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Whitley v. Hanna

United States Court of Appeals, Fifth Circuit

August 8, 2013

NATASHA WHITLEY, Plaintiff-Appellant

Appeal from the United States District Court for the Northern District of Texas

Before KING, DAVIS, and ELROD, Circuit Judges.

KING, Circuit Judge

Plaintiff-Appellant Natasha Whitley appeals the dismissal of her 42 U.S.C. § 1983 action and the denial of her motion to amend her complaint. Whitley's claims arise out of former City of Brownwood police sergeant Vincent Ariaz's sexual abuse of her. Defendants-Appellees John Hanna, Robert Bullock, Michael Murray, and Robert Grubbs were state officers involved in the investigation and arrest of Ariaz. Whitley argues that Appellees failed adequately to protect her from Ariaz, and used her as "sexual bait" to strengthen their prosecutorial case against him. The district court granted Appellees' motions to dismiss after finding that Whitley failed to state a § 1983 claim and that Appellees would be entitled to qualified immunity. It also denied Whitley's motion to amend her complaint. For the following reasons, we AFFIRM the district court's judgment.


In 2000, the City of Brownwood created Explorer Post 1150 as part of the "Explorers" program—a school- and work-based program to introduce young people to various vocations. Explorer Post 1150 was established to teach participants about law enforcement, including police training and operations. Vincent Ariaz, a then-sergeant with the City of Brownwood Police Department, acted as Explorer Post 1150's advisor. In January 2007, Ariaz was investigated for alleged abuse of one of the program's female participants ("A.M."). A Brownwood police officer, together with appellee Texas Ranger John Hanna, conducted the investigation.

Hanna interviewed A.M., and learned that Ariaz would use her as an example for activities like handcuffing and have her stay late when no one else was around. Hanna also discovered from A.M. that Ariaz would rub his body against hers and ask her about her sexual experiences. A.M. further informed Hanna of an incident in which she and Ariaz were alone in a storeroom. Ariaz allegedly closed the door, turned off the lights, and proceeded to kiss A.M. and fondle her breasts. Despite A.M. telling him to stop, Ariaz continued until she was able to make noise and escape. A.M.'s mother and her then-boyfriend also told Hanna that Ariaz had sent A.M. numerous sexually suggestive text messages, including proposing having sex in a motel room. The boyfriend also lodged a complaint against Ariaz, to no apparent effect. An affidavit by another police officer stated that Ariaz had expressed a desire to engage in different sexual acts with a young girl.

Whitley's allegations do not disclose what action, if any, the City of Brownwood or the Brownwood Police Department took in response to Hanna's investigation or Ariaz's conduct. We do know that Ariaz continued as a police officer for the City of Brownwood. Hanna, following his investigation, notified his lieutenant, appellee Robert Bullock, that he had obtained a "written statement detailing a pattern of sexual harassment, text messages of [a] sexual nature, and one incident of sexual contact." The report was approved by Bullock on February 19, 2007, and stated that the investigation "would remain active."

Sometime thereafter, Ariaz's attention shifted to another Explorers participant—fifteen-year-old appellant Natasha Whitley. Ariaz began "grooming" Whitley by giving her gifts, promoting her to the highest position in the Explorer post, repeatedly using her as his example in class, and writing her love notes that she kept in her Explorers locker. Ariaz's advances grew progressively more intimate and eventually became sexual around June 2007.

Although various individuals were aware that Ariaz was engaging in suspicious conduct, it does not appear that Hanna learned of this until July 3, when another member of the Brownwood Police Department, Richard Williams, noticed Whitley driving Ariaz's truck and questioned her. In the course of speaking with her, Williams learned that Ariaz and Whitley drove together on a nightly basis. Williams thereupon contacted Hanna, who resumed his investigation and quickly confirmed that Ariaz allowed Whitley to drive his vehicle, rode with her almost every night, and spent hours with her parked in locations that were secluded or known "make out" areas.

On July 9, Hanna met with the Brown County District Attorney, appellee Michael Murray, and the Brown County Sheriff, appellee Bobby Grubbs. Also present were Brown County's Assistant District Attorney, a District Attorney investigator, the Brown County Chief Deputy, a sergeant with the Texas Department of Public Safety, a Brownwood police sergeant, and members of the West Central Interlocal Drug Task Force. The group discussed Hanna's investigation into Ariaz's conduct and agreed that Hanna would continue monitoring Ariaz to catch Ariaz in the act of abusing Whitley, and thus strengthen the prosecutorial case against him. Bullock endorsed the plan after Hanna informed him of the July 9 meeting.

