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8/16/2019 Hein v Chandler Amended Complaint
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Stephen D. Benedetto (#022349)THE PEOPLE’S LAW FIRM, PLC2111 E. Highland Ave., Suite 145
Phoenix, Arizona 85016Telephone: (602) 456-1901Facsimile: (602) 801-2834
Adam Feldman (#023201)THE FELDMAN LAW FIRM, PLLC1 E. Washington Street, Suite 500Phoenix, Arizona 85004Telephone: (602) [email protected]
Attorneys for Plaintiff Luke Hein
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Luke Hein, a single man,
Plaintiff,
v.
City of Chandler, an Arizona municipal
corporation; Brian Hawkins and Jane DoeHawkins, husband and wife; William Nocella and Jane Doe Nocella, husbandand wife,
Defendants.
Case No. 2:15-cv-01162-DJH
FIRST AMENDED COMPLAINT
(Assigned to the Honorable Diane J.Humetewa)
(JURY TRIAL DEMANDED)
For his Complaint against Defendants City of Chandler, Brian and Jane Doe
Hawkins, and William and Jane Doe Nocella (collectively, “Defendants”), Plaintiff Luke
Hein, through undersigned counsel, hereby alleges as follows:
INTRODUCTION
1.
This is a civil rights complaint brought by Plaintiff Luke Hein under 42
U.S.C. § 1983 against Defendants as a result of their use of excessive force, unlawfu
arrest and detention, malicious prosecution, and other wrongful acts, occurring in and
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around the City of Chandler, Arizona on May 8, 2014 and thereafter.
2.
Defendants Brian Hawkins and William Nocella are sued both in their
individual and official capacities.
3. Defendant City of Chandler is sued both as a result of the actions
Defendants Hawkins and Nocella took within the course and scope of their authority, as
caused by and/or ratified by the City, and by virtue of its longstanding practices and/or
customs.
JURISDICTION AND VENUE
4.
Plaintiff brings this action against Defendants pursuant to 42 U.S.C. § 1983
for deprivation of civil rights secured by the Fourth and Fourteenth Amendments of the
United States Constitution, the Arizona Constitution, and other claims arising out of the
law of the State of Arizona.
5.
Jurisdiction is founded upon 28 U.S.C. §§ 1331, 1343(a)(3)(4) and 1367(a).
6.
This Court has jurisdiction over Plaintiff’s claims of violation of his civil
rights under 42 U.S.C. § 1983 and pendent jurisdiction over Plaintiff’s state law claims
pursuant to 28 U.S.C. § 1367(a).
7.
Venue is proper in this Court pursuant to 28 U.S.C. § 1391 in that the acts
and omissions that give rise to this action occurred within this District within one year of
the filing of the original Complaint, and this Court otherwise has jurisdiction.
8.
This case presents an actual case in controversy arising under the Fourth and
Fourteenth Amendments to the United States Constitution, and under the provisions of 42
U.S.C. §§ 1983 and 1988.
THE PARTIES
9.
Plaintiff Luke Hein is an unmarried man. He is a citizen and resident of the
United States, domiciled in Maricopa County, Arizona.
10.
Upon information and belief, Defendants Brian and Jane Doe Hawkins are a
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married couple residing in Maricopa County, Arizona. At all times material to the
allegations in this Complaint, Mr. Hawkins was acting in his capacity as a City of
Chandler Police Officer and acting under the color of law. He is sued in his individua
capacity and in his official capacity as a City of Chandler Police Officer.
11.
Upon information and belief Defendants William and Jane Doe Nocella are
a married couple residing in Maricopa County, Arizona. At all times material to the
allegations in this Complaint, Mr. Nocella was acting in his capacity as a City of Chandler
Police Officer and acting under the color of law. He is sued in his individual capacity and
in his official capacity as a City of Chandler Police Officer.
12.
At all relevant times to this Complaint, Defendants Hawkins and Nocella
were acting in furtherance of their respective martial communities.
13.
The City of Chandler (the “City”) is a municipal corporation created under
the laws of the State of Arizona. The City operates and maintains a law enforcemen
agency known as the City of Chandler Police Department.
14.
The City is under a duty to run its policing activities in a lawful manner so
as to preserve the peace of the City of Chandler and to preserve for its citizens the rights
privileges, and immunities guaranteed and secured to them by the Constitutions and laws
of the United States and the State of Arizona.
15.
