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Case 5:18-cv-00933-XR-ESC Document 1 Filed 09/09/18 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

AUDRY LOUISE HAMELL and §


KAYLA MARIE ROCHA, §
Plaintiffs, §
§
v. §
§ CIVIL ACTION NO. 5:18-cv-933
DIMMIT COUNTY, TEXAS, DIMMIT §
COUNTY SHERIFF MARION BOYD, § JURY TRIAL DEMANDED
FORMER DIMMIT COUNTY §
DETENTION OFFICER MARCO §
LUEVANO, INDIVIDUALLY, §
Defendants. §

ORIGINAL COMPLAINT

NOW COME AUDRY LOUISE HAMELL and KAYLA MARIE ROCHA

by and through undersigned counsel, and make this Original Complaint against

Defendants, DIMMIT COUNTY, TEXAS, DIMMIT COUNTY SHERIFF

MARION BOYD and FORMER DIMMIT COUNTY DETENTION OFFICER

MARCO LUEVANO IN HIS INDIVIDUAL CAPACITY, and allege as follows:

INTRODUCTION

1. This is a civil rights action for Constitutional violations and state law personal

injuries suffered by Plaintiffs AUDRY LOUISE HAMELL and KAYLA

MARIE ROCHA (“Plaintiffs” of “Hamell” and “Rocha” as appropriate)

because of personal injuries and intentional indifference. Plaintiffs bring this

action for compensatory damages under 28 U.S.C. §§ 1331 and 1343, 42

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U.S.C. §1983 and 1988 because Defendants jointly and severally deprived

Plaintiffs of their federally protected rights, privileges and immunities.

2. Plaintiffs bring this action, against Dimmit County, Texas, Dimmit County

Sheriff Marion Boyd and former Dimmit County Detention Officer Marco

Luevano in his Individual Capacity pursuant to Tex. Civ. Prac. & Rem. Code

§71.000 et. seq. and as applied through 42 U.S.C. §1983 and §1988.

JURISDICTION AND VENUE

3. This Court has jurisdiction over the federal claims of the Plaintiffs in this

action, under 28 U.S.C. §§ 1331 and 1343, 42 U.S.C §§1983 and 1988, and

supplemental jurisdiction under 28 U.S.C. § 1367(a), to hear Plaintiffs’ state

law claims, if any.

4. Venue is proper in this Court pursuant to 28 USC §1391(b) as all material

facts out of which this suit arises occurred within the Western District of

Texas, San Antonio Division.

PARTIES

5. Plaintiffs were at the pertinent times to this claim in the custody of the Dimmit

County Sheriff’s Department and the confines of the Dimmit County Jail.

6. Plaintiff, Audry Louise Hamell, is a resident of Jones County, Texas, currently

an inmate at the Hobby Unit in Marlin, Falls County, Texas.

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7. Plaintiff, Kayla Marie Rocha, is a resident of Dimmit County, Texas, currently

an inmate in the Ellen Halbert Unit in Burnet, Burnet County, Texas.

8. Defendant Dimmit County, Texas is a governmental body existing under the

laws of the State of Texas and may be served with process by serving the

County Judge Francisco G. Ponce at 212 N. 4th Street, Carrizo Springs, Texas

78834.

9. Defendant Marion Boyd is the Sheriff of Dimmit County, Texas. He may be

served with process at 669 Industrial Blvd., Carrizo Springs, Texas 78834.

10. Defendant Marco Luevano is a former employee of Dimmit County, Texas.

He may be served with process at 181 FM 1436, La Pryor, Texas 78872 or

wherever he is found.

FACTS

11. Dimmit County is policymaker: Dimmit County, Texas is a county in the

State of Texas and its county seat is Carrizo Springs, Texas. Dimmit County,

Texas is vested with the government and management of the Dimmit County

Jail and with supervision and protection of the prisoners and detainees within

the jail, as well as the training and supervision of the jail employees. At the

time of the sexual assaults of Plaintiffs in September of 2016 and December

of 2016, respectively, Detention Officer Marco Luevano (“Luevano”), had

been under indictment since July of 2016 for felony tampering with a

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governmental record. Luevano was indicted for failing to properly perform

his duties in the jail following an inmate’s suicide, and his falsification of an

official record done in an attempt to cover his failures. Despite his known

failures to properly perform his duties as a jailer, his criminal actions in

falsifying an official record, all resulting in his Indictment, he continued to

work unsupervised in the Dimmit County Jail.

