E.A.F.F. v. United States (955 F. Supp. 2d 707, 2013)

ORDER

XAVIER RODRIGUEZ, District Judge.

On this date, the Court considered Defendants James De La Cruz and Jose Gonzalez’s Motion for Summary Judgment on Deliberate Indifference Claim (docket no. 276) and Tsegaye Wolde’s Motion for Summary Judgment On Count Four (“Deliberate Indifference”) (docket no. 287), and the responses and replies thereto. After careful consideration, the Court grants the motions.

I. Background

Plaintiffs are eleven young men born in Central America who were detained in the United States by Border Patrol agents as undocumented and placed in federal custody pending their immigration proceedings. Each of the Plaintiffs was a minor at the time of his detention, and each was placed at a facility located in Nixon, Texas (“the Nixon facility”) operated by Away From Home, Inc. (“AFH”). AFH contracted with the federal government to house unaccompanied, undocumented minors while they awaited the final adjudication of their immigration status. Plaintiffs allege that they suffered “grave and repeated sexual, physical and emotional abuse” at Nixon.

Defendants are employees of the Office of Refugee Resettlement (“ORR”), a federal agency. On March 1, 2003, the Homeland Security Act of 2002 transferred functions under the U.S. immigration laws regarding the care and placement of “unaccompanied alien children” (sometimes referred to as “UAC”) from the INS to the Director of ORR. 6 U.S.C. § 279; PL Ex. 1. Pursuant to statute, ORR has responsibility for, among other things, “coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status”; ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child; making and implementing placement determinations for all unaccompanied alien children who are in Federal custody by reason of their immigration status; identifying a sufficient number of qualified individuals, entities, and facilities to house unaccompanied alien children; overseeing the infrastructure and personnel of facilities in which unaccompanied alien children reside; and conducting investigations and inspections of facilities and other entities in which unaccompanied alien children reside, including regular follow-up visits to such facilities, placements, and other entities, to assess the continued suitability of such placements. 6 U.S.C. § 279.

ORR created a new office called the Division of Unaccompanied Children’s Services (“DUCS”) to carry out these responsibilities. PL Ex. 1. DUCS has developed a network of care options for unaccompanied minors, including shelter care, staff secure, foster care, and residential treatment care. Pl. Ex. 1. Although INS had existing facilities in place, most of these were detention facilities, and ORR/DUCS wanted to use alternatives such as shelter care facilities (like Nixon) in order to better comply with the Flores Settlement Agreement. PI. Ex. 4 (Tota depo.) at 24; PI. Ex. 1. These facilities generally operate under cooperative agreements and contracts with ORR. A cooperative agreement “is an instrument contemplated by and awarded in accordance with the Federal Grant and Cooperative Agreement Act and the Government Performance and Results Act.” PI. Ex. 11. “The principal purpose of this relationship is to transfer money, property, services, or anything of value to the Recipient to accomplish a public purpose of support or stimulation. There is substantial involvement anticipated between the Government and the Recipient during performance of the activity, establishing ORR and the Recipient as partners during performance ....” PI. Ex. 11. Under the Cooperative Agreement, AFH agreed to provide shelter care and other child welfare related services in a state-licensed shelter care program to UAC in the least restrictive setting possible, in accordance with state licensing provisions, ORR/DUCS policies and procedures, and the Flores Agreement. Id.

ORR was to be substantially involved in the programmatic development and ongoing activities, including monitoring and evaluating the provision of services and providing consultation and guidance regarding programmatic issues or concerns as well as technical assistance on ORR’s policies and procedures. PL Ex. 11. ORR was to conduct program monitoring (including desk monitoring) and site visits to ensure that Nixon’s performance was in accord with program requirements and the Agreement. Id. After a monitoring, the ORR Project Officer was to “follow up to ensure the timely resolution of issues that need corrective actions or to confirm the implementation of recommendations made during monitoring.” Id. AFH was required to submit quarterly financial reports and quarterly Program Progress Reports. The Project Officer was to also review all Quarterly Program Progress Reports and other information submitted by Nixon. Financial monitoring and management was coordinated by a Grants Officer. AFH was required to immediately notify ORR of any changes in the status or condition of any child, including any medical emergencies and any abuse or neglect incident handled under state law, and to report serious incidents to ORR/DUCS through a “Serious Incident Report” or “SIR.”

ORR utilized the Nixon facility to house children from 2003 to 2007, when ORR terminated the grant. It is undisputed that the minors remained at all relevant times in the custody of ORR. Plaintiffs were housed at Nixon, and claim they were physically or sexually abused between September 2006 and March 2007. Plaintiffs allege that “the widespread sexual, physical and emotional abuse at the Nixon facility was rampant, open and notorious and either was known or should have been known to all Defendants.” Sixth Am. Compl. ¶ 131.

Seven Plaintiffs, O.B., J.A.A.L., EA.F.F., PA.S.G., E.R.J., DA.E.F., and J.C.C.B., allege that they were sexually abused by a female AFH staff member, Belinda Leal. Leal was employed as a direct care worker at Nixon from December 2006 to February 2007. Leal has since pled guilty and is serving a prison sentence for the molestation of four residents, including Plaintiffs J.C.C.B. and P.A.S.G. and former Plaintiff L.M.V.F., between January 15 and February 7, 2007. Def. EX. 6. Plaintiff E.H.C. alleges that Leal approached him, but he rebuffed her. Another Plaintiff, W.O.G., alleges that he was approached by a different female staff member, Lesvia Monreal, who attempted to sexually abuse him, but he rebuffed her. W.O.G. alleges that Monreal retaliated against him by forcing him to sleep on the floor, withholding food, and otherwise punishing him.

Plaintiffs O.E.F., J.M.R., and W.O.G. allege that they were physically abused by Nixon staff. The Sixth Amended Complaint alleges that O.E.F. was assaulted and beaten by Ruben Velasquez on two unspecified dates. However, O.E.F.’s deposition testimony states that Velasquez only abused him once, and another staff member, Vasquez, abused him the second time. J.M.R. alleges that Efraen Garcia assaulted and battered him severely in November 2006. Garcia was charged with a class A misdemeanor for injury to a minor as a result of this incident. PI. Ex. 109 (ORR014236). W.O.G. alleges that he was “beaten by an [unspecified] adult staff member when he attempted to use the telephone on an unspecified date.

