency t o o k action to prevent the abuses. Plaintiffs further allege that on February 6, 2 0 0 8 , the Women's Commission for Refugee Women and Children visited the A b r a x a s facility, interviewed the children and thereafter contacted Defendants S u s a n a Ortiz-Ang, Sergio Fernandez and Jesus Gutierrez expressing grave c o n c e r n s regarding the conduct of Defendants Chapa, Ibarra and Flores. P la in t iffs allege that Defendants Maureen Dunn, Jose Gonzalez, James D e L a C r u z , Susana Ortiz-Ang, and Cornell, despite having knowledge of ongoing a b u s e , refused and failed to provide a safe environment. P la in t iffs allege that the ORR Defendants were aware of Defendant C o r n e ll's history of abuse but nevertheless selected Cornell to house and care for t h e unaccompanied minors. Plaintiffs allege that the ORR Defendants have a p o lic y , custom or pattern of deliberate indifference with regard to selecting, 5

m o n it o r in g and supervising facilities that care for unaccompanied minors. I n addition, Plaintiffs allege that during February and March 2008, D e f e n d a n t s Chapa, Penalosa, Jose Gonzalez and Jesus Gutierrez interfered with th e ir ability to speak and meet with their attorneys. Plaintiffs further allege that they were retaliated against after their la w y e r s filed reports of child abuse. A number of the Plaintiffs were certified to re ce ive a u-visa (crime victim cooperating with law enforcement). Plaintiffs a lle g e that Defendant David Scarberry attempted to get the u-visa certifications revoked. Plaintiff Gregorio Ruiz Mejia alleges that Defendant Scarberry

p r e v e n te d Plaintiff from attending an asylum hearing that was scheduled. P l a i n t i ff s ' claims against the individual federal defendants I n their first cause of action the Plaintiffs bring a Bivens action against D e fe n d a n t s DeLaCruz, Gonzalez, Dunn and Ortiz-Ang alleging that these ORR o r ICE employees violated the Flores settlement agreement and violated P la in tiffs ' Fifth Amendment rights (liberty and property rights in safe and h u m a n e conditions and to be free from physical abuse).1 I n their third cause of action the Plaintiffs bring a Bivens action against D e fe n d a n t s DeLaCruz, Gonzalez, Dunn and Ortiz-Ang alleging that these ORR o r ICE employees had full knowledge of the physical abuse, but failed to halt the a b u s e . Plaintiffs also allege that these Defendants conspired with the Cornell

The Court's reading of Plaintiffs' Fifth Amended Complaint indicates that this first cause of action has been pled against these Defendants in their individual (not official) capacities. Further, it appears that this first cause of action has only been asserted against these individuals (not against the governmental agencies). See ¶¶ 241, 244.

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D e fe n d a n ts , aided and abetted the assaults by refusing to take corrective action, " s h ie ld in g the perpetrators from any consequences, by continuing federal fu n d in g , and by obstructing the Plaintiffs' relationship with their attorneys." S e e ¶¶ 262-263. Plaintiffs allege that this conduct violated their Fifth

A m e n d m e n t rights to be free from physical abuse. I n their fourth cause of action Plaintiffs bring a Bivens claim against D e fe n d a n t s DeLaCruz, Gonzalez, Dunn and Ortiz-Ang alleging that these ORR o r ICE employees violated their Fifth Amendment rights to be free from physical a b u s e by awarding a contract to a dangerous facility, and by failing to properly t r a in or monitor the facility. See ¶¶ 270 -278. I n their fifth cause of action, Plaintiffs bring a Bivens claim against David S c a r b e r r y alleging that he retaliated against certain Plaintiffs by interfering w ith their u-visa certifications, preventing one Plaintiff from attending his a s y lu m hearing, and by denying that Plaintiff a bond release. Plaintiffs allege t h o s e acts violated their First and Fifth Amendments rights to be free from r e ta lia t io n for having presented their complaints of physical abuse. In addition t o damages from Scarberry, Plaintiffs also seek injunctive relief pursuant to 5 U .S .C . § 702. See ¶¶ 280-285. Plaintiffs' claims against the federal agencies P la in t iffs ' second cause of action asserts that various federal government e m p l o y e e s acting in their official capacities have violated the Flores agreement. P u r s u a n t to 5 U.S.C. § 702 the Plaintiffs seek injunctive relief to enforce the