Hanna proceeded to install video surveillance cameras in the hallways of the Brownwood Annex building—one of the locations Ariaz was known to take Whitley. Hanna also initiated GPS surveillance of Ariaz's car. On July 10 and 11, Ariaz was observed with Whitley in the Annex building. Ariaz repeatedly hugged and kissed Whitley. Ariaz also was observed entering an Annex building courtroom where Whitley was waiting, and later exiting without his belt, followed by Whitley, who emerged adjusting her shirt. Ariaz and Whitley were known to spend lengthy periods of time in the Annex building courtroom. Hanna informed Bullock, Murray, and Grubbs of these events.

On July 12, Hanna assembled three two-man teams to surveil Ariaz and Whitley. Over the following days, Ariaz and Whitley repeatedly were observed engaging in the previously documented conduct. On July 17, Hanna and another investigator hid themselves in the closet of the courtroom Ariaz and Whitley previously had entered. Sometime after 2:30 a.m., Hanna witnessed Whitley sitting or lying on a table with Ariaz positioned over her. Ariaz and Whitley then left, but returned at 6:13 a.m. Whitley lay down, and Ariaz proceeded to kiss her for several minutes. He then placed his head in Whitley's "crotch area, " whereupon Hanna exited the closet and intervened. Ariaz was arrested and indicted on more than twenty-five counts of sexual assault of a child and two counts of indecency with a child.[1] He ultimately pleaded guilty to two counts of sexual assault of a child and no contest to indecency with a child. Ariaz currently is serving a twenty-year prison sentence.

On November 3, 2008, Whitley's parents filed suit in federal district court against, among others, the City of Brownwood, the Brownwood Police Department, the Brownwood Chief of Police, and the Boy Scouts of America, in an action styled Whitley v. Ariaz, et al., No. 6:08-CV-85-C. That lawsuit was dismissed upon settlement.

On August 19, 2011, Whitley herself filed suit against Hanna and Bullock, in their individual capacities, and against Murray and Grubbs in their individual and official capacities (collectively, "Appellees"). Whitley also sought declaratory and injunctive relief against Appellees in their official capacities. Her complaint primarily contended that Appellees violated her constitutional rights by failing timely to intervene to stop Ariaz's abuse of her.

Murray and Grubbs filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) on September 13. On the same day, Hanna and Bullock filed a separate motion to dismiss for failure to state a claim under Rule 12(b)(6), in which they asserted qualified immunity. Subsequently, Murray and Grubbs filed an original answer in which they also raised a qualified immunity defense. Following the filing of Appellees' motions to dismiss, Whitley filed a motion to amend her complaint.

In an order entered on February 21, 2012, the district court granted both motions to dismiss and denied Whitley's motion to amend her complaint. The district court began by reviewing the proposed amended complaint and concluded that the amendments were "nothing more than reiterations of the original § 1983 claim premised upon substantive due process rights." The court viewed the proposed amendments only as alleging that Appellees engaged in a conspiracy to deprive Whitley of her constitutional rights, a claim that was not actionable under § 1983 without an underlying constitutional violation. Further, it found that "the proposed additional facts that [Whitley] wishes to add to her pleadings do nothing to change the claims brought by [her]." Accordingly, the district court held that granting Whitley's motion to amend her complaint would be futile and denied her motion.

Turning to Appellees' motions to dismiss, the district court found that dismissal was warranted. "At the heart of the allegations is [Whitley's] claim that the [Appellees] should have concluded their investigation sooner and arrested Ariaz sooner, thus preventing further sexual acts against her." The court determined that Whitley's § 1983 claims failed because there was no constitutional right to have criminal charges filed against someone or to have that person investigated.

The district court likewise was unpersuaded by what it construed as Whitley's attempts to establish supervisory liability over Appellees. First, to the extent Appellees were involved in Ariaz's misconduct, the district court found that they actively were investigating him and thus their behavior did not fall within the purview of cases that permitted claims against state actors who failed to protect victims from harm. Second, the district court noted that Appellees did not supervise Ariaz and actually were employed by completely separate entities. Properly construed, the district court reasoned, Whitley's allegations really fell under a "state-created-danger theory, " because Appellees—as state actors—allegedly acted with deliberate indifference in creating or increasing a danger to her. But such a theory also requires that the state actors create an opportunity that otherwise would not have existed, which the district court found was not the case. Further, it noted that this circuit has declined to adopt a state-created-danger theory to trigger affirmative duties under the Due Process Clause. The district court thus granted Appellees' motions to dismiss.