The City has established or delegated to the City of Chandler Police
Department the responsibility for establishing and implementing policies, practices
procedures and/or customs used by law enforcement officers employed by the City o
Chandler, including Defendants Brian Hawkins and William Nocella (collectively, the
“Defendant Officers”), regarding the investigation, detention, arrest, and use of force
during law enforcement operations.
16. Every act and omission of the Defendants detailed in this Complaint was
performed under the color and pretense of the Constitutions, statutes, ordinances
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regulations, customs and uses of the United States of America, the State of Arizona, and
the City of Chandler, by virtue of their authority as law enforcement officers, and within
the course and scope of their employment with the City of Chandler Police Department.
FACTUAL BACKGROUND
17.
On May 8, 2015, City of Chandler police officers Brian Hawkins and
Jeremy Logan responded to the Stone Oaks Apartment complex (the “Complex”) at 2450
W. Pecos Road, Mesa, AZ 85202 to conduct an investigation into a single-vehicle
collision in the Complex’s parking lot.
18.
Upon arrival the officers observed a Jeep Grand Cherokee that appeared to
have collided with a tree in the complex’s parking lot.
19. The officers contacted the driver, Zoe Beth Shunick, and requested that she
exit the vehicle.
20.
Ms. Shunick indicated she did not wish to exit the vehicle, asking the
Officers multiple times whether she was being detained and was under arrest.
21.
Plaintiff, a resident of Stone Oaks Apartments and Ms. Shunick’s boyfriend
heard the commotion and came outside to see what was happening.
22.
Defendant Hawkins explained to Plaintiff that Ms. Shunick had crashed the
car and that they were trying to convince her to exit the vehicle.
23.
Defendant Hawkins then requested that Plaintiff assist him with the
investigation by attempting to convince Ms. Shunick to exit the vehicle.
24.
Plaintiff readily complied with the officer’s request, suggesting to Ms
Shunick that she exit the vehicle. Ms. Shunick then complied.
25.
As Ms. Shunick walked away from her vehicle, Officer Logan stepped
behind her to close the driver’s side door, turning his back on her.
26. When Officer Logan turned around he immediately delivered a two-handed
open-fist strike to Ms. Shunick’s chest, knocking her back and onto the ground.
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27.
Upon seeing Officer Logan assault Ms. Shunick, Plaintiff spontaneously
exclaimed “hey!”
28.
Defendant Hawkins responded by grabbing Plaintiff’s right wrist, jamming
his forearm into Plaintiff’s throat, and slammed Plaintiff against the vehicle, bending him
backwards over the vehicle’s hood.
29.
Plaintiff immediately put his hands up in the air in a “surrender” posture
attempting to comply with Defendant Hawkins’ commands and asking for an explanation
of what Defendant Hawkins was doing to him.
30.
Defendant Hawkins provided no explanation, instead persisting with the
physical force and yelling.
31. Plaintiff continued to protest that he did not do anything, exclaiming, “this is
not fair.”
32.
Defendant Hawkins responded by rhetorically asking Plaintiff “do you wan
to get fucked up?!,” before grabbing Plaintiff by his throat, lifting him off of the vehicle
and slamming him against the car again.
33.
Plaintiff again protested, announcing, “I’m not doing anything” as
Defendant Hawkins controlled both of Plaintiff’s wrists in pressure holds and tackled him
to the ground.
34.
Defendant Hawkins then wrenched Plaintiff’s arms behind his back and
handcuffed him.
35.
Plaintiff, compliant with Defendant Hawkins but having just been assaulted
for no reason, called out for help and requested that somebody record what was happening
to him.
36.
After handcuffing Plaintiff, Defendant Hawkins assisted Officer Logan with
Ms. Shunick.
37.
Defendant Hawkins then took some time to compose himself before
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returned to help escort Plaintiff to the curb.
38.
Defendant Hawkins engaged Plaintiff, apologizing for his conduct and
asking if he was injured.
39. When Plaintiff indicated that he did not believe he was injured, Defendan
Hawkins expressed surprise, suggesting that he expected Plaintiff to be more seriously
injured given the amount of force employed.
40.
Defendant Hawkins then explained that he understood why Plaintiff reacted
how he did and that he was “not charging [him] with any crimes.”
41.
After escorting Plaintiff to the curb, Defendant Hawkins stated for a second
time that he was not charging Plaintiff with any crimes, explaining that he only detained
Plaintiff because he believed his relationship with Ms. Shunick – and his likely desire to
protect his girlfriend – could have placed Officer Logan at risk.