12. Despite knowledge of the Texas Ranger investigation of Luevano’s tampering

and knowledge of his impending indictment, Sheriff Boyd and Dimmit

County, Texas allowed Luevano to continue with no extra oversight in the

jail. The sexual assaults of Plaintiffs were a continuing violation and only

ceased for Hamell when she was transferred out of the custody of Dimmit

County and into the custody of the Texas Department of Criminal Justice and

for Rocha when Luevano was finally terminated from his position (for which

Rocha received retaliatory actions from the other detention officers who

blamed her for Luevano’s termination).

13. Sheriff Marion Boyd was delegated policy making authority for the policies,

procedures, rules and training for the Dimmit County Jail. At the time that

Plaintiffs were sexually assaulted, between September of 2016 and December

31, 2016, and later, Sheriff Marion Boyd was delegated policy making

authority for the policies, procedures, rules and training for the Dimmit

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County Jail and intentionally failed to take timely and adequate measures to

protect female inmates.

14. Detention Officer Marco Luevano sexually assaults Hammell: Hamell

entered the Dimmit County Jail prior to the incident in question and was only

very briefly detained. After that, Luevano, with full knowledge of the Dimmit

County Sheriff’s Office, continually contacted Hamell through social media.

Such actions by a detention officer she only briefly met in his official capacity

made Hamell unsure as to how to react to this unwanted social media contact

from Luevano. Later, Hamell was arrested while travelling through Dimmit

County. From the moment she reentered the Dimmit County Jail as a pretrial

detainee, Luevano made lewd comments to her within the hearing of other

male detention officers. Then he began bringing her special items such as

soaps, headphones, coffee and candy, also with full knowledge of other

detention officers on duty and in violation of the policies and procedures for

a detention officer. The unwelcome and improper attention on Hamell by

Luevano was known by other inmates, detention officers and ratified by

Sheriff Marion Boyd. Finally, Luevano with the full knowledge of other

detention officers and with ratification by Sheriff Marion Boyd moved

Plaintiff Hamell out of her shared cell and into a solo cell. This is when

Luevano’s sexual assaults of Plaintiffs began. Luevano would tell Plaintiff

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Hamell to take off her clothes and stand on the side of the cell and wait for

him. He would then enter her cell and command her to perform sexual acts

upon him and he would also force sex acts upon her. These illegal and

criminal actions continued for the remainder of Plaintiff Hamell’s

incarceration in Dimmit County, both as a pretrial detainee and later while

awaiting transfer to the Texas Department of Criminal Justice. Often other

male guards would stand as lookout for Luevano in exchange for Luevano

then acting as lookout for them so they could watch the female inmates,

including both Plaintiffs here, shower.

15. Detention Officer Marco Luevano sexually assaults Rocha: Similar to

Hamell, Rocha entered the jail and immediately began receiving unwanted

remarks and unwelcome attention from Luevano with the full knowledge of

other detention officers and ratified by Sheriff Marion Boyd. Rocha was

housed at the Dimmit County Jail as a pretrial detainee. In her first week in

this timeframe, Rocha was detoxifying. Luevano began bringing her gifts,

making lewd comments about her body parts nd offering to put money in her

commissary account. On his own volition, Luevano deposited $20.00 in

Rocha’s commissary account and told her that she owed him for it. Yet,

despite the oddity of a male detention officer depositing money into a female

inmate’s account in a jail with a capacity of only 95 inmates and with very

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few female inmates at any one time, no official in Dimmit County questioned

the already-indicted Luevano.

16. Rocha then woke up in the middle of the night and was startled to find

Luevano standing over her staring at her. She began covering herself with her

blanket and he told her to stop. Luevano assaulted Rocha on other occasions.

He was ultimately indicted for yanking her breasts which was caught on

camera and seized and upon information and belief viewed by the Texas

Rangers. Obviously, because of the Ranger’s investigation the District

Attorney in and for Dimmit County determined a crime had been committed

by Luevano.

