      Case: 15-50331          Document: 00513611684              Page: 1       Date Filed: 07/27/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                                               Fifth Circuit

                                                                                              FILED
                                            No. 15-50331                                    July 27, 2016
                                                                                           Lyle W. Cayce
                                                                                                Clerk
KIMBERLY DOE; CONSTANCE ROE; SARAH DOE; BETH ROE; EMILY
ROE; RAQUEL DOE,

                 Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA,

                 Defendant – Appellee

----------------------------------------------------------------------------

SARA DOE, on behalf of herself and all others similarly situated;
KIMBERLY DOE, on behalf of herself and all others similarly situated;
RAQUEL DOE, on behalf of herself and all others similarly situated; ANNA
ROE, on behalf of herself and all others similarly situated; GEORGINA ROE,
on behalf of herself and all others similarly situated; EMILY ROE, on behalf
of herself and all others similarly situated; BETH ROE, on behalf of herself
and all others similarly situated; CONSTANCE ROE, on behalf of herself and
all others similarly situated,

                 Plaintiffs - Appellants

v.

WILLIAMSON COUNTY; CORRECTIONS CORPORATION OF AMERICA
(CCA); EVELYN HERNANDEZ, former CCA Facility Administrator;
DONALD DUNN,

                 Defendants – Appellees
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                                        No. 15-50331


                     Appeal from the United States District Court
                          for the Western District of Texas


Before SOUTHWICK and COSTA, Circuit Judges, and OZERDEN,* District
Judge.
LESLIE H. SOUTHWICK, Circuit Judge:
      Several female alien detainees filed lawsuits alleging claims under 42
U.S.C. § 1983 and the Federal Tort Claims Act, among others. The district
court ruled in the defendants’ favor on various grounds. We AFFIRM in part,
and REVERSE and REMAND in part.


                    FACTS AND PROCEDURAL BACKGROUND
      The plaintiffs are eight female aliens who were apprehended by U.S.
Immigration and Customs Enforcement (“ICE”). Pending a determination of
their immigration status, the plaintiffs were housed in T. Don Hutto
Residential Center (the “detention center”) in Taylor, Texas, which is owned
and operated by Corrections Corporation of America (“CCA”).                         A service
agreement between ICE and Williamson County, the county in which the
detention center is located, and a subcontract delegating all of Williamson
County’s responsibilities related to the detention center to CCA, facilitate the
detention center’s operations. The detention center houses only female aliens
in ICE custody.
      In the various operative complaints in this case, the plaintiffs alleged
that they individually posted bond, permitting them to be released at different
times pending hearings to resolve their immigration status. Donald Dunn, a



      *   District Judge of the Southern District of Mississippi, sitting by designation.

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                                    No. 15-50331
male CCA officer, was each time tasked with transporting the plaintiffs by
himself from the detention center to the airport or bus station. This occurred
between October 2009 and May 2010.               The service agreement, and the
subcontract by incorporation, stated an ICE policy requiring that an officer of
the same sex as a detainee be present during transport. The plaintiffs asserted
that before they reached their destinations, Dunn stopped at a gas station or
house, or pulled off to the side of the road, and sexually assaulted them. Dunn
later pled guilty to state and federal charges.
      The plaintiffs filed lawsuits against the United States, Williamson
County, CCA, Dunn, and Evelyn Hernandez, the former CCA facility
administrator, among others. 1       The suits were later consolidated into the
present action. The only claims relevant to this appeal are under 42 U.S.C.
§ 1983 and the Federal Tort Claims Act, 28 U.S.C. § 1346(b), as well as several
state law claims. 2 In a series of orders in 2013 and 2014, the district court
dismissed all of the plaintiffs’ federal claims pursuant to Federal Rules of Civil
Procedure 12(b)(1), 12(b)(6), and 56(a).         The plaintiffs filed an amended
complaint by order of the district court in November 2014 asserting only state
law claims against CCA, Hernandez, and Dunn.                Because there were no
remaining federal claims, the district court dismissed the lawsuit for lack of
subject matter jurisdiction. The plaintiffs timely appealed.


