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




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

                                                                            FILED
                                                                          May 6, 2014
                                 No. 13-50459
                                                                         Lyle W. Cayce
                                                                              Clerk
SARAH DOE, on behalf of herself and all others similarly situated;
KIMBERLY DOE, on behalf of herself and all others similarly situated;
RAQUEL DOE, on behalf of herself and all others similarly situated; ANNA
ROE, on behalf of herself and all others similarly situated; GEORGINA ROE,
on behalf of herself and all others similarly situated; EMILY ROE, on behalf
of herself and all others similarly situated; BETH ROE, on behalf of herself
and all others similarly situated; CONSTANCE ROE, on behalf of herself and
all others similarly situated,

                                              Plaintiffs - Appellees
v.

GEORGE ROBERTSON, ICE Contracting Officer’s Technical Representative
(COTR); JOSE ROSADO, ICE COTR,

                                              Defendants - Appellants




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


Before STEWART, Chief Judge, and GARZA and SOUTHWICK, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
      Sarah    Doe    and   several   other    anonymous      female    immigrants
(“Plaintiffs”) were sexually assaulted while being transported from an
immigration detention center. They brought a Bivens action against federal
officials George Robertson (“Robertson”) and Jose Rosado (“Rosado”) for
    Case: 13-50459    Document: 00512619827     Page: 2   Date Filed: 05/06/2014



                                 No. 13-50459
violation of their Fifth Amendment due process right to freedom from
“deliberate indifference to a substantial risk of serious harm,” Farmer v.
Brennan, 511 U.S. 825, 828 (1994) (quotation marks omitted), alleging that the
officials knew of violations of a contractual provision requiring that
transported detainees be escorted by at least one officer of the same gender,
and that the officials understood the provision aimed to prevent sexual assault.
Robertson and Rosado moved to dismiss the action, arguing inter alia that they
are entitled to qualified immunity. The district court denied their motion.
Robertson and Rosado now appeal, and we reverse and remand with
instructions to dismiss.
                                        I
      Plaintiffs are female immigrants who, while waiting to be interviewed
by asylum officers, were each detained by U.S. Immigration and Customs
Enforcement (“ICE”) at the T. Don Hutto Residential Center (“Hutto”), an
immigration detention center in Texas. After each Plaintiff presented a prima
facie case for asylum, she was released from Hutto on her own recognizance
while her asylum claim remained pending.         Upon each Plaintiff’s release,
Donald Dunn (“Dunn”), a male employee of the private entity Corrections
Corporation of America (“CCA”), transported her from Hutto to the airport or
bus station with no other officers present. During these transports, Dunn
sexually assaulted each Plaintiff. He subsequently pleaded guilty to state and
federal criminal charges arising from these assaults.
      ICE contracts the operation of Hutto to Williamson County, Texas,
pursuant to an Intergovernmental Service Agreement (“Service Agreement”).
Williamson County, in turn, subcontracts this task to CCA, under an
agreement incorporating the Service Agreement’s terms.             The Service
Agreement requires that “[d]uring all transportation activities, at least one (1)
transportation officer shall be of the same sex as the residents being
                                       2
     Case: 13-50459       Document: 00512619827         Page: 3    Date Filed: 05/06/2014



                                      No. 13-50459
transported.”     Second Amended Complaint at ¶ 3 [hereinafter Complaint]
(citing Service Agreement, art. III.D). 1
       Plaintiffs sued Robertson, Rosado, and others in district court for money
damages. During the period of Dunn’s assaults, Robertson and Rosado were
federal officials who worked at Hutto as ICE Contracting Officer’s Technical
Representatives (“COTRs”). Plaintiffs alleged that Robertson and Rosado,
              as COTRs, were “employee[s] of ICE responsible for
              monitoring all technical aspects and assisting in
              administering the [Service Agreement].” [The COTR
              is] an on-site official, tasked with regular inspections
              and assessing overall performance by reviewing
              specific items in the areas covered by the relevant
              performance standards and by monitoring relevant
              activities at Hutto.