Whitley timely filed a notice of appeal on March 15, 2012, asserting that the district court erroneously granted Appellees' motions to dismiss her § 1983 claims and denied her motion to amend her complaint.


This court reviews a district court's grant of a motion to dismiss de novo. Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012). The grant of a motion to dismiss based on qualified immunity similarly is reviewed de novo. Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). We accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff. Bowlby, 681 F.3d at 219 (citation omitted). The facts taken as true must, however, "state a claim that is plausible on its face." Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is insufficient if it offers only "labels and conclusions, " or "a formulaic recitation of the elements of a cause of action." Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

We review a district court's denial of a motion for leave to file an amended complaint for abuse of discretion. City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010). However, where a district court's denial solely was based on futility, this court applies a de novo standard identical, in practice, to the standard used for reviewing a motion to dismiss for failure to state a claim. See Wilson v. Bruks–Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010).


A. Section 1983

Section 1983 provides a claim against anyone who "under color of any statute, ordinance, regulation, custom, or usage, of any State" violates another's constitutional rights. 42 U.S.C. § 1983. "To state a section 1983 claim, 'a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.'" James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008) (quoting Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000)).

B. Qualified Immunity

"The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal." Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law, " Malley v. Briggs, 475 U.S. 335, 341 (1986), and courts will not deny immunity unless "existing precedent . . . placed the statutory or constitutional question beyond debate, " Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011). Therefore, a plaintiff seeking to overcome qualified immunity must show: "(1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Id. at 2080 (citation omitted). A court has discretion to decide which prong to consider first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).


On appeal, Whitley presents two theories of liability she asserts warrant reversal of the district court's decision. First, relying on our decision in Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994) (en banc), Whitley argues that Appellees are liable under § 1983 for acting with deliberate indifference to her constitutional rights by engaging in an investigation premised on catching Ariaz (the primary constitutional wrongdoer) in the act of abusing her. Second, citing to Hale v. Townley, 45 F.3d 914 (5th Cir. 1995), Whitley asserts that Appellees are liable under § 1983 under a theory of bystander liability because they failed to stop Ariaz, a fellow officer, from violating Whitley's fundamental liberty interest in her bodily integrity.[2] Lastly, Whitley contends that the district court erred in denying her motion to amend her complaint.

We address each of her theories below, and conclude that Whitley fails to state a claim under either her deliberate indifference or bystander liability theory.[3] Our conclusion that Whitley fails to state a claim as to any of the Appellees also resolves the question of qualified immunity raised in Hanna and Bullock's motion to dismiss.[4] See Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir. 2009) ("If we determine that the alleged conduct did not violate a constitutional right, our inquiry ceases because there is no constitutional violation for which the government official would need qualified immunity."); Hampton v. Oktibbeha Cnty. Sheriff Dep't, 480 F.3d 358, 363 (5th Cir. 2007). Finally, we hold that the district court correctly denied Whitley's motion to amend her complaint.

A. Deliberate Indifference

Whitley's first basis for establishing liability under § 1983 is "the decision by [Appellees] as part of their investigation, to knowingly allow Whitley to be repeatedly raped by another police officer." Put another way, Appellees purportedly acted with deliberate indifference by agreeing on a plan that would allow Ariaz to continue sexually abusing Whitley for the sake of gathering additional evidence to secure his conviction.[5] In support, Whitley primarily relies on our decision in Taylor, 15 F.3d 443.[6]

In Taylor, we considered whether a school's principal and the district's superintendent could be held liable under § 1983 for failing to prevent a high school coach from manipulating a fifteen-year-old student over several months into repeatedly having sexual intercourse with him. Id. at 446–49. In affirming the district court's denial of qualified immunity to the principal, but reversing the denial of qualified immunity to the superintendent, we held that:

A supervisory school official can be held personally liable for a subordinate's violation of an elementary or secondary school student's constitutional right to bodily integrity in physical sexual abuse cases if the plaintiff establishes that:
(1)the defendant learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student; and
(2)the defendant demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously ...

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