2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 1 of 18 Pg ID 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Transcription

1 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 1 of 18 Pg ID 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION HECTOR L. MEDINA, and ALICIA MEDINA v. Plaintiffs, Case No.: Hon.: CITY OF DETROIT, the DETROIT POLICE DEPARTMENT POLICE CHIEF RALPH GODBEE POLICE OFFICER DERRICK DIXON POLICE OFFICER BRIAN GIBBINGS POLICE OFFICER SHAUN DUNNING SERGEANT SIMEON GLINTON LIEUTENANT JOHN SVEC Defendants. CYRIL C. HALL (P29121) LAW OFFICES OF CYRIL C. HALL, P.C. Attorney for Plaintiffs W. Warren Ave., Ste 200 Dearborn, MI (313) cyrilhalllaw@sbcglobal.com COMPLAINT AND JURY DEMAND NOW COME Plaintiffs, HECTOR L. MEDINA and ALICIA MEDINA, by and through their attorney CYRIL C. HALL of THE LAW OFFICES OF CYRIL C. HALL, P.C., and submit the following complaint unto this Honorable Court: 1

2 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 2 of 18 Pg ID 2 JURISDICTION AND PARTIES 1. Plaintiffs Hector Medina (Plaintiff Medina) and his wife, Alicia Medina (Mrs. Medina) reside in Wayne County on 6763 Greenview St, Detroit, Michigan. 2. Defendant, CITY OF DETROIT (Detroit), is a municipal corporation, duly organized and carrying on governmental functions in the County of Wayne, State of Michigan at all times relevant hereto. 3. Defendant, DETROIT POLICE DEPARTMENT, is a municipal corporation, duly organized and carrying on governmental functions in the County of Wayne, State of Michigan at all times relevant hereto. 4. Defendant former Police Chief RALPH GODBEE is an individual and at the relevant time was the Chief of Police of the Detroit Police Department, and acted under its color of law and in the course and scope of employment at all times relevant hereto in the County of Wayne, State of Michigan. 5. Defendant, Police Officer DERRICK DIXON is an individual and police officer of the Detroit Police Department and acted under its color of law in the course and scope of employment at all times relevant hereto in the County of Wayne, State of Michigan. 6. Defendant, Police Officer BRIAN GIBBINGS is an individual and police officer of the Detroit Police Department and acted under its color of law in the course and scope of employment at all times relevant hereto in the County of Wayne, State of Michigan. 2

3 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 3 of 18 Pg ID 3 7. Defendant, Police Officer SHAUN DUNNING is an individual and police officer of the Detroit Police Department and acted under its color of law in the course and scope of employment at all times relevant hereto in the County of Wayne, State of Michigan. 8. This complaint involves tortuous and wrongful acts committed by Defendants herein, and the results and consequence, which occurred in the County of Wayne, State of Michigan. 9. In addition, inasmuch Officers DERRCK DIXON, BRIAN GIBBINGS, and SHAUN DUNNING (hereinafter referred to as Defendant Officers ) committed such tortuous and wrongful acts within the scope of their employment with the City of Detroit and Detroit Police Department, Defendants, the City of Detroit and Detroit Police Department are liable as well under the doctrine of Respondeat superior and/or vicarious liability. 10. That jurisdiction and venue are proper per 28 U.S.C. 1343(a), 28 U.S.C. 1331, and 28 U.S.C GENERAL ALLEGATIONS 11. Plaintiffs incorporate by reference paragraph 1 through 10, as fully set 12. Plaintiff Hector Medina is a 47-year-old person who resides in the city of Detroit and speaks limited English. 13. On Thursday July 26, 2012, between 10:45 P.M. and 11:00 P.M., Mr. Medina was walking eastbound on West Warren Avenue near Warwick in 3