Plaintiffs assert nineteen causes of action against various Defendants. At issue here are the Bivens claims asserted in the Fourth Cause of Action against the individual federal defendants Jose Gonzalez, James De La Cruz, and Tsegaye Wolde. Jose Gonzalez was an ORR Federal Field Specialist (“FFS”) based in San Antonio. Gonzalez Depo. at 8. He became an FFS, assigned to Nixon and two other facilities in Seguin and Corpus Christi, in August 2006. Id. An FFS oversees the services that are provided to the unaccompanied alien children. Id. at 7. An FFS was also to assist the Project Officer “with local related or program compliance issues.” PL Ex. 34. In this regard, the FFS “visits facilities and provides oversight and guidance to facility staff regarding policies and procedures, works with the facilities on administrative issues, and provides followup information to the Project Officer.” Id. The FFS also “ensures that the facilities are in compliance with the Cooperative Agreement, Statement of Work, the Flores Agreement, and DUCS Policies and Procedures.” Id. Gonzalez visited the Nixon facility frequently and had an office there. Gonzalez depo. at 23. Gonzalez estimated that he spent about sixty percent of his time at Nixon, and had a staff meeting about once a week with the Nixon director, case managers, clinicians, and other interested parties such as attorneys and the DUCS field coordinator, to talk about all of the children in the facility. Id. at 24-26. Gonzalez also testified that he met with the children at Nixon when they requested it. Id. at 40-41. James De La Cruz was an ORR Federal Field Specialist Supervisor (and Gonzalez’s supervisor) and was based in Houston.

Tsegaye Wolde became an ORR/DUCS Project Officer in March 2004, and was the Project Officer assigned to monitor and supervise the Nixon facility. Wolde Aff. ¶ 16. He was based in Washington, D.C. According to the Cooperative Agreement, the Project Officer “oversees day-to-day operations of grant and cooperative agreements including but not limited to program design, budget negotiation, conducting desk monitoring and site visits, review of key staff credentials, and review of job descriptions for key staff.” PI. Ex. 11.

Plaintiffs allege that they had Fifth Amendment rights to be free from physical, emotional, and sexual abuse while being detained at the Nixon Facility, Sixth Am. Compl. ¶ 222, that Defendants Gonzalez and De La Cruz, as federal officers, were responsible for monitoring, investigating, supervising, controlling, and correcting the treatment of the minors held at the Nixon facility, id. ¶223, that Defendants Gonzalez and De La Cruz intentionally refused and failed to properly require and enforce policies and practices to ensure the Plaintiffs’ safety from sexual and physical assaults, id. ¶ 224, that they knew of or were deliberately indifferent to the widespread sexual and physical abuse of the minors, id. ¶ 225, that they, with knowledge or deliberate indifference, failed to take action of any kind to protect Plaintiffs, id. ¶ 226, that Defendant Wolde deprived Plaintiffs of their rights by knowingly and intentionally refusing and failing to halt the rampant physical and sexual abuses at the facility or to otherwise protect Plaintiffs, id. ¶ 227, and that as a result, Plaintiffs were deprived of the safe environment to which they were entitled and suffered sexual and physical assaults during their detention, id. ¶ 228.

Defendants previously moved for dismissal based on qualified immunity. They argued that they could not be liable under Bivens on a theory of respondeat superior, and that Plaintiffs’ claims were based solely on their supervisory authority and did not allege any personal participation by Defendants. The Court denied the motions (see docket no. 112 & 170), finding that Plaintiffs had adequately alleged a claim that Defendants failed to protect them under the standard set forth in Farmer v. Brennan and extended to pretrial detainees by the Fifth Circuit. Defendants now move for summary judgment.

II. Chronology

Nixon received its state license on May 12, 2003. It was awarded a grant to house unaccompanied minors beginning July 1, 2003. Nixon initially housed only sixteen children.

As noted, Wolde became Project Officer with responsibility over Nixon in March 2004. As early as 2004, Nixon had problems with residents running away. On May 4, 2004, Maggie Gaytan, the Director of the Nixon facility, sent a Plan of Action Report to assist in preventing future runaways. PI. Ex. 62. Gaytan stated that “these children have lost their faith in the system and in us because it is taking so long for them to be reunited with their families. It also is taking a long time from the time they ask for deportation to being able to get their travel document.... The children are getting very frustrated.... We have all become too trusting.” Id. Gaytan outlined the measures that had been taken, including modifying windows, repositioning staff, and assigning certain children to staff to hold them accountable, modifying an average privacy fence by adding nine feet of metal, making it difficult to climb or jump, using a higher standard of training than the state license required, moving children to different rooms if they are too involved with children at risk of running away or having problems with bad behavior, placing children with problems on a five-minute watch, no longer allowing children to lock bathroom doors. Id. Don Rains of Nixon acknowledged that he had been told that the runaway rate was “too high” but noted that there was tension between satisfying Flores and being shelter care on the one hand and dealing with “more desperate and aggressive children” and implementing security measures. Id. Plaintiffs assert that, instead of finding out why so many children were attempting to flee, Defendants permitted Nixon to simply modify the windows and build a fence and looked no further into the matter.”

On May 17 to 19, 2004, Wolde and two others from ORR conducted a monitoring visit to “monitor the shelter care facility’s programmatic and financial compliances,” as well as “to assess programmatic practices and documentation of services rendered to the unaccompanied minor children through the unaccompanied minors program Cooperative Agreement.” Pl. Ex. 56 (2004 monitoring report). At that time, the Nixon facility was licensed to serve 48 minors. Id. The report noted that the program was well organized, with committed staff, was clean and well maintained, and that the children were happy. Id. The program was noted to have a very strong case management team that worked closely together in releasing children in a short period of time; the program administrator worked well with other service providers; the children received needed services; and there was a strong team work spirit among top management. Id. However, case files did not include all services, and did not indicate they were reviewed for completeness, timely documentation, and accuracy. Counseling was provided but not on a weekly basis as required, and was not consistent. The report also noted a need for regular and ongoing training to familiarize staff with the continuous changing ORR guidelines and to enable staff to handle the children with care and dignity. Id.

Recommended improvements included incorporating the Flores requirements and ORR guidelines into the program manual, specifying what exactly each unit does, creating a small manual for each task, and then using the manual as an orientation/training tool. The program design also failed to explain what legal services would be provided and who would provide them. The report also noted that there was no check and balance system for purchases, that the purchasing system was unacceptable, that personnel files were missing and did not look updated or reviewed, and that the program lacked a trained human resource staff to ensure proper information was kept in the files. Id.