Id. at ¶¶ 221–22 (quoting Service Agreement, attachment 1). Furthermore,
the Complaint recounted “numerous reports of sexual abuse and assault” in
ICE facilities nationwide and alleged that in light of these incidents, “ICE and
its officials and employees were inarguably acutely aware of the relevant risks
female immigrant detainees faced from detention center officers and staff.” Id.
at ¶ 52. The Complaint further alleged that in 2007, a CCA-employed male
guard had sex with a female detainee in her cell at Hutto, and that the guard
was subsequently terminated. Id. at ¶ 42, 61.
       In addition to contract-monitoring responsibilities, Plaintiffs alleged
that Robertson and Rosado had responsibilities pertaining to detainee
transport. Under the terms of the Service Agreement,



       1 CCA Policy 9-101 similarly mandates that “[o]nly staff of the same gender as the
residents being transported will be assigned to transport residents that bond out.” Complaint
at ¶ 70. Moreover, the Service Agreement contained performance standards regarding sexual
assault prevention, and the Complaint accordingly alleged that COTRs had a “direct and
personal responsibility to take the measures necessary to prevent such sexual assaults.” Id.
at ¶¶ 228–30.
                                             3
    Case: 13-50459     Document: 00512619827      Page: 4   Date Filed: 05/06/2014



                                  No. 13-50459
             CCA would provide, “upon request and as scheduled
             by the COTR or Contracting Officer, necessary escort
             and transportation services for residents to and from
             designated locations.” . . . Pursuant to Attachment 1
             [to the Service Agreement], “[t]ransportation routes
             and scheduling [had to] be accomplished in the most
             economical manner as approved by the COTR.”
             Moreover . . . , CCA “had to establish a communication
             system that [had] direct and immediate contact with
             all vehicles . . . .” . . . Thus, the [Service Agreement]
             contemplated the ICE Defendants having direct and
             personal involvement with the details of transports.

Id. at ¶¶ 226–27 (quoting Service Agreement, art. III.D, attachment 1).
Plaintiffs further alleged that COTRs had access to logbooks and reports
related to Hutto’s operations. Id. at ¶ 223. These documents indicated that
during the period relevant to this action, at least 22 male officers made a total
of 77 transport trips with female detainees without a female officer present.
Id. at ¶¶ 72–74.
      In summarizing their cause of action, Plaintiffs alleged that Robertson
and Rosado
             exhibited deliberate indifference in their respective
             capacities by (1) willfully blinding themselves to the
             need to implement steps to prevent sexual assault
             during transport activities, even when those steps
             were required by applicable contracts, policies, and
             standards; and (2) failing appropriately to monitor
             transport activities which they knew to be proceeding
             in violation of applicable contracts, policies, and
             standards, under circumstances in which they knew
             that the applicable contracts, policies, and standards
             were designed to prevent sexual assault on the named
             plaintiffs and on the other members of the Class.




                                        4
    Case: 13-50459      Document: 00512619827    Page: 5   Date Filed: 05/06/2014



                                  No. 13-50459
Id. at ¶ 242.   Additionally, Plaintiffs alleged that Robertson and Rosado
showed “deliberate indifference” to the “risk of assault and sexual assault” on
Plaintiffs, which risk was “clear, obvious, and ongoing.” Id. at ¶ 243–44.
      Before the district court, Robertson and Rosado moved to dismiss on
grounds that a Bivens action could not be brought against COTRs and that
they were entitled to qualified immunity. A magistrate judge recommended
that the motion be denied, and the district court approved and accepted the
recommendation. Robertson and Rosado now appeal, contending that they are
entitled to qualified immunity.
                                       II
      We review de novo a district court’s denial of a motion to dismiss on
qualified immunity grounds. Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir.
2011) (en banc). Although we “construe facts in the light most favorable to the
nonmoving party,” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011), we
must “identify[] pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth,” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009).   “When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. A complaint must fail if it offers only “naked
assertions devoid of further factual enhancement.” Id. at 678 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)) (internal quotation marks and
alterations omitted).
                                      III
      Robertson and Rosado contend that because they are entitled to qualified
immunity, the district court erred in denying their motion to dismiss.
      An action alleging that a federal government actor committed
constitutional violations must be brought under Bivens v. Six Unknown Named


