IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO DELVIN BATES, v. Plaintiff, PHRED DIXON, a Bernalillo County Sheriff s Deputy, Defendant. follows: COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF FOR CONSTITUTIONAL DEPRIVATIONS AND VIOLATIONS OF THE NEW MEXICO TORT CLAIMS ACT Plaintiff Delvin Bates, by and through his lawyers, for his complaint states as JURISDICTION AND VENUE 1. The Court has jurisdiction over this action pursuant to 28 U.S.C. 1331, 1343 and Venue is proper pursuant to 28 U.S.C. 1391(b). PARTIES 3. Plaintiff Delvin Bates is an American citizen and a member of the Navajo Nation, of Navajo descent, living in Albuquerque, New Mexico, in Bernalillo County. 4. At the times material hereto, Phred Dixon was a full-time salaried law enforcement officer employed as a deputy with the Bernalillo County Sheriff s Office in Albuquerque, New Mexico. At the times material hereto he was acting 1

2 under color of law and within the scope and course of his employment, using his police equipment, badge, car, training and his authority to detain people and put them into government custody. FACTUAL BACKGROUND 5. At around eleven p.m. on July 6, 2006, Deputy Dixon stopped Mr. Bates as Mr. Bates was walking along a street in Bernalillo County. 6. That evening, before being stopped by the Deputy, Mr. Bates had drunk about four beers. He had walked over to his sister's house, where Mr. Bates lived in a small building at the back of her property. There was an argument and his sister s boyfriend asked him to leave. Her boyfriend had called the sheriff's office. 7. Mr. Bates left his sister's house voluntarily at his sister's request. As he was walking near 2 nd Street and Alameda, a Bernalillo County Sheriff's vehicle pulled up next to him. The vehicle was being driven by Deputy Phred Dixon. 8. Deputy Dixon did not inform Mr. Bates of any crime or offense he had allegedly committed. 9. There was no discussion or colloquy between Mr. Bates and the law enforcement officer, Defendant Deputy Dixon. 10. There was no investigation of any crime. 11. There was no warrant for search or arrest. 12. Mr. Bates was not informed of any legal rights. 13. Mr. Bates had not committed any crime. 14. Mr. Bates was never charged with any crime in connection with the events of that evening. 2

3 15. Deputy Dixon stopped Mr. Bates and said: "Your kind shouldn't be on the street." 16. By "your kind," Deputy Dixon meant a Native American, or Indian, and specifically, an Indian thought to be intoxicated. 17. Deputy Dixon seized and hand-cuffed Mr. Bates. 18. Dixon took Mr. Bates' wallet from his pocket, and tossed it on the dashboard of the police vehicle. 19. Defendant Dixon placed Mr. Bates into the back seat of his patrol vehicle and asked him: "Do you want to go to jail or just take a beating?" 20. Mr. Bates responded that he did not want to go to jail. 21. Defendant transported Mr. Bates across county lines to a remote hilly area near the I-25 exit at Algodones, New Mexico. 22. Defendant Dixon stopped the police car, got out, and ordered Mr. Bates to get out of the police patrol vehicle. As Mr. Bates attempted to get out with his hands still cuffed behind his back, the Deputy slammed the back seat patrol car door on Mr. Bates' lower right leg, causing an immediate injury and intense pain. A large bloody knot appeared on Plaintiff s shin. 23. Then the Deputy opened the car door again and struck Mr. Bates on his upper left leg with a hard, law enforcement baton, asp, or flashlight. This second blow also caused injury and intense pain, as well as fear and terror in Mr. Bates. In addition, he could not stand or walk, and he started to fall out of the car, hands cuffed behind him. 3

4 24. Then the Deputy pulled Mr. Bates the rest of the way out of the police vehicle, shoved Mr. Bates to the ground. He then pushed Mr. Bates face down into the dirt, and kicked him in the ribs. 25. The Deputy said: "I should just shoot you right here". The Deputy did not shoot the terrified Mr. Bates at that moment. Instead, he took off the handcuffs, presumably so that Mr. Bates (or his body) could not be identified as having been in the custody of the Bernalillo County Sheriff s Office. 26. When the handcuffs were removed, and as the threat of being shot registered through his leg pain, Mr. Bates rolled away from the edge of the road, as fast as he could roll. He kept rolling until he rolled down into a ditch filled with weeds, tangled wire, brush, stickers, thorns, goatheads and the branches of some shrubs. The ditch was several feet deep. The Deputy was apparently unable to see into the ditch where Mr. Bates had rolled. 27. In the silent blackness of the night, a few minutes later, Mr. Bates heard the Deputy get back in his patrol vehicle and drive off. The only other sounds were the occasional tires on the nearby interstate highway. Mr. Bates crawled away from the ditch, and made his way along the fence line of the frontage road. 28. With both legs injured, Mr. Bates crawled and climbed to the top of the tallest close-by hill. From there he could see the Deputy had returned in his vehicle, or alternatively, another deputy had arrived in another BCSO vehicle. The BCSO vehicle was driving around using the lights of the sheriff's vehicle, trying to spot Plaintiff in the ditch along the frontage road. Mr. Bates was afraid the BCSO deputy would find him and hurt him again, or carry out the threat to shoot him. 4

