IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

Transcription

1 Case 6:13-cv DLC Document 17 Filed 05/28/14 Page 1 of 9 LINDLIEF HALL LAW OFFICE BRENDA LINDLIEF HALL P.O. Box 44 Helena, MT (406) (telephone) blh@blhmtlaw.com ( ) Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION MARY BISOM AND DANIEL BISOM, as co-guardians on behalf of their adult son, Thomas Bisom, Plaintiffs, CIVIL CAUSE NO. 13-CV-42-DLC-RKS AMENDED COMPLAINT vs. UNITED STATES OF AMERICA, Defendant. COME NOW, Mary Bisom and Daniel Bisom, as co-guardians on behalf of their adult son, Thomas C. Bisom (Bisom), by and through their counsel, and for their Complaint allege and state as follows:

2 Case 6:13-cv DLC Document 17 Filed 05/28/14 Page 2 of 9 I. PARTIES 1. Defendant is the United States of America. 2. Plaintiffs are residents of Helena, Lewis and Clark County, State of Montana. II. JURISDICTION AND VENUE 3. The preceding paragraphs are realleged as though set out in full hereunder. 4. Jurisdiction is proper pursuant to 28 U.S.C (federal question), and 28 U.S.C. 1346(b) (United States as Defendant). 5. Venue is proper pursuant to 28 U.S.C. 1391(e) and Rule 1.11(2) of the Rules of Procedure of the United States District Court For The District of Montana. 6. Plaintiff exhausted his administrative remedies by filing a Federal Tort Claims Act Claim with the United States Department of Agriculture, Forest Service (hereinafter USFS ) on May 1, 2012, as required by 28 U.S.C On about January 16, 2013, the United States Department of Agriculture issued its final administrative decision, advising Plaintiff of his right to file a complaint in U.S. District Court within six months of the date of the letter. 8. On July 11, 2013, Bisom filed a complaint with this Court. 2

3 Case 6:13-cv DLC Document 17 Filed 05/28/14 Page 3 of 9 III. FACTUAL BACKGROUND 9. The preceding paragraphs are realleged as though set out in full hereunder. 10. On or about Saturday May 1, 2010, at about 10:30 p.m., Thomas Bisom, then seventeen (17) years of age, was sitting in the front passenger seat of a friend s vehicle parked in a parking lot up Davis Gulch just outside Helena, Montana. There were three teenage boys in the back seat of the vehicle. Counting Bisom, there were five (5) boys in the car. 11. A vehicle pulled up behind the vehicle Bisom was sitting in, and a woman got out, walked up to the driver s side of the vehicle, and ordered the driver out of the vehicle. She did not identify herself as a law enforcement officer. 12. After ordering the driver to get out of the vehicle, the woman came around to the passenger side of the vehicle and ordered Bisom out of the vehicle. 13. To the best of Bisom s knowledge and belief, the woman did not identify herself as a law enforcement officer, and she did not show a badge or other identifying information to Bisom, although she was apparently wearing a uniform. 14. When Bisom got out of the vehicle, the woman accused Tom of drinking, which he had not been doing, and Bisom told her he had not been drinking. 3

4 Case 6:13-cv DLC Document 17 Filed 05/28/14 Page 4 of The other boys that were with Bisom, three of whom were in the car and the other who was sitting on the ground, told the woman that Bisom had not been drinking. 16. The woman then told Bisom to sit on the ground, and Bisom told her he was fine standing, and asked her if they could just talk about it. 17. Bisom was not violent or aggressive, and did not threaten the woman either physically or verbally. He merely asked the woman if they could just talk about what was going on. 18. The woman immediately became aggressive and threatening and grabbed Bisom, started screaming at him, and told him he was going in her car. 19. Bisom tried calming her down, asking her to please just talk to him, and she began kicking him in the legs and beating him with what was probably a baton or billy club, hitting him in the face, and ripping his clothes as she started dragging him to the backside of her car out of sight of his friends. 20. Bisom was, terrified and afraid for his life, and turned to get away from the woman who was assaulting him. 21. The other boys with Bisom yelled out something like look out Tom, she has a gun. 22. The woman who had been beating on Bisom and trying to shove him into her car then shot him in the face with a Taser. 4

5 Case 6:13-cv DLC Document 17 Filed 05/28/14 Page 5 of The Taser lifted Bisom off the ground, spun him around in the air or arced him into the air, and then, incapacitated, he fell straight to the ground, which was covered with large rocks. 24. The woman pointed the Taser at the head and chest of at least one of the other boys, then went over to Bisom, who was still on the ground and incapacitated, and then she called for backup assistance. 25. Emergency vehicles arrived at the scene, including an ambulance to remove the Taser probe from Bisom s jaw. No further medical care was advised or offered to Bisom. 26. Bisom s mother was called, and she immediately went to the scene to get Bisom. 27. The woman who shot Bisom in the face with the Taser gave Bisom s mother a business card, which identified her as a law enforcement officer (LEO) with the United States Department of Agriculture, Forest Service, Helena National Forest. She had scratched out the pre-printed name of the person for whom the card was originally printed/issued, and had hand-written in her name, Jennifer Taylor, on the card. She also scratched out the pre-printed telephone number of the person for whom the card was originally printed/issued, and wrote in her own telephone number by hand. 28. Bisom was then released to his mother s care. 5

