Dimmit County Lawsuit

Case 5:18-cv-00933-XR-ESC Document 1 Filed 09/09/18 Page 1 of 32
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
AUDRY LOUISE HAMELL and §

KAYLA MARIE ROCHA, §
Plaintiffs, §
§
v. §
§ CIVIL ACTION NO. 5:18-cv-933
DIMMIT COUNTY, TEXAS, DIMMIT §
COUNTY SHERIFF MARION BOYD, § JURY TRIAL DEMANDED
FORMER DIMMIT COUNTY §
DETENTION OFFICER MARCO §
LUEVANO, INDIVIDUALLY, §
Defendants. §
ORIGINAL COMPLAINT
NOW COME AUDRY LOUISE HAMELL and KAYLA MARIE ROCHA
by and through undersigned counsel, and make this Original Complaint against
Defendants, DIMMIT COUNTY, TEXAS, DIMMIT COUNTY SHERIFF
MARION BOYD and FORMER DIMMIT COUNTY DETENTION OFFICER
MARCO LUEVANO IN HIS INDIVIDUAL CAPACITY, and allege as follows:
INTRODUCTION
1. This is a civil rights action for Constitutional violations and state law personal
injuries suffered by Plaintiffs AUDRY LOUISE HAMELL and KAYLA
MARIE ROCHA (“Plaintiffs” of “Hamell” and “Rocha” as appropriate)
because of personal injuries and intentional indifference. Plaintiffs bring this
action for compensatory damages under 28 U.S.C. §§ 1331 and 1343, 42
1
U.S.C. §1983 and 1988 because Defendants jointly and severally deprived
Plaintiffs of their federally protected rights, privileges and immunities.
2. Plaintiffs bring this action, against Dimmit County, Texas, Dimmit County
Sheriff Marion Boyd and former Dimmit County Detention Officer Marco
Luevano in his Individual Capacity pursuant to Tex. Civ. Prac. & Rem. Code
§71.000 et. seq. and as applied through 42 U.S.C. §1983 and §1988.
JURISDICTION AND VENUE
3. This Court has jurisdiction over the federal claims of the Plaintiffs in this
action, under 28 U.S.C. §§ 1331 and 1343, 42 U.S.C §§1983 and 1988, and
supplemental jurisdiction under 28 U.S.C. § 1367(a), to hear Plaintiffs’ state
law claims, if any.
4. Venue is proper in this Court pursuant to 28 USC §1391(b) as all material
facts out of which this suit arises occurred within the Western District of
Texas, San Antonio Division.
PARTIES
5. Plaintiffs were at the pertinent times to this claim in the custody of the Dimmit
County Sheriff’s Department and the confines of the Dimmit County Jail.
6. Plaintiff, Audry Louise Hamell, is a resident of Jones County, Texas, currently
an inmate at the Hobby Unit in Marlin, Falls County, Texas.
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7. Plaintiff, Kayla Marie Rocha, is a resident of Dimmit County, Texas, currently
an inmate in the Ellen Halbert Unit in Burnet, Burnet County, Texas.
8. Defendant Dimmit County, Texas is a governmental body existing under the
laws of the State of Texas and may be served with process by serving the
County Judge Francisco G. Ponce at 212 N. 4th Street, Carrizo Springs, Texas
78834.
9. Defendant Marion Boyd is the Sheriff of Dimmit County, Texas. He may be
served with process at 669 Industrial Blvd., Carrizo Springs, Texas 78834.
10. Defendant Marco Luevano is a former employee of Dimmit County, Texas.
He may be served with process at 181 FM 1436, La Pryor, Texas 78872 or
wherever he is found.
FACTS
11. Dimmit County is policymaker: Dimmit County, Texas is a county in the
State of Texas and its county seat is Carrizo Springs, Texas. Dimmit County,
Texas is vested with the government and management of the Dimmit County
Jail and with supervision and protection of the prisoners and detainees within
the jail, as well as the training and supervision of the jail employees. At the
time of the sexual assaults of Plaintiffs in September of 2016 and December
of 2016, respectively, Detention Officer Marco Luevano (“Luevano”), had
been under indictment since July of 2016 for felony tampering with a
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governmental record. Luevano was indicted for failing to properly perform
his duties in the jail following an inmate’s suicide, and his falsification of an
official record done in an attempt to cover his failures. Despite his known
failures to properly perform his duties as a jailer, his criminal actions in
falsifying an official record, all resulting in his Indictment, he continued to
work unsupervised in the Dimmit County Jail.
12. Despite knowledge of the Texas Ranger investigation of Luevano’s tampering
and knowledge of his impending indictment, Sheriff Boyd and Dimmit
County, Texas allowed Luevano to continue with no extra oversight in the
jail. The sexual assaults of Plaintiffs were a continuing violation and only
ceased for Hamell when she was transferred out of the custody of Dimmit
County and into the custody of the Texas Department of Criminal Justice and
for Rocha when Luevano was finally terminated from his position (for which
Rocha received retaliatory actions from the other detention officers who
blamed her for Luevano’s termination).
13. Sheriff Marion Boyd was delegated policy making authority for the policies,
procedures, rules and training for the Dimmit County Jail. At the time that
Plaintiffs were sexually assaulted, between September of 2016 and December
31, 2016, and later, Sheriff Marion Boyd was delegated policy making
authority for the policies, procedures, rules and training for the Dimmit
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County Jail and intentionally failed to take timely and adequate measures to
protect female inmates.
14. Detention Officer Marco Luevano sexually assaults Hammell: Hamell
entered the Dimmit County Jail prior to the incident in question and was only
very briefly detained. After that, Luevano, with full knowledge of the Dimmit
County Sheriff’s Office, continually contacted Hamell through social media.
Such actions by a detention officer she only briefly met in his official capacity
made Hamell unsure as to how to react to this unwanted social media contact
from Luevano. Later, Hamell was arrested while travelling through Dimmit
County. From the moment she reentered the Dimmit County Jail as a pretrial
detainee, Luevano made lewd comments to her within the hearing of other
male detention officers. Then he began bringing her special items such as
soaps, headphones, coffee and candy, also with full knowledge of other
