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)

Plaintiff sued Border Patrol Agent Philip Westerman in his individual capacity for injuries she suffered when he sexually assaulted her while she was in federal custody, under the effects of a pain medication and recovering in a hospital. She claims violations of her Fourth and Fifth Amendment rights. Her suit against the agent is brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). She also sues the United States under the Federal Tort Claims Act (FTCA), alleging negligence.

In April 2013, Plaintiff was apprehended by the Border Patrol near Falfurrias, Texas. While in CBP custody, she tripped and fell, injuring her right arm. The 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. Additionally, her legs were restrained while she lay in bed. At one point, she woke to find Agent Westerman, who was alone in the room with her, with his fingers in her vagina. His penis was exposed. He forced her to take his penis in her uninjured left hand, where he ejaculated into it. Although she tried to push him away, she was unable to do so with only her left hand free. Agent Westerman wiped his hand with a towel and threw it in the trash can. The plaintiff was able to retrieve the towel. Because of the verbal abuse and threats she had already experienced from the other Border Patrol agents, she 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 happened. The hospital staff dismissed the agents from the room. The local police and sheriff deputies arrived and took at statement and the towel.

On February 4, 2015, the government filed a motion to dismiss Plaintiff’s FTCA claims. The government argued that the discretionary function exemption deprived the court of subject matter jurisdiction over a claim arising from conduct by Border Patrol Agent May (who was also guarding Plaintiff’s hospital room), 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. The parties are currently engaged in initial discovery on the government’s motion to dismiss, which is scheduled to conclude by June 15, 2015. Plaintiff filed a second amended complaint on August 28, 2015.  On September 15, 2015, the District Court denied Defendant’s Motion to Dismiss the First Amended Complaint as moot.

Defendant United States filed a second motion to dismiss on October 2, 2015. On November 10, 2016, the District Court granted in part and dismissed in part the government’s motion to dismiss, finding that the case could proceed regarding Agent May’s potential negligence in leaving Agent Westerman alone with the Plaintiff.

On November 26, 2016, the United States filed an answer to Plaintiff’s amended complaint.

Counsel: Javier Maldonado

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

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