4 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 4 of 18 Pg ID 4 the city of Detroit, holding a lawfully possessed BB/pellet gun when three Detroit police officers, Defendants herein, in an unmarked car drove past him, then made a u-turn and approached him from the back. 14. Defendant Officer Dixon was driving the unmarked vehicle. 15. Defendant Officer Gibbons was the front seat passenger. 16. Defendant Officer Dunning was the rear seat passenger. 17. Defendant Officers then ordered Plaintiff Medina to drop his lawfully possessed object. 18. Plaintiff Medina dropped said object and was immediately shot at least seven times by Defendant Officers Gibbons and Dunning. 19. Two projectiles entered Plaintiff Medina in the back of his anatomy, one in his right buttocks and other in his right lumbar area. 20. No projectiles entered Plaintiff Medina in the front of his anatomy. 21. At no time whatsoever did Plaintiff act in a manner that would require Defendant Officers to act with deadly force against him. 22. Plaintiff Medina was wrongfully charged with three counts of felonious assault and three counts of assault/resisting/obstructing police officer. 23. Plaintiff Medina was subsequently acquitted of all six charges. COUNT I GROSS NEGLIGENCE 24. Plaintiffs incorporate by reference paragraph 1 through 23, as fully set 4

5 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 5 of 18 Pg ID Pursuant to MCL , the Officers owed Plaintiff a duty to act prudently and with reasonable care, and otherwise avoid use of unnecessary and unreasonable force. 26. Defendant Officers owed Plaintiff a duty to perform their law enforcement duties competently without causing unnecessary injury or harm. 27. Defendant Officers breached said duties by improperly, without justifiable reason or provocation, shooting Plaintiff Medina twice in the back. 28. The shooting constitutes unreasonable and excessive force. 29. Defendant Officer Dixon, the only officer to not fire his weapon, failed to intervene and stop the other two officers from continuing this excessive force. 30. Each of the Defendant Officer s conduct was so reckless as to demonstrate a substantial lack of concern as to the severity of Plaintiff Medina s wounds, as they continued to forcibly handcuff Plaintiff Medina after he had collapsed from his injuries, amounting to gross negligence as defined by MCL As the direct and proximate result of each of the Officer s gross negligence, Plaintiff suffered injury and damage as fully set forth below. COUNT II VIOLATION OF THE U.S. CONSTITUTION AGAINST OFFICER GIBBONS AND OFFICER DUNNING (42 U.S.C. 1983) 32. Plaintiffs incorporate by reference paragraphs 1 through 31 as fully set 5

6 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 6 of 18 Pg ID By reasons of their acts as set forth above, the individual police officers, GIBBONS and DUNNING, acted under color of state law with malice to Mr. Medina, to the deprivation of his rights, privileges, and immunities secured by the Constitution and law, to wit; a. The right to be free from excessive force and to be secure in his person as provided by the 4th and 14th amendment of the U.S. Constitution. 34. Defendants GIBBONS and DUNNING S conduct was in accordance with the practice, usage, policy, procedures, and/or customs of their employer City of Detroit s and Detroit Police Department s policies of deliberate indifference to Plaintiff Medina s rights as secured under the U.S. Constitution. 35. As a direct and proximate result of Officer GIBBONS and Officer DUNNING S conduct, Plaintiff Medina suffered serious injury and damages as set forth in this complaint. COUNT III VIOLATION OF THE U.S. CONSTITUTION PER 42 U.S.C AS TO CITY OF DETROIT AND DETROIT POLICE DEPARTMENT 36. Plaintiffs incorporate by reference paragraphs 1 through 35 as fully set 37. The Officers above-described conduct was performed under color of law while they were working as officers for Defendants City of Detroit and Detroit Police Department. 6

7 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 7 of 18 Pg ID Said conduct deprived Plaintiff Medina of clearly established rights to freedom from excessive force. 39. Defendants City of Detroit and Detroit Police Department knew or should have known the Officers propensity for such unconstitutional conduct. 40. Defendants City of Detroit and Detroit Police Department failed to safeguard against said known unconstitutional conduct and such failure amounted to a tacit approval of said conduct. 41. Defendants City of Detroit and Detroit Police Department are directly liable for violation of Plaintiff Medina s right to be free from the use of excessive force. 42. Defendants City of Detroit and Detroit Police Department had a custom, pattern, and/or practice of failing to take disciplinary action to correct or remedy the unlawful conduct of Defendant Officers and other officers who engaged in similar conduct. 43. Defendants City of Detroit and Detroit Police Department had a custom, pattern and/or practice of failing to supervise and/or train Defendant Officers and other officers engaged in similar conduct 44. Defendants City of Detroit and Detroit Police Department demonstrated deliberate indifference by the adherence to, application and interpretation of, and/or acquiescence in the following policies, customs, patterns and practices, which were wholly defective: 7