                                       5
     Case: 13-50459       Document: 00512619827          Page: 6     Date Filed: 05/06/2014



                                       No. 13-50459
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 2 However, the
government actor may be entitled to qualified immunity protecting him “from
civil damages liability unless the official violated a statutory or constitutional
right that was clearly established at the time of the challenged conduct.”
Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012). “[E]valuating qualified
immunity is a two-step process, and the burden is on the plaintiff to prove that
a government official is not entitled to qualified immunity.” Wyatt v. Fletcher,
718 F.3d 496, 502 (5th Cir. 2013). First, the plaintiff must allege “a violation
of a clearly established constitutional or statutory right.” Id. A right is clearly
established if “existing precedent [has] placed the statutory or constitutional
question beyond debate.” Morgan, 659 F.3d at 371 (citation omitted). If the
first step is satisfied, we must “determine whether the defendant’s conduct was
objectively reasonable.” Wyatt, 718 F.3d at 503.
       When a detainee alleges that a federal government official’s episodic act
or omission violated her Fifth Amendment due process right to basic human
needs, we must decide whether the official exhibited deliberate indifference
under Farmer v. Brennan, 511 U.S. 825 (1994). Cf. Hare v. City of Corinth, 74
F.3d 633, 636, 648–49 (5th Cir. 1996) (en banc) (applying Farmer’s Eighth
Amendment deliberate indifference test to pretrial detainee’s Fourteenth
Amendment due process claim against state officials).                        In Farmer, a
transsexual inmate brought a Bivens action against federal prison officials who



       2  We assume without deciding that Bivens is an appropriate vehicle for Plaintiffs’ Fifth
Amendment claim. Before the district court, Robertson and Rosado contended that under
Minneci v. Pollard, 132 S. Ct. 617 (2012), a Bivens action is unavailable against Hutto
COTRs, who lacked direct custodial responsibility for detainees. The district court disagreed,
concluding that Minneci does not govern this case because Robertson and Rosado are federal
officials, not employees of a private entity. On appeal, Robertson and Rosado have abandoned
the argument that a Bivens action is categorically unavailable, and we need not consider it
further. See United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (“It is a well worn
principle that the failure to raise an issue on appeal constitutes waiver of that argument.”).
                                               6
    Case: 13-50459    Document: 00512619827     Page: 7   Date Filed: 05/06/2014



                                 No. 13-50459
allegedly failed to prevent a sexual assault, in violation of the inmate’s Eighth
Amendment rights. The court of appeals affirmed the district court’s grant of
summary judgment to the defendants on the grounds that the victim had failed
to put authorities on notice of any potential danger. The Supreme Court held
that a prison official violates an inmate’s Eighth Amendment rights by
showing “deliberate indifference” to a substantial risk of serious harm when
the official “knows of and disregards an excessive risk to inmate health or
safety.”   Farmer, 511 U.S. at 837.      The court adopted a requirement of
subjective indifference and explained that “the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. This standard requires
more than negligence, but less than a “purpose of causing harm” or “knowledge
that harm will result.” Id. at 835. Concluding that the district court erred in
requiring that the victim notify the defendants in advance about a risk of harm,
the Supreme Court reversed and remanded the case.
                                       A
      Under Iqbal, we first look to Plaintiffs’ Complaint, distilling the well-
pleaded factual allegations—whose truth we are bound to presume at this
stage—from any unsupported legal conclusions—whose truth we cannot
assume.    We conclude that the Complaint contains well-pleaded factual
allegations that Robertson and Rosado had actual knowledge both of the
Service Agreement violations and of the violated provision’s objective of
preventing sexual assault.
      In the statement of their Bivens claim, Plaintiffs alleged that Robertson
and Rosado “exhibited deliberate indifference” in violation of Plaintiffs’ Fifth
Amendment rights. At the outset, we observe that this allegation of “deliberate
indifference” is merely a legal conclusion.     See Farmer, 511 U.S. at 837
(articulating deliberate indifference test).   Although this conclusion might
                                       7
     Case: 13-50459       Document: 00512619827         Page: 8    Date Filed: 05/06/2014