                                   DISCUSSION
I.    Section 1983
      The plaintiffs brought Section 1983 claims against CCA, Hernandez,



      1  The lawsuit initially named as additional defendants four ICE officials and a
Williamson County employee. The claims against these defendants were resolved at earlier
stages in the cases and are not part of this appeal.
       2 The lawsuit also initially included other claims not on appeal.

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                                  No. 15-50331
Dunn, and Williamson County, alleging violations of the plaintiffs’ Fifth and
Fourteenth Amendment rights. The district court dismissed the claims against
CCA and Hernandez for failure to state a claim, and granted summary
judgment in favor of Dunn and Williamson County. We examine separately
the rulings impacting (1) CCA, Hernandez, and Dunn, and (2) the County.


      A.    CCA Defendants
      We first review the district court’s disposition of the Section 1983 claims
against CCA and its employees, Hernandez and Dunn, who collectively we will
call the “CCA defendants.” CCA and Hernandez successfully moved to dismiss
for failure to state a claim, arguing they were not operating the detention
center under color of state law and thus are not proper Section 1983
defendants. The district court later granted summary judgment in Dunn’s
favor on the same grounds.
      Dismissal for failure to state a claim is reviewed de novo. Bowlby v. City
of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012); see also FED. R. CIV. P. 12(b)(6).
All well-pleaded facts are accepted as true and “view[ed] . . . in the light most
favorable to the plaintiff.” Bowlby, 681 F.3d at 219. To survive a Rule 12(b)(6)
motion, a complaint must plead sufficient “facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Summary judgment in Dunn’s favor is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” See FED. R. CIV. P. 56(a). Our review is de novo.
Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005).
      Section 1983 liability results when a “person” acting “under color of”
state law, deprives another of rights “secured by the Constitution” or federal
law. 42 U.S.C. § 1983. Federal officials acting under color of federal law are
not subject to suit under Section 1983, nor does the statute reach purely
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                                       No. 15-50331
private conduct. District of Columbia v. Carter, 409 U.S. 418, 424–25 (1973).
Where, as here, the defendants are private actors, the challenged “conduct
allegedly causing the deprivation of a federal right” must be “fairly attributable
to the State” for Section 1983 to apply. See Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982).
        The Supreme Court has used at least four tests to determine whether
private conduct is “fairly attributable to the State . . . .” See Cornish v. Corr.
Servs. Corp., 402 F.3d 545, 550 (5th Cir. 2005). It is unclear whether these
tests “are actually different in operation or [are] simply different ways of
characterizing the necessarily fact-bound inquiry . . . .” See Lugar, 457 U.S. at
939.        The plaintiffs rely on the “nexus” test, under which the state’s
involvement is such that the private actor’s conduct can fairly be treated as
that of the state itself. 3 See Cornish, 402 F.3d at 550. In essence, the plaintiffs
assert that CCA derived its authority to run the detention center from the
subcontract with Williamson County, meaning the CCA defendants were
acting under color of state law.
        The plaintiffs’ argument relies in part on a case brought by a federal
prisoner against a city jail in which he was temporarily housed. See Henderson
v. Thrower, 497 F.2d 125 (5th Cir. 1974). There, the district court dismissed
the prisoner’s Section 1983 claim, concluding that the city jail was not “acting



