Court upholds detainee’s lawsuit against residential center

PHILADELPHIA >> The victim of sexual assault at the hands of a Berks County Residential Center employee can move ahead with her lawsuit against the county and several staff members of the facility, a federal appeals court has ruled.

The ruling stems from a June 2016 civil suit filed in federal court by the victim — who was 19 when the assault occurred in 2014 — alleging the county failed to implement policies to prevent the assault and that staff members at the facility were deliberately indifferent to the assault.

The county and several staff members named in the suit filed an appeal days before the trial was set to begin in April 2018.

The county asked the U.S. District Court of Appeals for the Third Circuit in Philadelphia to dismiss the case while the staff members asked the court to grant them qualified immunity — a legal doctrine that shields government officials from being sued for misconduct unless their actions violate established federal law or constitutional rights.

The appeal was denied by a three-judge panel. U.S. District Judge Luis Felipe Restrepo wrote the opinion.

In the 16-page ruling, the judges affirmed that immigration detainees are entitled to the same constitutional protections afforded to all pretrial detainees by the due process clause of the 14th Amendment. And, because of that finding, the suit against the county and staff members at the facility can proceed.

“… We agree there is enough evidence to support an inference that the defendants knew of the risk facing [the victim], and that their failure to take additional steps to protect her — acting in their capacity as either a coworker or supervisor — could be viewed by a factfinder as the sort of deliberate indifference to a detainee’s safety that the Constitution forbids,” Restrepo wrote in the ruling.

“We agree there is a genuine need for trial to determine whether the defendants are liable, and that summary judgement was therefore properly denied,” he wrote.

Attorney Su Ming Yeh of the Pennsylvania Institutional Law Project, which is representing the victim, said Tuesday that she’s happy with the decision. The nonprofit organization defends the civil and constitutional rights of incarcerated and institutionalized individuals in the state.

“We’re pleased that the Third Circuit confirmed that immigration detainees have the same constitutional protections as other detainees, including the right not to be sexually assaulted while they are confined,” she said. “We are now looking forward to proceeding with the merits of the case at trial.”

Berks County officials were silent on the ruling.

County Solicitor Christine M. Sadler said she was reviewing the matter with outside counsel and could not comment.

Commissioner Kevin S. Barnhardt said he could not comment because the ruling was still being reviewed by the legal team. Commissioners Christian Y. Leinbach and Mark C. Scott did not immediately respond to requests for comment.

The complaint

The victim entered the U.S. with her 3-year-old son in May 2014, seeking refuge from domestic violence and sexual assault in Honduras. She and her son were transferred from an immigration facility in Texas to the BCRC shortly after entering the country.

The Bern Township facility houses undocumented immigrants seeking asylum from their country of origin.

It was created in an arrangement between Berks and the U.S. Department of Homeland Security’s Immigration and Customs Enforcement office, or ICE. Berks manages and pays for the operation, including 66 staff, and is reimbursed by the federal government. In return, ICE pays to lease office space and provides about $1.3 million in revenue annually to the county.

In the complaint, the victim alleged that BCRC employee Daniel Sharkey began giving her food shortly after her arrival at the facility. She said his overtures escalated to allowing her to use his cellphone and promising to help her with her immigration status.

Within weeks, she said, Sharkey began to touch and kiss her without her permission. She said that when she refused to reciprocate he turned angry and told her she would be deported if she told anyone about his advances. He then began forcing her to have sex with him in various locations of the facility.

The complaint states the assault stopped when another detainee reported the abuse to personnel at the facility, who investigated and took the matter to police.

Sharkey was arrested and charged with institutional sexual assault. The West Reading man pleaded guilty in April 2016 and was sentenced to six to 23 months in Berks County Prison followed by three years of probation. He was also required to register as a sexual offender for the next 15 years.

The victim, with assistance from the Pennsylvania Institutional Law Project and immigration attorney Matthew Archambeault, filed a civil suit in June 2016 against the county and several staff members at the facility for failing to ensure her 14th Amendment right to due process was protected.

The suit names Sharkey; Berks County; Diane Edwards, director of the facility; and employees John Behm, Jamie Himmelberger, Brittany Rothermel, Erika Taylor, Matthew Malinowski and Jeremiah Petry as defendants in the case.

She argued that the employees were aware of the assault before it was reported by another detainee but failed to take steps to protect her and that the county failed to implement policies to prevent sexual abuse at the residential center.