                                      No. 13-50459
have been “couched as a factual allegation,” we cannot accept its truth for
purposes of evaluating the sufficiency of the pleadings. Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555).
       However, the Complaint did make two relevant factual allegations: 1)
that Robertson and Rosado “willfully blind[ed]” themselves to violations of the
Service Agreement pertaining to sexual assault prevention, and 2) that
Robertson and Rosado failed to monitor detainee transports that they “knew
to be proceeding in violation of applicable contracts, policies, and standards,”
whose purpose they understood. Complaint at ¶ 242. Stated simply, the
Complaint alleged that Robertson and Rosado were aware both of violations of
the Service Agreement provision requiring at least one transport officer to be
the same gender as that of transported detainees, and of the provision’s
assault-preventing rationale. 3
       These factual claims are “well-pleaded factual allegations” and not
merely legal “conclusions.” Iqbal, 556 U.S. at 679. To support their claims,
Plaintiffs further alleged that Robertson and Rosado, in addition to their duties
to administer the Service Agreement, had on-site operational duties to arrange
for detainee transportation, Complaint at ¶¶ 221–22, 226–27; had access to
records showing that lone male officers transported female detainees on
numerous occasions, id. at ¶¶ 74, 223; and understood the purpose of the
Service Agreement provision given their awareness of ICE’s history, id. at ¶
52. Although these supporting allegations do not conclusively establish that
Robertson and Rosado knew of the Service Agreement violations and of the
violated provision’s rationale, we assume—without deciding—the truth of


       3 Although other policies and standards are relevant, see supra n.1, they have the
same legal significance in this case as the violated provision of the Service Agreement: They
are obligations to prevent sexual assault during detainee transport, of which Robertson and
Rosado were aware, and whose rationale they understood. To simplify our discussion, we
focus our discussion on the violation of the Service Agreement provision.
                                             8
     Case: 13-50459       Document: 00512619827         Page: 9     Date Filed: 05/06/2014



                                       No. 13-50459
Plaintiffs’ factual allegations because they are not “naked assertions devoid of
further factual enhancement.”           Iqbal, 556 U.S. at 678 (citation, quotation
marks, and alterations omitted). 4
       Robertson and Rosado submit that “alleged access to information” falls
short of an allegation of subjective awareness of the Service Agreement
violations. Furthermore, they read Newton v. City of Henderson, 47 F.3d 746
(5th Cir. 1995), to mean that access to information cannot prove constructive
knowledge of that information, and rely on Hare, 74 F.3d at 650, for the
proposition that constructive knowledge cannot establish the actual knowledge
required by Farmer.
       We disagree. First, Plaintiffs did allege that Robertson and Rosado had
actual, subjective knowledge of the Service Agreement violations. Complaint
at ¶ 242. And as already explained, this allegation is not a mere “naked
assertio[n]”; it is supported—though not proven—by the additional factual
allegations recounted above. Iqbal, 556 U.S. at 678. Although it is possible
that Robertson and Rosado were mere dispatchers ignorant of the number or
gender of assigned officers, or that they never reviewed the logbooks to which
they had access, our task is not to weigh evidence at the motion to dismiss
stage. Robertson and Rosado either misread the Complaint as alleging only
access to information, or else misunderstand Iqbal to require us to assess the
plausibility of factual allegations—as opposed to that of legal claims.
       The cases that Robertson and Rosado invoke are also unavailing. In
Newton, we reviewed the full record underlying a district court’s bench trial



       4  If Plaintiffs had merely recited the legal test in Farmer by alleging that Robertson
and Rosado were “aware of facts from which the inference could be drawn that a substantial
risk of serious harm existed, and also drew the inference,” then their allegation would be no
more than “a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678. Here,
by contrast, Plaintiffs allege specific knowledge on the part of Robertson and Rosado—they
knew about the Service Agreement violations and the rationale behind the violated provision.
                                              9
    Case: 13-50459        Document: 00512619827          Page: 10     Date Filed: 05/06/2014