In October 2004, two AFH staff reported to Robert Garza at Nixon that they observed that direct care worker M.M. appeared to have an inappropriate relationship with two of the residents. The staff observed one boy, who was leaving the facility, kiss M.M. on the cheek, give her a long hug, and whisper that she was a very special lady to him. The boy cried (as did M.M.). The other boy, who was also leaving the facility, kissed M.M. on the cheek and then on the lips. Pl. Ex. 65. There is no evidence that this was reported to ORR at the time.

On December 17, 2004, Nixon employee “Mr. Z” was involved in an incident with a minor at the facility. Pl. Ex. 63. After an investigation, it was determined that he had lost control of his anger and used unnecessary and inappropriate physical restraint. Id. Accordingly, he was demoted.

In April 2005, James De La Cruz became an FFS and was assigned to approximately twenty facilities throughout the country. De La Cruz Aff. ¶4. During 2005, fourteen AFH employees were fired for failing or refusing drug tests or for failing background cheeks. PI. Ex. 69. On April 26, 2005, Mr. Z was again involved in an incident with a minor, and he was accused of disorderly conduct, aggressive verbal statements, and aggressive behavior toward a resident. PI. Ex. 71. After an investigation by Efraen Garcia, the allegations were determined to be true, and Mr. Z was terminated by Robert Garza, AFH Director of Operations. PI. Ex. 71.

In the summer of 2005, Hilary Chester, the DUCS field coordinator, and Nathalie Lummert, USCCB national staff who manages the field coordination program, spoke with Wolde about Robert Garza’s inappropriate interactions with children at the facility. PI. Ex. 60. Chester observed an incident where she believed Garza was too rough in restraining a child. PI. Ex. 22 at 53. One resident physically attacked another, and Garza “ran into the room and yanked the boy who was on top who was kicking the other boy, pulled him off and was yelling.” The resident complained that Garza had hurt his arm and pulled him too roughly, and Garza responded by yelling at the young man. PI. Ex. 22 at 53-54. Chester explained to Garza that the young man had been sexually abused in his home country, and that grabbing him and being aggressive in his role as a shelter director would be more disturbing and be perceived in a very different way than a “regular young man who didn’t have that history.” PL Ex. 22 at 55, Chester stated that she relayed the incident to Wolde, and “it was not immediate, but eventually the decision was made by the shelter staff to have him be in charge of the shelter direct care staff and not being sort of the disciplinarian for the kids anymore.” PL Ex. 22 at 55.

However, at that point Chester also “began to complain to ORR that they needed to give the shelter some guidance on behavior management” and recommended that Nixon “subscribe to some kind of outside behavior management program.” PL Ex. 22 at 56. Chester admitted that there were a lot of things about Nixon that were “wonderful” and “that they were doing right,” but “it seemed that this one area, ORR just wouldn’t step in and wouldn’t give any guidance to them, wouldn’t hold them accountable, wouldn’t make them change their practices.” PL Ex. 22 at 56.

Wolde conducted another monitoring visit on June 1-3, 2005 “to review programmatic compliance.” Pl. Ex. 56 (2005 monitoring report). Jim De La Cruz also attended an exit meeting on June 3. PL Ex. 56. The report noted that Nixon had served 163 minors in the last quarter and had released 140 of them, and that its capacity had increased to 96 children. It noted that the program had made “big improvements in many areas,” including renovating the facility, improving its program design with a better policy and procedure in the form of a manual for each unit; tightening its security but maintaining the homey atmosphere to the children; strengthening its case management team; lowering the length of stay; providing swimming; and strengthening its internal training. It noted the program needed to improve in strengthening its internal orientation and in-house training to staff, since its capacity had increased and its staff had increased significantly. It noted shortages of clinicians and counseling services and that the program had to use “creative ways” of attracting licensed clinicians. It noted a need to strengthen its financial unit with clear policies and procedures with a clear balance and check system. The report again noted that the program was in general well organized, clean and well maintained, and that children were happy. The report also stated that the program had strengthened its orientation and in-house, ongoing training, that regular weekly staff trainings were held, including in behavioral management; and that case file documentation had improved significantly and included the majority of services.

Recommendations included installing video cameras so that each hall and the entire premises could be monitored 24 hours; strengthening staff training covering areas of child welfare by bringing outside experts as trainers, incorporating licensing guidelines, ORR policies and procedures, the cooperative agreement, internal agency policy and procedure, and child welfare topics into the staff training manual; tailoring training to specific responsibilities of each position, and giving training on timely reporting, proper communication, and professional ethics; ensuring that personnel files were reviewed regularly; creating an orientation wing; ensuring weekly individual counseling and documentation thereof; checking each case file by a supervisor regularly with clear comments on what to correct; improving the quality of the quarterly program progress reports to include major activities covered, problems encountered, actions taken and projections/goals for next quarter. PI. Ex. 56.

In June 2005, three residents attempted to escape. PI. Ex. 70. In July 2005, Hector Amaya, a lead supervisor, was arrested and charged with furnishing alcohol to a minor and driving with an invalid license. PI. Ex. 72. He was found in a parked car with the youth (who was 19 years old) drinking. The charge for providing alcohol to a minor was dropped. The incident was not reported to ORR at the time.

Plaintiffs contend that, by June 2005, Wolde and De La Cruz knew that there were problems with access to attorneys, a lack of required counseling and licensed clinicians, insufficient staff training, and that personnel and children’s records were not adequately maintained or lacked required information. PI. 1st Am. Index (docket no. 336) at 8 (citing PI. Ex. 75 (2004 & 2005 monitoring reports)).

