Doc. #34 -- First Amended Complaint

7/27/2019 Doc. #34 -- First Amended Complaint

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case No. 12-24077-CIV-Cooke/McAliley

JESSE CAMPODONICO, :

Plaintiff, :

vs. :

THE CITY OF MIAMI, :

JAVIER ORTIZ,

NATHANIEL DAUPHIN, :

EDWARD LUGO, and

HAROLD JAMES, :

Defendants. :

_______________________________________

FIRST AMENDED COMPLAINT

Scott A. Srebnick, Esq.

Manuel A. Arteaga-Gomez, Esq.

SCOTT A. SREBNICK, P.A.

201 South Biscayne Blvd.

Suite 1380

Miami, Florida 33131

Telephone: 305-285-9019

Attorneys for Plaintiff Jesse Campodonico

Case 1:12-cv-24077-MGC Document 34 Entered on FLSD Docket 02/20/2013 Page 1 of 38


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TABLE OF CONTENTS

NATURE OF THE ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

JURISDICTION AND VENUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

GENERAL ALLEGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Incident at the Ultra Music Festival . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The False and Incomplete Arrest Affidavit . . . . . . . . . . . . . . . . . . . . . . . . 10

C. The Initiation of the State Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

D. The False and Incomplete Response to Resistance Report . . . . . . . . . . . . 14

E. The Defendant Officers History of Misconduct . . . . . . . . . . . . . . . . . . . . 16

F. Plaintiff Campodonicos Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

FEDERAL LAW CLAIMS (42 U.S.C. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Count I: Excessive Force (Ortiz, Dauphin, Lugo, James) . . . . . . . . . . . . . . 20

Count II: False Arrest (Dauphin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Count III: Malicious Prosecution (Ortiz, Dauphin, Lugo, James) . . . . . . . . . 22

Count IV: Supervisory Liability (Ortiz) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Count V: Policy of Failing to Investigate/Discipline (City of Miami) . . . . . . 25

Count VI: Policy of Failing to Train on Use of Taser (City of Miami) . . . . . . 28

STATE LAW CLAIMS (Florida Law) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Count VII: Battery (Ortiz, Dauphin, Lugo, James) . . . . . . . . . . . . . . . . . . . . . . 30

Count VIII: False Arrest (Dauphin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Count IX: Malicious Prosecution (Ortiz, Dauphin, Lugo, James) . . . . . . . . . 32

Count X: Negligent Retention and Training (City of Miami) . . . . . . . . . . . . 33

Count XI: Vicarious Liability (City of Miami) . . . . . . . . . . . . . . . . . . . . . . . . 34

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

DEMAND FOR JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37



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Plaintiff Jesse Campodonico sues the City of Miami, Sergeant Javier Ortiz, and

Officers Nathaniel Dauphin, Edward Lugo, and Harold James, for damages.

NATURE OF THE ACTION

1. This is an action for damages arising out of a beating, tasing, and false arrest

and coverup by City of Miami police officers on the evening of March 25, 2011, at the Ultra

Music Festival held at Bicentennial Park. This action alleges violations of federal civil rights

laws, 42 U.S.C. 1983, and the laws of the State of Florida, and the Plaintiff seeks in excess

of $75,000 exclusive of interest and costs.

JURISDICTION AND VENUE

2. This Court has subject-matter jurisdiction over this action under 28 U.S.C.

1331, 1332(a), and 1367(a).

3. Under 28 U.S.C. 1391(b)(2), venue lies in the United States District Court

for the Southern District of Florida, Miami Division, because it is the judicial district and

division in which a substantial part of the events or omissions giving rise to the claims

occurred.

PARTIES

4. Plaintiff Jesse Campodonico (Plaintiff Campodonico) is a citizen of the State

of New York.

5. Defendant City of Miami (Defendant City) is a political subdivision of the

State of Florida, a Florida municipal corporation, and at all relevant times had ultimate



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authority over the City of Miami Police Department and the other defendants. The

Defendant City was responsible for the hiring, training, supervision, discipline, and conduct

of the individual defendants, as all of them were employed by the City of Miami Police

Department at all relevant times.

6. Defendant Javier Ortiz (Defendant Ortiz) is a Sergeant with the City of

Miami Police Department and a citizen of the State of Florida. At all relevant times,

Defendant Ortiz was acting under color of law as the agent, servant, and employee of the City

of Miami, was in uniform, and was armed. Defendant Ortiz is being sued in his individual

capacity.

7. At all relevant times, Defendant Nathaniel Dauphin (Defendant Dauphin)

was a police officer with the City of Miami Police Department and a citizen of the State of

Florida. At all relevant times, Defendant Dauphin was acting under color of law as the agent,

servant, and employee of the City of Miami, was in uniform, and was armed. Defendant

Dauphin is being sued in his individual capacity.

