Luis Lopez complaint

~; ~~ Cas 3~ ~ K. 1K Document 1 Filed 12/24/13 F ~ 1 of 16 PagelD #: 1

MYLES S. BREWER 4364LANI A. NAKAMURA 9306Attorney at Law, Inc., ALC

841 Bishop Street, Suite 2115Honolulu, Hawaii 96813Telephone: (808) 526-3426

UNlTHD S7ATE~ D T~~GT Ca~~TDIST~2ICT OF HAWgf!

DEC 24 ~f11~ ~ 'dock and sZ}nin.~'~~'~u~ sEirt~, c«~K

Attorneys for PlaintiffsChristina M. Walser Lopez,Individually and as thePersonal Representative ofthe Estate of Luis J. Lopezand as the Guardian of JasmineM. Walser Lopez and Luis J. Lopez, III,Drucila Dedrick and Richard Dedrick

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

CHRISTINA M. WALSER LOPEZ, )Individually and as the Personal )Representative of the Estate of LUIS }J. LOPEZ, and as the Guardian )of JASMINE MARIA WALSER )LOPEZ AND LUIS J. LOPEZ, III, )DRUCILA DEDRICK, AND )RICHARD DEDRICK, )

Plaintiffs, )

vs. )

EDWARD IONA; ZACARY )PLEVEL; MORGAN HILL; SHERI )NAKASONE; LOUIS M. )

,~3

CIVIL ~(~~

COMPLAINT FOR DAMAGES;DEMAND FOR JURY TRIAL;SUMMONS

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KEALOHA; CITY AND COUNTYOF HONOLULU; JOHN OR JANEDOES 1-25; AND DOE ENTITIES1-25,

Defendants. )

COMPLAINT FOR DAMAGES

Plaintiffs Christina M. Walser Lopez, Individually and as the Personal

Representative of the Estate of Luis J. Lopez, and as the Guardian of Jasmine M.

Walser Lopez and Luis J. Lopez, III, Drucila Dedrick, and Richard Dedrick

(hereinafter "Plaintiffs"), by and through their undersigned attorneys, allege as

follows:

1. This is an action for damages arising from Defendants'

excessive use of force and/or exposure of Luis J. Lopez to conditions that

amounted to severe punishment resulting in his death under color of statutes,

ordinances, rules, regulations, customs, policies, practices, and/or usages which

deprived him of rights, privileges, and immunities secured under the Fourth and

Fourteenth Amendments to the Constitution of the United States, inter alia, 42

U.S.C. § 1983, et sec.,, and Article I, §§ 2, 5, 6, 7, 12, and 14 of the Hawaii State

Constitution, inter alia. Plaintiff Christina M. Walser Lopez also brings state law

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claims on behalf of herself and her minor children, and Plaintiffs Drucila and

Richard Dedrick bring claims on their own behalf.

Jurisdiction and Venue

2. This Court is vested with jurisdiction over this matter pursuant

to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343, inter alia. Any and all state

law claims contained herein form part of the same case or controversy as gives rise

to Plaintiff s federal law claims and therefore fall within the Court's supplemental

jurisdiction pursuant to 28 U.S.C. § 1367.

3. Venue resides in the United States District Court for the District

of Hawaii pursuant to 28 U.S.C. § 1391, as all, or a substantial part, of the acts

and/or omissions that are the basis for this lawsuit occurred in the State of Hawaii

within the District of Hawaii, and all of the Defendants reside in the State of

Hawaii.

Parties

4. Plaintiff Christina M. Walser Lopez was a citizen and resident

of the State of Hawaii as of January 7, 2012.

5. Luis J. Lopez (hereinafter "Mr. Lopez") died on January 7,

2012. Plaintiff Christina M. Walser Lopez was Mr. Lopez's wife at the time of his

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death and is presently the duly appointed Personal Representative of Mr. Lopez's

Estate.

6. Plaintiff Christina M. Walser Lopez and Mr. Lopez have two

minor children together, Jasmine M. Walser Lopez and Luis J. Lopez, III. Plaintiff

Christina M. Walser Lopez is the Guardian of these two children.