        3  The other analyses include the “public function,” “state compulsion,” and “joint
action” tests. Cornish, 402 F.3d at 549–50. The first “examines whether the private entity
performs a function which is ‘exclusively reserved to the State.’” Id. (quoting Flagg Bros.,
Inc. v. Brooks, 436 U.S. 149, 159 (1978)). The plaintiffs, however, argue that the detention
center’s function as a holding facility for detainees is irrelevant because it derives its power
from the state through the subcontract. As for the “state compulsion” test, the plaintiffs do
not contend that the state “exert[ed] coercive power” over the CCA defendants or “provide[d]
. . . encouragement” to cause the relevant deprivation. See id. (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 170–71 (1970)). Nor do the plaintiffs assert that the CCA defendants were
“jointly engaged . . . in the challenged action” with Williamson County. See Dennis v. Sparks,
449 U.S. 24, 27–28 (1980).
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                                  No. 15-50331
under color of State law, but [was] providing for the . . . safekeeping of the
plaintiff in accordance with [a] Federal Contract . . . .” Id. at 125. We reversed,
finding that control over the facility remained with local officials whose power
was “conferred on them by the city, a creature of the State of Alabama.” Id. at
126. Similarly, the plaintiffs argue here, the fact that the plaintiffs are federal
detainees is irrelevant. Whether state action exists depends “on the nature of
the defendant” and not the nature of the plaintiff.
      The plaintiffs also rely on an unpublished district court opinion. See
Alvarez v. GEO Grp., Inc., No. SA-09-CV-0299, 2010 WL 743752 (W.D. Tex.
Mar. 1, 2010). A federal prisoner brought a Section 1983 claim against a
private contractor operating a county-owned jail. Id. at *1. The jail housed
state and federal prisoners pursuant to an intergovernmental service
agreement between the county and the U.S. Marshals Service. Id. The district
court, citing Henderson, concluded that the contractor was a state actor
because there was “no relationship” between the contractor and the federal
government. Id. at *2, *3 n.21. The district court denied the jail’s motion to
dismiss. Id. at *5. The relevant contract, the district court said, makes clear
that the contractor “operates the jail because the County as a state entity . . .
authorized it to operate the jail.” Id. at *2.
      The contracts at issue here, the plaintiffs argue, are analogous to those
in Alvarez.    The subcontract between CCA and Williamson County, for
example, provides that its terms are governed by Texas law and requires the
parties to abide by state and local law, in addition to federal law. The plaintiffs
argue these clauses show that the parties “specifically contemplated that CCA
would act under color of state law . . . .” Furthermore, the plaintiffs assert, the
subcontract provided Williamson County with a “critical role” in the detention
center in allowing county employees to access the facility and in requiring CCA
to pay the county an administrative fee. The plaintiffs also note that John
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                                      No. 15-50331
Foster, a sheriff’s deputy responsible for monitoring the detention center for
Williamson County, admitted in an affidavit 4 that Williamson County
pressured CCA to remove Hernandez after Dunn’s conduct was exposed.
       Rejecting the plaintiffs’ arguments, the magistrate judge was reluctant
to rely solely on the subcontract with Williamson County when resolving
whether CCA and Hernandez were acting under color of state law. The judge
reasoned that the “better determinant” is the “nature of the function” of the
detention center. This inquiry essentially is the “public function” test, which
focuses on whether a Section 1983 defendant performs a function “exclusively
reserved to the State.” See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978).
The district court agreed with the magistrate judge, concluding that the
detention center “was purely an ICE facility, and . . . CCA was charged with
carrying out purely ICE functions.” The district court later granted summary
judgment in Dunn’s favor, relying on the same reasoning. We agree with the
district court’s approach.
       As an initial matter, resolving whether an action is “fairly attributable
to the State ‘begins by identifying the specific conduct of which the plaintiff
complains[.]’” Cornish, 402 F.3d at 550 (quoting American Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 51 (1999)). In Cornish, a guard at a private corrections
facility that housed juveniles sued under Section 1983 after he was fired. Id.
at 547–48. Affirming dismissal, we said that the facility’s “role as an employer”
did not constitute state action. Id. at 550. This is true even if the facility’s role
in “providing juvenile correctional services was state action.” Id. We said that
it was immaterial that the facility’s guards were subject to state regulations,



