13 GAYLEEN BONEY, CASE NO.: 3:05-CV WALTER VALLINE, Case 3:05-cv RCJ-VPC Document 19 Filed 11/27/2006 Page 1 of 24

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1 Case 3:05-cv RCJ-VPC Document 19 Filed 11//2006 Page 1 of 24 1 PAUL J. MALIKOWSKI, ESQ. Post Office Box RENO, NEVADA Telephone: (775) Nevada State Bar No MITCHELL C. WRIGHT, ESQ. 325 WEST LIBERTY STREET 6 Rena, Nevada Telephone: (775) Nevada State Bar No Attorneys for Plaintiff 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 * * * 13 GAYLEEN BONEY, CASE NO.: 3:05-CV Plaintiff, 15 vs. JURY DEMAND 16 WALTER VALLINE, 17 Defendant. 18 / 19 FIRST NDED COMPLAINT FOR DAMAGES 20 Plaintiff alleges: 21 COIVIMON ALLEGATIONS 22 PARTIES The Plaintiff, GAYLEEN BONEY, is an adult individual 24 citizen of the United States and resident of the State of 25 Nevada The Defendant, WALTER VALLINE is an adult individual resident of Washoe County, Nevada. PAUL MALIKOWSKI ESO RENO. NEVADA NEVADA CALIFORNIA WWW NVI.\W ( FAXNOIC

2 Case 3:05-cv RCJ-VPC Document 19 Filed 11//2006 Page 2 of That at all relevant times the Defendant, WALTER 2 VALLINE, has been an officer of the Walker River Tribal Police. 3 The damage to the Plaintiff has, at all times, been attributable 4 to the violation of statutes, negligence, intentional 5 misconduct, and malicious and oppressive conduct of the 6 defendant. 7 JURISDICTION 8 4. This action arises under the Constitution and laws of 9 the United States, including Bivens v. Six Unknown Named Federal 10 Narcotics Agents, 403 U.S. 388 (1971), the Civil Rights Act of , 42 USC 1983, and 28 U.S.C. Sections 1331(a) and 1343 (3) 12 and (4). Jurisdiction is conferred on this Court pursuant to USC 1331, 1367 and VENUE Venue is proper in the District of Nevada, unofficial 16 Northern Division, pursuant to 28 U.S.C. Section 1391(b), 17 because all of the events and omissions giving rise to these 18 claims occurred in Mineral County, Nevada. 19 OPERATIVE FACTS On July 15, 2004, Defendant WALTER VALLINE was a law 21 enforcement officer for the Walker River Tribal Police ("Tribal 22 Police"). The Tribal Police is a contract agency of the United 23 States Government, by and through its Interior Department and 24 Bureau of Indian Affairs and, by virtue of the law enforcement 25 contract, receives Federal funding Plaintiff, GAYLEEN BONEY, on July 15, 2004, was a PAUL MALIKOWSKI. Esa RENO. NEVADAS9SO NEVADA CALIFORNIA FAXNOIC

3 Case 3:05-cv RCJ-VPC Document 19 Filed 11//2006 Page 3 of 24 1 resident of the Walker River Indian Reservation Over the years preceding July 15, 2004, Plaintiff has 3 been involved in the government of the Walker River Paiute Tribe 4 ("the Tribe") and, as a member of the Tribe, exercised her 5 rights under the First Amendment to the Constitution of the 6 United States to petition for redress of grievances. Among other 7 things, Plaintiff, since September 26, 2003, has written letters 8 to officials of the Tribe, including officials of its law 9 enforcement division, and the United States Bureau of Indian 10 Affairs, seeking redress of perceived misfeasance, nonfeasance 11 and malfeasance of the government of the Tribe, and in 12 particular, the Tribal Police On September 26, 2003, Plaintiff wrote to then-acting 14 Walker River Tribal Police Chief Dean Pennock, citing her 15 contention that tribal officers Cowan and Lincon were acting 16 inappropriately concerning alleged traffic offenses committed by 17 her children. A copy of this letter was sent to Victoria Guzman, 18 Tribal Chairperson, at the time of its writing, and a copy is 19 attached hereto as Exhibit "A" On September 28, 2003, Plaintiff again wrote to then 21 acting Walker River Tribal Police Chief Dean Pennock, citing her 22 contention that tribal officers were acting inappropriately, 23 intimidating and harassing her children. A copy of this letter 24 was sent to Victoria Guzman, Tribal Chairperson, at the time of 25 its writing, and a copy is attached hereto as Exhibit "B" On October 20, 2003, Plaintiff wrote to then acting PAUL MALIKOWSKI, ESO RENO. NEVADA NEVADA - CALIFORNIA FAXNOIC