detention officers on duty and in violation of the policies and procedures for
a detention officer. The unwelcome and improper attention on Hamell by
Luevano was known by other inmates, detention officers and ratified by
Sheriff Marion Boyd. Finally, Luevano with the full knowledge of other
detention officers and with ratification by Sheriff Marion Boyd moved
Plaintiff Hamell out of her shared cell and into a solo cell. This is when
Luevano’s sexual assaults of Plaintiffs began. Luevano would tell Plaintiff
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Hamell to take off her clothes and stand on the side of the cell and wait for
him. He would then enter her cell and command her to perform sexual acts
upon him and he would also force sex acts upon her. These illegal and
criminal actions continued for the remainder of Plaintiff Hamell’s
incarceration in Dimmit County, both as a pretrial detainee and later while
awaiting transfer to the Texas Department of Criminal Justice. Often other
male guards would stand as lookout for Luevano in exchange for Luevano
then acting as lookout for them so they could watch the female inmates,
including both Plaintiffs here, shower.
15. Detention Officer Marco Luevano sexually assaults Rocha: Similar to
Hamell, Rocha entered the jail and immediately began receiving unwanted
remarks and unwelcome attention from Luevano with the full knowledge of
other detention officers and ratified by Sheriff Marion Boyd. Rocha was
housed at the Dimmit County Jail as a pretrial detainee. In her first week in
this timeframe, Rocha was detoxifying. Luevano began bringing her gifts,
making lewd comments about her body parts nd offering to put money in her
commissary account. On his own volition, Luevano deposited $20.00 in
Rocha’s commissary account and told her that she owed him for it. Yet,
despite the oddity of a male detention officer depositing money into a female
inmate’s account in a jail with a capacity of only 95 inmates and with very
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few female inmates at any one time, no official in Dimmit County questioned
the already-indicted Luevano.
16. Rocha then woke up in the middle of the night and was startled to find
Luevano standing over her staring at her. She began covering herself with her
blanket and he told her to stop. Luevano assaulted Rocha on other occasions.
He was ultimately indicted for yanking her breasts which was caught on
camera and seized and upon information and belief viewed by the Texas
Rangers. Obviously, because of the Ranger’s investigation the District
Attorney in and for Dimmit County determined a crime had been committed
by Luevano.
17. Luevano harassed Rocha in retaliation for the Texas Rangers’
investigation of him and his subsequent indictment: After the
investigation into Luevano’s sexual assaults of female inmates began by the
Texas Rangers, the other male detention officers, as retaliation, then allowed
the male inmates to parade through the female detention area and exhibit their
penises to the female inmates while in their cells. Upon information and
belief, this occurred when Dimmit County somehow knowingly allowed its
camera system to “fail” or be inoperable for a few weeks period. This inaction
(or intentional act) regarding the cameras gave perfect cover for the retaliatory
harassment of the complaining females and female witnesses. Upon
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information and belief, Dimmit County has an ingrained set of policies,
procedures and practices allowing the wholesale sexual harassment of female
inmates by male detention officers (and male inmates under the direction of
male detention officers) and is willing to take unparalleled steps to protect its
system. Dimmit County has recently settled a non-inmate sexual harassment
case amongst its ranks. Maria Louisa Perez sued the County when it failed to
take any action over the severe sexual harassment from her superior at Dimmit
County.
18. Other female inmates witnessed the incidents: Another female inmate
witnessed Luevano’s sexual assaults and harassment on both Plaintiffs. Other
former female inmates will testify that the Dimmit County Sheriff’s Office
was aware of Luevano and other male detention officer’s sexual harassment
of female inmates. One witness kept detailed notes about what was occurring.
Once the Texas Rangers investigation into the sexual assaults began, the
women’s cells were tossed, and jail administrator Osvaldo Perez told all the
female inmates they were lying and took the female witness’s notes. Plaintiffs
do not know if Perez destroyed those notes or gave them to the Texas Rangers.
If those notes were destroyed by Perez, Plaintiffs then request both an
investigation into the intentional spoliation of evidence as well as sanctions
and a spoliation instruction against Dimmit County.
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19. Other victims: Also, upon information and belief, Luevano assaulted two
other females who had been incarcerated in the Dimmit County Jail. Plaintiffs
are locating these women, and they may be added as Plaintiffs in this lawsuit.
20. Suicide of Male Inmate: Luevano was under indictment in July of 2016
following the suicide death of a male inmate on April 11, 2016 at 3:15 a.m.
after this inmate, arrested on a misdemeanor charge had been in the custody
of Dimmit County for only approximately nine (9) hours. This person was
arrested for DWI and was placed in an observation unit due to his level of
intoxication at the time of his arrest and incarceration in the jail. Luevano
failed to make the required observations of this known-intoxicated inmate,
likely because he was busy harassing and assaulting female inmates. Upon
discovery of this inmates lifeless body hanging from his cell, Luevano then
took actions to cover his failure to properly observe an intoxicated, possibly
suicidal inmate by changing and altering official records.
21. The Texas Rangers were called upon to investigate this inmate’s suicide in