                                       No. 13-50459
findings, and we reasoned that the fact of access to information alone was
“insufficient” because of other evidence showing that knowledge could not be
so imputed. Newton, 47 F.3d at 749. And in the portion of Hare that Robertson
and Rosado invoke, we merely articulated the well-established rule of Farmer:
an officer is liable under the Eighth Amendment only if he actually disregards
subjective awareness of a substantial risk, and not where he objectively
“should have been aware” of the risk. Hare, 74 F.3d at 650.
       We accordingly conclude that Plaintiffs properly alleged that Robertson
and Rosado had actual knowledge both of the violations of the Service
Agreement provision and of that provision’s assault-preventing objective. 5
                                              B
       Accepting the truth of the facts as alleged, we next consider whether
these facts are sufficient to nudge the Bivens claim across the “plausibility”
threshold. Iqbal, 556 U.S. at 678. That is, we must decide whether Robertson
and Rosado’s knowledge of violations of the Service Agreement provision
prohibiting a lone male officer from transporting female detainees, where they
also knew the provision aimed to prevent sexual assault, 6 make plausible
Plaintiffs’ claim that Robertson and Rosado were deliberately indifferent to a
substantial risk of serious harm, in violation of “clearly established” law.




       5 During the briefing schedule, the district court issued an order granting the United
States’ motion to dismiss Plaintiffs’ separate claim under the Federal Tort Claims Act
(“FTCA”), on grounds that the claim falls within the discretionary-function exception to the
FTCA’s waiver of sovereign immunity. Certain language in this later order seems to be in
tension with the order at issue in this appeal. See Order on the United States’ Motion to
Dismiss, No. 1:12-cv-00605-LY, at *6 (W.D. Tex. Aug. 7, 2013) (“Plaintiffs have failed to allege
that any inherently discretionary function was performed in a deliberately indifferent
manner.”). However, this later order is not before us, and we decline to consider it.
       6 Because we accept the facts as alleged, we reject Robertson and Rosado’s suggestion

that this case concerns only the negligent monitoring of a contract. Plaintiffs alleged
knowledge of the Service Agreement violations, and of the violated provision’s purpose.
                                              10
    Case: 13-50459        Document: 00512619827          Page: 11     Date Filed: 05/06/2014



                                       No. 13-50459
Wyatt, 718 F.3d at 502. 7 Even presuming the truth of their factual allegations,
we conclude that Plaintiffs’ claim is not plausible because no clearly
established law provides that violations of contractual terms that aim to
prevent sexual assault are “facts from which the inference could be drawn that
a substantial risk of serious harm exists.” Farmer, 511 U.S. at 837. 8
       In Farmer, the Supreme Court held that in order for an official to be
constitutionally liable for showing deliberate indifference, “the official must
both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”
Id. (emphasis added). Thus, the plausibility of Plaintiffs’ claim turns on the
threshold question of whether, under clearly established law, the alleged
Service Agreement violations constitute “facts from which the inference could
be drawn that a substantial risk of serious harm exists.” Id.
       Farmer teaches that such facts must be more indicative of an actual,
substantial risk of harm than are the violations of contractual terms designed
to minimize harm, which are here alleged. At one extreme, an official need not
anticipate the precise identity of an attacker or victim; it is enough that he is
aware of the substantial risk. Id. at 843. But by the same token, the Court
recognized that the “excessive risk to . . . health or safety,” id. at 837, must
reveal itself to the official in concrete form—e.g., prison inmates who forgo



       7  On appeal, Robertson and Rosado do not contend that their actions were “objectively
reasonable” under the second step of qualified immunity analysis. Wyatt, 718 F.3d at 503.
        8 We decline to address Plaintiffs’ suggestion that the fact of a lone male officer’s

transporting a female detainee, standing alone, supports an inference of a “substantial risk
of serious harm.” They proffer a range of reasons—the “extreme level of authority” exercised
by transportation officers, the detainees’ lack of English skills and familiarity with regions
through which they were transported, the “fears and stresses endemic to [the detainees’]
tenuous status,” and the history of sexual assault informing the Service Agreement provision.
All but the last of these factors could manifest themselves throughout the detention facility.
As both parties recognize, what distinguishes this case is the alleged violations of the Service
Agreement provision, and we base our legal analysis on the significance of this alleged fact.
                                              11
    Case: 13-50459        Document: 00512619827          Page: 12     Date Filed: 05/06/2014