In the spring of 2006, Hilary Chester told De La Cruz her concerns regarding how the Nixon facility managed children’s behavior. PL Ex. 60. De La Cruz apparently responded that, because the Nixon facility had such a good reunification rate, they did not receive the kind of scrutiny or attention they probably needed. Pl. Ex. 60. In May and June 2006, Chester spoke with Susana Ortiz-Ang, Deputy Director of ORR, requesting that ORR implement an appropriate behavior management system for the shelters to use. PL Ex. 60. She “reported her concern again that Nixon was grabbing children regularly but the facility did not report this to ORR.” Pl. Ex. 60. Chester reported that staff grabbed children by the arm when they walked inside and outside the building, pushed children in line, and turned children around so they faced the wall, and that this happened often and no one thought these actions counted as a restraint or warranted an SIR. Chester recommended that Nixon facility staff learn and use different behavior management techniques, such as verbal de-escalation techniques. However, Maureen Dunn responded that she wanted each facility to adopt its own technique. Further, throughout the summer and fall of 2006, Chester told Gonzalez and De La Cruz that direct care staff was threatened by Garza that they would lose their jobs if they let kids escape, which caused the staff to blame kids. Chester told Gonzalez, De La Cruz, and Wolde that Nixon was becoming a terrible place to work.

In late April or early May 2006, a female direct care worker, M.A., was caught in a bathroom with her pants down and a minor boy kneeling in front of her. Pl. Ex. 79 (ORR027546); Pl. Ex. 81 (ORR009596). The TDFPS investigation was closed with a disposition of “reason to believe” for abuse by the staffer. The report found AFH deficient under the standard for “abuse/neglect for facilities” but stated “staff member no longer employed at facility.” Pl. Ex. 80. Nixon was also found deficient for failing to report the abuse incident to licensing. Pl. Ex. 81 (ORR009582). The evidence indicates that ORR/DUCS was not informed of the incident at the time. Wolde testified that this incident was not reported by Nixon to DUCS/ORR. The TDFPS report, written by Corey Buck, a TDFPS licensing investigator, indicates that “[a]n attempt to contact Jim Delagarza [sic] with office of refugee management was attempted and a message- was left.” Pl. Ex. 80 (ORR012986). However, the evidence indicates that the phone number at which the message was left was not a correct number. De La Cruz Aff. ¶ 18.

Along with the bathroom incident, TDFPS also investigated other allegations, including that a “child alleged to have gotten pregnant by another child, staff alleged to hit resident, staff alleged to use drugs and come to work intoxicated on alcohol, sex offenders alleged to be working at the facility.” Pl. Ex. 81 (ORR009581). Nixon was not found deficient with regard to these other allegations. Pl. Ex. 81 (ORR009582). However, the Intake Report states, “Female staff members are having sexual intercourse with male residents; one union resulted in pregnancy. A male staff member is making sexually inappropriate comments to female residents. A staff member struck a resident in a vital body area. There appears to be an atmosphere of cover-up and permissiveness at the shelter. Residents are at risk of harm.” Pl. Ex. 82 (ORR027547). Plaintiffs rely on this section of the report for the proposition that Corey Buck, the investigator, had concluded in June 2006 that “there appears to be an atmosphere of cover up and permissiveness. Residents are at risk.” However, that portion of the report appears to be a summary description, of the allegations rather than a conclusion concerning the investigation. The report packet also includes an event on May 10, where the priority of the investigation was changed from category 1 to category 2, meaning “no immediate risk.” Pl. Ex. 79 (ORR027549); Pl. Ex. 95A. If Buck had concluded that residents were at risk at that time, presumably TDFPS would have cited Nixon for additional deficiencies or taken additional steps.

TDFPS conducted an investigation of another allegation of abuse at the Nixon facility in June 2006. Pl. Ex. 81(ORR009592). A staff member, Ruben Velasquez, was alleged to have choked a child and dragged him through the water. TDFPS found a deficiency in following written policies and procedures, stating that an “improper restraint technique was used by staff.” Pl. Ex. 81 (ORR009594). The investigator’s report states that the victim was restrained, during which time a water jug got knocked over, making him wet. Def. Reply Ex. C. The staff that witnessed the physical restraint reported that it was done appropriately, that the victim was placed in a “full nelson” hold as a last resort, and that the hold was discontinued when additional staff arrived. Id. Based on the evidence, abuse was ruled out, and the recommendation was routine monitoring. Id. Thus, although the restraint was improper, it did not meet the definition of abuse. Def. Reply Ex. D. On June 29, Velasquez'received a verbal reprimand from AFH, which noted that he had been through the training classes on the “Handle With Care” program, including how to de-escalate a situation and the Primary Restraint Technique. Velasquez was told that the correct method of restraint was not used. This incident was not reported to ORR or DUCS at the time it occurred.

On June 29, 2006, a male resident escaped from the Nixon facility by running toward and jumping through a window. Pl. Ex. 87. In July 2006, one female resident attempted suicide and one threatened to kill herself and was found in the shower with the wire from a headset. Pl. Ex. 86.

Defendant Gonzalez became an FFS in late August 2006. Gonzalez Aff. ¶ 4. On August 25, 2006, Maggie Gaytan, the Nixon facility director, emailed Wolde and others about an allegation of sexual abuse by a child who had. been transferred to another facility. PI. Ex. 90. The receiving facility contacted AFH and also reported the incident to TDFPS licensing. In response to the allegation, Gaytan emailed people at ORR, including Wolde, stating that “this young man could not keep his hands to himself and that he has had numerous instances which were documented”; that “the last incident was the last straw and we were not going to tolerate anymore of this behavior,” which was the reason he was moved to Mesa; the investigator advised that the boy did not disclose any names and that it was going to be really hard to investigate; the investigator advised that she was going to staff this with her supervisor and make a decision on what to do, and that “without names she really could not do anything.” PI. Ex. 90. (ORR027799). Wolde emailed Gaytan asking, “Is the child unable to provide names when he made the allegations?” PI. Ex. 90 (ORR004218). Gaytan responded stating, “From my understanding that is what happened and he also recanted his statement.” PI. Ex. 90 (ORR004218). Gonzalez and De La Cruz also learned on or about August 28 that the child had recanted his allegation. De La Cruz Aff. ¶ 17; Gonzalez Aff. ¶ 19.

Defendants state that this incident was the first time they learned of any allegation of physical or sexual abuse at Nixon. Wolde Aff. ¶ 13; De La Cruz Aff. ¶ 15; Gonzalez Aff. ¶ 17. Defendants further state that the first time they heard of the April 2006 “bathroom incident” and the June 2006 improper restraint incident was on September 21, 2006, when De La Cruz was informed by a TDFPS official of the incidents. Wolde Aff. ¶ 16; PI. Ex. 83. A TDFPS supervisory official had called De La Cruz to make sure he knew that TDFPS had cited Nixon for the bathroom incident. De La Cruz Aff. ¶ 18. De La Cruz states that, in that conversation, he learned for the first time that the TDFPS licensing investigator who should have notified him of the incident had dialed the wrong phone number. De La Cruz Aff. ¶ 18. De La Cruz also learned about the June 2006 improper restraint incident involving Velasquez and the resulting citation. Immediately following the conversation, De La Cruz called Wolde and the Field Coordinator to see if they were aware of the incident; they were not.' De La Cruz Aff. ¶20. ORR officials held a meeting, concerned both that these incidents had occurred and that they had not been reported to ORR. Wolde Depo. at 220.

