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E.D. v. Sharkey

United States Court of Appeals, Third Circuit

July 1, 2019

E. D.
v.
DANIEL SHARKEY; BERKS COUNTY RESIDENTIAL CENTER IMMIGRATION FAMILY CENTER, (BCRC-IFC); COUNTY OF BERKS, PENNSYLVANIA; DIANE EDWARDS, DIRECTOR OF BCRC-IFC; JOHN BEHM; JAMIE HIMMELBERGER; BRITTNEY ROTHERMEL; ERIKA TAYLOR; MATTHEW MALINOWSKI; JEREMIAH/JOSH PETRY, ICE EMPLOYEE COUNTY OF BERKS, PENNSYLVANIA; DIANE EDWARDS, DIRECTOR OF BCRC-IFC; JAMIE HIMMELBERGER; BRITTNEY ROTHERMEL; ERIKA TAYLOR; MATTHEW MALINOWSKI, Appellants

          Argued March 6, 2019

          On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5-16-cv-02750) District Judge: Honorable Edward G. Smith

          Matthew J. Connell [ARGUED], Tricia M. Ambrose MacMain Law Group Counsel of Appellant

          Su Ming Yeh [ARGUED], Angus R. Love, Matthew J. Archambeault Counsel of Appellee

          Sandra S. Park, Mary Catherine Roper, Counsel for Amicus Appellees

          Before: SMITH, Chief Judge, AMBRO and RESTREPO, Circuit Judges.

          OPINION

          RESTREPO, CIRCUIT JUDGE

         E.D., a female immigration detainee at the Berks County Residential Center -Immigration Family Center (BCRC), brought a § 1983 action against employee Daniel Sharkey, alleging that he violated her Fourteenth Amendment right to bodily integrity after the two had sexual relations. Included in the suit were Sharkey's co-workers and supervisor at BCRC (collectively, the "Defendants"), who E.D. alleged were deliberately indifferent to the violation, as well as Berks County, which allegedly failed to implement policies to prevent the violating conduct. The Defendants and Berks County moved for summary judgment, arguing that the individual staff members were entitled to qualified immunity and that E.D. could not prove a municipal liability claim against the County. The District Court denied their motion, and they have filed this interlocutory appeal.[1]

         In determining whether to affirm the denial of qualified immunity, we necessarily address whether immigration detainees are entitled to the same constitutional protections afforded by the Due Process Clause of the Fourteenth Amendment as pre-trial detainees. We hold that immigration detainees are entitled to such protections and, for the reasons that follow, will dismiss the appeal pertaining to Berks County for lack of appellate jurisdiction and will affirm the denial of the Defendants' request for qualified immunity.

         I. Factual and Procedural Background

         E.D. entered the United States with her three-year-old son in or around May 2014, seeking refuge from domestic violence and sexual assault in Honduras. She and her son were transferred from an immigration facility in Texas to the BCRC, which detains approximately ninety women and children pursuant to a contract with United States Immigration and Customs Enforcement (ICE).

         Approximately a month after E.D.'s arrival, BCRC employee Daniel Sharkey began giving food and treats to E.D. and her son. His overtures escalated to allowing E.D. to use his cell phone and promising to help with her immigration status. Within weeks Sharkey began to touch and kiss E.D., who refused to reciprocate. He turned angry, insulted E.D., and told her she would be deported if she told anyone about his advances.

         In July 2014, Sharkey began forcing E.D. to engage in sexual intercourse. On one occasion they had intercourse in a bathroom and a seven-year-old girl witnessed the encounter. In August 2014, E.D. and Sharkey were having intercourse in another resident's room when the resident returned. Within the month, Sharkey either left or was terminated from his employment at BCRC. He was later arrested and convicted of institutional sexual assault under Pennsylvania statute 18 Pa.C.S.A. § 3124.2, which was enacted in February 2012.

         E.D. alleges that, by August 2014, staff members at the BCRC were aware of Sharkey's conduct but failed to take steps to protect her. Eventually detainees complained and BCRC Director Diane Edwards was notified of the relationship. An investigation was launched. When questioned by staff members, E.D. denied Sharkey had sexually assaulted her because she feared deportation. E.D. eventually told her immigration attorney about Sharkey's conduct, and her attorney relayed the incidents to ICE officials. E.D. alleges that, after the relationship was reported, the defendant BCRC staff members retaliated by denying her and her son privileges and instituting a restrictive clothing policy that led to other detainees isolating her.

         According to E.D., ICE policies and standards prohibit staff from sexually abusing immigration detainees and define any sexual contact, regardless of whether it is consensual, as sexual abuse. Moreover, ICE standards require that the Field Office Director be notified any time an employee, contractor, or volunteer is alleged to be a perpetrator of sexual abuse against a detainee. The ICE/DRO (Detention and Removal Operations) Residential Standards require residential facilities holding immigration detainees to affirmatively act to prevent sexual abuse and sexual assault of the residents, which includes providing staff training and prompt, effective intervention.

         In June 2017, E.D. filed her third amended complaint in District Court against Daniel Sharkey, Berks County, the BCRC, the center's director Diane Edwards, and staff members John Behm, Janie Himmelberger, Brittany Rothermel, Erika Taylor, and Matthew Malinowski.[2] E.D. claimed, inter alia, that her Fourteenth Amendment due process rights were violated by the employees and supervisor who were deliberately indifferent to Sharkey's conduct and by Berks County for failing to implement policies and procedures to prevent sexual abuse at the residential center. She further alleged that the Defendants retaliated against her after she reported the sexual abuse, thereby violating her due process and First Amendment rights. After the completion of discovery, all the defendants except for Daniel Sharkey moved for summary judgment.

         The District Court granted the defendants' joint motion with regard to claims against the BCRC, ruling that it was not a proper defendant under 42 U.S.C. § 1983 because it did not have an existence separate from Berks County. The Court also granted summary judgment in favor of BCRC employee John Behm and rejected E.D.'s claims for punitive damages against Berks County, but otherwise denied the motion. The remaining defendants filed an interlocutory appeal challenging the District Court's conclusion that E.D. pled the violation of a known constitutional right, that the ...


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