8. Defendant Edward Lugo (Defendant Lugo) is a police officer with the City

of Miami Police Department and a citizen of the State of Florida. At all relevant times,

Defendant Lugo was acting under color of law as the agent, servant, and employee of the

City of Miami, was in uniform, and was armed. Defendant Lugo is being sued in his

individual capacity.

9. At all relevant times, Defendant Harold James (Defendant James, and



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together with Defendants Ortiz, Dauphin and Lugo, the Defendant Officers) was a police

officer with the City of Miami Police Department and a citizen of the State of Florida. At

all relevant times, Defendant James was acting under color of law as the agent, servant, and

employee of the City of Miami, was in uniform, and was armed. Defendant James is being

sued in his individual capacity.

GENERAL ALLEGATIONS

A. The Incident at the Ultra Music Festival

10. On the night of March 25, 2011, Defendants Ortiz, Dauphin, Lugo and James

were working in an off-duty capacity at the Ultra Music Festival (the Festival), located

within Bicentennial Park (the Park), in Miami, Florida.

11. Upon information and belief, the Defendant City contracted with the private

entity putting on the Festival to provide City of Miami police officers for the event.

12. The Defendant City assigned each of the Defendant Officers to work at the

front entrance of the Festival, with Defendant Ortiz, the ranking officer, acting as their

supervisor.

13. This was not the first time that the Defendant Officers had worked an off-duty

job under Defendant Ortizs supervision.

14. Defendant Ortiz is frequently approached by private companies to assemble

teams of police officers to work off-duty details.

15. Defendant Ortiz has previously hand-picked each of the other Defendant



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Officers to work off-duty jobs under his supervision, with Defendants Lugo and James being

officers who Defendant Ortiz frequently turned to when looking to staff an off-duty detail.

16. Plaintiff Campodonico traveled from his hometown in New York to attend the

Festival and arrived at the Park at around 10:30 p.m. on March 25, 2011, accompanied by

his girlfriend, Crystal Iglesias, and several other friends.

17. Private event security did not allow Ms. Iglesias inside the Festival because she

was holding a glow stick that she had purchased right outside the Festival.

18. While Ms. Iglesias was verbally expressing her discontent to private event

security, Defendant Dauphin approached her and Plaintiff Campodonico.

19. Defendant Dauphin instructed Ms. Iglesias to leave the Park and grabbed Ms.

Iglesias by the arm in an unnecessarily aggressive manner.

20. Plaintiff Campodonico told Defendant Dauphin that he, Campodonico, would

escort Ms. Iglesias out of the Park as they were asked to do.

21. Plaintiff Campodonico was not armed.

22. Plaintiff Campodonico had not acted disorderly.

23. Plaintiff Campodonico had not disobeyed Defendant Dauphins instructions.

24. Plaintiff Campodonico had not raised his voice.

25. Plaintiff Campodonico had not committed a crime.

26. As Plaintiff Campodonico and Ms. Iglesias began leaving the Park, Defendant

Dauphin positioned himself within one-half of an inch from Campodonicos face in a



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Campodonicos face and head, all while Campodonico was down on the ground.

34. Plaintiff Campodonico attempted to get in the fetal position to deflect the

barrage of blows to his face and body from the Defendant Officers. He begged the

Defendant Officers to stop hitting him.

35. After Defendants Ortiz, Dauphin, and Lugo beat Plaintiff Campodonico for

several minutes, Defendant James discharged his hand-held Electronic Control Device

(ECD or taser), by shooting two probes from the taser into Campodonico.

36. The two probes were connected by wire to the taser. Immediately after the

probes latched onto Plaintiff Campodonicos skin, Defendant James pulled the trigger to his

taser which sent an electrical charge through the wires and into Campodonico.

37. As captured on video by a stranger who was also attending the Festival,

approximately nine seconds after the first taser discharge, and with the two probes still

embedded in Plaintiff Campodonicos body, and despite Campodonicos obviously

submissive position, Defendant James pulled the trigger to the taser a second time, sending

a second electrical charge through Campodonicos body.

38. Approximately fourteen seconds after the second taser discharge, Defendant

James issued a third taser charge.

39. On the third discharge, defendant James used the drive-stun method, which

means he applied the taser directly to Plaintiff Campodonicos body while pressing the

tasers trigger and sending a third charge through his body.



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40. Throughout the entire period that Plaintiff Campodonico was tased, he never

got up from the ground and was not resisting arrest.

41. Both immediately before the first taser discharge, and in between the

subsequent discharges, Plaintiff Campodonico was on the ground, and was laying on his

stomach or side or on his knees with his stomach facing the ground.

42. Bystanders were horrified by the Defendant Officers actions. One bystander,

a school teacher who had never met Plaintiff Campodonico before, saw what was taking

place, repeatedly yelled, Theyre going to kill him!, and then attempted to rush in to stop

the beating when she saw an officer kick Campodonico in the head.