42.
Within minutes a number of back-up officers arrived including City o
Chandler Police Sergeant William Nocella.
43.
Upon information and belief, Defendant Nocella is Defendant Hawkins
supervisor and, as such, has the authority, responsibility, and obligation to provide
training and guidance to Defendant Hawkins.
44. Defendant Hawkins sought out Defendant Nocella to brief him on the level
of force he had used with Plaintiff.
45.
Defendant Hawkins explained to Defendant Nocella that he “pile-drived
[Plaintiff], back-first into the top of [the] car.”
46.
Upon hearing the explanation, Defendant Nocella pointed his flashlight at
Plaintiff sitting on the curb and stated, “so he can go ahead and go to jail, right?”
47.
Defendant Hawkins responded by indicating he had no objection to Plaintiff
being released without citation.
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48.
Defendant Nocella then instructed Defendant Hawkins that his proposal to
release Plaintiff without a citation was not an option. Defendant Nocella specifically
instructed Defendant Hawkins as follows:
“Once the handcuffs go on, he goes to jail. So I’ll ask it
again. Do you want to unhandcuff him and get sued
again or do you want to put him in jail for what he
shouldn’t have done. If you date an animal, this kind of
shit happens. So he decides to help an animal and not
act like a law abiding citizen, his sorry ass goes to jail.”
49. Defendant Hawkins sought input from Defendant Nocella about the crimes
for which he could cite Plaintiff.
50.
Defendant Nocella, who arrived after Plaintiff was already handcuffed and
seated on the curb and who had not observed any of the conduct, responded “[h]indering
[prosecution]… not following orders… whatever. You were here.”
51.
Defendant Nocella then instructed Defendant Hawkins to lie, if necessary
in order to find a crime with which to charge Plaintiff, as long as Defendant Hawkins got
him in a police car on his way to jail immediately: “If you can make the stretch, if he
raised his voice above what mine is now, he goes for dis[orderly] con[duct]. But he’
going in a patrol car in the next five [minutes].”
52.
Unwilling to acknowledge that he had acted improperly, Defendan
Hawkins arrested Plaintiff, transported him to jail, and cited him for violating section 11-
11 of the Chandler City Code.
53.
Section 11-11 of the Chandler City Code provides as follows: “Every
person who willfully resists, delays or obstructs any public officer in the discharge or
attempt to discharge any duty or his office or who fails to obey any lawful order of any
public officer is guilty of a misdemeanor.”
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54.
There was no factual basis to support this charge, or probable cause to
justify it, and it was made against Plaintiff solely in an effort to cover-up the Defendants
unconstitutional actions.
55. Defendants Hawkins and Nocella engaged in a course of conduct designed
to cover up their unconstitutional actions in violation of Plaintiff’s constitutional rights by
submitting false reports and charges against him.
56.
Defendants Hawkins and Nocella caused Plaintiff to be arrested, transported
to Chandler City Jail, booked, and held in custody for approximately 14 hours before he
was released.
57.
Plaintiff appeared in Chandler City Court on the date scheduled, and learned
that the City of Chandler Prosecutor’s Office was offering him the opportunity to enter
into a plea agreement before receiving discovery.
58.
Plaintiff rejected the plea agreement, refusing to resolve the case until he
received discovery from the State.
59.
On numerous occasions Plaintiff demanded the footage from Defendan
Hawkins’ body camera, which Plaintiff remembered being told was recording that night
(the “Video”).
60. After significant delay, the City of Chandler Prosecutor’s Office finally
provided the Video to Plaintiff.
61.
The Video exonerated Plaintiff, showing that not only did he not interfere
with a police investigation but, to the contrary, had actually assisted the investigation by
at Defendant Hawkins’ request, convincing Ms. Shunick to exit the vehicle.
62.
After observing the Video, the City of Chandler Prosecutor’s office
dismissed the charges against Plaintiff.
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FIRST CLAIM FOR RELIEF
42 U.S.C. § 1983 – Excessive Force in Violation of Fourth and Fourteenth
Amendments(Against Defendant Hawkins Only)
63.
Plaintiff hereby incorporates by reference the allegations contained in
paragraphs 1 through 62 as if they were fully set forth herein.
64.