17. Luevano harassed Rocha in retaliation for the Texas Rangers’

investigation of him and his subsequent indictment: After the

investigation into Luevano’s sexual assaults of female inmates began by the

Texas Rangers, the other male detention officers, as retaliation, then allowed

the male inmates to parade through the female detention area and exhibit their

penises to the female inmates while in their cells. Upon information and

belief, this occurred when Dimmit County somehow knowingly allowed its

camera system to “fail” or be inoperable for a few weeks period. This inaction

(or intentional act) regarding the cameras gave perfect cover for the retaliatory

harassment of the complaining females and female witnesses. Upon

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information and belief, Dimmit County has an ingrained set of policies,

procedures and practices allowing the wholesale sexual harassment of female

inmates by male detention officers (and male inmates under the direction of

male detention officers) and is willing to take unparalleled steps to protect its

system. Dimmit County has recently settled a non-inmate sexual harassment

case amongst its ranks. Maria Louisa Perez sued the County when it failed to

take any action over the severe sexual harassment from her superior at Dimmit

County.

18. Other female inmates witnessed the incidents: Another female inmate

witnessed Luevano’s sexual assaults and harassment on both Plaintiffs. Other

former female inmates will testify that the Dimmit County Sheriff’s Office

was aware of Luevano and other male detention officer’s sexual harassment

of female inmates. One witness kept detailed notes about what was occurring.

Once the Texas Rangers investigation into the sexual assaults began, the

women’s cells were tossed, and jail administrator Osvaldo Perez told all the

female inmates they were lying and took the female witness’s notes. Plaintiffs

do not know if Perez destroyed those notes or gave them to the Texas Rangers.

If those notes were destroyed by Perez, Plaintiffs then request both an

investigation into the intentional spoliation of evidence as well as sanctions

and a spoliation instruction against Dimmit County.

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19. Other victims: Also, upon information and belief, Luevano assaulted two

other females who had been incarcerated in the Dimmit County Jail. Plaintiffs

are locating these women, and they may be added as Plaintiffs in this lawsuit.

20. Suicide of Male Inmate: Luevano was under indictment in July of 2016

following the suicide death of a male inmate on April 11, 2016 at 3:15 a.m.

after this inmate, arrested on a misdemeanor charge had been in the custody

of Dimmit County for only approximately nine (9) hours. This person was

arrested for DWI and was placed in an observation unit due to his level of

intoxication at the time of his arrest and incarceration in the jail. Luevano

failed to make the required observations of this known-intoxicated inmate,

likely because he was busy harassing and assaulting female inmates. Upon

discovery of this inmates lifeless body hanging from his cell, Luevano then

took actions to cover his failure to properly observe an intoxicated, possibly

suicidal inmate by changing and altering official records.

21. The Texas Rangers were called upon to investigate this inmate’s suicide in

custody. After the Texas Rangers viewed over eighteen (18) hours of

surveillance video, the matter was presented to the grand jury which indicted

Luevano in July of 2016 for tampering with governmental records. Instead of

immediately firing Luevano, or at the minimum placing him on leave or under

some other work restriction, Sheriff Marion Boyd and Dimmit County chose

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to not follow proper policies, practices and procedures for such a situation and

instead allowed Luevano to continue to work unsupervised and without

restriction at the Dimmit County Jail with unfettered access to the female

inmates enabling Luevano to continue the illegal actions outlined above.

22. Notably, as late as March 27, 2017, the Texas Commission on Jail Standards

Jail Inspection Report stated, among other infractions, that “… the welfare

checks were consistently over the 30-minute requirement.”

23. Delay in Rocha’s rape kit (SAKS) processing as further evidence of

Dimmit County’s wholesale discriminatory animus against women: Upon

information and belief, prior to her most recent arrest that landed her in the

Dimmit County Jail, Rocha had been brutally sexually assaulted. When taken

into custody, she was bleeding and begging to be taken to the hospital for a

rape kit. Instead, Dimmit County personnel removed her clothes and

discarded. Days later, after Rocha continued bleeding as a result of her brutal

assault, she was taken to the hospital for her SAKS. This evidences Dimmit

County’s innate prejudice against females that continues as a pattern and

practice today.

24. Violations of the Crime Victim’s Act (Texas Code of Criminal Procedure

56.02) as further evidence of policies and practices targeting women:

Dimmit County’s continued prejudicial policies and practices of ignoring

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female crime victims have spilled over into the prosecution side of Dimmit

County. Neither Hamell nor Rocha were told about Luevano’s indictment for

the sexual assaults he committed on them in violation of the Crime Victim’s

Act (Texas Code of Criminal Procedure, Article 56.02). Neither Hamell nor

Rocha received a Crime Victim’s Packet until well after the Dimmit County

District Attorney entered into a plea deal with Luevano. In the plea, Dimmit

County agreed to dismiss both improper sexual contact with a person in

custody cases in exchange for a guilty plea regarding Luevano’s tampering

with a governmental document case, also in violation of the Crime Victim’s

Act. In fact, Dimmit County did not send the Crime Victim’s Packet to

Hamell and Rocha until it received a notice letter sent to the County. Dimmit

County then mailed the packet to both women at their home addresses and not

to the facilities in which Dimmit County knows they resided. In so doing,

Dimmit County knew that neither Hamell nor Rocha would be giving

sufficient and meaningful time to comment on Luevano’s sentencing.