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F lo r e s settlement agreement. See ¶¶ 247, 250, 256. I n Plaintiffs' ninth cause of action Plaintiffs bring negligence claims a g a in s t the United States Government under the Federal Tort Claims Act, 28 U .S .C . §§ 2671, et seq. See ¶¶ 312-316. I n Plaintiffs' tenth cause of action Plaintiffs bring an intentional infliction o f emotional distress claim against the United States Government under the F e d e r a l Tort Claims Act, 28 U.S.C. §§ 2671, et seq. See ¶¶ 318-328. I n d i v i d u a l federal defendants' motion to dismiss T h e individual federal defendants seek dismissal of Plaintiffs' claims, a r g u in g : (1) they have not been accused of violating any clearly established c o n s t it u t io n a l rights; (2) they are entitled to qualified immunity; (3) the Fifth A m e n d m e n t failure to protect claim fails because Plaintiffs have not alleged any fa ct s establishing that any of the federal defendants knew of any risk prior to the in c id e n t s in question; (4) Plaintiffs' claims under the Flores agreement fail b e c a u se that agreement provides no relief for the claims asserted here; (5) the F lo r e s agreement confers no constitutionally protected rights; (6) Plaintiffs may n o t seek injunctive relief against a federal employee being sued in his individual c a p a c it y ; and (7) Plaintiffs lack standing to assert injunctive relief and a cc o rd in g ly this Court lacks jurisdiction to provide such relief. U .S . Government's Motion to Dismiss T h e Federal Government argues that dismissal is appropriate because: (1 ) Plaintiffs lack standing to assert injunctive relief; (2) the Flores settlement

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a g r e e m e n t does not allow for monetary damages; and (3) the FTCA claims fail b e ca u s e they fall within exceptions to the FTCA's waiver of sovereign immunity. A n a ly s is I. B i v e n s claim against the individual defendants

T o maintain a Bivens claim against defendants in their individual c a p a c it ie s , a plaintiff must allege facts demonstrating that the defendants c a u se d plaintiff to suffer a deprivation of a right or interest protected by the C o n s tit u tio n . Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998). A. D e fe n d a n t s DeLaCruz, Gonzalez, Dunn and Ortiz-Ang

In their first cause of action the Plaintiffs bring a Bivens action against D e fe n d a n t s DeLaCruz, Gonzalez, Dunn and Ortiz-Ang alleging that these ORR o r ICE employees violated the Flores settlement agreement and violated P la in tiffs ' Fifth Amendment rights (liberty and property rights in safe and h u m a n e conditions and to be free from physical abuse). In their third cause of a c t io n the Plaintiffs bring a Bivens action against Defendants DeLaCruz, G o n z a le z , Dunn and Ortiz-Ang alleging that these ORR or ICE employees had fu ll knowledge of the physical abuse, but failed to halt the abuse. Plaintiffs also a lle g e that these Defendants conspired with the Cornell Defendants, aided and a b e t t e d the assaults by refusing to take corrective action, "shielding the p e r p e tr a t o r s from any consequences, by continuing federal funding, and by o b s t r u c tin g the Plaintiffs' relationship with their attorneys." See ¶¶ 262-263. P l a in t iffs allege that this conduct violated their Fifth Amendment rights to be

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fr e e from physical abuse. In their fourth cause of action Plaintiffs bring a Bivens c la im against Defendants DeLaCruz, Gonzalez, Dunn and Ortiz-Ang alleging t h a t these ORR or ICE employees violated their Fifth Amendment rights to be fr e e from physical abuse by awarding a contract to a dangerous facility, and by fa ilin g to properly train or monitor the facility. See ¶¶ 270 -278. I n essence what the Plaintiffs argue in all of the above claims is that these fo u r individuals failed to oversee the Flores agreement, failed to oversee the A b r a xas detention facility, and negligently awarded the detention contract to the C o r n e ll Companies. However, these failure to supervise-type claims lack legal m e r it because respondeat superior liability is not available in a Bivens action.2 S e e Toledo v. Bureau of Prisons, 238 Fed. Appx. 10 (5th Cir. 2007); M o n to y a -O r tiz v. Brown, 154 Fed. Appx. 437 (5th Cir. 2005); Pelayo v. U.S. B o r d e r Patrol Agent No. 1, 82 Fed. Appx. 986 (5th Cir. 2003). T h e motion to dismiss the Bivens claim filed against Defendants D e L a C r u z , Gonzalez, Dunn and Ortiz-Ang is granted. B. D e f e n d a n t Scarberry