De La Cruz called .Maggie Gaytan to find out what had happened and why the sexual abuse had not been reported. De La Cruz Aff. ¶ 21. Gaytan confirmed that Nixon had failed to report the abuse to ORR and informed De La Cruz that the staff member and the child involved in the restroom incident had left the facility. Id. De La Cruz reminded her of the reporting requirements, and Gaytan expressed regret over the reporting failure. Id. De La Cruz spoke with Gonzalez several times by phone, and instructed Gonzalez to personally review applicable reporting requirements with Gaytan, follow up with her about obtaining copies of any internal documentation of the restroom incident and the TDFPS citations, and find out whether there were any other pending investigations. Id. ¶ 22; PL Ex. 37. Pursuant to these instructions, Gonzalez reminded Gaytan of the reporting requirements and was assured that all staff members would be given a refresher course on restraints and documentation. Gonzalez Aff. ¶ 21. Gaytan informed Gonzalez that there were no further investigations involving Nixon.

On or about September 25, 2006, Wolde, Gonzalez, and De La Cruz reviewed a packet of documents provided to ORR by Nixon’s Director. Wolde Aff. ¶ 19; Gonzalez Aff. ¶ 22; De La Cruz Aff. ¶ 25. This packet included the TDFPS citation for the “abuse/neglect” related to the bathroom incident. The packet also included the TDFPS citation for failure to follow written policies and procedures related to the June 2006 improper restraint. The documents also included paperwork documenting that in 2004, M.M. had been accused of inappropriately kissing the two residents when they left the facility. Wolde Aff. ¶ 19. De La Cruz, Wolde, and Gonzalez concluded from the information in the packet and from information provided by the TFPS investigator that no staff member responsible for confirmed sexual abuse remained at Nixon, that the improper restraint incident had not risen to the level of intentional physical abuse, and that TDFPS had ruled out or been unable to confirm any abuse other than the restroom incident. Gonzalez Aff. ¶ 23-24; De La Cruz Aff. ¶ 26-27; Wolde Aff. ¶ 21-22.

After reviewing the packet, Wolde coordinated a conference call with senior ORR management, Gonzalez, De La Cruz, Nixon’s CEO Don Rains, and Gaytan to discuss the incident and necessary corrective actions. Wolde Aff. ¶ 20; Wolde Depo. at 220. Gonzalez testified that Nixon was placed on a corrective action plan to address issues of nonreporting. Gonzalez depo. at 112; see also Wolde Depo. at 221. Gonzalez worked with Nixon to deal with the nonreporting issue by having a couple of meetings with AFH management. Id. at 114. He testified that De La Cruz addressed it “head on” with them by saying it “cannot be happening” and were “pretty adamant about the severity of not providing that information to the guardian of the children.” Id. at 114. Gonzalez testified that they went over policies and procedures and “made reference to the state licensing protocol.” Id. at 115.

Wolde testified that they “were asking what happened” and “asked them for a training ... if they [had] conducted any training, and also to conduct an outside— to bring an outside trainer and also to provide training to all staff’ on sexual abuse. Wolde depo. at 223. He testified that, “[d]uring the discussions, what we had discussed was not to leave staff alone and also not to have — the program directors were not actually supervising — key ones were not supervising during the weekend or holidays. So we wanted them to be in shift in turn and provide those types of supervision — supervisions, and also to be available whenever they are called for any time.” Wolde depo. at 223. He stated that “the major thing was training and also to have at least two people” and “[e]very time they go around to have two people, because the problem was one person or the one who was causing this.” Wolde Depo. at 224. He stated that the “fourth thing we asked of them was to avoid this part-time staff and to have permanent staff.” Wolde depo. at 224. Nixon was instructed to have 48 hours of training for new staff and 40 hours for existing staff, to include abuse in general and sexual abuse. Id. Wolde stated that, although staff was receiving training, there was “conflicting information,” and “when we see this type of incidences, we didn't want to leave that door open.” Id. Nixon was instructed to bring in “outside training from other experts who are familiar with sexual abuse, with restraint, and with child care.” Id. at 225. Nixon personnel seemed receptive to the suggestions and said they would implement them immediately. Id. at 226. Wolde and ORR management “asked Jose [Gonzalez] to make sure that this is happening” and to help with an outside trainer. Id. They also asked Gonzalez to make frequent unannounced visits. Id. Gonzalez also followed up with state licensing about the incidents. Id. at 228.

Plaintiffs allege that “it was clear that Nixon staff was concealing crucial information,” that Defendants “were put on notice that the Nixon staff would conceal their own misconduct when they could,” and that Defendants “failed in their own duty to communicate properly with CPS.” Docket no. 336 at 16. Plaintiffs also contend that Defendants did not sufficiently scrutinize Nixon, noting that De La Cruz stated that the “program has so far been one of our most reliable programs” and “[w]e need to be sensitive to ‘pounding’ on the program too much for this incident.” PL Ex. 94.

Plaintiffs allege that, in September 2006, “an incident occurred in [Hector] Amaya’s office behind closed doors. The UAC stated that Mr. Amaya grabbed him by the shirt and shook him, and admitted that he was afraid of Mr. Amaya. Pl. Ex. 95A. The TDFPS investigation report states that on the second interview, the boy stated that Amaya only grabbed his shirt and denied being pushed or shaken. Amaya denied that the door was closed and denied touching the boy. The investigator ruled out abuse and recommended only routine monitoring. PL Ex. 95A.