                                       No. 13-50459
sleep and spend nights next to the guards’ station out of a fear of rape, signs of
exposure to infectious disease, id. at 843–44. In Farmer itself, the victim was
a transsexual placed into a facility known specifically for its history of sexual
assault. Id. at 848–50. 9
       Here, even if Robertson and Rosado knew of the Service Agreement
violations, no clearly established law demonstrates that these contractual
violations are sufficiently proximate to a substantial risk of serious harm. To
be sure, the relevant Service Agreement provision creates a background legal
obligation that, if fulfilled, likely helps minimize the risk of sexual assault
during detainee transport. But Plaintiffs, in effect, want us to ratify the
inverse statement: If an official knows of a contractual violation, then the risk
of sexual assault automatically becomes constitutionally “substantial.”
Farmer, 511 U.S. at 837. This we decline to do. Even if we were to construe
the Fifth Amendment to extend so far, no established authority at the time of
the assaults would have enabled Plaintiffs to overcome qualified immunity.
Wyatt, 718 F.3d at 503 (explaining that clearly established law must derive
from “controlling authority—or a robust consensus of persuasive authority—
that defines the contours of the right in question with a high degree of
particularity” at the time of challenged conduct (citation omitted)). The law at
the time was not “beyond debate,” and neither is it today. Morgan, 659 F.3d
at 371 (citation omitted). 10


       9  See also United States v. Gonzales, 436 F.3d 560, 573–74 (5th Cir. 2006) (upholding
finding of deliberate indifference based on evidence that officers failed to seek medical
assistance for a pretrial detainee who was “foaming at the mouth,” begging for help, and
yelling “take me to a hospital,” and with whom they had “close physical contact”).
        10 The authorities relied upon by the district court and Plaintiffs are unpersuasive. In

Hostetler v. Green, 323 F. App’x 653 (10th Cir. 2009) (unpublished), although the Tenth
Circuit noted that a guard’s knowing violation of a policy, which he knew “was enacted
specifically to prevent sexual assault” did support “an inference that he was aware of an
increased risk of sexual assault,” id. at 658, the court also explained that it had “no occasion
to decide whether this fact [of a knowing policy violation] alone is sufficient to create an
                                              12
    Case: 13-50459        Document: 00512619827          Page: 13     Date Filed: 05/06/2014



                                       No. 13-50459
       Crucially, the Complaint does not allege that any concrete facts betrayed
a heightened risk of sexual assault during the transports—for example, that
during the period of the assaults, Robertson and Rosado had knowledge of prior
incidents of transport-related sexual assault at Hutto; of complaints, fears, or
protests by transported detainees; or of the assaults themselves (in time to
prevent them). The 2007 incident at Hutto in which the CCA-employed guard
allegedly had sex with a detainee in her cell is also insufficient; the guard was
terminated and the incident did not stem from any persistent risk related to
detainee transport. Although Robertson and Rosado were allegedly aware of
ICE’s past struggles with sexual assault in general, the Complaint fails to
allege any “longstanding, pervasive, well-documented, or expressly noted” risk
of assaults either at Hutto or during detainee transports. Farmer, 511 U.S. at
842. Here, we simply cannot equate knowledge of the Service Agreement
violations with the violation of a “clearly established” constitutional right.
       The requirement that “facts from which the inference could be drawn
that a substantial risk of serious harm exists” be proximate to the risk at issue
accords with Farmer’s teaching that deliberate indifference has a subjective