4 Case 3:05-cv RCJ-VPC Document 19 Filed 11//2006 Page 4 of 24 1 Walker River Tribal Police Chief Dean Pennock, citing her 2 contention that tribal officer Cowan was acting inappropriately, 3 again concerning alleged traffic offenses committed by her 4 children. The letter stated Plaintiff's intention to seek 5 redress through the Mineral County District Attorney. A copy of 6 this letter was sent to Tribal Council Members, at the time of 7 its writing, and a copy is attached hereto as Exhibit 'SC" Sometime in 2004, Defendant WALTER VALLINE became 9 employed as a law enforcement officer with the Tribe On May 30, 2004, Plaintiff wrote to the Walker River 11 Tribal Council Members, citing her formal written complaint 12 against Defendant WALTER VALLINE, alleging he applied excessive 13 force to her ex-husband, Norman Boney, Sr., and describing a 14 confrontation between WALTER VALLINE and Plaintiff's 17 year-old 15 son, Norman Boney, Jr. ("Manny") 16 Plaintiff specifically sought redress of the following 17 grievance, set forth verbatim as: 18 "Your officer (Valline) clearly displayed his inability to 19 control his emotions and tezxer. Officer's Valline's 20 behavior/actions has caused a tribal member to be injured, and I 21 believe he may harm my son or other mnthers of my family...' 22 I demand Officer Valline's behavior/actions be investigated 23 with appropriate disciplinary action taken." 24 A copy of each of these letters is attached hereto as 25 Exhibits "D" and "E", respectively On June 4, 2004, then acting Walker River Tribal PAUL MALIKOWSKJ, ESO RENO. NEVADA NEVADA - CALIFORNIA V\WNVIAW(()M FAXIVOIC

5 PAUL MALH(OWSKJ, ESO Box 9030 RENO, NEVADA NEVADA CALIFORNIA WVW.NVI.AW.C)M FXNOIC Case 3:05-cv RCJ-VPC Document 19 Filed 11//2006 Page 5 of 24 1 Police Chief Dean Pennock responded to Plaintiff's May 30, correspondence. According to Acting Chief Pennock, Defendant 3 WALTER VALLINE "has shown sound judgment " and that Pennock did 4 "stand behind (Valline's) decisions". A copy of this letter is 5 attached as Exhibit "F", and Plaintiff is informed and believes 6 this letter describes the full extent of the investigation 7 requested by her, and the full extent of the discipline imposed On July 15, 2004, Defendant WALTER VALLINE responded 9 to a call for police assistence at the Boney residence. Norman 10 Boney, Sr., was reportedly intoxicated and driving. In the 11 process of effecting an arrest of Norman Boney, Sr., Defendant 12 WALTER VALLINE, without lawful cause, justification or excuse, 13 shot Norman Boney, Jr. in the chest and neck, killing him. 14 CLAIM ONE - BIVENS PERSONAL LIABILITY OF WALKER RIVER TRIBAL POLICE OFFICER WALTER VALLINE FOR VIOLATION OF FOURTH AMENDMENT 15 RIGHTS Plaintiff re alleges and reincorporates paragraphs 1 17 through 15 herein Plaintiff GAYLEEN BONEY arrived right after the 19 shooting of her son and commenced to render aid while her son 20 lay dying Plaintiff GAYLEEN BONEY was trained in emergency 22 medical technology, and sought to treat her seriously wounded 23 son Plaintiff was not looking at the Defendant 25 threateningly, nor was she coming towards him in a threatening 26 manner or making any threatening gestures; indeed, she was

6 Case 3:05-cv RCJ-VPC Document 19 Filed 11//2006 Page 6 of 24 1 completely focused on her son, and trying to save his life As Plaintiff GAYLEEN BONEY was attempting to help her 3 son, Defendant WALTER VALLINE, pointed his gun at her, and told 4 her to "get away from" him Plaintiff GAYLEEN BONEY was unarmed, committed no 6 crime, and posed no threat. There was no justifiable reason to 7 point a gun at her and have her placed under arrest or detain 8 her Yet, Plaintiff GAYLEEN BONEY was handcuffed and placed 10 in a Tribal Police car at the direction of Defendant WALTER 11 VALLINE, and restrained of her liberty without cause, and in 12 violation of her rights under the Fourth Amendment to the United 13 States Constitution Defendant WALTER VALLINE directed the detention of 15 Plaintiff GAYLEEN BONEY in an objectively unreasonable manner, 16 and in the absence of any reasonable, individualized evidence or 17 suspicion that required plaintiff's detention In effecting and conducting the detention of Plaintiff 19 GAYLEEN BONEY as aforesaid, Defendant WALTER VALLINE violated 20 clearly established law A reasonable police officer would have known that the 22 restraint of Plaintiff GAYLEEN BONEY in the manner and 23 circumstances alleged herein violated clearly established law Plaintiff has a right protected under the Fourth 25 Amendment to the United States Constitution not to be subjected 26 to unreasonable searches and seizures by persons acting under PAUL MALIKOWSKI, ESD. RENO. NEVADA NEVADA CALIFORNIA WV\VNVLAW.COM FPXNOIC