8 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 8 of 18 Pg ID 8 a. Failing to adequately screen active duty police officers and new recruits for propensities for abuses of power and psychological disturbances which could foreseeably endanger citizens; b. Tacitly approving an unwritten custom of failing to discipline officers who used excessive force; c. Failing to train officers regarding use of force and Constitutional rights of the citizens; and d. Failing to investigate the facts and circumstances surrounding the shooting of Plaintiff Medina. 45. Defendants City of Detroit and Detroit Police Department were aware of the facts from which an inference can be drawn that a substantial risk of serious harm existed. 46. Defendants City of Detroit and Detroit Police Department failed to properly supervise, train, and or discipline officers they employed. 47. The City of Detroit s and Detroit Police Department s policy and/or custom, or their turning a blind eye on misconduct was the moving force behind the wrongful acts and excessive force of the Defendant Officers. 48. As a direct and proximate result of the acts and omissions of Defendants City of Detroit and Detroit Police Department, Mr. Medina suffered severe injury and damage set forth herein. 8

9 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 9 of 18 Pg ID 9 COUNT IV CONSPIRACY TO VIOLATE THE CIVIL RIGHTS OF PLAINTIFF PER 42 U.S.C Plaintiffs incorporate by reference paragraphs 1 through 48 as fully set 50. The three Officers, DIXON, GIBBINGS, AND DUNNING, conspired and committed malicious acts in furtherance of their conspiracy to deprive Plaintiff Medina of his civil rights under the law, depriving him of his rights and privileges granted to citizens of the United States of America. 51. Defendant Officers conspired and committed acts in furtherance of a conspiracy to employ excessive force against Mr. Medina, thereby depriving Mr. Medina of his civil rights. 52. Each of the Defendant Officers acted in furtherance of their conspiracy by engaging in one or more of the acts set forth in this Complaint, in addition to the following acts: a. Illegally and without reason, shooting Mr. Medina in the back. b. Allowing the shooting to take place when it was clearly unreasonable. c. Failing to be fully truthful and forthcoming in regards to the facts and circumstances leading to the shooting. d. Failing to investigate the facts and circumstances surrounding the shooting of Plaintiff Medina. 9

10 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 10 of 18 Pg ID All three Defendant Officers agreed to ride in one semi-marked patrol vehicle; Defendant Dixon was driving, Defendant Gibbons was the front seat passenger, and Defendant Dunning was in the rear passenger seat. 54. As a direct and proximate result of the conspiracy and acts in furtherance thereof, Plaintiff suffered injury and damages as set forth herein. COUNT V CONSTITUTIONAL DEPRIVATION MUNICIPAL/SUPERVISORY LIABILITY AS TO DEFENDANTS CITY OF DETROIT, SGT. SIMEON GLINTON AND LT. JOHN SVEC 55. Plaintiffs incorporate by reference paragraphs 1 through 54 as fully set 56. At all times relevant, Defendants City of Detroit, Sgt. Simeon Glinton (Sgt. Glinton) and Lt. John Svec (Lt. Svec), by their own customs, policies, and/or practices systematically failed to properly train, evaluate, supervise, investigate, review and/or discipline their police officers under their supervision;, allowed, acquiesced in, and/or encouraged Defendant Police Officers to unlawfully confront, assault, batter, use excessive force, humiliate, and mistreat Plaintiff; and proximately caused Plaintiff to be deprived of his right to be free from the use of excessive force. 57. At all times relevant herein, Defendants City of Detroit, Sgt. Glinton, and Lt. Svec, by their failure to intervene to prevent the intentional, willful and wanton, reckless, deliberately indifferent, grossly negligent and/or negligent acts and/or omissions of the employees and/or agents under 10

