Nabor ORTEGA, Aurelio Gonzalez, on behalf of themselves and
all others similarly situated, Plaintiffs-Appellants,
v.
Bill M. ROWE, Individually and as U.S. Border Patrol Agent,
et al., Defendants- Appellees.
No. 85-1531.
United States Court of Appeals,
Fifth Circuit.
Aug. 11, 1986.
Rehearing and Rehearing En Banc Denied Oct. 14, 1986.
Edward J. Tuddenham, Stephen C. McIntyre, Texas Rural Legal Aid, Inc., Hereford, Tex., Hoffman & Wheeler, Timothy L. Hoffman, Amarillo, Tex., for plaintiffs-appellants.
William Ken Johnson, John C. Ross, Jr., James P. Brewster, City Attys., Lubbock, Tex., for City of Lubbock and Henry.
Morris H. Deutsch, Allen W. Hausman, Dept. of Justice, Office of Immigration Lit., Civ. Div., Washington, D.C., for defendants-apрellees.
Appeal from the United States District Court for the Northern District of Texas.
Before GEE, POLITZ, and GARWOOD, Circuit Judges.
GEE, Circuit Judge:
Appellants in this class action challenge conditions that existed in jails used by the United States Border Patrol in the late 1970s and early 1980s to detain illegal aliens before deporting them. Alleging that detention did, or would, violate their due process rights, appellants seek both damages and injunctive relief from federal agents and local officials. We affirm the district court's judgment for appellees, concluding that, in the light of recent Supreme Court cases requiring due process violations to be based on more than government officials' mere negligence, the class failed to demonstrate the existence of unconstitutional behavior.
In summarizing the facts, we look to the district court's findings, which we deem to be plausible in light of the evidence presented. See Anderson v. Bessemer City,
The police of Muleshoe, Texas arrested both named appellants--Nabor Ortega in September 1981 and Amelio Gonzalez in December 1981--on suspicion of being illegal aliens. Transferred into the custody оf the Border Patrol, both spent between one and three days in the city jail. They later testified that the jail was squalid; trash filled the cells and showers because of infrequent cleanings. Lacking mattresses and blankets, they were forced to sleep on cardboard boxes or sheet metal bunks. The absence of towels and soap, moreover, precluded bathing. Neither protested about these conditions; uninformed of the problems, federal agents and local officials failed to improve conditions except when an agent, noticing Gonzalez's plight, provided him with a mattress and blanket. With the testimony of others corroborating these remembrances, it became clear that the city jail's conditions were unpleasant in those days.
Ortega and Gonzalez--in an action perhaps unusual for illegal aliens--therefore brought this action based on their rights under the Constitution and laws of the United States against Border Patrol agents William Rowe and Hugh Rushton, the Immigration and Naturalization Service, the City of Lubbock, and the United States of America. Rowe was the agent in charge of the Lubbock Station1 of the Border Patrol from July 1977 to August 1984, and Rushton has been Chief Patrol Agent of the Marfа Sector, the administrative area that includes the Lubbock Station, since 1980. Appellants based their suit against federal appellees on the claim that the conditions described violated their due process rights under the fifth amendment. The federal appellees also allegedly viоlated 8 U.S.C. Sec. 1252 and 18 U.S.C. Secs. 4002 and 4042. Appellants alleged that the city conspired with federal authorities in violation of the fourteenth amendment's due process clause. Ortega and Gonzalez sought damages for past wrongs inflicted; they coupled these individual claims to a class actiоn2 against appellees, seeking injunctive relief against the allegedly unconstitutional conditions. At first, only the city jail was the target of this suit, but appellants amended their complaint to seek injunctive relief against the other jails of the Lubbock Station that the Border Patrol used. Consequently, they wеre allowed to introduce evidence of other jails' conditions.
The district court entered judgment in appellees' favor. It first concluded that, contrary to appellants' assertion, 18 U.S.C. Sec. 4002 does not require a written agreement between federal and local officials regаrding the use of local jails to house illegal aliens. Having found the other statutory bases for appellants' complaint unavailing, the court then ruled that no due process violations occurred. Noting the short stay of most detainees in these jails (usually two or three days before they are deported), it concluded that conditions were not serious enough to be constitutional violations.
On appeal, Ortega and Gonzalez continue to insist that 18 U.S.C. Sec. 4002 requires the INS to execute written agreements with local officials for use of local jails.3 To understand this argument, it is first necessary to recognize their perception of this case. To appellants, all the problems discussed result from insufficient delegation of responsibility. Federal agents believed that Lubbock officials were responsible for maintaining the jails, while local officials believed that opеrations were within the province of the Border Patrol. Resulting from informal, oral agreements, this confusion has in turn caused the problems about which the class complains. By bringing this action, appellants hope that the federal courts will force appellees to cease assuming away their responsibilities; one way to do this is to interpret Sec. 4002 as requiring written agreements, agreements that presumably would detail the duties of both federal and local officials.