43. Another bystander who also had never met Plaintiff Campodonico before

began to film the incident using his hand-held device and later posted the video of what he

witnessed publicly on YouTube. The bystanders video captured the three taser discharges

and demonstrated that Plaintiff Campodonico was on the ground and helpless both

immediately before the first taser discharge, and in between each subsequent taser discharge.

44. Bystanders witnessing the incident reacted to the Defendant Officers conduct

by making comments such as:

a. Did you see them just knocking that guy out for no reason?

b. They just started knocking him out.

c. They just started whacking him.

d. They just put him in a choke-hold and started punching.



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e. They tased that guy like four times.

f. Thats f**ked up. Thats f**ked up.

45. After the tasing, Defendant Dauphin formally placed Plaintiff Campodonico

under arrest and handcuffed him.

46. After Plaintiff Campodonico was handcuffed, one of the Defendant Officers

threw him to the ground and one or more of the Defendant Officers further beat and kicked

Campodonico while he was handcuffed.

47. After the beating ended and Plaintiff Campodonico was in handcuffs and

sitting, several of the Defendant Officers mocked and ridiculed Campodonico.

48. For instance, one or more of the Defendant Officers took pictures of Plaintiff

Campodonico with his personal hand-held device while laughing, and Defendant Dauphin

said to Campodonico words to the effect of, I whooped youre a**, and get a new

girlfriend and upgrade, while laughing at Campodonico as he sat bleeding and in pain.

49. Plaintiff Campodonico was transported to the Miami-Dade County Jail.

B. The False and Incomplete Arrest Affidavit

50. That same evening, Defendant James signed a Complaint/Arrest Affidavit

under oath, attesting that he had reasonable grounds to believe that Plaintiff Campodonico

had committed the offenses of Battery on a Law Enforcement Officer, Resisting Arrest with

Violence, Disorderly Intoxication, and Trespass after Warning.

51. The Complaint/Arrest Affidavit included false information that was provided



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to Defendant James by Defendants Dauphin, Ortiz, and Lugo.

52. Defendants Dauphin, Ortiz, and Lugo knowingly provided this false

information to Defendant James, with the intent that the false information be included in the

Complaint/Arrest Affidavit. For example:

a. Defendant Dauphin falsely claimed that Plaintiff Campodonico had a

strong scent of alcohol, had trespassed after being warned, had taken a fighting stance

against Dauphin and had punched Dauphin in the chest and face;

b. Defendant Ortiz falsely claimed that Plaintiff Campodonico had

punched Ortiz in the throat and kicked Ortiz in the crotch; and

c. Defendant Lugo falsely claimed that Plaintiff Campodonico had

sucker-punched Lugo in the stomach.

53. The Complaint/Arrest Affidavit, signed by Defendant James and prepared

with the assistance of Defendants Dauphin, Ortiz, and Lugo, also contained material

omissions. For example:

a. Defendant Dauphin knowingly and intentionally omitted the fact that

he had thrown the first punch and struck Plaintiff Campodonico without any physical

provocation, and that he had no basis to arrest, detain, or even touch Campodonico;

b. Defendant Lugo knowingly and intentionally omitted the fact that he,

and other officers, had punched, kicked and beaten Plaintiff Campodonico while

Campodonico was on the ground in the fetal position;



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c. Defendant Ortiz knowingly and intentionally omitted the fact that he,

and other officers, had punched, kicked, and beaten Plaintiff Campodonico while

Campodonico was on the ground in the fetal position;

d. The Defendant Officers all knowingly and intentionally omitted the fact

that Defendant James tased Plaintiff Campodonico while he was on the ground and posed

no threat to the Defendant Officers or anyone else; and

e. The Defendant Officers all knowingly and intentionally omitted the fact

that any resistance shown by Plaintiff Campodonico was a legitimate response and defense

to the use of excessive force by the Defendant Officers.

C. The Initiation of the State Prosecution

54. At the time they made these false statements and material omissions,

Defendants Dauphin, James, Ortiz, and Lugo knew that the Complaint/Arrest Affidavit

would be forwarded to the Miami-Dade State Attorneys Office (Miami SAO) for a

determination of whether to initiate a prosecution against Plaintiff Campodonico.

55. In or about early April 2011, the Complaint/Arrest Affidavit, with the false

information and intentional omissions, was forwarded to the Miami SAO to initiate a

prosecution against Plaintiff Campodonico.