       4 We cannot consider the affidavit, which is outside the pleadings, in reviewing the
district court’s Rule 12(b)(6) dismissal of the claims against CCA and Hernandez. See
McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir. 1992). Dunn, however, filed a motion
for summary judgment, so the affidavit is applicable as to the ruling on that motion.
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                                      No. 15-50331
or that a state contract authorized the facility’s operations. Id.
       Here, the specific conduct complained of is the CCA defendants’ failure
to follow ICE’s transport policy, which the plaintiffs allege facilitated Dunn’s
crimes. Thus, following Cornish’s reasoning, the CCA defendants’ relevant role
on which we must focus is in detaining aliens pending a determination of their
immigration status pursuant to ICE specifications. This is fundamentally a
federal function. Relatedly, we once held that a CCA guard at a detention
center housing federal detainees was the equivalent of a federal corrections
officer. United States v. Thomas, 240 F.3d 445, 448 (5th Cir. 2001).
       Furthermore, even if we focus on the subcontract, 5 its terms support a
finding that Williamson County’s involvement in running the detention center
was minimal.        The subcontract delegated all responsibility for housing
detainees pursuant to ICE standards to CCA. Williamson County is permitted
to employ a representative to serve as a “liaison,” but it has no involvement in
the day-to-day operations of the detention center regardless of whether it
pressured CCA to remove Hernandez. Other provisions of the subcontract
merely facilitate an administrative payment between Williamson County and
CCA, provide indemnification to Williamson County, and require CCA to notify
county officials if there is an emergency at the detention center. This leaves
the fact of the subcontract’s existence as the sole connection to the state. We
have said that the “[a]cts of . . . private contractors do not become acts of the
government by reason of their significant or even total engagement in
performing in public contracts.” See Cornish, 402 F.3d at 550.
       Henderson and Alvarez, moreover, are distinguishable on their facts.
The state in both cases exhibited more control over the relevant correctional



       5Again, the plaintiffs’ arguments pointing to the subcontract seemingly fall under the
“nexus” test. See Cornish, 402 F.3d at 550.
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                                  No. 15-50331
facilities than Williamson County had over the detention center here. In
Henderson, the jail was county owned and operated; it unequivocally derived
its existence from the state. 497 F.2d at 126. No private contractor was
involved. See id. Alvarez involved a county-owned jail, which was operated by
a private contractor and housed state and federal prisoners. 2010 WL 743753,
at *1. The district court said the contract with the Marshals Service to house
some federal prisoners did not change the character of the private contractor’s
relevant function as the operator of the county jail. Id. at *2.
      Here, again, the detention center — which houses only federal aliens
detained by ICE — is owned and operated by CCA alone, not Williamson
County or the state of Texas. ICE promulgates all policies and procedures by
which the detention center must operate through the service agreement and
subcontract. The plaintiffs’ case centers on the CCA defendants’ violation of
one of those policies. Henderson and Alvarez are not on point.
      Finally, the plaintiffs focus on Williamson County’s actions in regard to
Dunn. Not only did Williamson County investigate and arrest Dunn after
learning of the sexual assaults, the plaintiffs argue, but Dunn was charged
with official oppression. Under Texas law, the crime of official oppression is
committed by “[a] public servant acting under color of his office or employment
. . . .” TEX. PENAL CODE ANN. § 39.03(a). A “[p]ublic servant” is “an officer,
employee, or agent of government” or a person “performing a government
function under a claim of right although . . . not legally qualified to do so,” and
“government” includes the state or its political subdivisions or a municipality.
Id. § 1.07(24), (41). Again, the plaintiffs assert, this indicates that Williamson
County viewed the CCA defendants as state actors.
      This argument is also unpersuasive. We agree with the CCA defendants
that whether state or local authorities “believed [Dunn’s] conduct fit within the
elements of a state crime” has no bearing on the determination of whether the
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                                      No. 15-50331
CCA defendants were acting under color of state law for Section 1983 purposes.
The CCA defendants, in housing alien detainees according to ICE
specifications, were performing a federal function. See generally Cornish, 402
F.3d at 550. Williamson County had almost no involvement in the detention
center’s day-to-day operations.          Thus, the district court did not err in
dismissing the plaintiffs’ Section 1983 claim against CCA and Hernandez, or
in granting summary judgment for Dunn.