On September 27, 2006, Gaytan contacted Gonzalez to inform him that a Nixon staff member, Lesvia Monreal, had used an improper restraint on September 26. Gonzalez Aff. ¶25. Specifically, a male resident had refused to follow instructions to go outside, and Monreal pushed him up against a wall, putting all her body weight on him, and saying in Spanish, “let’s see who is stronger, me or you.” PL Ex. 91 (SIR); Def. Ex. 22. Gaytan informed Gonzalez that the resident was not injured, that the staff member had been suspended pending an investigation, and that TDFPS had been notified. Gonzalez relayed this information to De La Cruz and Wolde. Wolde spoke with the Nixon Director, CEO, and Operations Director about providing training to all staff on restraints. Wolde Aff. ¶ 24. Gonzalez met with Gay-tan, Director of Operations (Garza), and Lead Trainer (Garcia) on October 18 and personally reviewed the minimum standards applicable to 24-hour child care facilities and required them to give the entire staff a refresher course by November 17 and provide proof of completion by November 20. Gonzalez Aff. ¶ 26; PL Ex. 102. Staff was to be trained on ORR policies and procedures for reporting SIRS and state requirements for reporting SIRS and definitions of abuse and neglect, and AFH was instructed that shelter policy should reflect that it provides guidance to staff when dealing with these matters, and should be in the form of reference to a particular policy and procedure and training on how to identify abuse and neglect. Pl. Ex. 102 (ORR022967). Gonzalez reported this to Wolde and De La Cruz. Wolde Aff. ¶ 25; De La Cruz Aff. ¶ 29; Def. Ex. 24.

Beginning October 1, 2006, the Nixon facility was recommended for funding to serve 136 children. PL Ex. 98 (ORR007121). On October 1, 2006, three residents smashed a window and escaped at night. Pl. Ex. 103.

On November 5, 2006, several residents ran away from the shelter by blocking the door with furniture and breaking through the sheetrock wall. PL Ex. 100 (ORR011559). The remaining residents were gathered for a head count. There were approximately seventy male youth and their assigned staff in one area. The boys became restless, and off-duty staff were called in to assist, including Robert Garza, Efraen Garcia, Joe Aguilar, and Frank Martinez. All but Garcia admitted that they had been drinking, but it was believed that Garcia had also been drinking. PL Ex. Ill (ORR013835) (also noting that CPS concluded that Garcia had been drinking). J.M.R. alleges that Garcia slammed him into the wall, then threw him against a door so hard that it broke, and continued to beat him. PI. Ex. 15; see also PI. Ex. 100 (“It is thought the UAC was thrown against a door with such force the door was damaged.”). Another resident “was thrown to the floor and struck his head against tile floor.” PI. Ex. 100 (ORR011559).

CPS was notified and on November 6, 2006, the local sheriff initiated an investigation of the incident. Wolde Aff. ¶26. Gonzalez and De La Cruz were at a training and received a call on November 6 from Gaytan asking whether she should allow the sheriff to speak with the residents. De La Cruz and Gonzalez gave permission for the officers to speak with any Nixon resident willing to be interviewed. Gonzalez Aff. ¶27. Defendants state that the force used far exceeded any previous inappropriate restraint at Nixon that had come to their attention. Wolde Aff. ¶ 27; Gonzalez Aff. ¶ 29. J.M.R. also alleges that a staffer (Mai’tinez) dragged him out of bed the next morning and beat him again.

In response to the November 5 incident, Wolde participated in a conference call on November 9 with ORR personnel, including Gonzalez and De La Cruz, and Nixon personnel. Def. Ex. 25. In the conference call, Gaytan assured Defendants that the Nixon staff members involved had been suspended. De La Cruz Aff. ¶ 34; Gonzalez Aff. ¶ 31. Wolde recommended that the children receive appropriate medical services and that their lawyers be informed, that a SIR be completed with complete information of the incident and what actions the facility administration took, recommended that Nixon hire a human resources person to assist in management and training, organized a number of follow-up conference calls, and coordinated a site visit to Nixon in November 27-30. Wolde Aff. ¶ 28. Wolde also instructed Gonzalez to notify the FBI (Gonzalez did), and discussed the TDFPS investigation with TDFPS officials and Gonzalez on November 15. Def. Ex. 27.

The result of the TDFPS investigation was a finding of “reason to believe” physical abuse and neglect. The investigator concluded that Garcia had abused residents, and that Joe Aguilar and Robert Garza failed to take an action that a reasonable person would have taken under the circumstances by failing to intervene. Def. Ex. 3. The Nixon facility was cited for improper restraint techniques. PI. Ex. 100 (ORR011560). A warrant for the arrest of Garcia was filed, charging him with two Class A misdemeanors for injury to a child. PI. Ex. 100 (ORR011560); Def. Ex. 3.

Five girls attempted to escape from the shelter on or about November 13, 2006. PI. Ex. 105. They were placed in shorts and shower shoes, and Defendants were notified. PL Ex. 105. On November 14, 2006, Wolde sent an email to Gaytan, Gonzalez, Chester, and De La Cruz regarding the attempted runaways. PL Ex. 107. He wrote, “I am concerned about this program and curious why children are attempting to run away. There must be reason(s) why children wanted to leave this program. In the past, children were exited [sic] to attend classes, vocational services, swimming, outings, etc. Why has that changed all of a sudden?” PL Ex. 107. Wolde also planned a trip to Nixon in late November. Pl. Ex. 107.

On November 14, 2006, Chester sent an email to Wolde listing problems at the Nixon shelter, including staff grabbing and pulling children by their arms and sleeves, staff yelling at children to “shut up,” children being humiliated in front of other children, groups of children being punished because of one child’s misbehavior, and Garza grabbing and shoving children. PI. Ex. 60. Chester and DUCS D.C. staff had a conference call the next day. PI. Ex. 60.

On November 15, Gonzalez and De La Cruz had a conference call with TDFPS licensing and investigative staff, including Corey Buck, to discuss the alleged abuse on November 5. PI. Ex. 111. De La Cruz wrote his notes of the meeting, stating, “Upon investigation of that incident numerous other issues came to light that will require corrective action in order to prevent further serious incidents from reoccurring. Some of those issues are clearly issues/violation of TDFPRS minimum standards and others are issues of ‘quality of. care’ that a contracting entity such as TDFPRS or U.S. Department of Health would need to address.” Id. De La Cruz noted that Garcia “is the trainer for types of restraint used by the shelter staff’ and yet improperly restrained J.M.R. De La Cruz also raised concerns about Garza, who was said to have threatened a resident and used taunting language. Id. De La Cruz noted that, in the last approximately three years before the last expansion, the shelter had only approximately seven major incidents, but since it expanded “a little over three months ago it has experienced 6.” Id. (ORR013837). De La Cruz reported that one CPS staff “informed ORR Dues that she had given Maggie the suggestion to start implementing new TDFPRS Minimum standards of assigning specific children to specific staff,” though the standards were not yet effective. De La Cruz wrote, “The shelter should immediately initiate this practice because the standard will becoming [sic] effective within approximately one month and Nixon has had in [sic] increase in runaways.” Id. (ORR013837). It was noted that Corey Buck also interviewed a Nixon staff person who had left during the November 5 incident because he “could not stand how children were treated at this place.” Id. (ORR024555). However, there is no indication that this staff person reported any other physical or sexual abuse occurring at the facility.