6 Case 6:13-cv DLC Document 17 Filed 05/28/14 Page 6 of Bisom has subsequently seen by neuropsychological and medical professionals who diagnosed him as having sustained a traumatic brain injury, having sustained possible neurologic injury related to the Tasing incident, and diagnosed his as suffering from PTSD and depression. hereunder. COUNT I. NEGLIGENCE 30. The preceding paragraphs are realleged as though set forth in full 31. The United States Department of Agriculture, Forest Service (hereinafter USFS ) owed a duty of safety and care to Bisom to ensure that his constitutional right to be free from unreasonable searches and seizures were protected. 32. The USFS owed a duty of safety and care to Bisom to ensure that it properly trained and maintained supervision and oversight over its LEO, because it was foreseeable that the LEO, who was armed with a Taser, would come into contact with Bisom. 33. The USFS negligently failed to ensure that its LEO was adequately trained in the use of force to avoid harm to Bisom. 34. The USFS negligently failed to ensure that its LEO was adequately trained in the use of Tasers or other electronic control devices, and was not 6

7 Case 6:13-cv DLC Document 17 Filed 05/28/14 Page 7 of 9 properly trained to avoid shooting Bisom in the face with the Taser. and causing other harm to Bisom. 35. The USFS negligently failed to ensure that its LEO was properly trained to avoid using excessive force that could result in serious bodily and emotional injury to Bisom. 36. As a result of the USFS s negligence in failing to properly train its LEO in the use of Tasers or other electronic control devices, Bisom suffered serious, life-altering injuries. 37. As a result of the USFS s negligence and failure to properly to train its LEO in the use of Tasers and in techniques to avoid using excessive force, Bisom suffered serious, life-altering injuries. 38. As a result of the USFS s negligence, Bisom suffered serious, possibly permanent, and life altering injuries and incurred damages including, but not limited to, past and future medical expenses, travel expenses for medical care, pain and suffering, mental anguish, emotional distress, and significant alteration of his normal and future course of life. 39. The LEO who shot Bisom in the face used force greater than that which a reasonable and prudent law enforcement officer would have used under the circumstances, and used force beyond the amount required to achieve a safe and effective outcome under the circumstances. 7

8 Case 6:13-cv DLC Document 17 Filed 05/28/14 Page 8 of 9 COUNT II. VIOLATION OF PLAINTIFF S FOURTH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AND FREE FROM THE EXCESSIVE USE OF FORCE hereunder. 40. The preceding paragraphs are realleged as though set forth in full 41. The USFS violated Bisom s right to be free and secure in his person and to be free from unreasonable searches and seizures in violation of his rights under the Fourth Amendment to the United States Constitution. 42. The USFS LEO used force in excess of that which a reasonable and prudent law enforcement officer would use under the circumstances. 43. The LEO had not witnessed Bisom engage in any illegal conduct before she attacked him. At no time did Bisom make any sudden movements or gestures that could be interpreted by the LEO as aggressive or threatening. And at no time did Bisom say or do anything that would cause the LEO to fear imminent bodily harm. Clearly, Bisom had no intent to harm the LEO or any other person. The LEO could see that Bisom was unarmed. Under the circumstances, the LEO had no reason to believe that Bisom posed a danger to her or to any other person. 44. Bisom had not hit, kicked, pulled her hair or used any physical force against the LEO when the LEO physically attacked Bisom and then shot him in the face with the Taser. 8

9 Case 6:13-cv DLC Document 17 Filed 05/28/14 Page 9 of At no time did Bisom use physical force or threats of any kind against the LEO, and he did nothing to cause her to have any reasonable apprehension of serious bodily injury with a weapon or otherwise. 46. The force used by the FS LEO, including hitting, kicking, using a baton, and shooting Bisom in the face with a Taser, was excessive and unlawful under the circumstances. REQUEST FOR RELIEF For the foregoing reasons, Plaintiff respectfully requests that the Court: A. Award Plaintiff damages as allowed by law including, but not limited to, damages for past and future medical expenses, pain and suffering, mental anguish, emotional distress, significant alteration of his normal course of life, significant alteration of his future course of life, economic damages, and all other compensatory damages to which he is entitled; B. Grant such additional relief as this Court deems equitable and just. DATED this 28th day of May, By: /s/ Brenda Lindlief Hall Lindlief Hall Law Office Attorney for Plaintiffs 9