11 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 11 of 18 Pg ID 11 their supervision, proximately caused Plaintiff to be deprived of his right to be free from excessive force, in violation of the United States Constitution. 58. At all times relevant herein, Defendants City of Detroit, Sgt. Glinton and Lt. Svec, by their failure to correct the behavior of the employees and/or agents under their supervision which said defendants knew or should have known, created the potential for the intentional, willful and wanton, reckless, deliberately indifferent, grossly negligent, and/or omissions of Defendants Police Officers allowed, acquiesced in and/or encouraged said individual Defendants Police Officers to unlawfully use excessive force against Plaintiff. 59. Defendants City of Detroit, Sgt. Glinton, and Lt. Svec are liable for their acts and/or omissions for failure to further investigate the shooting of Plaintiff Medina, in violations of the Constitution of the United States. 60. The Civil Rights Act, 42 U.S.C provides for civil liberty under federal law for the deprivation of any right, privilege or immunity secured by the Constitution and the laws of the United States, while committed under color of law. 61. Defendants City of Detroit, Sgt. Glinton, and Lt. Svec are civilly liable to Plaintiff pursuant to 42 U.S.C because all of the above-described acts and/or omissions were committed under color of law and pursuant to the customs, policies, and/or practices of said Defendants, all of which 11

12 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 12 of 18 Pg ID 12 subjected Plaintiff Medina to the deprivation of his clearly established civil rights. 62. As a direct and proximate result of said Constitutional violations, Plaintiff suffered serious and permanent injuries as set forth herein. COUNT V ASSAULT AND BATTERY BY THE POLICE OFFICERS 63. Plaintiff incorporates by reference paragraphs 1 through 62 as fully set 64. Defendant Officers, during the course of their contact with Plaintiff Medina, made an intentional, unlawful threat to do bodily injury to Plaintiff by force, under circumstances which created in Plaintiff a reasonable fear of imminent peril. This threat was coupled with the apparent present ability of the Defendants to carry out the act if not prevented. 65. In addition, The Officers intentionally caused an uncontested touching of Plaintiff against his will and without justification. 66. The Officers used more force than was reasonable necessary, by shooting Plaintiff Medina at least twice, constituting battery. 67. As a direct and proximate result of the shooting/battery, Plaintiff Medina suffered severe injury and damage as set forth herein. 12

13 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 13 of 18 Pg ID 13 COUNT VII INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 68. Plaintiffs incorporate by reference paragraphs 1 through 67 as fully set 69. Defendants individually and collectively by their extreme and outrageous conduct, intentionally and/or recklessly caused Mr. Medina severe emotional distress as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. 70. As a direct and proximate result of Defendants illegal, malicious, intentional conduct, Mr. Medina suffered damages as more fully set forth below. COUNT VIII MALICIOUS PROSECUTION 71. Plaintiffs incorporate by reference paragraphs 1 through 70 as fully set forth herein, word for work, paragraph by paragraph. 72. Defendants, individually and collectively, caused or continued the unjustifiable prosecution of Plaintiff. 73. The prosecution was initiated or continued with malice or a primary purpose other than that of bringing the true offender to justice. 74. The prosecution was initiated or continued without probable cause. 75. A jury properly acquitted Plaintiff Medina of all charges. 13

14 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 14 of 18 Pg ID As a direct and proximate cause of Defendants conduct, Plaintiff Medina suffered injury as set forth below. COUNT IX LOSS OF CONSORTIUM AS TO MRS. ALICIA MEDINA 77. Plaintiffs incorporate by reference paragraphs 1 through 76 as fully set 78. At all times mentioned in this complaint, Plaintiffs Hector Medina and Alicia Medina were/are husband and wife. 79. Before suffering these injuries, Mr. Medina was able to and did perform all the duties of a husband and did perform all these duties, including assisting in maintaining the home, and providing love, companionship, affection, society, sexual relations, moral support, and solace to plaintiff. 80. That as a result of the wrongful and negligent acts of the Defendants, the Plaintiffs were caused to suffer, and will continue to suffer in the future, loss of consortium, loss of society, affection, assistance, and conjugal fellowship, all to the detriment of their marital relationship. 81. Mr. Medina can no longer assist with housework, have sexual intercourse, father a child, participate in family, recreational, or social activities with Mrs. Medina, or contribute to the household income. 82. Mrs. Medina is therefore deprived and will be permanently deprived of her spouse's consortium, all to Mrs. Medina's damage, in a total amount to be established by proof at trial. 14