7. Plaintiff Drucila Dedrick was Luis J. Lopez's mother and a

citizen and resident of Florida at all times pertinent hereto.

8. Plaintiff Richard Dedrick was Luis J. Lopez's stepfather who

raised Mr. Lopez along with his mother, and a citizen and resident of Florida at all

times pertinent hereto.

9. Plaintiffs are informed and believe and do thereupon allege that

Defendant Edward Iona was a citizen and resident of the State of Hawaii and an

officer with the Honolulu Police Department at all times pertinent hereto.

Defendant Iona initially arrested Mr. Lopez on the morning of January 7, 2012, and

is sued herein in his individual and official capacities.


Defendant Zachary Plevel was a citizen and resident of the State of Hawaii and an


Defendant Plevel transported Mr. Lopez to the Wahiawa Police Station and

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Wahiawa General Hospital on the morning of January 7, 2012, and is sued herein

in his individual and official capacities.


Defendant Morgan Hill was a citizen and resident of the State of Hawaii and an


Defendant Hill was working at the Wahiawa Police Station on the morning of

January 7, 2012, and is sued herein in his individual and official capacities.


Defendant Sheri Nakasone was a citizen and resident of the State of Hawaii and an


Defendant Nakasone was working at the Wahiawa Police Station on the morning of

January 7, 2012, and is sued herein in her individual and official capacities.

13. Defendant Louis M. Kealoha is and has been a resident of the

State of Hawaii and the Chief of the Honolulu Police Department at all times

pertinent hereto. Defendant Kealoha is sued herein in his individual and official

capacities.

14. Defendant Kealoha is responsible for the instruction, training,

and supervision of the Honolulu Police Department's members.

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15. Defendant City and County of Honolulu is and has been a duly

organized municipal corporation of the State of Hawaii at all times pertinent hereto

and operates the Honolulu Police Department.

16. Defendants John or Jane Does 1-25 and Doe Entities 1-25 are

sued herein under fictitious names for the reason that their true names and

capacities presently are unknown to Plaintiffs except that they are connected in

some manner with the named Defendants as agents, partners, officers, servants,

employees, representatives, contractors, subcontractors, assignors, assignees, and

licensees and/or in some manner presently unknown to Plaintiffs were engaged in

the activities alleged herein. The true names and capacities of the Doe Defendants

will be substituted as soon as the same become known. Doe Defendants are sued

herein in both their individual and representative capacities.

Factual Alle atg ions

17. Before January 7, 2012, Plaintiff Christina M. Walser Lopez,

Mr. Lopez, and their two minor children lived together as a family in the State of

Hawaii.

18. At approximately 4:10 a.m. on the morning of January 7, 2012,

Defendant Iona arrested Mr. Lopez under suspicion of Driving Under the Influence

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of an Intoxicant and Defendant Plevel transported him to the Wahiawa Police

Station.

19. During his arrest Mr. Lopez sustained a bloody gash to his

forehead for which Defendant Plevel took Mr. Lopez to Wahiawa General Hospital

from the Wahiawa Police Station at approximately 5:00 a.m. on January 7, 2012.

20. Mr. Lopez purportedly declined medical treatment at Wahiawa

General Hospital after which he was transported back to the Wahiawa Police

Station.

21. Plaintiffs are infot-med and believe and do thereupon allege that

1VI~~. Lopez was wearing a black tank top to cover his torso at the time of his arrest.


Defendants did not hold Mr. Lopez with any other detainees in cell number three at

the Wahiawa Police Station.

23. Cell number three at the Wahiawa Police Station is a cell with

Plexiglas walls inside of standard cellblock bars, a camera directed at it, and is

located closest to and within the direct range of vision of a check-in desk where

Honolulu Police officers are stationed and/or traverse.

24. Mr. Lopez died from asphyxiation sometime in the early

morning of January 7, 2012.

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25. At approximately 6:30 in the morning on January 7, 2012, an

Emergency Medical Technician responded to an emergency call at the Wahiawa

Police Station for a different detainee and reported that she observed Mr. Lopez

laying on his side.