56. On or about April 13, 2011, during a pre-file conference interview with a

prosecutor from the Miami SAO, Defendant James falsely stated that Plaintiff Campodonico

was kicking and swinging while he was on the ground and that Plaintiff Campodonico was



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still fighting after three taser cycles.


prosecutor from the Miami SAO, Defendant Lugo falsely claimed that he was a victim of

battery. Defendant Lugo falsely stated that Plaintiff Campodonico had punched Lugo in the

stomach with a closed fist, punched Defendant Ortiz in the throat with a closed fist, and kept

on fighting even after he had been tased.


prosecutor from the Miami SAO, Defendant Ortiz falsely claimed that he was a victim of

battery. Defendant Ortiz falsely stated that Plaintiff Campodonico had punched Ortiz with

a closed fist to the throat and had kicked Ortiz in the crotch.


prosecutor from the Miami SAO, Defendant Dauphin falsely claimed that he was a victim

of battery. Defendant Dauphin falsely stated that Plaintiff Campodonico had punched

Dauphin in the chest without physical provocation.

60. The statements made by the Defendant Officers to the prosecutor with the

Miami SAO omitted the material facts set forth in Paragraph 53 above.

61. Prior to the filing of charges by the Miami SAO, Defendants Ortiz, Dauphin,

Lugo, and James all requested that Plaintiff Campodonico be required to serve 364 days in

jail and two years of probation, and to submit a letter of apology to Defendant Ortiz, in the

event of a conviction in the case. Moreover, Defendants Ortiz and Dauphin insisted to the



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72. As another example, a statement attributed to Detective Garcia in the RTRR

prepared by Defendant Ortiz claims that Detective Garcia observed all three taser discharges,

including, specifically, the use of the drive-stun method. Yet, Detective Garcia testified

in his deposition that he had left the scene prior to the taser discharges and had never even

heard of the drive-stun method.

73. The RTRR is also contradicted by the video taken by an innocent bystander.

74. For example, statements attributed to various police officers in the RTRR

claimed that Plaintiff Campodonico tensed his arms, kicked his legs, bit one officer, and

kicked another officer in the crotch between taser cycles.

75. The video, however, demonstrates that Plaintiff Campodonico was on the

ground and defenseless while being tased.

76. On February 14, 2012, the Miami SAO nolle prossed the charges against

Plaintiff Campodonico based on insufficient evidence and because the deposition testimony

of Defendants Dauphin, Lugo, and Ortiz was materially inconsistent with the RTRR and with

the video of the tasing incident.

E. The Defendant Officers Historyof Misconduct

77. During the course of the Defendant Citys employment of the Defendant

Officers, it became aware, or should have become aware, of information indicating the

Defendant Officers inability to follow orders and departmental policies and unfitness to

serve in a capacity where force could be used.



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78. Prior to March 25, 2011, Defendant Ortiz had been:

a. the subject of twenty citizen complaints filed with the Defendant City

since joining the police force in March 2004;

b. investigated by the Defendant Citys Internal Affairs division for using

excessive force;

c. investigated for using excessive force by the Civilian Investigative Panel

of the City of Miami (CIP), a civilian oversight agency that monitors City of Miami Police

Department practices and investigates claims of City of Miami police officer misconduct;

and

d. placed on a Monitoring List maintained by the CIP for City of Miami

Police officers, which lists officers who demonstrate a pattern of misconduct.

79. Prior to March 25, 2011, Defendant Dauphin had been:

a. the subject of at least fifty-five complaints filed with the Defendant City,

disciplined eleven times by the Defendant City;

b. investigated by the Defendant Citys Internal Affairs division for using

excessive force, refusing to follow orders, harassment, violating a domestic violence

injunction, failing to comply with subpoenas, and failing to timely prepare reports;

c. the subject of at least twelve complaints filed with the CIP; and

d. placed on the CIPs Monitoring List.

80. Prior to March 25, 2011, Defendant Lugo had been:



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a. the subject of sixteen citizen complaints filed with the Defendant City

and at least eight complaints filed with the CIP since joining the police force in June 2001;

b. counseled and/or disciplined by the Defendant City at least eleven times

for committing at least fifteen violations of departmental policies;

c. investigated by the Defendant Citys Internal Affairs division for using

excessive force, failing to report another officers criminal activity, and improper use of

restraints;

d. the subject of two separate recommendations by City of Miami Police

disciplinary personnel, arising out of separate incidents, that he be terminated from the police

department; and

e. placed on the CIPs Monitoring List.

81. Prior to March 25, 2011, Defendant James had been:

a. the subject of twenty citizen complaints filed with the Defendant City

since joining the police force in March 2004;

b. investigated by the Defendant Citys Internal Affairs division and the

CIP for using excessive force and failing to document an arrestees resulting injury; and

c. also investigated by the Defendant Citys Internal Affairs division for

failing to comply with subpoenas.

82. The Defendant City knew, or should have known, about the Defendant

Officers history of misconduct, but nevertheless permitted the Defendant Officers to serve



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in a capacity on March 25, 2011, where force could be used.