custody. After the Texas Rangers viewed over eighteen (18) hours of
surveillance video, the matter was presented to the grand jury which indicted
Luevano in July of 2016 for tampering with governmental records. Instead of
immediately firing Luevano, or at the minimum placing him on leave or under
some other work restriction, Sheriff Marion Boyd and Dimmit County chose
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to not follow proper policies, practices and procedures for such a situation and
instead allowed Luevano to continue to work unsupervised and without
restriction at the Dimmit County Jail with unfettered access to the female
inmates enabling Luevano to continue the illegal actions outlined above.
22. Notably, as late as March 27, 2017, the Texas Commission on Jail Standards
Jail Inspection Report stated, among other infractions, that “… the welfare
checks were consistently over the 30-minute requirement.”
23. Delay in Rocha’s rape kit (SAKS) processing as further evidence of
Dimmit County’s wholesale discriminatory animus against women: Upon
information and belief, prior to her most recent arrest that landed her in the
Dimmit County Jail, Rocha had been brutally sexually assaulted. When taken
into custody, she was bleeding and begging to be taken to the hospital for a
rape kit. Instead, Dimmit County personnel removed her clothes and
discarded. Days later, after Rocha continued bleeding as a result of her brutal
assault, she was taken to the hospital for her SAKS. This evidences Dimmit
County’s innate prejudice against females that continues as a pattern and
practice today.
24. Violations of the Crime Victim’s Act (Texas Code of Criminal Procedure
56.02) as further evidence of policies and practices targeting women:
Dimmit County’s continued prejudicial policies and practices of ignoring
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female crime victims have spilled over into the prosecution side of Dimmit
County. Neither Hamell nor Rocha were told about Luevano’s indictment for
the sexual assaults he committed on them in violation of the Crime Victim’s
Act (Texas Code of Criminal Procedure, Article 56.02). Neither Hamell nor
Rocha received a Crime Victim’s Packet until well after the Dimmit County
District Attorney entered into a plea deal with Luevano. In the plea, Dimmit
County agreed to dismiss both improper sexual contact with a person in
custody cases in exchange for a guilty plea regarding Luevano’s tampering
with a governmental document case, also in violation of the Crime Victim’s
Act. In fact, Dimmit County did not send the Crime Victim’s Packet to
Hamell and Rocha until it received a notice letter sent to the County. Dimmit
County then mailed the packet to both women at their home addresses and not
to the facilities in which Dimmit County knows they resided. In so doing,
Dimmit County knew that neither Hamell nor Rocha would be giving
sufficient and meaningful time to comment on Luevano’s sentencing.
25. Notice of Legal Claims to the Defendants under the Texas Tort Claims
Act: Defendants had actual notice of all violations under the Texas Tort
Claims Act. See City of SA v. Tenorio, 543 S.W. 3d 772 (Tex. 2018). Plaintiffs
also sent a notice letter to Defendants as a courtesy.
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26. Dimmit County has a long-standing pattern of sexual harassment of
women: These Defendants have had a long-standing and troubling consistent
problem within their County and in their jail with sexual harassment and
sexual assault of women. Even outside the confines of the jail, Dimmit
County has a troubling issue with sexual harassment. In fact, in either
December of 2017 or January of 2018, Dimmit County settled a lawsuit with
a female employee, Maria Perez, after the County’s Regulatory and
Compliance Director, Eloy Rodriguez, sexually harassed her including telling
her that “you’re not getting a raise Ms. Perez because you’re not doing me
yet” and “I’m going to rape you, you’re going to love it and I feel in my heart
that you won’t tell on me.” After going to Dimmit County Human Resources
Department, she was told not to “rock the boat, or she would be blackballed.”
Ms. Perez finally tape-recorded conversations presumably knowing that
Dimmit County would deny all allegations. Perez no longer works for Dimmit
County; it is unknown whether Eloy Rodriguez remains employed with
Dimmit County. These actions are evidence of Dimmit County’s established
policy, pattern and practice of harassment of women.
27. More pertinent facts appear below under the legal allegations as related to
each cause of action.
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28. Dimmit County, Texas and jail personnel, including but not limited to
Luevano, (alone and in concert), under color of law violated Hamell’s
constitutional right to basic, non-sexual treatment and under no circumstances
were their actions objectively reasonable, ultimately causing her injuries. As
detainee, Hamell was unable to seek assistance within the jail since her sexual
assault and sexual harassment occurred there. While detained by Dimmit
County, Hamell had a right to be safe from Luevano’s reprehensible conduct
and Defendants had a duty to keep her safe from that harm. Hamell’s treatment
defies all logic and clearly shows deliberate indifference.
29. Dimmit County, Texas and jail personnel, including but not limited to
Luevano, (alone and in concert), under color of law violated Rocha’s
constitutional right to basic, non-sexual treatment and under no circumstances
were their actions objectively reasonable, ultimately causing her injuries. As
a detainee, Kayla was unable to seek assistance within the jail since her sexual
assault and sexual harassment occurred there. In the custody of Dimmit
County, Rocha had a right to be safe from Luevano’s reprehensible conduct
and Defendants had a duty to keep her safe from that harm. Rocha’s treatment
defies all logic and clearly shows deliberate indifference.
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CAUSES OF ACTION AGAINST DEFENDANTS DIMMIT COUNTY,