We cannot interpret Sec. 4002 in such a manner; rather, we conclude that appellants may not use this statutе as the basis for a cause of action. Other courts have held that Sec. 4002 provides no implicit private cause of action. See Owens v. Haas,
We turn now to appellаnts' constitutional claims. In its memorandum opinion, the district court regarded Bell v. Wolfish,
At trial and on appeal, the parties have devоted much attention to Bell. Recent Supreme Court cases, however, dramatically change the law of due process. In Daniels v. Williams, 474 U.S. ----,
The district court found that the individual appellees lacked any intent to punish the detainees. Border Patrol agents, for example, provided blankets and cleaned up the cells. The court concludеd that, in general, "those agents and officials corrected shortcomings in jail conditions when they learned of any deficiency." We certainly cannot question the court's findings because the record shows no evidence of officials' desire to punish the detainees, of their knowledge оf their continuing discomfort, or of their reckless disregard of the squalid conditions. The most that can be said is that, objectively speaking, they were unreasonable--in other words, negligent--in failing to inspect the jails regularly.
On appeal, furthermore, the appellants really assert nothing more than negligent supervision. As mentioned before, they view this case as one in which the lack of specific rules under which the INS would use local jails, and the resulting confusion over who was responsible for the jails' upkeep, led to the lamentable conditions that the detainees were forced to endure.4 By characterizing the problem in this way, appellants can only be saying that the appellees unreasonably neglected to establish clear guidelines. Apparently trying to avoid Daniels and Davidson, appellants characterize this confusion as "willful indifference." The facts of this case, however, show no more than a sloppy system of cooperation between federal and local authorities.5 Blindly assuming away one's responsibilities without first discovering others' expectations can be seen as unreasonable--nothing more. This being so, appellees' conduct is not the kind proscribed by the due process clauses of the fifth and fourteenth amendments, as interpreted by Daniels and Davidson.
Appellants raise other issues; for example, they argue that the district court erred in not allowing the discovery of documents relating to the injury of a dеtainee. Even here, however, they apparently claim that the appellees were only negligent in incarcerating the detainee. Daniels and Davidson therefore render consideration of this allegation unnecessary. Similarly, we need not focus on other facts or issues arising from this complex case. The district court's judgment is AFFIRMED.
Notes
The Lubbock station covers a 28-county area around Lubbock, Texas
Ortega and Gonzalez were the representatives of a certified class of all people "who are or will be incarcerated in city and county jails by agеnts of the Lubbock Station of the United States Border Patrol within its 28-county jurisdiction."
This statute provides in part the following:
For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Attorney General may contract, for a periоd not exceeding three years, with the proper authorities of any state, territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons.
The following excerpts from appellants' brief reflect this position:
(I)n virtually all aspects of the jail's operation, the city and INS each thought the other was in charge. As a consequence of this extraordinary confusion, plaintiffs and other detainees were left without supervision, their cells were not cleaned, no bedding was provided, and no one even bothеred to turn on the heat in winter.
* * *
After the city left the jail, responsibility for cleaning the cells was not clearly assigned to anyone. At the time INS was using the jail, Asst. Chief Bartley did not think the city had any responsibility for sanitation.. Predictably, the cells were not cleaned.
* * *
Agent Rowe assumed that the city was responsible for providing mattresses and blankets for INS's detainees, but, as with other matters, he did nothing to confirm that assumption ... For its part, the city left cotton mattresses in the cells when its prisoners were removed in 1978, but assumed that INS took over responsibility for replacing and cleaning the mattresses after that ... Because no one took responsibility for them, the mattresses left by the city were never cleaned and eventually deteriorated until there were none left, forcing detainees to sleep on the metal bunks or on the concrete floors of the cells.
At oral argument, counsel for appellants maintained this tack: the detainees' injuries resulted from the appellees' failure to divvy up the duties involved in maintaining the jails. This failure, moreover, arose from confusion more than anything else; in its brief, appellants allege that "by failing to clearly delineate responsibility for INS detainees placed in the custody of local facilities, INS procedures invited the kind of confusion which prevailed in Lubbock."
This is true especially in the light of the rather broad definition of "negligence" the Davidson Court makes. Petitioner there informed prison officials that other inmates had thrеatened him. The officials thus knew of possible dangers, yet did nothing to protect Davidson, whom another inmate eventually wounded seriously. While the officials' conduct could have easily been deemed reckless, the Court agreed with the district court's assessment that they had been only negligent.