Quezada Cuevas v. Border Patrol Agent Philip Westerman and U.S.A.

Quezada Cuevas v. Border Patrol Agent Westerman and U.S.A., No. 14-00133 (S.D. Tex. Filed Sept. 25, 2014)

In April 2013, Plaintiff Quezada Cuevas was apprehended by the Border Patrol near Falfurrias, Texas. While in CBP custody, she tripped and fell, injuring her right arm. Border Patrol agents took her to a hospital in Corpus Christi, where she underwent two surgeries on her arm. After the second surgery, she was moved to a room to recuperate and given pain medication that made her extremely sleepy. She was guarded by Border Patrol agents while in this room. At one point, she woke to find Agent Westerman, who was alone in the room with her, with his fingers in her vagina and his penis exposed. Agent Westerman forced Ms. Cuevas to touch his penis with her uninjured hand, and he ejaculated into it. Although she tried to push him away, she was unable to do so. Agent Westerman wiped his hand with a towel and threw it in the trash can.

Because of the verbal abuse and threats she had already experienced from the other Border Patrol agents, Ms. Cueva initially was afraid to tell anyone what happened. Subsequently, Agent Westerman was again alone in the room with her and exposed his penis to her. Before he could do more, another agent came into the room and he quickly zipped up his pants. Plaintiff later told a nurse what had happened. The hospital staff dismissed the agents from the room and called local law enforcement. The local police and sheriff deputies arrived and took a statement and the towel Agent Westerman had tried to throw away.

Ms. Cuevas sued Agent Westerman in his individual capacity pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violations of her Fourth and Fifth Amendment rights. She also sued the United States for negligence under the Federal Tort Claims Act (FTCA). Ms. Cuevas specifically alleged that the other Border Patrol agent who had been guarding her hospital room, Agent May, had a duty to control Defendant Westerman’s conduct, and that CBP was negligent in failing to assign a female agent to safeguard her while she was in the hospital.

On February 4, 2015, the government filed a motion to dismiss Plaintiff’s FTCA claims, arguing that the discretionary function exemption to the FTCA deprived the Court of subject matter jurisdiction over the claim arising from Border Patrol agent May’s conduct. The Court held that Plaintiff had failed to allege sufficient facts to show that Agent May had a duty to control Defendant Westerman’s conduct, and that Defendant Westerman had acted outside the course and scope of his official duties.

Plaintiff filed a second amended complaint on August 28, 2015.   The United States filed a second motion to dismiss on October 2, 2015.

On November 10, 2016, the District Court granted in part and dismissed that motion in part, The Court dismissed Ms. Cueva’s assault claim and negligence claim arising from CBP’s failure to assign a female agent to watch Plaintiff’s hospital room..  The Court, however, denied the United States’ motion to dismiss the negligence claim arising from the fact that another Border Patrol agent r who was in Ms. Cuevas’ room had failed to prevent the assault.

Thereafter, the United States answered Plaintiff’s amended complaint. Subsequently, the United States moved for summary judgment on Ms. Cuevas’ remaining negligence claim. Plaintiff has opposed this motion, which remains pending before the Court as of April 2018.

Counsel: Javier Maldonado

Contact: Javier Maldonado | (210) 277-1603 | jmaldonado.law@gmail.com

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