TEXAS, DIMMIT COUNTY SHERIFF MARION BOYD AND MARCO
LUEVANO, INDIVIDUALLY
30. The Civil Rights Act, codified as 42 U.S.C. §1983, provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom
or usage, of any state or territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or any other person within the
jurisdiction thereof to the deprivation of any laws, privileges, immunities secured by
the Constitution and laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress. 42 U.S.C. §1983.
31. The 4th Amendment to the US Constitution states:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
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All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein they
reside. No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
34. The elements of a cause of action under § 1983 against a governmental
entity are:
a. Plaintiff is deprived of rights under the United States Constitution;
b. Such deprivation is caused by a person acting under color of state law;
c. The governmental entity adopted, or failed to adopt, a policy statement,
ordinance, regulation or decision adopted and promulgated by the governmental
entity’s lawmaking officers or by an official to whom the law makers delegate
law-making authority or a persistent, widespread practice of officials or
employees of the governmental entity which, though not authorized or officially
adopted and promulgated, the policy is so common and well settled as to constitute
a custom that fairly represents policy of the governmental entity; and
d. The governmental entity was deliberately indifferent to the party’s
constitutional rights.
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CIVIL RIGHTS VIOLATION

[42 U.S.C. §1983 and Constitutional Violations Against Luevano]
35. Luevano engaged in deliberate and outrageous invasion of Plaintiffs’ bodily
integrity that shocks the conscious in violation of Plaintiffs’ rights under the
Fourth, Eighth and Fourteenth Amendments to the Constitution and 42 U.S.C.
§1983. Plaintiffs re-allege and incorporate all allegations of this Complaint
as if fully set forth herein.
36. Luevano, acting within the scope of his agency, recklessly and with the
intention of causing both Plaintiffs severe emotional distress, engaged in
extreme and outrageous conduct by sexually assaulting and harassing
Plaintiffs, and by promoting a threatening and unduly hostile and antagonistic
environment. Luevano’s conduct is particularly egregious as both Hamell and
Rocha were in the custody of Dimmit County and had no ability to extricate
themselves from this horrific assaultive conduct.
37. Luevano misused and abused the official power granted to him by the County
in the performance of his official duties thereby causing harm to Plaintiffs.
38. Luevano, by his acts and omissions alleged above, under color of law and
acting pursuant to the customs, practices and policies of Dimmit County,
deprived Plaintiffs of their rights to bodily integrity, thereby violating the
Fourth Amendment to be secure in their persons, the Eighth Amendment right
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to be free from cruel and unusual punishment and in violation of their property
(their bodies) under the Due Process Clause of the Fourteenth Amendment, by
failing to provide all for which Luevano is liable to Plaintiffs pursuant to 42
U.S.C. §1983.
39. Luevano acted against Plaintiffs through official policies, practices, and
customs with malice, deliberate, callous and conscious indifference to the
constitutional rights of Plaintiffs. Furthermore, the incidents complained of
were not reasonably related to any legitimate governmental objective, as there
is no legitimate governmental objective in sexual contact and sexual assault
of an inmate.
40. As a direct and proximate result of Luevano’s acts, which were so outrageous
in character and extreme in degree to be utterly intolerable in a civilized
community, Plaintiffs suffered severe emotional distress and were injured and
damaged thereby.
41. As shown below, Luevano’s actions were part of a policy and practice
condoned by both Dimmit County, Texas and Dimmit County Sheriff Marion
Boyd.
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[42 U.S.C. §1983 and Constitutional Violations Against Sheriff Marion Boyd]
42. Sheriff Marion Boyd knew and had an obligation to follow Texas and federal
law requiring protection for female inmates from assault and sexual attack and
knew that his actions and omissions created a substantial risk of sexual assault
to Plaintiffs.
43. With deliberate indifference to female inmates’ safety and the safety of
Plaintiffs here, Defendant Sheriff Marion Boyd failed to protect Plaintiffs
from the substantial risk of harm, including sexual attacks, in violation of
Plaintiffs’ rights under the Fourth, Eighth and Fourteenth Amendments to the
Constitution and 42 U.S.C. §1983.
44. Luevano’s actions lead to a suicide in the Dimmit County Jail for which he
should have been fired by any standard of common decency. Sheriff Marion
Boyd allowed Luevano to continue to work unsupervised while under
indictment related to the alteration of governmental records. Instead, Sheriff
Marion Boyd allowed Luevano to continue working with unfettered access to
inmates and little if any oversight. Luevano has since plead and has upon
information and belief been sentenced.
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45. The deprivation of these Hamell’s and Rocha’s rights, as with other female
inmates described herein, constitutes a risk of harm so grave that it violated
contemporary standards of decency.