inference of deliberate indifference,” given that other facts indicated a substantial risk of
harm, id. at 658 n.2. Here, we consider the question that Hostetler reserved. Similarly, in
Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008), while the Tenth Circuit observed that a
“knowing failure to enforce policies necessary to the safety of inmates may rise to the level of
deliberate indifference,” id. at 919, in that case, ample evidence demonstrated that the policy
was indeed “necessary” given the jail’s troubled history, of which the defendant was fully
aware, id. Here, by contrast, the violated policy aimed to minimize a risk of sexual assault,
but no other allegations established that strict enforcement was “necessary” to protecting the
detainees during transport. Lastly, Cash v. County of Erie, 654 F.3d 324 (2d Cir. 2011), did
not concern knowledge of a rule violation. Rather, Cash held that despite a rule (and laws)
prohibiting any sexual contact between inmates and jail staff, a jury could have concluded
that, based on evidence of a prior rule violation, the county was deliberately indifferent in
failing to do more to prevent assaults. Id. at 334–38. Furthermore, the holding of Cash
turned on its review of a judgment notwithstanding the verdict: The court based its decision
on issues of “fact” and evidence before the jury rather than “as a matter of law” on the
meaning of deliberate indifference. Id. at 339. Additionally, because Cash was decided after
the events at issue here, it cannot constitute “clearly established” law for this appeal.
                                              13
    Case: 13-50459        Document: 00512619827           Page: 14     Date Filed: 05/06/2014



                                        No. 13-50459
component absent from the civil law standards of negligence and objective
recklessness.      Id. at 837. 11     As the Supreme Court explained in Farmer,
deliberate indifference is neither mere negligence nor an objective standard
defined by whether an official “should have perceived” a risk. Id. at 838.
Rather, here, we must ask whether Robertson and Rosado “consciously
disregard[ed]” the substantial risk. Id. at 839 (citation omitted). 12
       Accepting the truth of Plaintiffs’ factual allegations, we hold that no
clearly established law provides that an official’s knowledge of contractual
breaches and of the breached provision’s aim to prevent sexual assault of
detainees, standing alone, amounts to deliberate indifference in violation of a
detainee’s Fifth Amendment rights, because no controlling authority provides
that such breaches are “facts from which the inference could be drawn that a
substantial risk of serious harm exists.”                  Farmer, 511 U.S. at 837. 13



       11   An objective test of deliberate indifference applies to claims challenging a
municipality’s policies or customs, not acts or omissions of individual defendants as we have
here. See Farmer, 511 U.S. at 840–42; Hare, 74 F.3d at 649 n.4.
        12 See also Farmer, 511 U.S. at 837 (describing test as “consistent with recklessness

in the criminal law”); id. at 839–40 (“[S]ubjective recklessness as used in the criminal law is
a familiar and workable standard . . . , and we adopt it as the test for ‘deliberate indifference’
under the Eighth Amendment.”).
        13 Neither is there clearly established law to support Robertson and Rosado’s

contention that knowingly permitting violations of a contractual provision known to prevent
harm do not constitute deliberate indifference. Robertson and Rosado mistakenly rely on
Scott v. Moore, 114 F.3d 51 (5th Cir. 1997) (en banc). In Scott, a pretrial detainee was sexually
assaulted by the lone male jailor on duty and brought a § 1983 action against the city. We
reasoned that the city failed to take additional precautions to prevent sexual assault, but
that no evidence showed it was aware of any resulting substantial risk. We concluded that
there was no genuine dispute of fact about the municipality’s lack of objective deliberate
indifference. Id. at 54–55. Here, by contrast, Plaintiffs allege that Robertson and Rosado
knowingly permitted violations of existing legal obligations, whose purpose they understood
as preventing sexual assault. Hovater v. Robinson, 1 F.3d 1063 (10th Cir. 1993), is also
unpersuasive because here, we assume the truth of Plaintiffs’ factual allegation that
Robertson and Rosado knew of both the violations and the assault-preventing objective of the
violated provision. See id. at 1068 (noting that the “asserted rationale for the policy [to
prevent sexual assault was] not supported by any evidence in [the] record.”). Lastly, Gagne
v. City of Galveston, 805 F.2d 558 (5th Cir. 1986), did not address a knowledge of a rule
                                               14
    Case: 13-50459        Document: 00512619827          Page: 15     Date Filed: 05/06/2014