I n their fifth cause of action, Plaintiffs bring a Bivens claim against David S c a r b e r r y alleging that he retaliated against certain Plaintiffs by interfering w ith their u-visa certifications, preventing one Plaintiff from attending his
Plaintiffs in conclusory fashion allege that Defendants acted with deliberate indifference. However, conclusory allegations cannot defeat a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Plaintiffs also argue that dismissal is inappropriate because Defendants were employers of the Abraxas staff and had full control of the assailants. Even if these allegations were correct, the Court fails to understand how this is not a respondeat superior liability argument.
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a s y lu m hearing, and by denying that Plaintiff a bond release. Plaintiffs allege t h o s e acts violated their First and Fifth Amendments rights to be free from r e t a lia t io n for having presented complaints of physical abuse. In addition to d a m a g e s from Scarberry, Plaintiffs also seek injunctive relief pursuant to 5 U .S .C . § 702. Defendant Scarberry argues that pretrial detainees do not have a right to c o n f in e m e n t in a particular institution and accordingly no Bivens claim is viable b e ca u se Plaintiffs have not alleged facts demonstrating that he caused Plaintiffs t o suffer a deprivation of a right or interest protected by the Constitution. D e fe n d a n t 's argument is misplaced. Plaintiffs argue that Defendant Scarberry r e ta lia te d against them for raising their physical abuse complaints. They allege D e fe n d a n t Scarberry interfered with their u-visa certifications, prevented one P la in tiff from attending his asylum hearing, and denying one plaintiff a bond r e le a s e . Plaintiffs have alleged a chronology of events from which retaliation m a y be plausibly inferred. Defendant Scarberry's motion to dismiss the Bivens m o n e t a r y damages claim alleged against him is denied. However, the Plaintiffs' c la im for injunctive relief from Defendant Scarberry is denied and Defendant S ca rb e rr y 's motion to dismiss the injunctive relief claim is granted. Plaintiffs fa il to allege sufficient facts indicating they are entitled to injunctive relief.3 A p a r ty cannot maintain an action for injunctive relief unless a substantial

There is only one minor left in this suit (Plaintiff D.B.G.) who is still in federal custody. Plaintiff D.B.G. makes no allegations that Defendant Scarberry is still responsible in any fashion for D.B.G.

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lik e lih o o d of being injured in the future is demonstrated. City of Los Angeles v. L y o n s , 461 U.S. 95, 103 (1983) ("[P]ast wrongs do not in themselves amount to t h a t real and immediate threat of injury necessary to make out a case or c o n t r o v e r s y . " ). II. P l a in t i f f s ' standing to assert injunctive relief against the F e d e r a l Government P la in t iffs allege that the Flores settlement served as interim federal r e g u l a tio n s throughout the time period relevant to this suit. Plaintiffs further a lle g e that by violating the Flores agreement, the Federal Government has v iola te d its own agency's regulations. Plaintiffs further argue that Plaintiff D .B .G . is still a minor being held in federal detention and accordingly at least th a t plaintiff has standing to request injunctive relief.4 A ll parties concede that the Abraxas facility is no longer holding detained ju v e n ile s . Plaintiff D.B.G. is now being held in a facility in Houston, Texas. P la in tiff D.B.G. argues that injunctive relief is necessary because of the rampant v io la t io n s of the Flores agreement and that the abuses are "hardly limited to the A b r a x a s facility. Rather, such unlawful actions are clearly systemic and

c o n s t it u t e a practice, policy and custom of the U.S. Defendants. No matter w h e r e Plaintiff D.B.G. is placed, he remains at harm." Plaintiffs' Response (d o c k e t no. 185) at p.8. However, these allegations were not pled in the most r e c e n t Complaint and in any event are conclusory. The Federal Government's

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Plaintiffs stipulate that the remaining Plaintiffs no longer require injunctive relief.

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m o t io n to dismiss the injunctive relief claim is granted. Plaintiff D.B.G. fails to a lle g e sufficient facts indicating he is entitled to injunctive relief. A party cannot m a in ta in an action for injunctive relief unless a substantial likelihood of being in ju r e d in the future is demonstrated. City of Los Angeles v. Lyons, 461 U.S. 95, 1 0 3 (1983). III. F T C A Claim