[42 U.S.C. §1983 and Constitutional Violations Against Dimmit County,
Texas]
46. In addition, and in the alternative, the County and jail personnel, including but
not limited to Luevano (alone and in concert and/or individually) engaged in
a policy and practice of deliberate indifference to the care and custody of jail
inmates that resulted in the sexual assaults of Plaintiffs herein as well as other
female inmates.
47. In addition, and in the alternative, Dimmit County gave inadequate training to
civilian and officer jail personnel, including but not limited to Luevano, on
physical contact with inmates. Clearly Dimmit County gave inadequate
training on preventing inmate suicide.
48. Dimmit County and jail personnel, including but not limited to Luevano
(alone and in concert and/or individually) endangered female inmates,
including Plaintiffs herein, resulting in the sexual assaults of Plaintiffs.
49. Plaintiffs contend that policies, procedures, practices and customs of Dimmit
County and/or jail personnel, including but not limited to Luevano (alone and
in concert and/or individually) put Plaintiffs in an inherently dangerous
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situation and violated their rights under the Fourth, Eighth and Fourteenth
Amendments to the Constitution of the United States for which Plaintiffs seek
recovery.
50. Plaintiffs contend that the failures to train and supervise staff regarding the
policies, procedures, practices and customs of Dimmit County and/or jail
personnel, including but not limited to Luevano, put Plaintiffs in a dangerous
situation and violated their rights under the Fourth, Eighth and/or Fourteenth
Amendments to the Constitution of the United States for which Plaintiffs seek
recovery.
51. During the relevant time period contemplated by this cause of action, Dimmit
County and jail personnel, including but not limited to Luevano (alone and in
concert and/or individually) failed to follow state and federal laws, federal and
state regulations with regard to female inmates generally and specifically
Plaintiffs.
52. During the relevant time contemplated by this cause of action, Dimmit County
and jail personnel, including but not limited to Luevano (alone and in concert
and/or individually) failed to follow their own written policies and procedures
and those of the State of Texas and other authorities on standard of care and
lack of sexual contact for those in custody.
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53. Facts at the time of filing this Complaint supporting each of the elements of a
§1983 claim against Dimmit County, Texas, and its employees, listed above
are found above and applicable to all claims, but may be summarized as
follows:
a. Failed to properly train, hire, control, discipline and supervise
employees;
b. Failed to establish and maintain a proper policy for dealing with the
safety of detainees/prisoners;
c. Failed to provide protection from sexual predators for female
detainees/prisoners;
d. Failed to establish and maintain proper policies for assurance of safety
of detainees/prisoners;
e. Promulgated, condoned or showed indifference to improper policies or
customs; and
f. Continued such practices of improper policies or customs as to
constitute custom representing policy.
54. These actions by Defendant Dimmit County, Texas, subjected Plaintiffs to
confinement with constitutionally inadequate safety protections such as:
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a. Evidence of sexual assaults that are inaccurate, incomplete, and not
transmitted to the Texas Rangers or other law enforcement or
prosecution authority;
b. Confinement conditions that do not ensure safe, humane and decent
conditions free of sexual assault;
c. Complete failure to assess ongoing sexual harassment and assaults
upon female inmates;
d. Staffing the jail with detention officers with no oversight or
supervision; and
f. Not having female guards only for female inmates at the Dimmit
County Jail.
55. These actions by Dimmit County further violated the rights of Hamell and
Rocha through Defendants’ policies such as:
a. Evidence of sexual assaults that are inaccurate, incomplete, and not
transmitted to the Texas Rangers;
b. Confinement conditions that do not ensure safe, humane and decent
conditions free of sexual assault;
c. Complete failure to assess ongoing sexual harassment and assaults
upon female inmates;
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d. Staffing the jail with detention officers with no oversight or
supervision; and
f. Not having female guards for female inmates at the Dimmit County
Jail.
56. Dimmit County, intentionally, and with deliberate indifference, deprived
Plaintiffs of their clearly established federal constitutional rights, including,
but not limited to:
a. Their right to reasonably safe conditions of confinement;
b. Their right to be free from sexual assault and violation of their bodies;
and
c. Their right to be free from cruel and unusual punishment.
57. Dimmit County clearly breached its constitutional duty to tend to basic human
needs of persons within its charge, acting with deliberate indifference and
subjective recklessness to the clear needs of female inmates, and Plaintiffs
herein, of which they had subjective knowledge. Dimmit County had full
knowledge of Luevano’s alteration of their records and behavior that made
them responsible for an inmate’s hanging death yet allowed him to continue
work with no supervision. Dimmit County made a conscious decision,
pursuant to its policies, practices or customs of Dimmit County and/or their
inadequate training to leave Luevano in his employment position without
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questioning what else he might be willing to do if he was willing to alter
government records to cover up an inmate suicide. Dimmit County
deliberately disregarded the serious risk of harm to other inmates. Further,
Dimmit County failed to take the requisite steps to protect female inmates.
58. No qualified immunity: County employees can be entitled to qualified
immunity to their individual liability, but this immunity is waived if the
complainant shows that:
a. the individual's acts deprived the party of constitutional rights