                                       No. 13-50459
Accordingly, because the Complaint did not plausibly allege the violation of a
“clearly established” constitutional right, Robertson and Rosado are entitled to
qualified immunity, Wyatt, 718 F.3d at 502, and the district court erred in
denying their motion to dismiss. 14
                                              C
       Plaintiffs claim that assessing the Service Agreement violations in
isolation is not our task, as discovery has not been taken. In Plaintiffs’ view,
focusing solely on the contractual violations presumes that no other evidence
could support their Bivens claim. Plaintiffs accordingly assert that they have
a “right to seek discovery . . . to build the necessary record in the case at hand.”
       Plaintiffs misunderstand our standard of review at the motion to dismiss
stage. We recognize that the question of whether an official “had the requisite
knowledge of a substantial risk is a question of fact” generally best resolved by
discovery and fact-finding, should a claim survive a motion to dismiss. Farmer,
511 U.S. at 842. But here, at the motion to dismiss stage, we are tasked with
deciding whether Plaintiffs have stated a plausible “claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). In so doing, we cannot accept
Plaintiffs’ invitation to apply the “no set of facts” test, which the Supreme
Court has firmly rejected. Twombly, 550 U.S. at 562–63; see also Iqbal, 556
U.S. at 670. It is, of course, conceivable that some set of facts could make
Plaintiffs’ claim plausible. Hypothetically, for example, Robertson and Rosado
might have known of Dunn’s dangerous proclivities, or they might have




violation, so we find unhelpful its proposition that the mere violation of a rule preventing
prisoner suicide does not amount to the violation of a clearly established constitutional right.
        14 We hold only that it is not clearly established that Farmer extends to the facts

alleged here, and do not decide whether this case presents any constitutional violation. See
Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that courts need not decide the
constitutional violation before reaching the question of whether the alleged right is “clearly
established,” overruling in part Saucier v. Katz, 553 U.S. 194 (2001)).
                                              15
    Case: 13-50459      Document: 00512619827         Page: 16    Date Filed: 05/06/2014



                                     No. 13-50459
ignored contemporaneous distress calls from victims of or witnesses to the
assaults. But “a plaintiff armed with nothing more than conclusions” cannot
“unlock the doors of discovery.” Iqbal, 556 U.S. at 678–79. Here, Plaintiffs
have proffered a legal conclusion that Robertson and Rosado were deliberately
indifferent, and for the reasons detailed above, their factual allegations, even
assumed as true, do not make this conclusion plausible. 15 Accordingly, the
Complaint gives Plaintiffs no right to discovery.
      At oral argument, Plaintiffs further suggested that to require
heightened, particularized indications of substantial risk at the pleading stage
would run afoul of Farmer. Farmer reasons that “a subjective approach to
deliberate indifference does not require a prisoner seeking a remedy for unsafe
conditions to await a tragic event such as an actual assault before obtaining
relief.” Farmer, 511 U.S. at 845 (alterations and internal quotations omitted).
Similarly, an official need not know the victim’s or attacker’s identity in
advance. Id. at 843.
      But our holding today fully accords with Farmer. Indeed, we recognize
that an action alleging subjective deliberate indifference can proceed without
a completed attack or confirmed potential victims or aggressors.                     Such
requirements would set the bar far too high to make this constitutional
protection meaningful. Today, however, we observe that clearly established
law has not set this bar as low as Plaintiffs would have it.                  No clearly
established law provides that violations of a contractual provision aiming to
minimize risk are “facts from which the inference could be drawn that a
substantial risk of serious harm exists.” Id. at 837.




      15  See also Iqbal, 556 U.S. at 684–86 (rejecting claim that lower court’s promise of
limiting discovery to qualified immunity issue, in anticipation of summary judgment motion,
permits relaxed pleading standard).
                                            16
   Case: 13-50459   Document: 00512619827    Page: 17   Date Filed: 05/06/2014



                              No. 13-50459
                                   IV
     For the foregoing reasons, we conclude that Robertson and Rosado are
entitled to qualified immunity, and we REVERSE the district court and
REMAND with instructions to dismiss.




                                   17