F. Plaintiff Campodonicos Damages

83. As a direct and proximate result of the acts of the Defendants City, Ortiz,

Dauphin, Lugo, and James, Plaintiff Campodonico suffered damages, including the

following:

a. injuries to his face and body, causing severe pain and suffering and

emotional distress;

b. harm to reputation as a result of the false arrest and malicious

prosecution;

c. financial loss for having to retain counsel to defend him in connection

with a false arrest and malicious prosecution;

d. inconvenience, loss of time and money, and other hardships in

defending against the criminal charges, exacerbated by the fact that he was at all relevant

times living in the northeastern United States;

e. loss of the value of his trip from the northeast to Miami for the Ultra

Music Festival; and

f. violation of his constitutional rights under the Fourth and Fourteenth

Amendments to the United States Constitution to be free from an unreasonable search and

seizure of his person, and common law rights to be free from battery, malicious prosecution,

false arrest, and negligence by the police.



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84. The Defendants are subject to punitive damages for their conduct.

85. Plaintiff Campodonico is obligated to pay undersigned counsel a reasonable

fee for their services in the event of recovery.

86. All conditions precedent to the maintenance of this action have occurred, been

performed, or been waived. Plaintiff Campodonico complied with the pre-suit notice

requirement of Fla. Stat. 768.28(6)(a) by giving the Defendant City written notice of his

claim on or about February 15, 2012. The Defendant City did not dispose of Plaintiff

Campodonicos claim within 6 months of such notice, and therefore denied the claim. See

Fla. Stat. 768.28(6)(d).

FEDERAL LAW CLAIMS

COUNT I

Excessive Force 1983

(Ortiz, Dauphin, Lugo, James)

87. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count.

88. At all relevant times, Defendants Ortiz, Dauphin, Lugo and James acted under

color of law.

89. All relevant times, all of the Defendant Officers were in the vicinity of the use

of excessive force and were capable of intervening to prevent the use of excessive force.

90. Defendants Ortiz, Dauphin, Lugo and James deprived Plaintiff Campodonico



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of his Fourth Amendment right against unreasonable searches and seizures when:

a. Defendant Dauphin, unprovoked and without probable cause or

provocation, struck a blow against Plaintiff Campodonico that took him to the ground;

b. Defendants Ortiz, Dauphin and Lugo repeatedly struck Plaint iff

Campodonico in his face and body with their hands, knees and feet;

c. Defendant James discharged his taser multiple times against Plaintiff

Campodonico;

d. the Defendant Officers continued to beat Plaintiff Campodonico after

handcuffing him; and

e. The Defendant Officers failed to intervene while other officers were

using excessive force on Plaintiff Campodonico, even though all of the Defendant Officers

were in a position to intervene.

91. At all relevant times, the law was clearly established that the force used by the

Defendant Officers was excessive and violated the Fourth Amendment.

92. At all relevant times, the law was clearly established that the failure to

intervene under circumstances where intervention was possible and could have prevented the

use of excessive force violated the Fourth Amendment.

93. As a direct and proximate result of the wrongful acts of Defendants Ortiz,

Dauphin, Lugo and James, Plaintiff Campodonico has suffered damages.



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COUNT II

False Arrest 1983

(Dauphin)



95. At all relevant times, Defendant Dauphin acted under color of law.

96. Defendant Dauphin deprived Plaintiff Campodonico of his Fourth Amendment

right against unreasonable searches and seizures when he, without probable cause and based

on false information and material omissions, caused Plaintiff Campodonico to be arrested.

97 At all relevant times, the law was clearly established that causing the arrest of

an individual on the basis of false information and material omissions, and without probable

cause, violates the individuals Fourth Amendment right against unreasonable searches and

seizures.

98. As a direct and proximate result of the wrongful acts of Defendant Dauphin,

Plaintiff Campodonico has suffered damages.

COUNT III

Malicious Prosecution 1983




100. At all relevant times, Defendants Ortiz, Dauphin, Lugo, and James acted under

color of law.



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101. Defendants Ortiz, Dauphin, Lugo and James instigated and caused to be

commenced a criminal proceeding against Plaintiff Campodonico styled State v.

Campodonico, F11-8033 (Fla. 11th Jud. Cir. filed April 25, 2011), by making false

statements and material omissions to the Miami SAO in the Complaint/Arrest Affidavit

and during pre-file conferences with a Miami SAO prosecutor, and by requesting of the

Miami SAO that Plaintiff Campodonico be required to serve 364 days in jail.

102. The criminal case against Plaintiff Campodonico ended in Campodonicos

favor because the Miami SAO nolle prossed the case for insufficient evidence.

103. Defendants Ortiz, Dauphin, Lugo, and James instigated and caused to be

commenced the criminal case with malice, by intentionally making false statements and

material omissions.

104. There was no probable cause to support the criminal charges against Plaintiff

Campodonico. At all relevant times, the law was clearly established that causing the

prosecution of an individual on the basis of false information and material omissions, and

without probable cause, violates the individuals rights under the Fourth Amendment.