25. Notice of Legal Claims to the Defendants under the Texas Tort Claims

Act: Defendants had actual notice of all violations under the Texas Tort

Claims Act. See City of SA v. Tenorio, 543 S.W. 3d 772 (Tex. 2018). Plaintiffs

also sent a notice letter to Defendants as a courtesy.

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26. Dimmit County has a long-standing pattern of sexual harassment of

women: These Defendants have had a long-standing and troubling consistent

problem within their County and in their jail with sexual harassment and

sexual assault of women. Even outside the confines of the jail, Dimmit

County has a troubling issue with sexual harassment. In fact, in either

December of 2017 or January of 2018, Dimmit County settled a lawsuit with

a female employee, Maria Perez, after the County’s Regulatory and

Compliance Director, Eloy Rodriguez, sexually harassed her including telling

her that “you’re not getting a raise Ms. Perez because you’re not doing me

yet” and “I’m going to rape you, you’re going to love it and I feel in my heart

that you won’t tell on me.” After going to Dimmit County Human Resources

Department, she was told not to “rock the boat, or she would be blackballed.”

Ms. Perez finally tape-recorded conversations presumably knowing that

Dimmit County would deny all allegations. Perez no longer works for Dimmit

County; it is unknown whether Eloy Rodriguez remains employed with

Dimmit County. These actions are evidence of Dimmit County’s established

policy, pattern and practice of harassment of women.

27. More pertinent facts appear below under the legal allegations as related to

each cause of action.

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28. Dimmit County, Texas and jail personnel, including but not limited to

Luevano, (alone and in concert), under color of law violated Hamell’s

constitutional right to basic, non-sexual treatment and under no circumstances

were their actions objectively reasonable, ultimately causing her injuries. As

detainee, Hamell was unable to seek assistance within the jail since her sexual

assault and sexual harassment occurred there. While detained by Dimmit

County, Hamell had a right to be safe from Luevano’s reprehensible conduct

and Defendants had a duty to keep her safe from that harm. Hamell’s treatment

defies all logic and clearly shows deliberate indifference.

29. Dimmit County, Texas and jail personnel, including but not limited to

Luevano, (alone and in concert), under color of law violated Rocha’s

constitutional right to basic, non-sexual treatment and under no circumstances

were their actions objectively reasonable, ultimately causing her injuries. As

a detainee, Kayla was unable to seek assistance within the jail since her sexual

assault and sexual harassment occurred there. In the custody of Dimmit

County, Rocha had a right to be safe from Luevano’s reprehensible conduct

and Defendants had a duty to keep her safe from that harm. Rocha’s treatment

defies all logic and clearly shows deliberate indifference.

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CAUSES OF ACTION AGAINST DEFENDANTS DIMMIT COUNTY,


TEXAS, DIMMIT COUNTY SHERIFF MARION BOYD AND MARCO
LUEVANO, INDIVIDUALLY

30. The Civil Rights Act, codified as 42 U.S.C. §1983, provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom

or usage, of any state or territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or any other person within the

jurisdiction thereof to the deprivation of any laws, privileges, immunities secured by

the Constitution and laws, shall be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress. 42 U.S.C. §1983.

31. The 4th Amendment to the US Constitution states:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.

32. The 8th Amendment to the US Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

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33. The 14th Amendment to the US Constitution states:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state wherein they

reside. No state shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any state deprive any person of

life, liberty, or property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

34. The elements of a cause of action under § 1983 against a governmental

entity are:

a. Plaintiff is deprived of rights under the United States Constitution;

b. Such deprivation is caused by a person acting under color of state law;

c. The governmental entity adopted, or failed to adopt, a policy statement,

ordinance, regulation or decision adopted and promulgated by the governmental

entity’s lawmaking officers or by an official to whom the law makers delegate

law-making authority or a persistent, widespread practice of officials or

employees of the governmental entity which, though not authorized or officially

adopted and promulgated, the policy is so common and well settled as to constitute

a custom that fairly represents policy of the governmental entity; and

d. The governmental entity was deliberately indifferent to the party’s

constitutional rights.