       B.     Williamson County
       We next examine summary judgment 6 for state actor Williamson County
on the plaintiffs’ Section 1983 claim. We review a grant of summary judgment
de novo. Baker, 430 F.3d at 753.          Summary judgment should be granted “if
the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
Facts and evidence are viewed “in the light most favorable to the non-moving
party.” Baker, 430 F.3d at 753.
       To summarize our earlier statements of the fundamentals, Section 1983
liability arises when a “person” acting “under color of” state law deprives
another of federal rights. 42 U.S.C. § 1983. “[L]ocal government units” like
Williamson County are “included among those persons to whom [Section] 1983
applies.” See Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). To
establish liability against a governmental entity, though, a plaintiff must also
show the existence of (1) a policy maker; (2) an official policy; and (3) causation,
or a violation of rights whose “moving force” is the policy. Id. at 690–95.



       6 The plaintiffs assert in a one-sentence statement that the district court abused its
discretion in granting summary judgment before discovery closed. This argument about
discovery is waived, though, as it is merely mentioned and not meaningfully briefed. See
United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010).
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                                  No. 15-50331
      An official policy is usually evidenced by “duly promulgated policy
statements, ordinances or regulations,” but a “custom” may also suffice.
Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001). A custom is
“a persistent, widespread practice of [governmental] officials or employees
[that] . . . is so common and well-settled as to constitute a custom that fairly
represents . . . policy.” Id. Where the claim is that the policy “itself violates
federal law, or directs an employee to do so,” it is unnecessary to prove a
heightened level of culpability on the part of the policymakers. Board of Cnty.
Comm’rs v. Brown, 520 U.S. 397, 404–05 (1997). A showing of “deliberate
indifference” to the “known or obvious consequences” of a policy is required
where the theory is that a “facially lawful [policy] . . . has led an employee to
violate a plaintiff’s rights.” Id. at 406–07.
      The plaintiffs here do not challenge the transport policy itself. Instead,
they argue that evidence shows Williamson County adopted the transport
policy by entering into the service agreement with ICE, knew of the potential
consequences to detainees if CCA employees violated the policy, and then failed
to monitor the detention center properly to ensure no such violation occurred.
      Specifically, the plaintiffs rely on the fact that Williamson County
assigned Foster to visit the detention center regularly after learning of a sexual
incident in 2007 between a detainee and a guard. In deposition testimony,
Foster said he was aware of the transport policy and agreed that failing to
follow it could increase the risk of sexual assault on detainees. The plaintiffs
also rely on a 2008 report by an independent evaluator showing that the
detention center’s policies and practices related to sexual abuse and assault
prevention were out of compliance with ICE and industry standards. Together,
the plaintiffs contend, this evidence raises a fact question as to whether
Williamson County “knew of the substantial risk[] of serious harm . . . but
maintained a posture of deliberate indifference.”
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                                 No. 15-50331
      Fatally undermining this argument is Foster’s uncontradicted testimony
detailing his swift action after learning about Dunn. Foster said that the day
he heard that Dunn had sexually assaulted detainees, Foster reported Dunn
to the sheriff’s office and an investigation immediately ensued. Foster said
that, despite weekly visits to the facility, he had no knowledge of any pattern
of sexual misconduct prior to reporting Dunn; if he did, he said he “would have
done what [he] could to stop it.” Foster also had never witnessed any violation
of the transport policy prior to learning about Dunn’s actions.          As the
magistrate judge explained, Foster at most “failed to detect . . . that CCA was
not complying [with the transport policy] . . . for several months.” Thus, it is
undisputed that Williamson County, through Foster, took reasonable
measures to abate any “known or obvious consequences” to detainees as soon
as it was made aware of the policy violations. See Brown, 520 U.S. at 406–07.
Williamson County did not act with deliberate indifference in monitoring the
detention center.
      To the extent that the plaintiffs argue Williamson County is liable
directly for the CCA defendants’ failure to follow the transport policy, we
cannot agree. “[U]nder § 1983, local governments are responsible only for their
own legal acts.” See Connick v. Thompson, 563 U.S. 51, 60 (2011) (quotation
marks omitted). Contrary to the facts in some of the non-binding cases cited
by the plaintiffs, Williamson County did not “delegate[] final policy-making
authority” to CCA in regard to protocol for transporting detainees. In fact, in
the subcontract, Williamson County expressly mandated that CCA comply
with all provisions of the service agreement, which required adherence to ICE’s
transport policy. Williamson County is not directly responsible for CCA’s
failure to follow policy, and Williamson County did not otherwise act with
deliberate indifference in monitoring the detention center.           Summary
judgment for Williamson County was proper.
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II.     Federal Tort Claims Act
        The plaintiffs brought claims of negligence and negligent supervision
under the Federal Tort Claims Act (“FTCA”) against the United States. The
district court held that “the government’s decisions regarding oversight of its
contractors are inherently a discretionary function[,]” and dismissed the claims
for lack of jurisdiction pursuant to Rule 12(b)(1). In the alternative, the district
court said dismissal under Rule 12(b)(6) was proper because the plaintiffs
failed to make a sufficient claim that ICE officials acted with deliberate
indifference in monitoring the detention center’s operations. Questions of
subject matter jurisdiction are reviewed de novo. Wagner v. United States, 545
F.3d 298, 300 (5th Cir. 2008). Dismissals for failure to state a claim are also
reviewed de novo. Bowlby, 681 F.3d at 219.
        Sovereign immunity protects the federal government from being sued
without its consent. Molzof v. United States, 502 U.S. 301, 304–05 (1992). The
FTCA is a “limited waiver” of immunity, allowing the United States to be sued
for damages “caused by the negligent or wrongful act or omission of any