42 U.S.C section 1983 provides, in relevant part, as follows:
Every person, who under color of any statute, ordinance,regulation, custom or usage of any state or territory of theDistrict of Columbia subjects or causes to be subjected anycitizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privilegesor immunities secured by the constitution and law shall beliable to the party injured in an action at law, suit in equity, orother appropriate proceeding for redress . . .
65.
Plaintiff is a citizen of the United States; Defendant Hawkins is a person for
the purposes of 42 U.S.C. § 1983.
66.
Defendant Hawkins was, at all times relevant hereto, acting under the color
of law in his capacity as a City of Chandler police officer, and his acts and omissions were
conducted within the scope of his official duties or employment.
67.
At the time of the complained-of events, the Fourth and Fourteenth
Amendments to the United States Constitution clearly established Plaintiff’s right to be
secure in his person from unreasonable seizure through excessive force.
68.
At the time of the complained-of events, any reasonable police officer
would have known that the Constitution clearly establishes the right of American citizens
to be secure in their persons from unreasonable seizure through excessive force.
69.
Defendant Hawkins’ actions and use of force, as described herein, were
objectively unreasonable in light of the facts and circumstances confronting him and
violated Plaintiff’s rights.
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70.
Defendant Hawkins’ actions and use of force, as described herein, were also
malicious and/or involved reckless, callous, and deliberate indifference to Plaintiff’s
federally protected rights.
71. Under the circumstance, the force Defendant Hawkins used against Plaintiff
shocks the conscience and violated Plaintiff’s rights.
72.
Defendant Hawkins unlawfully seized Plaintiff by means of objectively
unreasonable, excessive and conscious-shocking physical force, thereby unreasonably
restraining Plaintiff of his freedom.
73.
Defendant Hawkins engaged in the above-described conduct willfully
maliciously, in bad faith, with willful indifference to and in reckless disregard of
Plaintiff’s federally protected constitutional rights, and with conscious awareness that he
would cause Plaintiff severe physical and emotional injuries.
74.
Defendant Hawkins’ acts and/or omissions were moving forces behind
Plaintiff’s injuries, intentionally depriving Plaintiff of his constitutional rights and causing
him other damages.
75.
Defendant Hawkins is not entitled to qualified immunity for the conduc
complained of in this Complaint.
76. At all times relevant to this Complaint Defendant Hawkins was acting
pursuant to municipal custom, policy, decision, ordinance, regulation, widespread habit
usage, or practice in his actions pertaining to Plaintiff.
77.
As a proximate result of Defendant Hawkins’ unlawful conduct, Plaintiff
suffered injuries and other damages and losses as described herein entitling him to
compensatory, economic, consequential and special damages in an amount to be
determine at trial.
78. Plaintiff is further entitled to attorneys’ fees and costs pursuant to 42 U.S.C
§ 1988, pre-judgment interest and costs as allowable by federal law.
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79.
In addition to compensatory, economic, consequential and special damages
Plaintiff is entitled to punitive damages against Defendant Hawkins under 42 U.S.C. §
1983, in that the actions of this Defendant were taken maliciously, willfully, or with a
reckless disregard of Plaintiff’s Constitutional rights.
SECOND CLAIM FOR RELIEF
42 U.S.C. § 1983 – Malicious Prosecution in Violation of Fourth and
Fourteenth Amendments
(Against Defendants Hawkins and Nocella Only)
80.
Plaintiff hereby incorporates by reference the allegations contained in
paragraphs 1 through 79 as if they were fully set forth herein.
81.
42 U.S.C section 1983 provides, in relevant part, as follows:
Every person, who under color of any statute, ordinance,regulation, custom or usage of any state or territory of theDistrict of Columbia subjects or causes to be subjected anycitizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privilegesor immunities secured by the constitution and law shall beliable to the party injured in an action at law, suit in equity, orother appropriate proceeding for redress . . .
82.
Plaintiff is a citizen of the United States; both of the Defendant Officers are
persons for the purposes of 42 U.S.C. § 1983.
83.
The Defendant Officers, at all times relevant hereto, were acting under the
color of law in their respective capacities as City of Chandler police officers and their acts
or omissions were conducted within the scope of their official duties or employment.
84.
At the time of the complained-of events, the Fourth and Fourteenth
Amendments to the United States Constitution clearly established Plaintiff’s right to be
free from criminal prosecution without probable cause under the Fourth Amendment.
85.
At the time of the complained-of events, any reasonable police officer
would have known that the Constitution clearly establishes the right of American citizens
to be free from criminal prosecution without probable cause.