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CIVIL RIGHTS VIOLATION


[42 U.S.C. §1983 and Constitutional Violations Against Luevano]

35. Luevano engaged in deliberate and outrageous invasion of Plaintiffs’ bodily

integrity that shocks the conscious in violation of Plaintiffs’ rights under the

Fourth, Eighth and Fourteenth Amendments to the Constitution and 42 U.S.C.

§1983. Plaintiffs re-allege and incorporate all allegations of this Complaint

as if fully set forth herein.

36. Luevano, acting within the scope of his agency, recklessly and with the

intention of causing both Plaintiffs severe emotional distress, engaged in

extreme and outrageous conduct by sexually assaulting and harassing

Plaintiffs, and by promoting a threatening and unduly hostile and antagonistic

environment. Luevano’s conduct is particularly egregious as both Hamell and

Rocha were in the custody of Dimmit County and had no ability to extricate

themselves from this horrific assaultive conduct.

37. Luevano misused and abused the official power granted to him by the County

in the performance of his official duties thereby causing harm to Plaintiffs.

38. Luevano, by his acts and omissions alleged above, under color of law and

acting pursuant to the customs, practices and policies of Dimmit County,

deprived Plaintiffs of their rights to bodily integrity, thereby violating the

Fourth Amendment to be secure in their persons, the Eighth Amendment right

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to be free from cruel and unusual punishment and in violation of their property

(their bodies) under the Due Process Clause of the Fourteenth Amendment, by

failing to provide all for which Luevano is liable to Plaintiffs pursuant to 42

U.S.C. §1983.

39. Luevano acted against Plaintiffs through official policies, practices, and

customs with malice, deliberate, callous and conscious indifference to the

constitutional rights of Plaintiffs. Furthermore, the incidents complained of

were not reasonably related to any legitimate governmental objective, as there

is no legitimate governmental objective in sexual contact and sexual assault

of an inmate.

40. As a direct and proximate result of Luevano’s acts, which were so outrageous

in character and extreme in degree to be utterly intolerable in a civilized

community, Plaintiffs suffered severe emotional distress and were injured and

damaged thereby.

41. As shown below, Luevano’s actions were part of a policy and practice

condoned by both Dimmit County, Texas and Dimmit County Sheriff Marion

Boyd.

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CIVIL RIGHTS VIOLATION


[42 U.S.C. §1983 and Constitutional Violations Against Sheriff Marion Boyd]

42. Sheriff Marion Boyd knew and had an obligation to follow Texas and federal

law requiring protection for female inmates from assault and sexual attack and

knew that his actions and omissions created a substantial risk of sexual assault

to Plaintiffs.

43. With deliberate indifference to female inmates’ safety and the safety of

Plaintiffs here, Defendant Sheriff Marion Boyd failed to protect Plaintiffs

from the substantial risk of harm, including sexual attacks, in violation of

Plaintiffs’ rights under the Fourth, Eighth and Fourteenth Amendments to the

Constitution and 42 U.S.C. §1983.

44. Luevano’s actions lead to a suicide in the Dimmit County Jail for which he

should have been fired by any standard of common decency. Sheriff Marion

Boyd allowed Luevano to continue to work unsupervised while under

indictment related to the alteration of governmental records. Instead, Sheriff

Marion Boyd allowed Luevano to continue working with unfettered access to

inmates and little if any oversight. Luevano has since plead and has upon

information and belief been sentenced.

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45. The deprivation of these Hamell’s and Rocha’s rights, as with other female

inmates described herein, constitutes a risk of harm so grave that it violated

contemporary standards of decency.

CIVIL RIGHTS VIOLATION


[42 U.S.C. §1983 and Constitutional Violations Against Dimmit County,
Texas]

46. In addition, and in the alternative, the County and jail personnel, including but

not limited to Luevano (alone and in concert and/or individually) engaged in

a policy and practice of deliberate indifference to the care and custody of jail

inmates that resulted in the sexual assaults of Plaintiffs herein as well as other

female inmates.

47. In addition, and in the alternative, Dimmit County gave inadequate training to

civilian and officer jail personnel, including but not limited to Luevano, on

physical contact with inmates. Clearly Dimmit County gave inadequate

training on preventing inmate suicide.