Other notes from the meeting state, “It was the opinion of the leadership at the Texas department of protective regulatory services that incidents and lack of training, staffing and administration coupled with the new numbers of children at Nixon have had an adverse effect in the quality of Care.” PI. Ex. 110. One individual was noted as having “issues with” the staff ratio and training of staff, although Nixon was meeting state minimum guidelines. Concerns were raised about Garza being in charge of training, the fact that he had “not been an effective leader and [had] not performed up to his job responsibilities of having adequately trained staff,” had been resistant to recommended changes, and that he had admitted to drinking on the night of the November 5 incident. Id.

On November 17, Wolde emailed Gonzalez and De La Cruz, stating “I think we need to investigate or cover the following topics:” including “accounts of the incidences that occurred, abuse, inappropriate restraints and reporting violations”; “staff and training” including whether there was sufficient staff, whether staff were adequately trained and with what materials, whether outside trainers were used, whether there was a disciplinary protocol for children and staff; “responsibilities and communications”; whether Nixon could handle the large number of children and staff and whether it was violating any agreements; and what types of technical assistance the team should provide during the trip. PI. Ex. 38.

Gonzalez and De La Cruz state that, between mid-November and mid-February 2007 things were quiet, and they learned of no allegations or incidents of physical or sexual abuse by Nixon staff. Gonzalez Aff. ¶ 33; De La Cruz Aff. ¶ 36. However, to help ensure safety, they recommended to Wolde that ORR reduce the number of children placed at Nixon. Gonzalez Aff. ¶ 34; De La Cruz Aff. ¶ 37. Wolde also recommended to ORR to reduce the number of children to help ensure safety. Wolde Aff. ¶ 32.

In their statement of facts, Plaintiffs allege that, “during this time period,” Plaintiff O.E.F. was beaten twice by staffers at Nixon. Docket no. 336 at 20. Plaintiffs allege that, the first time, Velasquez pulled him out of a line and beat him across the torso with the heel of his hand, leaving bruises and the second time, another staffer (apparently Vasquez) pulled him from an upper bunk bed by the feet, throwing him on the floor and beating him severely. Docket no. 333 at 22; O.E.F. depo. at 26-27. O.E.F. testified that, when he showed the marks from the first beating to Garza, Garza ignored him and said sometimes the residents would hit each other. O.E.F. depo. at 20. O.E.F. stated that he saw Velasquez hit and kick other residents and that other employees/staff saw this too. O.E.F. depo. at 22-24. O.E.F. did not report any of the abuse other than the time he spoke to Garza and was ignored. PL Ex. 19 at 84.

Plaintiffs allege that, “[a]lso during this time period,” W.O.G. was battered by an unidentified male staffer, and a female staff member entered his shower while he was naked, seeking sexual favors. W.O.G. testified that the woman would bring a towel and then “supervise” while they were in the shower. W.O.G. depo. at 20. He also testified that she touched him on the back and that he told her to stop. W.O.G. depo. at 23-24. He stated that she punished him by taking away t.v. and telephone calls. W.O.G. did not know the name of the female staffer, but Plaintiffs assert that it was Lesvia Monreal. With regard to the telephone incident, W.O.G. testified that he was making a telephone call without permission, and the staff person found him, took the telephone away and pushed him back, and he hit the door. W.O.G. depo. at 28-29. He stated that the person grabbed and pushed him, and that it left a red mark on his arm. W.O.G. depo. at 30. W.O.G. testified that he did not report the abuse, but if the federal government employees had come to talk to him, he would have told them about it. Pl. Ex. 20 at 163.

On November 20, Nathalie Lummert of USCCB emailed Susana Ortiz-Ang (DUCS Deputy Director) and Wolde asking them to consider decreasing the size of the Nixon facility. PL ex. 60. On November 22, TDFPS sent a letter to AFH notifying it that, “[d]ue to an increase of investigations and deficiencies, your monitoring plan will change from a Plan 2 to a Plan 1.” Def. Ex. 23.

TDFPS licensing investigated another incident of an alleged improper restraint by Ruben Velasquez on November 26. PI. Ex. 98; Def. Reply Ex. D. A resident claimed that Velasquez intentionally struck him in the face while he was being restrained. Def. Reply Ex. D. It is undisputed that Velasquez did restrain the resident, but witnesses indicated that the resident was highly agitated and was struggling, kicking, and biting. Other residents stated that the alleged victim threatened them to get them to lie about the incident. The investigator’s conclusion was that an improper restraint was used, but abuse was ruled out. Def. Reply Ex. D. The investigator said there were no witnesses to support the statement that Velasquez hit the boy. 7d

Wolde, De La Cruz, Gonzalez, and others participated in a site visit at Nixon from November 27 to 30, 2006. The purpose of the visit included: “evaluating] the capability of the agency and its management team to run a program with 136 beds”; “investigat[ing] numerous incidents and providing] recommendations on” “numerous incidents that occurred in the agency since October 1, 2006, abuse of staff by children, inappropriate restraints, and reporting violations made by the agency”; and “provid[ing] technical assistance as needed.” PI. Ex. 98 (Nov. 2006 team report). “[The] DUCS Project Officer, [¶] Case Management staff, FFS Team Leader, and FFS field specialist provide[d] three days of intensive technical assistance to Nixon staff and management on the use of restraints, behavior management, proper completion of serious incident reports, and timely reporting of incidents. DUCS staff provide[d] recommendations in writing to Nixon staff during the exit briefing of this technical assistance site visit.” PI. Ex. 92 (ORR011821). Wolde testified that he included Janet Zinn, a Case Manager from DUCS headquarters who was a child welfare expert, to discuss “what should be done and how we should handle it” because he was not an expert in this area. Wolde depo. at 234-35, 241. Wolde stated that he interviewed some children (between five and ten) during the visit, as well as some of the staff. Wolde depo. at 243-44. He testified that De La Cruz and Zinn also interviewed staff. Id. at 244. Wolde stated that they spoke with state licensing during the trip and “discussed how to improve the relationship and to communicate properly in the future.” Id. at 249.