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86.
The Defendant Officers violated these rights when they conspired and/or
acted in concert to institute, procure, and continue a criminal proceeding against Plaintiff
for violation of Section 11-11 of the Chandler City Code that never occurred.
87. The Defendant Officers engaged in the above-described conduct willfully
maliciously, in bad faith, and in reckless disregard of Plaintiff’s federally protected
constitutional rights.
88.
The procurement of prosecution against Plaintiff, for allegations the
Defendant Officers knew to be false, was malicious, shocking, and objectively
unreasonable in light of the circumstances.
89.
Those criminal proceedings terminated in Plaintiff’s favor when the City o
Chandler Prosecutor’s Office voluntarily dismissed the charges without any compromise
by Plaintiff, reflecting a prosecutorial judgment that there was not even probable cause to
maintain the charges against Plaintiff.
90.
The acts and omissions of the Defendant Officers as described herein
intentionally deprived Plaintiff of his constitutional and statutory rights and caused him
other damages.
91.
The Defendant Officers are not entitled to qualified immunity for the
complained-of conduct.
92.
At all times relevant hereto the Defendant Officers were acting pursuant to
municipal custom, policy, decision, ordinance, regulation, widespread habit, usage, or
practice with respect to their actions pertaining to Plaintiff.
93.
As a proximate result of the Defendant Officers’ unlawful conduct, Plaintiff
has suffered actual injuries, and other damages and losses as described herein entitling
him to damages in amounts to be determined at trial.
94. Plaintiff is further entitled to attorneys’ fees and costs pursuant to 42 U.S.C
§ 1988, pre-judgment interest and costs as allowable by federal law.
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95.
In addition to compensatory, economic, consequential, and special damages
Plaintiff is entitled to punitive damages against the Defendant Officers under 42 U.S.C. §
1983, in that the actions of each of these defendants were taken maliciously, willfully or
with a reckless or wanton disregard of Plaintiff’s constitutional rights.
THIRD CLAIM FOR RELIEF
Violation of 42 U.S.C. § 1983 – Unlawful Arrest and Detention in Violation of Fourth
and Fourteenth Amendments
(Against Defendants Hawkins and Nocella Only)
96.
Plaintiff hereby incorporates by reference the allegations contained in
paragraphs 1-95 as if they were fully set forth herein.
97.
42 U.S.C section 1983 provides, in relevant part, as follows:
Every person, who under color of any statute, ordinance,regulation, custom or usage of any state or territory of theDistrict of Columbia subjects or causes to be subjected anycitizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privilegesor immunities secured by the constitution and law shall beliable to the party injured in an action at law, suit in equity, orother appropriate proceeding for redress . . .
98.
Plaintiff is a citizen of the United States; Defendant Officers are persons for
the purposes of 42 U.S.C. § 1983.
99.
At all times relevant hereto the Defendant Officers were acting under the
color of law in their capacity as City of Chandler police officers and their acts or
omissions were conducted within the scope of their official duties or employment.
100.
At the time of the complained-of events, the Fourth and Fourteenth
Amendments clearly established Plaintiff’s right to be free from arrest and detention
without an officer having probable cause to believe the citizen had committed a crime
(hereinafter “unlawful arrest and detention”).
101.
At the time of the complained-of events, any reasonable police officer
would have known that the Constitution clearly establishes the right of American citizens
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to be free from unlawful arrest and detention.
102.
The Defendant Officers violated Plaintiff’s rights when they conspired
and/or acted in concert to secure false charges against him, arrest him, and cause him to be
booked into jail and held in custody for 14 hours despite their knowledge that they lacked
probable cause for doing so.
103.
The Defendant Officers engaged in the conduct described by this Complaint
willfully, maliciously, in bad faith, and in reckless disregard of Plaintiff’s federally
protected constitutional rights.
104.
The arrest and imprisonment of Plaintiff for allegations the Defendan
Officers knew to be false was malicious, shocking, and objectively unreasonable in light
of the circumstances.
105.
The acts and omissions of the Defendant Officers as described herein
intentionally deprived Plaintiff of his constitutional and statutory rights and caused him
other damages.
106.
The Defendant Officers are not entitled to qualified immunity for the
complained-of conduct.
107.
At all times relevant hereto the Defendant Officers were acting pursuant to
municipal custom, policy, decision, ordinance, regulation, widespread habit, usage, or
practice with respect to their actions pertaining to Plaintiff.