48. Dimmit County and jail personnel, including but not limited to Luevano

(alone and in concert and/or individually) endangered female inmates,

including Plaintiffs herein, resulting in the sexual assaults of Plaintiffs.

49. Plaintiffs contend that policies, procedures, practices and customs of Dimmit

County and/or jail personnel, including but not limited to Luevano (alone and

in concert and/or individually) put Plaintiffs in an inherently dangerous

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situation and violated their rights under the Fourth, Eighth and Fourteenth

Amendments to the Constitution of the United States for which Plaintiffs seek

recovery.

50. Plaintiffs contend that the failures to train and supervise staff regarding the

policies, procedures, practices and customs of Dimmit County and/or jail

personnel, including but not limited to Luevano, put Plaintiffs in a dangerous

situation and violated their rights under the Fourth, Eighth and/or Fourteenth

Amendments to the Constitution of the United States for which Plaintiffs seek

recovery.

51. During the relevant time period contemplated by this cause of action, Dimmit

County and jail personnel, including but not limited to Luevano (alone and in

concert and/or individually) failed to follow state and federal laws, federal and

state regulations with regard to female inmates generally and specifically

Plaintiffs.

52. During the relevant time contemplated by this cause of action, Dimmit County

and jail personnel, including but not limited to Luevano (alone and in concert

and/or individually) failed to follow their own written policies and procedures

and those of the State of Texas and other authorities on standard of care and

lack of sexual contact for those in custody.

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53. Facts at the time of filing this Complaint supporting each of the elements of a

§1983 claim against Dimmit County, Texas, and its employees, listed above

are found above and applicable to all claims, but may be summarized as

follows:

a. Failed to properly train, hire, control, discipline and supervise

employees;

b. Failed to establish and maintain a proper policy for dealing with the

safety of detainees/prisoners;

c. Failed to provide protection from sexual predators for female

detainees/prisoners;

d. Failed to establish and maintain proper policies for assurance of safety

of detainees/prisoners;

e. Promulgated, condoned or showed indifference to improper policies or

customs; and

f. Continued such practices of improper policies or customs as to

constitute custom representing policy.

54. These actions by Defendant Dimmit County, Texas, subjected Plaintiffs to

confinement with constitutionally inadequate safety protections such as:

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a. Evidence of sexual assaults that are inaccurate, incomplete, and not

transmitted to the Texas Rangers or other law enforcement or

prosecution authority;

b. Confinement conditions that do not ensure safe, humane and decent

conditions free of sexual assault;

c. Complete failure to assess ongoing sexual harassment and assaults

upon female inmates;

d. Staffing the jail with detention officers with no oversight or

supervision; and

f. Not having female guards only for female inmates at the Dimmit

County Jail.

55. These actions by Dimmit County further violated the rights of Hamell and

Rocha through Defendants’ policies such as:

a. Evidence of sexual assaults that are inaccurate, incomplete, and not

transmitted to the Texas Rangers;

b. Confinement conditions that do not ensure safe, humane and decent

conditions free of sexual assault;

c. Complete failure to assess ongoing sexual harassment and assaults

upon female inmates;

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d. Staffing the jail with detention officers with no oversight or

supervision; and

f. Not having female guards for female inmates at the Dimmit County

Jail.

56. Dimmit County, intentionally, and with deliberate indifference, deprived

Plaintiffs of their clearly established federal constitutional rights, including,

but not limited to:

a. Their right to reasonably safe conditions of confinement;

b. Their right to be free from sexual assault and violation of their bodies;

and

c. Their right to be free from cruel and unusual punishment.

57. Dimmit County clearly breached its constitutional duty to tend to basic human

needs of persons within its charge, acting with deliberate indifference and

subjective recklessness to the clear needs of female inmates, and Plaintiffs

herein, of which they had subjective knowledge. Dimmit County had full

knowledge of Luevano’s alteration of their records and behavior that made

them responsible for an inmate’s hanging death yet allowed him to continue

work with no supervision. Dimmit County made a conscious decision,

pursuant to its policies, practices or customs of Dimmit County and/or their

inadequate training to leave Luevano in his employment position without

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questioning what else he might be willing to do if he was willing to alter

government records to cover up an inmate suicide. Dimmit County

deliberately disregarded the serious risk of harm to other inmates. Further,

Dimmit County failed to take the requisite steps to protect female inmates.