26. At approximately 7:05 in the morning on January 7, 2012,

Defendant Nakasone reported that she observed Mr. Lopez sitting on the floor with

his back to the cell door and a white long-sleeved shirt wrapped around his neck.

27. Defendant Nakasone reported that Mr. Lopez was not breathing;

Mr. Lopez was subsequently pronounced dead at Wahiawa General Hospital at

approximately 7:48 a.m.


the ligature marks on Mr. Lopez's neck did not match the white shit~t which was

found wrapped around his neck.


the white shirt found wrapped around Mr. Lopez's neck was not his shirt and that

she had not seen him wear that shirt before.

28. The Medical Examiner's Office for Defendant City and County

of Honolulu subsequently classified Mr. Lopez's death as a suicide.

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30. Plaintiffs allege: a) that Mr. Lopez was murdered and did not

commit suicide, or in the alternative, that b) if Mr. Lopez did commit suicide it was

due to Defendants' extraordinary negligence and/or reckless indifference.


the actions of Defendants were without reasonable, just, and/or probable cause.

33. As a direct and proximate result of the foregoing Mr. Lopez and

Plaintiffs suffered the deprivation of Mr. Lopez's life, freedom, and liberty in

amounts to be proven at trial.

34. As a direct and proximate result of the foregoing Mr. Lopez and

Plaintiffs suffered great physical pain and suffering, loss of enjoyment of life, the

loss of consortium and future earnings, mental anguish, emotional distress, anxiety,

embarrassment, humiliation, worry, and anger in amounts to be proven at trial.

First Cause of Action(42 U.S.C. § 1983)

35. Plaintiffs hereby incorporate all of the allegations contained in

paragraphs 1 through 34, above.


Defendants acted and/or purported to act herein in their official capacities within

the scope of their employment under color of statutes, regulations, customs,

practices, and/or usages of the State of Hawaii, City and County of Honolulu,

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and/or the Honolulu Police Department when they used unnecessary and excessive

force against and/or exposed Mr. Lopez to conditions that amounted to severe

punishment resulting in his death.

37. The policy of condoning, ratifying, and/or failing to punish or

prevent: a) the excessive and/or unnecessary use of force and/orb) exposing

pretrial detainees to conditions that amount to severe punishment by Honolulu

Police Officers are constitutionally deficient customs, policies, practices, and/or

usages that repudiate the constitutional rights of persons such as Mr. Lopez and

there is a direct causal connection between the customs, policies, practices, and/or

usages and these constitutional deprivations.

38. As the Chief of Police Defendant Kealoha's failure to train,

supervise, and/or discipline Honolulu Police Department members that use

excessive force and/or expose pretrial detainees to conditions amounting to

punishment demonstrates that he personally implemented, maintained, enforced,

and/or allowed the continued use of excessive force and/or exposure of pretrial

detainees to conditions amounting to severe punishment, acted with reckless and

callous indifference, and knew of and acquiesced to such unconstitutional conduct.

39. Defendant Kealoha's supervision, training, implementation,

maintenance, enforcement, acquiescence and/or allowance of the continued

to

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operation of the use of excessive force or the exposure of pretrial detainees to

conditions amounting to severe punishment amounts to deliberate indifference to

the rights of persons who are victims of excessive police force and/or suffer

conditions amounting to punishment because the custom, usage, police, and/or

practice is obviously deficient, likely to cause the violation of citizens'

constitutional rights, and closely related to the injuries suffered by Mr. Lopez and

Plaintiffs.

40. Plaintiff is informed and believes and thereupon alleges that by

the aforementioned acts and/or omissions Defendants, without any probable,

sufficient, just, or reasonable cause, subjected Mr. Lopez to an illegal and

unreasonable seizure andlor denied him due process of law in violation of rights

guaranteed by the Fourth and Fourteenth Amendments of the United States

Constitution and the Constitution and laws of the State of Hawaii and 42 U.S.C. §

1983, inter alia.

Second Cause of Action(Alternative to Counts I and IV Negligent Training/Supervision)


paragraphs 1 through 34, above.