108.
As a proximate result of the Defendant Officers’ unlawful conduct, Plaintiff
has suffered actual injuries, and other damages and losses as described herein entitling
him to damages in amounts to be determined at trial.
109.
Plaintiff is further entitled to attorneys’ fees and costs pursuant to 42 U.S.C
§ 1988, pre-judgment interest and costs as allowable by federal law.
110. In addition to compensatory, economic, consequential, and special damages
Plaintiff is entitled to punitive damages against the Defendant Officers under 42 U.S.C. §
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1983, in that the actions of each of these defendants were taken maliciously, willfully or
with a reckless or wanton disregard of Plaintiff’s constitutional rights.
FOURTH CLAIM FOR RELIEF
Violation of 42 U.S.C. § 1983 – Deliberately Indifferent Policies, Practices, Customs,
Training, and Supervision in violation of the Fourth and Fourteenth Amendments
(Against Defendant Nocella and City of Chandler Only)
111.
Plaintiff hereby incorporates by reference the allegations contained in
paragraphs 1 through 110 as if they were fully set forth herein.
112. 42 U.S.C section 1983 provides, in relevant part, as follows:
Every person, who under color of any statute, ordinance,regulation, custom or usage of any state or territory of theDistrict of Columbia subjects or causes to be subjected anycitizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privilegesor immunities secured by the constitution and law shall beliable to the party injured in an action at law, suit in equity, orother appropriate proceeding for redress . . .
113.
Plaintiff is a citizen of the United States; Defendants to this claim are
persons for the purposes of 42 U.S.C. § 1983.
114.
At the time of the complained-of events, the Fourth and Fourteenth
Amendments to the United States Constitution guaranteed Plaintiff the right to be free
from unlawful arrest, unlawful detention, and malicious prosecution under the Fourth and
Fourteenth Amendments.
115. At the time of the complained-of events, Defendants Nocella and City of
Chandler knew or should have known of these rights.
116.
The acts or omissions of Defendants Nocella and City of Chandler, as
described herein, deprived Plaintiff of his constitutional and statutory rights and caused
him other damages.
117.
The acts or omissions of Defendants Nocella and City of Chandler as
described herein intentionally deprived Plaintiff of his constitutional and statutory rights
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and caused him other damages.
118.
Defendants Nocella and City of Chandler are not entitled to qualified
immunity for the complained-of conduct.
119. Defendants Nocella and City of Chandler were, at all times relevant hereto
policymakers for the City of Chandler Police Department and, in that capacity, established
policies, procedures, customs, and/or practices for the same.
120.
As a supervisor responsible for directing Defendant Hawkins with respect to
the arrest, detention, and criminal citation of Plaintiff, Defendant Nocella acted as a
policymaker for the City of Chandler Police Department.
121.
Defendant City of Chandler has developed and maintained policies
procedures, customs, and/or practices exhibiting deliberate indifference to the
constitutional rights of citizens, which were moving forces behind and proximately caused
the violations of Plaintiff’s constitutional and federal rights as set forth herein and in the
other claims, resulted from a conscious or deliberate choice to follow a course of action
among various available alternatives.
122.
Defendant City of Chandler has created and tolerated an atmosphere of
lawlessness, having developed and maintained long-standing, department-wide customs
law enforcement-related policies, procedures, customs, practices, and/or failed to properly
train and/or supervise its officers in a manner amounting to deliberate indifference to the
constitutional rights of Plaintiff and of the public.
123.
More specifically, Defendant City of Chandler has developed and
maintained, permitted to propagate and grow, and has a department-wide custom of
arresting, detaining, and ultimately charging citizens with crimes in an effort to insulate
itself from claims of excessive force, even if doing so requires fabrication of factua
evidence.
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124.
The improper training and supervision provided by Defendant Nocella and
deliberate indifference of the City of Chandler both resulted from a conscious or
deliberate choice to follow a course of action from among various alternatives.
125. As a direct result of Defendants Nocella and City of Chandler’s unlawfu
conduct, Plaintiff has suffered injuries, and other damages and losses as described herein
entitling him to compensatory and special damages, in amounts to be determined at trial.
126.
Plaintiff is further entitled to attorneys’ fees and costs pursuant to 42 U.S.C
§ 1988, pre-judgment interest and costs as allowable by federal law.