58. No qualified immunity: County employees can be entitled to qualified

immunity to their individual liability, but this immunity is waived if the

complainant shows that:

a. the individual's acts deprived the party of constitutional rights


under color of law

b. the deprived rights were clearly established and constitutional


rights which existed at the time of the acts; and

c. such acts were not objectively reasonable under the


circumstances, that is, no reasonable official could have believed
at the time that the conduct was lawful.

59. The Defendants, persons acting under color of state law, enforcing Dimmit

County policies and procedures for incarceration of persons, or by their failure

to properly train in the handling of incarcerated persons, deprived Plaintiffs

of their civil liberties without due process of law by failing to keep them free

from sexual assault by the county’s detention officers during their

incarceration. No reasonable official could have believed that failure to

protect female inmates from sexual assault was lawful. The acts of the

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Defendants, when viewed objectively, were unreasonable under the

circumstances. Therefore, qualified immunity is waived in this case.

60. The Defendants involved in this case, acting under color of law, were

deliberately indifferent to the excessive risk to Plaintiffs’ safety in their acts,

or failures to act. Such acts violated and deprived Plaintiffs’ clearly

established constitutional rights and were not objectively reasonable.

61. The acts of Dimmit County and the Defendants clearly violated established

statutory or constitutional rights of which a reasonable person would have

known, including the constitutional rights of life and liberty, and against cruel

and unusual punishment, afforded by the Fourteenth Amendment of the

United States Constitution.

62. The acts of Defendants were so obviously and grossly wrong, that only a

plainly incompetent entity or officer, or one who was knowingly violating the

law, would have performed such an act, and therefore, Defendants are liable

to Plaintiffs for the damages caused by their actions.

63. The aforementioned acts resulted in the sexual assaults of Plaintiffs, which in

turn proximately caused them injuries.

SEXUAL ASSAULT AND BATTERY AGAINST LUEVANO

64. Luevano, acting within the scope of his agency, assaulted and battered Hamell

by threatening her, forcing her into sexual acts including placing his mouth on

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her genitals, without her effective consent and while she was a person in

custody. Luevano, acting within the scope of his agency, intentionally and

unlawfully caused Plaintiff Hamell to fear offensive and unlawful contact

over which she had no control as a person in custody, and Luevano

intentionally and unlawfully caused such offensive conduct to occur.

Luevano openly used the Dimmit County Jail property to perpetrate these acts.

65. Luevano, acting within the scope of his agency, assaulted and battered

Rochaby threatening her, and touching her body, including her breasts,

without her effective consent and while she was a person in custody.

Luevano, acting within the scope of his agency, intentionally and unlawfully

caused Rocha to fear offensive and unlawful contact over which she had no

control as a person in custody, and Luevano intentionally and unlawfully

caused such offensive conduct to occur. Luevano openly used the Dimmit

County Jail property to perpetrate these acts with the knowledge and/or

acquiescence of Dimmit County and Sheriff Marion Boyd.

66. As a direct and proximate result of these actions, both Plaintiffs were

physically injured and suffered damages arising out of the Texas Tort Claims

Act, 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. §1983 and 1988 and the Eighth

and Fourteenth Amendments of the Constitution of the United States.

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FALSE IMPRISONMENT CLAIM AGAINST ALL DEFENDANTS

67. Luevano falsely imprisoned Hamell by willfully detaining her without her

consent by confining her to a solo cell for the purpose of sexually assaulting

her. At the time of the imprisonment, Hamell knew that her freedom of

movement had been restricted and that the other Dimmit County detention

officers, all males standing as lookouts for Defendant Luevano, would not

come to her assistance.

68. As a direct and proximate result of the actions of Luevano, Hamell was

physically injured and suffered damages arising under the Texas Tort Claims

Act, 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. §1983 and 1988 and the Eighth

and Fourteenth Amendments of the Constitution of the United States.

69. Luevano engaged in conduct with malice and reckless and callous

indifference to the rights of Plaintiff Hamell.

70. Luevano engaged in this conduct because Dimmit County and Sheriff Marion

Boyd allowed him to use Dimmit County property to move around inmates he

had chosen for his sexual schemes and as part of the customs and practices of

Dimmit County.

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PEACE OFFICER LIABILITY - 42 U.S.C. §1983

71. Plaintiffs bring a claim against jail personnel, including but not limited to

Luevano (alone and in concert and/or individually), pursuant to 42 U.S.C.

§1983 and for punitive damages.

72. At all material times, jail personnel, including but not limited to Luevano

(alone and in concert and/or individually) was acting under color of state law

as agents and employees of Dimmit County and alternatively was acting in

his individual capacity.