under color of law
b. the deprived rights were clearly established and constitutional

rights which existed at the time of the acts; and
c. such acts were not objectively reasonable under the

circumstances, that is, no reasonable official could have believed
at the time that the conduct was lawful.
59. The Defendants, persons acting under color of state law, enforcing Dimmit
County policies and procedures for incarceration of persons, or by their failure
to properly train in the handling of incarcerated persons, deprived Plaintiffs
of their civil liberties without due process of law by failing to keep them free
from sexual assault by the county’s detention officers during their
incarceration. No reasonable official could have believed that failure to
protect female inmates from sexual assault was lawful. The acts of the
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Defendants, when viewed objectively, were unreasonable under the
circumstances. Therefore, qualified immunity is waived in this case.
60. The Defendants involved in this case, acting under color of law, were
deliberately indifferent to the excessive risk to Plaintiffs’ safety in their acts,
or failures to act. Such acts violated and deprived Plaintiffs’ clearly
established constitutional rights and were not objectively reasonable.
61. The acts of Dimmit County and the Defendants clearly violated established
statutory or constitutional rights of which a reasonable person would have
known, including the constitutional rights of life and liberty, and against cruel
and unusual punishment, afforded by the Fourteenth Amendment of the
United States Constitution.
62. The acts of Defendants were so obviously and grossly wrong, that only a
plainly incompetent entity or officer, or one who was knowingly violating the
law, would have performed such an act, and therefore, Defendants are liable
to Plaintiffs for the damages caused by their actions.
63. The aforementioned acts resulted in the sexual assaults of Plaintiffs, which in
turn proximately caused them injuries.
SEXUAL ASSAULT AND BATTERY AGAINST LUEVANO
64. Luevano, acting within the scope of his agency, assaulted and battered Hamell
by threatening her, forcing her into sexual acts including placing his mouth on
25
her genitals, without her effective consent and while she was a person in
custody. Luevano, acting within the scope of his agency, intentionally and
unlawfully caused Plaintiff Hamell to fear offensive and unlawful contact
over which she had no control as a person in custody, and Luevano
intentionally and unlawfully caused such offensive conduct to occur.
Luevano openly used the Dimmit County Jail property to perpetrate these acts.
65. Luevano, acting within the scope of his agency, assaulted and battered
Rochaby threatening her, and touching her body, including her breasts,
without her effective consent and while she was a person in custody.
Luevano, acting within the scope of his agency, intentionally and unlawfully
caused Rocha to fear offensive and unlawful contact over which she had no
control as a person in custody, and Luevano intentionally and unlawfully
caused such offensive conduct to occur. Luevano openly used the Dimmit
County Jail property to perpetrate these acts with the knowledge and/or
acquiescence of Dimmit County and Sheriff Marion Boyd.
66. As a direct and proximate result of these actions, both Plaintiffs were
physically injured and suffered damages arising out of the Texas Tort Claims
Act, 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. §1983 and 1988 and the Eighth
and Fourteenth Amendments of the Constitution of the United States.
26
FALSE IMPRISONMENT CLAIM AGAINST ALL DEFENDANTS
67. Luevano falsely imprisoned Hamell by willfully detaining her without her
consent by confining her to a solo cell for the purpose of sexually assaulting
her. At the time of the imprisonment, Hamell knew that her freedom of
movement had been restricted and that the other Dimmit County detention
officers, all males standing as lookouts for Defendant Luevano, would not
come to her assistance.
68. As a direct and proximate result of the actions of Luevano, Hamell was
physically injured and suffered damages arising under the Texas Tort Claims
Act, 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. §1983 and 1988 and the Eighth
and Fourteenth Amendments of the Constitution of the United States.
69. Luevano engaged in conduct with malice and reckless and callous
indifference to the rights of Plaintiff Hamell.
70. Luevano engaged in this conduct because Dimmit County and Sheriff Marion