FIFTH CLAIM FOR RELIEF
Assault and Battery under Arizona law
(Against Defendants Hawkins and City of Chandler Only)
127.
Plaintiff hereby incorporates by reference the allegations contained in
paragraphs 1 through 126 as if they were fully set forth herein.
128.
As set forth herein, during his contact with Plaintiff, Defendant Hawkins
caused harmful or offensive contact with Plaintiff.
129.
As set forth herein, Defendant Hawkins acted outside the scope of his
authority to use lawful force, and therefore had no legal right to cause the harmful or
offensive contact with Plaintiff.
130.
As a direct and proximate cause of Defendant Hawkins’ harmful and
offensive contact, Plaintiff was injured and suffered other damages in an amount to be
proven at trial.
131.
As set forth herein, Defendant Hawkins was acting within the course andscope of his employment as a police officer for the City of Chandler when he made
contact with Plaintiff: Defendant Hawkins was performing an act he was authorized to
perform; he was on-duty working in his regular job capacity; and his actions were
motivated at least in part by a purpose to serve the City of Chandler.
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132.
Because Defendant Hawkins was acting within the course and scope of his
employment for the City of Chandler, Defendant City of Chandler is vicariously liable for
the damages caused by his tortious conduct.
SIXTH CLAIM FOR RELIEF
Abuse of Process under Arizona law
(Against All Defendants)
133.
Plaintiff hereby incorporates by reference the allegations contained in
paragraphs 1 through 132 as if they were fully set forth herein.
134.
The criminal justice system is designed for the purpose of prosecuting
individuals that the State has probable cause to believe committed a criminal offense.
135.
As set forth herein, the Defendant Officers willfully used the crimina
justice system to accomplish an ulterior purpose for which the process or procedure was
not designed – namely, causing him to be charged with a criminal offense in an effort to
discourage, dissuade, or procedurally preclude Plaintiff from filing suit against Officer
Hawkins and/or the City of Chandler for excessive force.
136.
The improper purpose set forth in the forgoing paragraph was, in fact, the
Defendant Officers’ primary purpose in citing Plaintiff for a criminal offense.
137.
As a direct and proximate result of Defendants’ misuse of the legal process
or procedure Plaintiff was injured and suffered other damages in an amount to be proven
at trial.
138.
As set forth herein, the Defendant Officers were acting within the course
and scope of their employment as police officers for the City of Chandler when decided to
charge Plaintiff with a criminal offense: The Defendant Officers were performing acts
they were authorized to perform; were on-duty, working in their regular job capacity; and
their actions were motivated at least in part by a purpose to serve the City of Chandler.
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139.
Because the Defendant Officers were acting within the course and scope of
their employment for the City of Chandler, Defendant City of Chandler is vicariously
liable for the damages caused by their tortious conduct.
140. In addition to compensatory, economic, consequential, and special damages
Plaintiff is entitled to punitive damages against the Defendant Officers under Arizona law
because both of these defendants took deliberate, intentional, and malicious action agains
him.
SEVENTH CLAIM FOR RELIEFMalicious Prosecution under Arizona law
(Against All Defendants)
141.
Plaintiff hereby incorporates by reference the allegations contained in
paragraphs 1 through 140 as if they were fully set forth herein.
142.
As set forth herein, the Defendant Officers initiated and/or took active part
in the criminal prosecution against Plaintiff.
143.
As set forth herein, the criminal prosecution against Plaintiff was terminated
in Plaintiff’s favor when the City of Chandler voluntarily dismissed the criminal
complaint against him without compromise or plea agreement of any kind.
144.
As set forth herein, the Defendant Officers acted with malice, causing him
to be charged with a criminal offense in an effort to discourage, dissuade, or procedurally
preclude Plaintiff from filing suit against Officer Hawkins and/or the City of Chandler for
excessive force.
145.
As a direct and proximate result of the Defendant’ Officers malicious
conduct, Plaintiff was injured and suffered damages in an amount to be proven at trial.
146. As set forth herein, the Defendant Officers were acting within the course
and scope of their employment as police officers for the City of Chandler when decided to
charge Plaintiff with a criminal offense: The Defendant Officers were performing acts
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they were authorized to perform; were on-duty, working in their regular job capacity; and
their actions were motivated at least in part by a purpose to serve the City of Chandler.
147.
Because the Defendant Officers were acting within the course and scope of
their employment for the City of Chandler, Defendant City of Chandler is vicariously
liable for the damages caused by their tortious conduct.