15 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 15 of 18 Pg ID That all the aforesaid injuries and damages were caused solely and proximately by the negligence of the Defendants. DAMAGES 84. Plaintiffs incorporates by reference paragraphs 1 through 83 as fully set 85. As the direct and proximate cause of Defendants conduct, Plaintiff Medina suffered injuries and damages, including but not limited to: a. Complete disability and loss of his independence b. Extensive damage to his organs, c. Incontinence, d. Major permanent scarring to his abdomen, e. Multiple surgeries and hospital stays, some exceeding nine months in duration, f. Hernia, colostomy, and sepsis g. Present, past and future pain and suffering stemming from gunshot wounds to his lower back and buttocks; h. Permanent and debilitating physical injury to his body; i. Present, past and future severe emotional distress and mental injury; j. Loss of liberty; k. Loss of enjoyment of life; 15

16 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 16 of 18 Pg ID 16 l. Present, past and future humiliation, embarrassment, shock, fear and outrage; m. Medical expenses and other economic injury; n. Future medical expenses; o. Future lost wages; and p. Exemplary damages, punitive damages and reasonable attorney fees, as provided by court rules and statutes, including but not limited to 42 U.S.C As a direct and proximate cause of Defendants conduct, Plaintiff Alicia Medina suffered damages stemming from loss of consortium, general damages, special damages, costs and attorney fees, and any other relief the Court deems proper. WHEREFORE, Plaintiffs Hector and Alicia Medina request that this Honorable Court award damages in whatever amount Plaintiffs are found to be entitled to in excess of $75,000, plus interest, costs and attorney fees so wrongfully sustained. Plaintiffs further request an award for exemplary and punitive damages and such other and further relief as is consistent with law and which this Honorable Court deems just and proper. Respectfully submitted, June 10, 15 /s/ CYRIL C. HALL LAW OFFICES OF CYRIL C. HALL, P.C W. Warren Ave., Ste. 200 Dearborn, MI (313) cyrilhalllaw@sbcglobal.net 16

17 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 17 of 18 Pg ID 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION HECTOR L. MEDINA ALICIA MEDINA v. Plaintiffs, Case No.: Hon.: CITY OF DETROIT, the DETROIT POLICE DEPARTMENT POLICE CHIEF RALPH GODBEE POLICE OFFICER DERRICK DIXON POLICE OFFICER BRIAN GIBBINGS POLICE OFFICER SHAUN DUNNING 17

18 2:15-cv BAF-DRG Doc # 1 Filed 06/10/15 Pg 18 of 18 Pg ID 18 SERGEANT SIMEON GLINTON LIEUTENANT JOHN SVEC Defendants. CYRIL C. HALL (P29121) LAW OFFICES OF CYRIL C. HALL, P.C. Attorney for Plaintiff W. Warren Ave., Ste 200 Dearborn, MI (313) cyrilhalllaw@sbcglobal.net DARRYL P. MITCHELL (P27644) LAW OFFICES OF DARRYL P. MITCHELL Attorney for Plaintiffs 30 North Saginaw St., Ste. 709 Pontiac, MI dpmlegal@aol.com DEMAND FOR TRIAL BY JURY NOW COME Plaintiffs, HECTOR L. MEDINA and ALICIA MEDINA, by and through their attorney CYRIL C. HALL of THE LAW OFFICES OF CYRIL C. HALL, P.C., and hereby respectfully request that the above-named civil action be heard before a jury. Respectfully submitted, June 10, 15 /s/ CYRIL C. HALL LAW OFFICES OF CYRIL C. HALL, P.C W. Warren Ave., Ste. 200 Dearborn, MI (313) cyrilhalllaw@sbcglobal.net 18