Boyd allowed him to use Dimmit County property to move around inmates he
had chosen for his sexual schemes and as part of the customs and practices of
Dimmit County.
27
PEACE OFFICER LIABILITY - 42 U.S.C. §1983
71. Plaintiffs bring a claim against jail personnel, including but not limited to
Luevano (alone and in concert and/or individually), pursuant to 42 U.S.C.
§1983 and for punitive damages.
72. At all material times, jail personnel, including but not limited to Luevano
(alone and in concert and/or individually) was acting under color of state law
as agents and employees of Dimmit County and alternatively was acting in
his individual capacity.
73. Luevano was wearing his Dimmit County Sheriff’s department uniform as
were other jail personnel and was acting in the course and scope of his duties
as a Dimmit County jail employee at the time both Plaintiffs were sexually
assaulted.
74. Thus, Dimmit County’s policy of failing to properly train, including training
on safety and the right of inmates to be free from sexual assault was inherent.
A city/county may be held liable for its failure to train a single police officer
when the officer’s acts were so egregious that the city/county should have had
a clear warning that the particular officer posed a danger to citizens. See
Pineda v. City of Houston, 124 F.Supp. 2d 1057, 1068 (S.D. Tex. 2000).
28
DAMAGES
75. Based upon the operative facts plead above, such acts and omissions rise
to the level of deliberate indifference and conscious indifference constituting
a violation of the Fourth, Eighth and Fourteenth Amendments of the
Constitution of the United States for which Plaintiffs seek recovery. Plaintiffs
also seek recovery under the Texas Tort Claims Act.
76. Each and every, all and singular of the foregoing acts and omissions, on
the part of Defendants, taken separately and/or collectively, jointly and
severally, constitute a direct and proximate cause of the injuries and damages
set forth herein. As a direct, proximate, and foreseeable result of Defendants’
unlawful conduct, Plaintiffs have suffered, and will continue to suffer
damages in an amount to be proved at trial.
77. As a direct, proximate, and foreseeable result of Defendants’ unlawful
conduct, Plaintiffs have suffered, and will continue to suffer, generally
physical, mental, and psychological damages in the form of extreme and
enduring worry, grief, suffering, pain, humiliation, embarrassment, mental
anguish, and emotional distress in amounts within the jurisdictional limits of
this Court, to be proved at trial.
78. In acting as alleged above, Defendants acted maliciously, fraudulently,
despicably, and oppressively, with the wrongful intention of injuring
29
Plaintiffs, from an improper motive amounting to malice, and in conscious
disregard of Plaintiffs’ rights. Plaintiffs are entitled to recover punitive
damages from Defendants in amounts to be proved at trial.
79. Defendants are vicariously liable for their employees, supervisors, officials,
representatives and all those acting in concert with them.
80. The Defendants took such acts and omissions in a way that not only shocks
the conscience but satisfies the criteria for punitive damages as set out by law
and as contemplated by 42 U.S.C. §1983.
81. Plaintiffs are entitled to reasonable attorneys’ fees and costs of suit as
provided for by 42 U.S.C. § 1988(b). Plaintiffs request that the Court and jury
award their attorneys’ fees and expenses.
JURY DEMAND
82. Pursuant to Federal Rule of Civil Procedure 38(b) Plaintiffs demand a trial by
jury.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs requests that the Court:
A. A declaratory judgment that the policies, practices, acts and omissions
complained of herein violated Plaintiffs’ rights;
B. Compensatory damages for Plaintiffs against Defendants, jointly and
severally;
30
C. Reasonable attorneys’ fees and costs and all litigation expenses, pursuant to
federal and state law, as noted against defendants, jointly and severally
pursuant to 48 U.S.C. §1988;
D. Award pre- and post-judgement interest;
E. Award punitive damages against all individually named defendants and for
Plaintiff; and
F. Award costs of court;
G. Retention of jurisdiction over Defendants Dimmit County and Dimmit County
Sheriff Marion Boyd until such time that the Court is satisfied that
Defendants’ unlawful policies, practices, acts and omissions no longer exist
and will not recur; and
F. Grant such other and further relief as appears reasonable and just, to which,
Plaintiffs shows themselves entitled.
///
///
///
///
///
///
///
31
Respectfully submitted,
/s/ Charles H. Peckham