148.
In addition to compensatory, economic, consequential, and special damages
Plaintiff is entitled to punitive damages against the Defendant Officers under Arizona law
because both of these defendants took deliberate, intentional, and malicious action agains
him.
EIGHTH CLAIM FOR RELIEF
Negligence
(Against All Defendants)
149.
Plaintiff hereby incorporates by reference the allegations contained in
paragraphs 1 through 148 as if they were fully set forth herein.
150.
The Defendants owed Plaintiff a duty of reasonable care, namely, the duty
to act as reasonable police officers under the circumstances.
151. Defendant Hawkins breached his duty of reasonable care to Plaintiff when
among other things, he: placed Plaintiff into a potentially dangerous situation, namely, a
pending investigation, when he requested Plaintiff’s assistance in removing Ms. Shunick
from her vehicle; used unreasonable and unnecessary force against Plaintiff; caused
Plaintiff to be detained in handcuffs on the sidewalk; caused Plaintiff to be arrested and
transported to jail; caused Plaintiff to be booked into jail and detained for 14 hours; and
caused Plaintiff to be cited and prosecuted for a criminal violation without probable cause
152. A reasonable officer in Defendant Hawkins’ position would not have taken
these actions.
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153.
Defendant Nocella breached his duty of reasonable care to Plaintiff when
among other things, he: instructed Defendant Hawkins to charge Plaintiff with a crimina
offense even if though there was no probable cause to maintain such a charge; caused
Plaintiff to be arrested and transported; caused Plaintiff to be booked into jail and detained
for 14 hours; and caused Plaintiff to be cited and prosecuted for a criminal violation
without probable cause.
154.
A reasonable officer in Defendant Nocella’s position would not have taken
these actions.
155.
Defendant City of Chandler breached its duty of reasonable care to Plaintif
when, among other things, it: permitted Defendant Hawkins to be in a position to injure
Plaintiff despite prior issues, including at least one prior lawsuit for excessive force
permitted Defendant Nocella to be in a supervisory position where he could give
unconstitutional orders; and failed to provide adequate and reasonable training and
supervision to these officers about proper methodologies in using force, conducting arrests
and detentions, and asserting criminal charges against citizens.
156.
A reasonable city or municipality in the City of Chandler’s position would
not have undertaken these acts and omissions.
157. As a direct and proximate result of the Defendant Officers’ acts and
omissions, Plaintiff was injured and suffered damages in an amount to be proven at trial.
158.
As set forth herein, the Defendant Officers were acting within the course
and scope of their employment as police officers for the City of Chandler during the sum
of their involvement in this matter: The Defendant Officers were performing acts they
were authorized to perform; were on-duty, working in their regular job capacity; and their
actions were motivated at least in part by a purpose to serve the City of Chandler.
159. In addition to its independent and direct liability for negligence, because the
Defendant Officers were acting within the course and scope of his employment for the
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City of Chandler, Defendant City of Chandler is vicariously liable for the damages caused
by the Defendant Officers’ tortious conduct.
WHEREFORE, Plaintiff Luke Hein hereby requests that the Court enter judgment
against Defendants as follows:
a.
For damages in an amount to compensate Plaintiff fairly and fully for the
numerous violations of his Constitutional Rights;
b.
For general, consequential, special, and compensatory damages, including
but not limited to his pain and suffering, mental anguish, lost wages, and
lost future income;
c.
For nominal damages as provided for by law;
d. For prejudgment interest on all liquidated sums;
e.
For attorneys’ fees under 42 U.S.C. §§ 1983 and 1988, and as provided for
by Arizona law;
f.
For Plaintiff’s costs and other expenses incurred in this action; and
g.
Such other and further relief as the Court deems just.
DATED this 27th day of July, 2015.
THE PEOPLE’S LAW FIRM
By: /s/ Stephen D. BenedettoStephen D. Benedetto
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CERTIFICATE OF SERVICE
I hereby certify that on the 27th
day of July, 2015, the foregoing was
electronically filed with the Clerk of the Court utilizing the CM/ECF filing system,
and that on said date I sent via electronic mail and U.S. Mail a copy of the foregoing
to:
Thomas A. Lloyd, Esq.Assistant City AttorneyChandler City Attorney’s OfficeMS602
PO Box 4008Chandler, AZ 85244-4008
/s/ Stephen D. BenedettoStephen D. Benedetto
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