5 29. Mr. Bates spent the night, injured, on the top of that hill. 30. As pre-dawn light appeared over the Sandia Mountains, Mr. Bates worked his way down the hill. He went back to where he had been beaten, and found his wallet and driver's license scattered on the ground in a field, over the fence, near where he had been beaten. The contents of his wallet were missing, which included a notice of hearing in a Metro Court case. The Deputy had searched his wallet and then tossed it and the contents over the fence into the field. If Plaintiff had a dollar or two, it was gone. 31. Mr. Bates limped along the fence line of the frontage road on the east side of Interstate 25, trying to avoid being seen, hiding from the lights of passing cars. As daylight increased, he became more visible. 32. At around 8:40 a.m. on July 7, 2006, Santa Ana tribal police officer Tommie Youngbear saw Mr. Bates limping along the fence line adjacent to the frontage road highway. 33. At this point, Mr. Bates was within the jurisdiction of Santa Ana Pueblo. 34. Officer Youngbear stopped to ask Mr. Bates if he was alright. Officer Youngbear greeted Mr. Bates in Navajo. He invited Mr. Bates to rest in the back of his patrol car. 35. Officer Youngbear procured medical care for Mr. Bates. Officer Youngbear then took a statement from Mr. Bates about the events that led to his injuries. Officer Youngbear and his supervisors brought in the FBI to investigate. Mr. Bates was able to describe his assailant with sufficient clarity that the assailant was 5

6 positively identified as Defendant Deputy Phred Dixon of the Bernalillo County Sheriff's Office. 36. Mr. Bates injuries were examined by medical personnel and documented. 37. Mr. Bates remains in fear of law enforcement and is in fear of retaliation for bringing these events forward. 38. The BCSO Internal Affairs investigative inquiry upheld findings of wrongdoing by Defendant Deputy Dixon Deputy Dixon was fired because of his unconstitutional abuse of Mr. Bates. 40. Because of Defendant's misconduct, Plaintiff suffered physical injuries, was falsely imprisoned, was placed in fear of his life, was threatened with the loss of his life, was placed in danger by law enforcement in a remote area of New Mexico, was deprived of equal protection of the laws and substantive due process because of his ethnicity as a Native American, was beaten and threatened because of his ethnicity as a Native American, was subjected to an attempted cover-up by the officer of his wrongdoing, and has suffered profound distrust of law enforcement. 41. The deprivations of rights by Defendant Dixon were intentional and shock the conscience. 42. The Bernalillo County Sheriff Deputy s conduct was race-based, reckless, malicious, wilful, wanton, and deliberately indifferent to Plaintiff s rights and safety. Only substantial punitive damages against this officer can punish this wrong and deter further wrongdoing by him, and by any other Deputies or law enforcement officers who take the law into their own hands in any manner. 6

7 43. Inexplicably, no information exists that any race-based Federal or State crimes of any kind were charged. COUNT I FOURTH AMENDMENT 42 U.S.C. SECTION 1983 UNREASONABLE SEIZURE AND DETENTION 44. Defendant's seizure and detention of Plaintiff was unreasonable, violating the Fourth Amendment to the United States Constitution and proximately causing his injuries and damages as described above. COUNT II FOURTH AMENDMENT 42 U.S.C. SECTION 1983 EXCESSIVE FORCE 45. Defendant intentionally applied excessive force to Plaintiff in violation of the Fourth Amendment to the United States Constitution, proximately causing his injuries and damages as described above. COUNT III FOURTEENTH AMENDMENT 42 U.S.C. SECTION 1983 EQUAL PROTECTION OF THE LAWS 46. Defendant deprived Plaintiff of equal protection of the laws, proximately causing his injuries and damages as described above. 47. During the pre-filing investigation of this case, other Native Americans have related similar stories about BCSO. COUNT IV FOURTEENTH AMENDMENT SUBSTANTIVE DUE PROCESS 42 U.S.C. SECTION

8 48. Defendant's conduct was shocking and violated the constitutional guarantee of substantive due process, proximately causing Plaintiff's injuries and damages as described above. COUNT V STATE LAW TORT NMSA FALSE IMPRISONMENT 49. Defendant's statutory immunity from State law torts has been waived by NMSA Section Notice of suit was timely provided via a tort claims letter sent to and receipt acknowledged by Defendant's employer. 51. Defendant falsely imprisoned Plaintiff, causing him injuries and damages as described above. COUNT VI STATE LAW TORT NMSA ASSAULT AND BATTERY 52. Defendant assaulted and battered Plaintiff, and committed aggravated assault and battery, and threatened to and/or attempted to murder Plaintiff, proximately causing Plaintiff injuries and damages as described above. Plaintiff seeks: REQUEST FOR RELIEF A. Compensatory damages in an amount sufficient to make Plaintiff whole for the injuries and terror sustained; B. Punitive damages in an amount sufficient to punish and deter, against the individual Defendant on the federal claims; 8

9 C. Equitable relief as may be deemed appropriate by the Court; D. Plaintiff s costs, expenses and attorneys' fees incurred in bringing this action pursuant to 42 U.S.C. Section 1983; and, E. Such other and further relief as the Court or fact finders deem just and proper. JURY DEMAND Plaintiff demands trial by jury on all counts so triable. ALFRED M. SANCHEZ Co-Counsel for Plaintiff 301 Gold SW, Suite 202 Albuquerque, NM (505) LAW OFFICE OF BRAD D. HALL BRAD D. HALL Co-counsel for Plaintiff 3612 Campus Blvd NE Albuquerque, NM (505)