42. Plaintiffs are informed and believe and thereupon allege that

Defendants Kealoha, the City and County of Honolulu, and John or Jane Doe

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Defendants 1-15 negligently failed and refused to properly adopt and enforce

policies, train, supervise, andlor discipline the other named Defendants when they

acted outside of the scope of their employment to improperly and illegally assault

Mr. Lopez and/or expose him to conditions amounting to severe punishment,

thereby proximately causing the aforementioned injuries.

43. Defendants Kealoha, the City and County of Honolulu, and

John or Jane Doe Defendants 1-15 failed in supervising, training, hiring, and

failing to discipline the othei named Defendants because Defendants Kealoha, the

City and County of Honolulu, and John or Jane Doe Defendants 1-15 knew or

should have known about the necessity and opportunity to exercise control and to

curtail the continued operation and use of the excessive and/or unnecessary use of

force and the exposure of pretrial detainees to conditions amounting to severe

punishment.

44. Defendants Kealoha and John or Jane Doe Defendants 1-15

acted with malice.

Third Cause of Action(Assault and Battery)


Paragraphs 1-34, above.

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46. Certain Defendants, including but not limited to Doe

Defendants who Plaintiffs are not presently able to specifically identify, committed

assault and battery against Mr. Lopez as evidenced by the bloody gash to his

forehead and/or his death by asph}~iation.

47. Those Defendants acted herein knowingly, intentionally,

willfully, and/or recklessly, with deliberate indifference for the rights, interests,

and/or well-being of Plaintiffs and Mr. Lopez.

48. The Officer Defendants acted herein within the course and

scope of their employment for Defendant City and County of Honolulu.

Fourth Cause of Action(Negligence-Alternative to Counts II and III)


Paragraphs 1 through 34, above.

50. Defendants negligently failed to exercise reasonable care in

seizing, detaining, and/or monitoring Mr. Lopez, an individual in their custody and

care who they had deprived of his normal opportunities to protect himself, thereby

directly and proximately causing the injuries alleged herein.

51. Alternatively and/or in addition to paragraph 50, above,

Defendants breached their duty of care to Mr. Lopez as evidenced by his injuries

and/or death while he was entrusted to their custody and care and his injuries

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and/or death was caused by agents and/or instruments within Defendants' sole care

and control.

52. Defendants acted with malice.

53. Defendants acted herein within the course and scope of their

employment for Defendant City and County of Honolulu.

Fifth Cause of Action(Negligent Infliction of Emotional Distress)



55. Defendants negligently caused Plaintiff and her family to suffer

severe emotional distress.

56. Defendants acted with malice.

57. Defendants acted herein within the course and scope of their

employment for Defendant City and County of Honolulu.

Sixth Cause of Action(Intentional Infliction of Emotional Distress)



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59. The acts of Defendants complained of herein were intentional

and/or reckless, outrageous, unreasonable, and without just cause or excuse,

thereby causing Plaintiffs severe and extreme emotional distress.


Defendants acted herein knowingly, intentionally, willfully, and/or recklessly, with

deliberate indifference for the rights, interests, and/or well-being of Plaintiffs.

Seventh Cause of Action(Loss of Consortium)

61. Plaintiffs hereby incorporate all of the allegations above.

62. Further as a result of the injuries and damages to Mr. Lopez and

Plaintiffs, and as a further legal and/or proximate result of Defendants'

aforementioned acts and/or omissions, Plaintiffs have suffered and/or will suffer

various economic, special, general and non-economic damages to be proven at

time of trial including but not loss of consortium and protection, loss of

companionship and affection, mental and emotional distress, pain and suffering to

be proven at the time of trial.

WHERFORE, Plaintiffs pray for relief as follows:

1. For special damages, including consequential damages, in

amounts to be proven at trial;

2. For general damages according to the proof thereof at trial;

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3. For reimbursement of Plaintiffs' costs and expenses herein,

including reasonable provision for her attorneys' fees;

4. For punitive damages against the Defendants in their individual

capacities; and

5. For such further and additional relief as the Court deems

appropriate and just.

DATED: Honolulu, Hawaii, (yl ~'-~~~ ~

MYLES S. BREWERLANI A. NAKAMURA

Attorneys for Plaintiffs

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Luis Lopez complaint