T h e Federal Government argues that the United States may not be held v ic a r io u s ly liable under the FTCA for the actions of a contractor such as Cornell C o rr e ctio n s and the Abraxas staff. H o w e v e r , in Plaintiffs' Ninth cause of action, Plaintiffs allege that D e L a C r u z , Gonzalez, Dunn and Ortiz-Ang were negligent in selecting Cornell a n d Abraxas as a facility to detain minor immigrants, and that these federal e m p l o y e e s were negligent in supervising the Abraxas facility. See Plaintiffs' F ifth Amended Complaint at ¶¶ 310-313. In the Tenth cause of action Plaintiffs a lle g e that these four federal employees by their inactions caused Plaintiffs to s u ffe r from emotional distress and that these federal employees intentionally in flic te d emotional distress upon the Plaintiffs. See Plaintiffs' Fifth Amended C o m p la in t at ¶¶ 318-326. All parties spend considerable resources addressing whether the Abraxas s ta f f should be considered federal employees. Based on how the allegations were p l e d however, the Court concludes that the FTCA claims are only being alleged a g a in s t the government for the alleged negligent conduct of its four employees. T h e Federal Government also seeks dismissal of the FTCA claim 13

p r e d i ca t e d on the tort of intentional infliction of emotional distress. To establish a claim for intentional infliction of emotional distress, a plaintiff must prove t h a t : "1) the defendant acted intentionally or recklessly, 2) the conduct was e x tre m e and outrageous, 3) the actions of the defendant caused the plaintiff e m o t io n a l distress, and 4) the resulting emotional distress was severe." Wornick C o . v. Casas, 856 S.W.2d 732, 734 (Tex. 1993) (internal quotation marks o m itted ). The Federal Government appears to argue that an IIED tort is statutorily e x c e p t e d from FTCA coverage citing 28 U.S.C. § 2680(h). However, the Fifth C i r c u it in Truman v. U.S., 26 F.3d 592 (5th Cir. 1994) has concluded otherwise. L a s t ly , the Government argues that the FTCA claims should be dismissed u n d e r the discretionary function exception.5 The Fifth Circuit has recently a d d r e s s e d the discretionary function exception in Castro v. U.S., 560 F.3d 381 (5 th Cir. 2009). The Court repeated that "[t]he exception only covers acts that a r e discretionary in nature, acts that `involve an element of judgment or choice.'" C a s tr o , 560 F.3d at 387. The Fifth Circuit also repeated the two-step test set fo r t h in Gaubert for determining whether the discretionary function exception a p p l ie s to a federal employee's act or omission. "First, the challenged

g o v e r n m e n t action must be `the product of judgment or choice.'" Id. "Under this

The "discretionary function" exception provides that the United States is not liable for: "Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).

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p r o n g , we determine whether a statute, regulation, or policy mandates a specific c o u r s e of action. If such a mandate exists, the discretionary function exception d o e s not apply and the claim may move forward. When no mandate exists, h o w e v e r , the governmental action is considered discretionary and the first prong is satisfied.... Second, the court must decide whether the complained of

ju d g m e n t or choice `is of the kind that the discretionary function exception was d e s ig n e d to shield' because the purpose of the exception `is to prevent judicial `s e c o n d -g u e s s in g ' of legislative and administrative decisions grounded in social, e c o n o m ic , and public policy through the medium of an action in tort.'" Id. As to the first prong, relying upon Castro v. United States, Plaintiffs argue t h a t the Fifth Amendment to the United States Constitution, the Flores s e tt le m e n t agreement and various provisions of Texas state law mandate a s p e c i f ic course of action and accordingly the discretionary function exception d o e s not apply. In Castro, the Fifth Circuit concluded that Border Patrol agents w e r e not entitled to the discretionary function exception if their conduct violated th e U.S. Constitution. Id. at 389. D e fe n d a n t s argue that although they are responsible for the detention of u n d o c u m e n t e d minors, they are provided great discretion in how they select and m o n it o r any outside contractors they retain. They also argue that in exercising t h e ir discretion they were required to allocate "limited resources in an e c o n o m ic a lly feasible manner that would maximize the agency's ability to a c c o m p l is h its objectives." They further argue that they made policy

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d e t erm inations "concerning the amount of resources to devote to monitoring each o f the [43] facilities for unaccompanied alien children, including the Abraxas fa c ilit y , in an attempt to ensure that sufficient oversight of all the facilities was a c c o m p lis h e d within the constraints of the resources allocated to the agency." T h e Fifth Circuit, as acknowledged in Castro, has been less than clear r e g a r d in g when the discretionary function exception should apply. 6 In