[Government] employee . . . acting within the scope of his office or
employment.” Id.; see also 28 U.S.C. § 1346(b)(1). The discretionary function
exception precludes suit, though, where the claim is “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). A two-
part test determines the applicability of the discretionary function exception:
(1) the challenged action must be the product of “judgment or choice,” and (2)
the judgment or choice must be “susceptible to policy analysis.” United States
v. Gaubert, 499 U.S. 315, 322–25 (1991).
        Here, the Government argues that the plaintiffs’ FTCA claims — which
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                                  No. 15-50331
stem from ICE officials’ knowledge and alleged inaction in regard to transport
policy violations — are not cognizable under our precedent. We have held that
“[s]upervision of a contractor’s work, including the degree of oversight to
exercise, is inherently a discretionary function.” Guile v. United States, 422
F.3d 221, 231 (5th Cir. 2005). The plaintiffs do not address the ramifications
of Guile in their briefs. Instead, the plaintiffs simply assert that the officials
acted with deliberate indifference to their safety, which violated their Fifth
Amendment rights. Thus, the plaintiffs contend, the United States is stripped
of the protection of the discretionary function exception.
      Whether a properly pled constitutional violation allows a plaintiff to
circumvent the discretionary function exception is an open question in this
circuit. See Castro v. United States, 608 F.3d 266 (5th Cir. 2010) (en banc)
(pretermitting the issue and affirming judgment below based on alternative
grounds); see also Lopez v. U.S. Immigration and Customs Enf’t, 455 F. App’x
427 (5th Cir. 2011) (avoiding the issue). Because we conclude the plaintiffs did
not sufficiently plead that ICE officials acted with deliberate indifference, we
need not settle the issue of whether a constitutional violation removes the
applicability of the discretionary function exception.
      “When a detainee alleges that a federal government official’s episodic act
or omission violated her [constitutional] . . . right[s] . . . , we must decide
whether the official exhibited deliberate indifference . . . .”        See Doe v.
Robertson, 751 F.3d 383, 387 (5th Cir. 2014) (in the context of a Bivens action);
see also Lopez, 455 F. App’x at 434 (examining deliberate indifference in
relation to an FTCA claim involving an alleged constitutional violation).
      The test for deliberate indifference is subjective: “the official must both
be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference” — in other
words, the official must “consciously disregard[]” the substantial risk. See
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                                  No. 15-50331
Farmer v. Brennan, 511 U.S. 825, 837, 839 (1994). The culpability must be
more than “mere negligence or even gross negligence.” See Hernandez ex rel.
Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 882
(5th Cir. 2014).
      Here, the plaintiffs alleged that some ICE officials were “directly
involved in prescribing the time, locations, and manner of resident transports,”
had access to logbooks and other information that would have revealed
multiple violations of the transport policy, and knew of some policy violations.
These same officials, the plaintiffs contend, understood that violations of ICE’s
transport policy could result in detainees’ sexual assault and knew of some
history of sexual assault at the detention center. Thus, the plaintiffs argue
that they sufficiently pled that ICE officials acted with deliberate indifference
to an obvious risk of sexual assault to detainees during transports.
      The Government contends that this court has foreclosed this issue
because in a previous appeal we held that these same plaintiffs failed to allege
a “viable deliberate indifference claim based on the actions of ICE or its
employees.” That is not so. In the earlier decision, we decided that qualified
immunity shielded two ICE officials originally named as defendants in this
lawsuit from the plaintiffs’ Bivens claims. Robertson, 751 F.3d at 385–87. In
the second step of a qualified immunity analysis, “the court must decide
whether [an official’s] . . . conduct was objectively reasonable in light of clearly
established law at the time of the incident.” Hernandez, 380 F.3d at 879. We
determined that the plaintiffs adequately pled that the ICE officials “had
actual knowledge both of the violations of the [transport policy] . . . and of that
[policy’s] . . . assault-preventing objective.” Robertson, 751 F.3d at 389. We
dismissed the claims on qualified immunity grounds, though, “because no
clearly established law provide[d] that [knowledge of] violations of contractual
terms that aim to prevent sexual assault are ‘facts from which the inference
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                                      No. 15-50331
could be drawn that a substantial risk of serious harm exists.’” Id. at 390
(quoting Farmer, 511 U.S. at 837). In other words, we held that the officials’
actions were objectively reasonable in light of then clearly established law
entitling them to qualified immunity. See id. There was no need to decide
whether, subjectively, the officials’ actions constituted deliberate indifference,
so we did not reach that question. Id. at 393 n.14.
       In this appeal, we set aside the objective “clearly established law”
requirement, which is traditionally confined to the qualified immunity context.
The analytical task before us today is to determine whether the complaint
contains sufficient factual information showing that the same ICE officials
under scrutiny in Robertson acted with deliberate indifference in relation to
the transport policy violations and detainees’ safety. See Farmer, 511 U.S. at
837. We are mindful of our prior conclusion that the plaintiffs sufficiently pled
that these officials “had actual knowledge” of transport policy violations and of
the transport policy’s “assault-preventing objective.” 7 See Robertson, 751 F.3d
at 389. Thus, the specific question is whether that information alone renders
the officials’ alleged culpability greater than “gross negligence,” or whether
more is required to make a plausible assertion that the officials knew of a
“substantial risk of serious harm” and consciously disregarded it.                      See
Hernandez, 380 F.3d at 881–82 (quoting Farmer, 511 U.S. at 837) (emphasis
added). A complaint must include “facts to state a claim to relief that is
plausible on its face” to survive a Rule 12(b)(6) motion. Twombly, 550 U.S. at
570. We agree with the Government that some of our other conclusions in
Robertson are relevant to that determination.