105. When the Defendant Officers committed such wrongful acts, they acted within

the scope of their employment, and acted in bad faith, with malicious purpose, and/or in a

manner exhibiting wanton and wilful disregard of human rights, safety and/or property, and

in violation of Plaintiff Campodonicos Fourth Amendment right to be free from

unreasonable seizures.



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COUNT IV

Supervisory Liability 1983

(Ortiz)



108. At all relevant times at the Festival, Defendant Ortiz was the supervisor of

Defendants Dauphin, Lugo, and James.

109. Supervisory officials are liable for the unconstitutional acts of their

subordinates when the supervisor personally participates in the alleged constitutional

violation.

110. Defendant Ortiz participated in the constitutional violations against Plaintiff

Campodonico, including the use of excessive force, and was deliberately indifferent to the

use of excessive force by his subordinates.

111. Defendant Ortiz had the ability to prevent or stop the known constitutional

violations by his subordinates by exercising his supervisory authority.

112. At all relevant times, the law was clearly established that the force used by the

Defendant Officers was excessive.

113. At all relevant times, the law was clearly established that a supervisor has the

responsibility to prevent constitutional violations by his/her subordinates.



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114. Defendant Ortiz failed to exercise his authority to prevent the constitutional

violations by his subordinates, and is therefore liable for the actions of his subordinates.

115. As a direct and proximate result of Defendant Ortizs actions, Plaintiff

Campodonico has suffered damages.

COUNT V

Policy of Failing to Investigate/Discipline 1983

(City of Miami)



117. Plaintiff Campodonico possessed a constitutional right secured by the United

States Constitution to be free from an unreasonable searches and seizure, false arrest,

excessive force, and malicious prosecution.

118. Plaintiff Campodonico was deprived of his constitutional rights on or about

March 25, 2011, when he was excessively beaten and falsely arrested by the Defendant

Officers.

119. Plaintiff Campodonico was deprived of his constitutional rights from March

25, 2011, and continuing through February 14, 2012, during which time he was being

prosecuted by the Miami SAO, without probable cause, as a result of false statements and

material omissions by the Defendant Officers.

120. Prior to March 25, 2011, the Defendant City had become aware of numerous

complaints and allegations of misconduct initiated by citizens and other agencies against the



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Defendant Officers, as set forth above.

121. Given the position of authority of police officers, which permits them to,

among other things, effectuate arrests with probable cause, display their firearms, and use a

firearm or taser, the Defendant City had a legal duty to:

a. thoroughly and impartially investigate allegations of misconduct against

police officers;

b. appropriately discipline police officers who are unable or unwilling to

respect the constitutional rights of individuals or who violate department policy, including

termination for repeat violators; and

c. prevent police officers who are unable or unwilling to respect the

constitutional rights of individuals from working at events that require crowd control.

122. The Defendant Citys police department has an Internal Affairs division

responsible for investigating allegations of misconduct, including excessive force, against

police officers and for administering appropriate discipline.

123. The Defendant City, through the Internal Affairs division of its police

department, had an unwritten custom or policy of failing to properly and impartially

investigate allegations of misconduct against, or to administer appropriate discipline to,

offending police officers.

124. It was the unwritten custom or policy of the Defendant City to accept a police

officers version of events surrounding an allegation of misconduct and thereby find the



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allegation of misconduct to be inconclusive.

125. It was the unwritten custom or policy of the Defendant City to make

disciplinary decisions based on factors other than an objective and impartial assessment of

the facts underlying allegations of misconduct against police officers.

126. It was the unwritten custom or policy of the Defendant City to allow police

officers with a history of complaints of excessive force to continue to serve in positions

where the use of force was likely, such as where large crowds congregate.

127. The defendant Citys unwritten policy and custom of failing to impartially

investigate allegations of police misconduct, and failing to discipline officers involved in

such conduct, amounts to deliberate indifference to the constitutional rights of persons with

whom its officers come into contact.

128. A police officers violation of the constitutional rights of individuals is a

known and obvious consequence of a municipal policy and custom that routinely allows such

violations to go unpunished.

129. The Defendant Citys policy-makers disregarded that known or obvious

consequence by permitting officers such as the Defendant Officers to work at the Festival

on March 25, 2011, despite a history of alleged violations of individuals civil rights.

130. The Defendant Citys unwritten policy and custom of failing to impartially

investigate and discipline its police officers resulted in the violation of Plaintiff

Campodonicos constitutional rights against an unreasonable seizure, false arrest, false



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imprisonment, excessive force, and malicious prosecution.

131. As a direct and proximate result of the wrongful acts of the Defendant City,


COUNT VI

Policy of Failing to Train on Use of Taser 1983

(City of Miami)



133. Plaintiff Campodonico possessed a constitutional right secured by the Fourth

Amendment to be free from unreasonable searches and seizures.