B u c h a n a n v. U.S., 915 F.2d 969 (5th Cir. 1990), federal prisoners who were held h o s ta g e by Cuban detainees during a prison uprising brought suit against the U n it e d States for damages under the Federal Tort Claims Act (FTCA). The fe d e r a l prisoners argued that "prison officials were grossly negligent in failing to provide them with adequate protection from the Cuban detainees and in fa ilin g to prevent the uprising after receiving clear warnings of detainee unrest." Id . at 970. The district court held that the discretionary function exception to t h e FTCA barred the prisoners' claims. The Fifth Circuit affirmed. The Court s t a te d that the discretionary function exception reflected "a congressional intent t o prevent judicial `second-guessing' of legislative and administrative decisions g r o u n d e d in social, economic, and political policy through the medium of an a c t io n in tort." Id. at 971. The federal detainees alleged that the prison officials v io la te d a federal statute in keeping them safe from harm. It does not appear t h a t there was any Constitutional violation alleged.7 In affirming, the Court
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Castro, 560 F.3d at 389.

According to Nguyen v. U.S., 65 Fed. Appx. 509, *2 (5th Cir. 2003), this distinction is important ("it is significant that the INS officers did not commit a constitutional violation nor did they engage in any conduct that could be described as in bad faith.").

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s ta te d : "Prison administrators ... should be accorded wide-ranging deference in t h e adoption and execution of policies and practices that in their judgment are n e e d e d to preserve internal order and discipline and to maintain institutional s e c u r it y . That deference `requires that neither judge nor jury freely substitute t h e i r judgment for that of officials who have made a considered choice.'" Id. at 9 7 2 (internal citations omitted). In Vander Zee v. Reno, 100 F.3d 952 (5th Cir. 1996), the Fifth Circuit d is m is s e d Plaintiff's FTCA claim under the discretionary function exception. T h e Court stated that the exception "is not satisfied if a `federal statute, r e g u la tio n , or policy prescribes a course of action for an employee to follow,' b e c a u s e `the employee has no rightful option but to adhere to the directive.'" Id. a t *5. Vander Zee's complaint contained "allegations that could be read as either c la im s for deprivations of constitutionally protected property rights or as state la w claims for interference with contract rights and defamation relating to his a lle g e d ly coerced resignation and the subsequent settlement agreement entered in t o between the bank and the government." Id. at *4. Attempting to reconcile the above cases and the Twombley standards for p le a d in g , this Court concludes that Plaintiffs' FTCA claims against the four fe d e r a l actors are barred by the discretionary function exception. Plaintiffs' c o n c lu s o r y statement that the Fifth Amendment, the Flores settlement a g r e e m e n t and various provisions of Texas state law mandate a specific course o f action fails to identify what specific course of action Defendants were required

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t o take (other than a general requirement that whatever action they take not v i o l a t e the Constitution or other federal or state law). If this Court were to a d o p t Plaintiffs' argument, it is difficult to conceive what would be left of the d i s c re t io n a r y function exception. Neither party cites to Garza v. U.S., 161 Fed. A p p x . 341, 343 (5th Cir. 2005) ("Garza generally alleges that the Government w a s obligated to keep him safe and free from harm while he remained in c a rc e r a t e d pursuant to 18 U.S.C. § 4042 and the Eighth Amendment to the U n it e d States Constitution and that the Government breached this duty by fa ilin g to protect him from assault. We join our sister circuits in recognizing t h a t neither section 4042's mandate to protect prisoners nor the Eighth A m e n d m e n t 's prohibition against cruel and unusual punishment define a n o n -d i s c re t io n a r y course of action specific enough to render the discretionary fu n c t io n exception inapplicable. Thus, because the Bureau of Prisons retains s u f fic ie n t discretion in the means it may use to fulfill any duties imposed under th e s e federal laws, the exception is triggered and this claim was properly d is m is s e d ." ). This Court finds Garza most applicable to this case and

a c c o r d in g ly Plaintiffs' FTCA claims are dismissed. Conclusion T h e motion to dismiss the Bivens claim filed against Defendants D e L a C r u z , Gonzalez, Dunn and Ortiz-Ang is granted. Defendant Scarberry's m o t io n to dismiss the Bivens claim alleged against him is denied. However,

D e fe n d a n t Scarberry's motion to dismiss the injunctive relief claim against him

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is granted. The Federal Government's motion to dismiss the injunctive relief c la im is granted. Plaintiffs' ninth cause of action (negligence claims against the U n it e d States Government) under the Federal Tort Claims Act is dismissed as b a r r e d by the discretionary function exception. I t is so ORDERED. S I G N E D this 14 day of August, 2009.

_________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE

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