_________________________
Charles H. Peckham
TBN: 15704900
cpeckham@pmlaw-us.com
Mary A. Martin
TBN: 00797280
mmartin@pmlaw-us.com
PECKHAM MARTIN, PLLC

Two Bering Park
800 Bering Drive, Suite 220
Houston, Texas 77057
(713) 574-9044
(713) 493-2255 – facsimile
OF COUNSEL – Subject to Admission in Western District:
Larry D. Eastepp
TBN: 06361750
larry@eastepplaw.com
LARRY D. EASTEPP, PC
5300 Memorial Drive, Suite 1000
Houston, Texas 77007
(713) 255-3388
(713) 993-7205 – facsimile
32
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Case 5:18-cv-00933-XR-ESC Document 1 Filed 09/09/18 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT

AUDRY LOUISE HAMELL and §

NOW COME AUDRY LOUISE HAMELL and KAYLA MARIE ROCHA

Defendants, DIMMIT COUNTY, TEXAS, DIMMIT COUNTY SHERIFF

MARION BOYD and FORMER DIMMIT COUNTY DETENTION OFFICER

MARCO LUEVANO IN HIS INDIVIDUAL CAPACITY, and allege as follows:

injuries suffered by Plaintiffs AUDRY LOUISE HAMELL and KAYLA

MARIE ROCHA (“Plaintiffs” of “Hamell” and “Rocha” as appropriate)

because of personal injuries and intentional indifference. Plaintiffs bring this

action for compensatory damages under 28 U.S.C. §§ 1331 and 1343, 42

Plaintiffs of their federally protected rights, privileges and immunities.

JURISDICTION AND VENUE

supplemental jurisdiction under 28 U.S.C. § 1367(a), to hear Plaintiffs’ state

law claims, if any.

4. Venue is proper in this Court pursuant to 28 USC §1391(b) as all material

Texas, San Antonio Division.

6. Plaintiff, Audry Louise Hamell, is a resident of Jones County, Texas, currently

an inmate at the Hobby Unit in Marlin, Falls County, Texas.

7. Plaintiff, Kayla Marie Rocha, is a resident of Dimmit County, Texas, currently

an inmate in the Ellen Halbert Unit in Burnet, Burnet County, Texas.

8. Defendant Dimmit County, Texas is a governmental body existing under the

9. Defendant Marion Boyd is the Sheriff of Dimmit County, Texas. He may be

10. Defendant Marco Luevano is a former employee of Dimmit County, Texas.

He may be served with process at 181 FM 1436, La Pryor, Texas 78872 or

11. Dimmit County is policymaker: Dimmit County, Texas is a county in the

time of the sexual assaults of Plaintiffs in September of 2016 and December

of 2016, respectively, Detention Officer Marco Luevano (“Luevano”), had

governmental record. Luevano was indicted for failing to properly perform

failures to properly perform his duties as a jailer, his criminal actions in

falsifying an official record, all resulting in his Indictment, he continued to

work unsupervised in the Dimmit County Jail.

12. Despite knowledge of the Texas Ranger investigation of Luevano’s tampering

and knowledge of his impending indictment, Sheriff Boyd and Dimmit

County, Texas allowed Luevano to continue with no extra oversight in the

blamed her for Luevano’s termination).

Plaintiffs were sexually assaulted, between September of 2016 and December

protect female inmates.

14. Detention Officer Marco Luevano sexually assaults Hammell: Hamell

County Sheriff’s Office, continually contacted Hamell through social media.

a detention officer. The unwelcome and improper attention on Hamell by

Luevano was known by other inmates, detention officers and ratified by

detention officers and with ratification by Sheriff Marion Boyd moved

Luevano’s sexual assaults of Plaintiffs began. Luevano would tell Plaintiff

criminal actions continued for the remainder of Plaintiff Hamell’s

incarceration in Dimmit County, both as a pretrial detainee and later while

awaiting transfer to the Texas Department of Criminal Justice. Often other

including both Plaintiffs here, shower.

15. Detention Officer Marco Luevano sexually assaults Rocha: Similar to

commissary account. On his own volition, Luevano deposited $20.00 in

the already-indicted Luevano.

Rangers. Obviously, because of the Ranger’s investigation the District

17. Luevano harassed Rocha in retaliation for the Texas Rangers’

investigation of him and his subsequent indictment: After the