       7  To the extent that language in the district court’s August 7, 2013 order discussing
deliberate indifference conflicts with this conclusion, that was error. We may affirm the
district court’s judgment, however, on any grounds supported by the record. See Palmer ex
rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009).
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                                   No. 15-50331
         For example, we discussed that the plaintiffs’ complaint did not include
“any concrete facts betray[ing] a heightened risk of sexual assault during . . .
transports . . . .” Robertson, 751 F.3d at 391. The plaintiffs do not allege that
ICE officials knew of prior incidents of sexual assaults connected with detainee
transports, of detainee “fears” of sexual assault during transport, or of Dunn’s
crimes “(in time to prevent them).” Id. at 391–92. There also is no claim that
ICE officials knew “of Dunn’s dangerous proclivities.”         Id. at 393.     The
detention center’s history of sexual assault, moreover, consists primarily of the
2007 incident between a detainee and guard which was unrelated to detainee
transport. Id. at 391–92. The guard’s employment was terminated. Id. at 392.
         In short, the plaintiffs failed to plead that ICE officials were aware of
facts from which the inference could be drawn that known violations of the
transport policy created a “substantial risk” that detainees would be sexually
assaulted. See Farmer, 511 U.S. at 837 (emphasis added).
         Our ruling should not be interpreted as setting a standard that requires
“a completed attack or confirmed potential victims or aggressors” to make a
successful deliberate indifference claim. See Robertson, 751 F.3d at 393. Still,
mere knowledge of another party’s contractual violation is not enough to allege
culpability beyond gross negligence in this case. See id. We have held that
“observ[ing] questionable behavior” and an awareness of lack of “compliance”
with the terms of a settlement agreement were not enough to show deliberate
indifference.     E.A.F.F. v. Gonzalez, 600 F. App’x 205, 214 (5th Cir.), cert.
denied, 135 S. Ct. 2364 (2015). The plaintiffs have not plausibly asserted that
ICE officials acted with deliberate indifference. We affirm the district court’s
dismissal of the plaintiffs’ FTCA claims against the United States.