73. Luevano was wearing his Dimmit County Sheriff’s department uniform as

were other jail personnel and was acting in the course and scope of his duties

as a Dimmit County jail employee at the time both Plaintiffs were sexually

assaulted.

74. Thus, Dimmit County’s policy of failing to properly train, including training

on safety and the right of inmates to be free from sexual assault was inherent.

A city/county may be held liable for its failure to train a single police officer

when the officer’s acts were so egregious that the city/county should have had

a clear warning that the particular officer posed a danger to citizens. See

Pineda v. City of Houston, 124 F.Supp. 2d 1057, 1068 (S.D. Tex. 2000).

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DAMAGES

75. Based upon the operative facts plead above, such acts and omissions rise

to the level of deliberate indifference and conscious indifference constituting

a violation of the Fourth, Eighth and Fourteenth Amendments of the

Constitution of the United States for which Plaintiffs seek recovery. Plaintiffs

also seek recovery under the Texas Tort Claims Act.

76. Each and every, all and singular of the foregoing acts and omissions, on

the part of Defendants, taken separately and/or collectively, jointly and

severally, constitute a direct and proximate cause of the injuries and damages

set forth herein. As a direct, proximate, and foreseeable result of Defendants’

unlawful conduct, Plaintiffs have suffered, and will continue to suffer

damages in an amount to be proved at trial.

77. As a direct, proximate, and foreseeable result of Defendants’ unlawful

conduct, Plaintiffs have suffered, and will continue to suffer, generally

physical, mental, and psychological damages in the form of extreme and

enduring worry, grief, suffering, pain, humiliation, embarrassment, mental

anguish, and emotional distress in amounts within the jurisdictional limits of

this Court, to be proved at trial.

78. In acting as alleged above, Defendants acted maliciously, fraudulently,

despicably, and oppressively, with the wrongful intention of injuring

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Plaintiffs, from an improper motive amounting to malice, and in conscious

disregard of Plaintiffs’ rights. Plaintiffs are entitled to recover punitive

damages from Defendants in amounts to be proved at trial.

79. Defendants are vicariously liable for their employees, supervisors, officials,

representatives and all those acting in concert with them.

80. The Defendants took such acts and omissions in a way that not only shocks

the conscience but satisfies the criteria for punitive damages as set out by law

and as contemplated by 42 U.S.C. §1983.

81. Plaintiffs are entitled to reasonable attorneys’ fees and costs of suit as

provided for by 42 U.S.C. § 1988(b). Plaintiffs request that the Court and jury

award their attorneys’ fees and expenses.

JURY DEMAND

82. Pursuant to Federal Rule of Civil Procedure 38(b) Plaintiffs demand a trial by

jury.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs requests that the Court:

A. A declaratory judgment that the policies, practices, acts and omissions

complained of herein violated Plaintiffs’ rights;

B. Compensatory damages for Plaintiffs against Defendants, jointly and

severally;

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C. Reasonable attorneys’ fees and costs and all litigation expenses, pursuant to

federal and state law, as noted against defendants, jointly and severally

pursuant to 48 U.S.C. §1988;

D. Award pre- and post-judgement interest;

E. Award punitive damages against all individually named defendants and for

Plaintiff; and

F. Award costs of court;

G. Retention of jurisdiction over Defendants Dimmit County and Dimmit County

Sheriff Marion Boyd until such time that the Court is satisfied that

Defendants’ unlawful policies, practices, acts and omissions no longer exist

and will not recur; and

F. Grant such other and further relief as appears reasonable and just, to which,

Plaintiffs shows themselves entitled.

///

///

///

///

///

///

///

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Respectfully submitted,

/s/ Charles H. Peckham


_________________________
Charles H. Peckham
TBN: 15704900
cpeckham@pmlaw-us.com

Mary A. Martin
TBN: 00797280
mmartin@pmlaw-us.com

PECKHAM MARTIN, PLLC


Two Bering Park
800 Bering Drive, Suite 220
Houston, Texas 77057
(713) 574-9044
(713) 493-2255 – facsimile

OF COUNSEL – Subject to Admission in Western District:

Larry D. Eastepp
TBN: 06361750
larry@eastepplaw.com

LARRY D. EASTEPP, PC
5300 Memorial Drive, Suite 1000
Houston, Texas 77007
(713) 255-3388
(713) 993-7205 – facsimile

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