134. Plaintiff Campodonico was deprived of his Fourth Amendment rights on March

25, 2011, when he was falsely arrested and excessively beaten and tased by the Defendant

Officers.

135. At the time of this incident, police officers employed by the Defendant City

were obligated to follow a written policy issued by the Defendant City regarding the use of

tasers. See Exhibit 1.

136. The written policy required officers with tasers to receive mandatory in-service

training at least annually. See Exhibit 1 at 18.4.1.1.

137. Upon information and belief, and notwithstanding its written policy, the

Defendant City has an unwritten policy and custom not to actually enforce the requirement



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of regular in-service training on the use of a taser, such as training on:

a. determining the circumstances under which it is appropriate to discharge

a taser;

b. conducting discharge-to-discharge assessments on the need for further

tasing, including training on how to discern whether a subjects actions after a taser discharge

are voluntary efforts to resist or involuntary reactions to the tasers electrical current; and

c. determining the circumstances under which it is appropriate to use the

drive-stun method.

138. The Defendant Citys unwritten policy and custom of failing to regularly train

its officers to whom tasers are issued amounts to deliberate indifference to the constitutional

rights of persons with whom its officers come into contact.

139. A police officers excessive and unconstitutional use of a taser is a known or

obvious consequence of a municipal policy and custom where officers are not provided with

regular in-service training on the appropriate use of a taser.

140. The Defendant Citys policy-makers disregarded that known or obvious

consequence by permitting officers such as Defendant James to continue carrying a taser

without receiving regular in-service training.

141. At the time of the incident, Defendant James, the officer who discharged the

taser, had not received regular in-service training on the use of a taser.

142. As a result of his lack of training, Defendant James discharged his taser three



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times against Plaintiff Campodonicos body when it was unnecessary to issue even a single

taser discharge, did not issue any verbal warnings to Campodonico before discharging his

taser, did not conduct any assessment between taser discharges of whether it was necessary

to continue tasing Campodonico, and utilized the drive-stun method when it was unnecessary

to do so.

143. The Defendant Citys unwritten policy and custom of failing to regularly train

its officers in the use of tasers caused its employee, Defendant James, to violate Plaintiff

Campodonicos Fourth Amendment rights against unreasonable searches and seizures.

144. As a direct and proximate result of the wrongful acts of the Defendant City,


STATE LAW CLAIMS

COUNT VII

Battery Florida Law




146. Defendants Ortiz, Dauphin, Lugo and James intentionally inflicted harmful or

offensive contact upon Plaintiff Campodonico when:

a. Defendant Dauphin, unprovoked and without probable cause, struck a

blow against P laintiff Campodonico;



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b. Defendants Ortiz, Dauphin and Lugo repeatedly struck Plaintiff

Campodonico in his face and body with their hands, knees and feet;

c. Defendant James discharged his taser multiple times against Plaintiff

Campodonico; and

d. one or more of the Defendant Officers continued to beat Plaintiff

Campodonico after handcuffing him.

147. The force used by the Defendant Officers was excessive and unreasonable

under the circumstances.



manner exhibiting wanton and wilful disregard of human rights, safety and/or property.



COUNT VIII

False Arrest Florida Law

(Dauphin)



151. Defendant Dauphin restrained Plaintiff Campodonico against his will and

caused him to be arrested.

152. Plaintiff Campodonico was aware at all relevant times that Defendant Dauphin



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had restrained him.

153. Defendant Dauphin acted without legal authority in restraining Plaintiff

Campodonico because the arrest was not supported by probable cause or a warrant.

154. Defendants Dauphins arrest of Plaintiff Campodonico was unreasonable and

unwarranted under the circumstances.

155. When Defendant Dauphin committed such wrongful act, he acted within the

scope of his employment, and acted in bad faith, with malicious purpose, and/or in a manner

exhibiting wanton and wilful disregard of human rights, safety and/or property.

156. As a direct and proximate result of the wrongful acts of Defendant Dauphin,


COUNT IX

Malicious Prosecution Florida Law




158. Defendants Ortiz, Dauphin, Lugo and James instigated and caused to be

commenced a criminal proceeding against Plaintiff Campodonico styled State v.

Campodonico, F11-8033 (Fla. 11th Jud. Cir. filed April 25, 2011), by making false

statements and material omissions to the Miami SAO in the Complaint/Arrest Affidavit

and in pre-file conferences, and by requesting of the Miami SAO that Plaintiff Campodonico

be required to serve 364 days in jail.



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159. The criminal case against Plaintiff Campodonico ended in Campodonicos

favor because the Miami SAO nolle prossed the case for insufficient evidence.

160. The Defendant Officers instigated and caused to be commenced the criminal

case with malice, by intentionally making false statements and material omissions.

161. There was no probable cause to support the criminal charges against Plaintiff

Campodonico.



manner exhibiting wanton and wilful disregard of human rights, safety and/or property.