A report from the site visit states, “Between October 1, 2006 and November 30, there were more SIR (Serious Incidence Reports) than the entire FY 2005[, including] seven runaways happening twice on the same day and investigations by their licensing agency on restraints and sexual abuse by a staff member.” It also states, “Recent incidents have served to illuminate several AFH administrative and management issues, [sic] had not appropriately managed staffing issues to address the growing number of shelter beds and other unresolved management problems. These issues include hiring capable assistant director and other staff, firing staff who refused to follow shelter and ORR DUCs policies, and to strengthen training and communication even though AFH has a strong case management team.” PI. Ex. 98.

The report noted that the personnel files reviewed lacked “so many required documents on training, performance evaluation, background checks, documents related to disciplinary actions, etc.” and that the staff was large enough that a human resources person was needed. AFH recommended that the Operations Manager position be eliminated and the money used to hire a qualified HR person, which ORR approved. AFH then hired an experienced HR person. The report also made the following recommendation: “AFH needs to review the licensing and ORR requirements on hiring, training and personnel files and make sure that all the requirements are met.” Id

The report notes that numerous incidents had occurred within several months, including the November 5 runaway attempt and the resulting physical abuse, the investigation of an improper restraint in late November, and a confirmed incident of sexual abuse by a staff member perpetrated against a child during the summer (the bathroom incident). The report continues, “Muring the site visit it was learned by ORR DUCS that a split in the relationship between several key staff in the shelter had allowed for conditions in the shelter to deteriorate” and “[a]ll levels of direct care staff were affected through insufficient staff coverage on weekends, insufficient training, lack of proper communication between staff and various teams and insufficient oversight and guidance by top level administrators.” Id The report was issued to follow up on initial recommendations made by the DUCS team at the end of the visit. Id Gaytan agreed to make the following immediate change: prioritize a search for deputy director, training director, and full-time masters-level clinician.

The following corrective actions were required by ORR: (1) shelter administration will revise internal policies and procedures regarding significant and critical incidents in adherence with ORR DUCS and TDFPS requirements; (2) these policies should include required detailed verbal and written reporting and response procedures; (3) all staff should attend mandatory and regular training on significant and critical incident handling, reporting, and follow-up; (4) all critical incident reports and SIRs should be placed in a loose-leaf binder in a central location and checked daily by each staff member; (5) daily progress notes for each child should be developed and made available to all relevant staff for an appropriate plan of communication at the end of each shift and placed in the child’s file; (6) a written policy and procedure should be developed and implemented that requires each staff member working with that child to have read the child’s file before starting the shift; (7) staff representatives from direct care staff, ease management, and clinical team should contribute to the development of an appropriate reporting format for improving internal communication; (8) weekly meetings with clinical, case management, and DUCS Field Coordinator staff to review children’s cases. The following recommendations were also made: shift supervisors to provide opportunities for staff debriefings of critical incidents with involved staff; key positions need to be filled as soon as possible; clinical team needs to be fully staffed; personnel files to be updated and completed, including yearly performance evaluations, current job descriptions to match job qualifications, commendations, and disciplinary actions; initial and ongoing staff training requirements should be fully implemented and documented; and staff training should include a state mandated behavioral management plan. ORR would also “suggest a reduction in number of beds to better serve UACS from 136 to 104 for now.” Id.

The report stated, “Prior to the site visit Jose Gonzalez conducted interviews with all children and care [sic] and various direct care staff. During this site visit, the team conducted numerous interviews with children, direct care staff, case managers, and clinicians. All four of the staff involved in the initial incident were initially suspended. After the investigation by Texas Licensure and as a result of several interviews conducted by the ORR DUCS site visit team, the four staff involved have been terminated.” Id. The report noted deficiencies in disciplinary policies (discipline policy not detailed and inconsistent discipline) and in training (staff trained only once a year on the same topics, and the shelter did not use outside trainers); lack of grievance procedure for children to report grievances. Id. DUCS required AFH to hire three new employees and to demonstrate that they made an effort to hire on work experience rather than on previous relationships to AFH employees (noting that hiring from the outside would help reduce tendencies for staff to develop loyalties and “staff splitting”); the program director was expected to spearhead the development of clear policies and procedures implemented in a consistent manner to address communication among leadership staff. Id. Improvements in training were required (staff training hours to follow state mandated minimum standards and ORR policies with a commitment to ongoing and more frequent training), as were clear disciplinary procedures applied consistently. AFH was also required to develop a procedure for rights, responsibilities, and avenue to express concerns to be provided to each child in writing at intake.

The “findings” state that “one of the biggest deficiencies” was that “the shelter has been operating more in the form of a military bootcamp or juvenile detention” and “[t]he lack of nurturing staff to client relationships coupled with boredom appear to be main contributors to the surge of recent elopements from the facility.” Id. The ORR staff recommended that staff members should develop recreational activities and interact with the residents by playing cards and other appropriate recreational activities, and that staff should be encouraged to model appropriate communication and respect to other staff and children at all times. Id. The report noted that clinical staff could contribute their expertise to a new behavioral management program and add input to staff training, but they should not be the sole trainers or arbiters of discipline; rather, an outside or new trainer should be skilled in treatment of children and other life skills issues. Id. ORR staff recommended that shift supervisors be brought together more frequently to review and process trends in children’s behavior, management of direct care staff, incident reports, and any other pertinent information. Id.

A follow-up report notes that, during the site visit, numerous direct care staff workers were interviewed, and it was concluded this part of the agency was the most neglected. It noted that Nixon should hire more staff from “outside” rather than based on previous relationships and that it should “define behaviors that it is not willing to accept by staff,” including “staff knowing or having suspicions of inappropriate behavior but not reporting it.” The report also stated that children at intake should be informed that if they did not feel comfortable with their treatment or any other concern, the agency had someone in place to address those concerns. It also stated, “The agency should immediately look into changing their direct care practices so that staff are allowed to have positive age appropriate interactions with the children”; “the shelter should look into different types of behavior modification program[s] that utilize a level system with id