III.     State Law Claims
         After ruling on the Section 1983 and FTCA claims, the district court
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                                   No. 15-50331
ordered the plaintiffs to file a third amended complaint asserting any
remaining claims against the CCA defendants.             The plaintiffs’ amended
pleading included only state law claims. The district court dismissed the case
without prejudice for lack of subject matter jurisdiction because there were no
remaining federal claims. Again, we review such a dismissal de novo. See
Wagner, 545 F.3d at 300.
      On appeal, the plaintiffs and the CCA defendants agree that dismissal
was improper because the plaintiffs pled alienage jurisdiction. A district court
has original jurisdiction over a case exceeding $75,000 between “citizens of a
State and citizens or subjects of a foreign state, except that [no jurisdiction
exists] . . . between citizens of a State and citizens or subjects of a foreign state
who are lawfully admitted for permanent residence . . . .”               28 U.S.C.
§ 1332(a)(2). In the third amended complaint, the plaintiffs alleged they are
citizens of foreign states. They also pled that CCA is a Maryland business with
its principal place of business in Tennessee, and that Hernandez and Dunn are
employees of CCA. The plaintiffs do not, however, allege that they are not
lawful permanent residents. Nor do they incorporate information from their
previous complaints into their third amended complaint, even though there is
information in their previous complaints and other documents already in the
record indicating they are not permanent residents.
      Some authority supports the view that the plaintiffs’ amended pleading
is sufficient to show alienage jurisdiction. See generally Karazanos v. Madison
Two Assocs., 147 F.3d 624, 627–28 (7th Cir. 1998). We leave it to the district
court to consider the validity of this argument.
      Thus, we REVERSE dismissal of the remaining claims in plaintiffs’ third
amended complaint, and REMAND. We otherwise AFFIRM.




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