COUNT X

Negligent Retention and Training Florida Law

(City of Miami)



165. The Defendant City has a duty to protect individuals from acts of false arrest,

excessive force, battery, malicious prosecution and negligence by the officers it employs.

166. During the course of the Defendant Citys employment of the Defendant

Officers, the Defendant City knew or should have known that:

a. each of the Defendant Officers had histories of misconduct indicating



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their unfitness to serve as police officers;

b. each of the Defendant Officers had histories of misconduct indicating

their unfitness to serve in a capacity where force, including force by way of a taser, could be

used; and

c. Defendant James carried a taser without receiving mandatory in-service

training, at least annually, regarding the use of a taser.

167. The Defendant City breached its duty of reasonable care by:

a. retaining the Defendant Officers as police officers;

b. permitting the Defendant Officers to serve in a capacity where force,

including force by way of a taser, could be used;

c. allowing Defendant James to carry a taser while failing to regularly train

him regarding its use; and

d. failing to set forth a clear policy that would have prohibited Defendant

Ortiz from serving as the supervisor responsible for the post-incident investigation in this

case.

168. As a direct and proximate result of the wrongful acts of Defendant City,


COUNT XI

Vicarious Liability Florida Law

(City of Miami)




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170. Subject to certain statutory limitations, the Defendant City is liable for the

negligent or wrongful acts of its employees while acting within the scope of their office or

employment to the same extent as a private employer. See Fla. Stat. 768.28(1)(a), (5).

171. At all relevant times, as set forth above, Defendant Dauphin committed the

torts of battery and false arrest while acting within the course and scope of his employment

as an employee of the Defendant City.

172. At all relevant times, as set forth above, Defendant Ortiz committed the tort of

battery while acting within the course and scope of his employment as an employee of the

Defendant City.

173. At all relevant times, as set forth above, Defendant Lugo committed the tort

of battery while acting within the course and scope of his employment as an employee of the

Defendant City.

174. At all relevant times, Defendant James committed the tort of negligence while

acting within the course and scope of his employment as an employee of the Defendant City

by breaching his duty of care to Plaintiff Campodonico when Defendant James:

a. deployed the taser against Campodonico even though Campodonico was

not actively or aggressively resisting any of the officers, lacked the ability to physically

threaten or hurt the officers, and was not attempting or preparing to flee or escape;

b. failed to verbally warn Campodonico before using the taser on him; and



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c. failed to assess in between taser discharges whether it was necessary to

continue tasing Campodonico in order to subdue him.

175. One statutory limitation on imposing vicarious liability on the Defendant City

is that it shall not be liable in tort for the acts or omissions of an officer, employee, or agent

committed while acting outside the scope of her or his employment or committed in bad faith

or with malicious purpose or in a manner exhibiting wilful and wanton disregard of human

rights, safety, or property. Fla. Stat. 768.28(9)(a).

176. As permitted by Fed. R. Civ. P. 8(d), in the alternative to the contrary

allegations set forth in this Complaint, Plaintiff Campodonico alleges that the Defendant

Officers committed the above-mentioned torts of battery, false arrest, or negligence, but not

in bad faith or with malicious purpose, nor in a manner exhibiting wilful and wanton

disregard of human rights, safety, or property.

177. Vicarious liability ought to be imposed on the Defendant City for the

Defendant Officers acts of battery, false arrest, and negligence to the extent allowed by law.

PRAYER FOR RELIEF

WHEREFORE Plaintiff Jesse Campodonico demands the following relief against

Defendants City, Ortiz, Dauphin, Lugo, and James:

a. judgment in favor of Plaintiff Campodonico and against each of the

Defendants on the above-mentioned counts;

b. an award of damages, including any and all actual, compensatory,



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consequential, and nominal damages;

c. an award of punitive damages;

d. reasonable attorneys fees and costs under 42 U.S.C. 1988 and any

other applicable law;

e. joint and several liability;

f. interest; and

g. such other relief as this Court may deem just and appropriate.

DEMAND FOR JURY TRIAL

Plaintiff Campodonico demands a jury trial on all issues so triable.

Respectfully submitted,

s/ Scott A. Srebnick________________

Scott A. Srebnick, Esq.

Florida Bar No. 872910

[email protected]

Manuel A. Arteaga-Gomez, Esq.

[email protected]

Florida Bar No. 18122

SCOTT A. SREBNICK, P.A.

201 South Biscayne Blvd., #1380

Miami, Florida 33131

Telephone: 305-285-9019

Facsimile: 305-377-9937

Attorneys for Plaintiff Jesse Campodonico



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing First Amended

Complaint was filed and served on all parties through CM/ECF this 20th day of February,

2013.

/s/ Scott A. Srebnick

SCOTT A. SREBNICK


Documents

Doc. #34 -- First Amended Complaint