7 PAUL MALIKOWSKI, ESQ RENO. NEVADA NEVADA CALIFORNIA \;\\:\VN\i[4W (I)\l FAXNOIC Case 3:05-cv RCJ-VPC Document 19 Filed 11//2006 Page 7 of 24 1 United States and Walker River Tribal Police governmental 2 authority. This authority extends to the Walker River Tribal 3 Police through the laws of the United States of America, and 4 under the supervision and regulation of the Congress of the 5 United States of America, the Department of Justice, the 6 Department of the Interior, the Bureau of Indian Affairs, and 7 the Federal Bureau of Investigation. The police and law S enforcement function of the Walker River Tribal Police is 9 conditionally delegated through contract and published federal 10 regulation, such that the police action of Defendant Walter 11 Valline complained of herein by Plaintiff is, in fact and in 12 law, federal action for the purposes of this claim. 13. The Tribal Police was created by federal executive and 14 imposed upon the Indian community, and to this day the federal 15 government still maintains a partial control over it. Under 16 these circumstances, the Tribal Police functions in part as a 17 federal agency and in part as a tribal agency. The Tribal Police 18 and its officers, including Defendant WALTER VALLINE, acted at 19 all relevant times as the agent of, or in joint action with, the 20 Government of the United States Plaintiff is informed and believes that Defendant 22 WALTER VALLINE was recruited and hired pursuant to Federal civil 23 service laws, regulations and procedures There are no special factors to suggest to that the 25 Court should decline to provide a special cause of action or a 26 remedy for the defendant's violations of plaintiff's rights.

8 Case 3:05-cv RCJ-VPC Document 19 Filed 11//2006 Page 8 of WALTER VALLINE as an individual defendant is 2 individually and directly liable under the Fourth Amendment to 3 plaintiff for monetary damages for the injuries caused by 4 defendant's conduct The claim entails an appropriate, judicially 6 manageable remedy, namely, money damages which may be imposed on 7 the defendant individually. S 9 CLAIM TWO - INDIVIDUAL DEFENDANTS' PERSONAL LIABILITY UNDER FOR VIOLATION OF THE PLAINTIFF'S FIRST AMENDMENT RIGHTS Plaintiff re-alleges and reincorporates paragraphs through 31 herein Under the federal regulations and the federal contract 13 governing the employment of Defendant WALTER VALLINE, the use of 14 deadly force by Tribal Police officers was specifically 15 circumscribed. The pertinent limitations are described as 16 follows: 17 "A firearm may be discharged only when in the considered judgment of the officer, there is imminent danger of loss of 18 life or serious bodily injury to the officer or to another person. The weapon may be fired only for the purpose of 19 rendering the person at whom it is fired, incapable of continuing the activity prompting the officer to shoot. The 20 firing of warning shots is prohibited... 1I While acting as a federal agent, or under color of 22 federal law, Defendant WALTER VALLINE did act in excess of the 23 scope of his office or employment at the time of the incident 24 out of which this claim arose, having exercised no considered 25 judgment, perceiving no imminent danger of loss of life or 26 serious bodily injury to himself or to another person, and being PAUL. MALIKOWSKI. ESQ RENO, NEVADA ,0758 NEVADA CALIFORNIA 800, FAXNOICEMALL

9 Case 3:05-cv RCJ-VPC Document 19 Filed 11//2006 Page 9 of 24 1 confronted with no activity by seventeen year-old Norman Boney, 2 Jr. requiring deadly force to quell Plaintiff is informed and believes that the shooting 4 death of her son by Defendant WALTER VALLINE, and the unlawful 5 restraint suffered by her while her son was dying, was done in 6 retaliation for Plaintiff's aforesaid exercise of her rights 7 under the First Amendment of the Constitution of the United 8 States At all relevant times Defendant WALTER VALLINE acted 10 outside the scope of his employment in using unauthorized deadly 11 force, his acts were motivated by a desire to further his 12 interests in protecting his career in law enforcement and 13 protect his individual reputation in the law enforcement 14 community, and he was not, as such, acting in furtherance of the 15 business of the Tribal Police WALTER VALLINE as an individual defendant is 17 individually and directly liable under the First Amendment to 18 plaintiff for monetary damages for the injuries caused by 19 defendant's conduct. 20 WHEREFORE, plaintiff prays judgment as follows: Award reasonable and appropriate compensatory damages 22 to Plaintiff, in an amount to be ascertained at trial, for 23 defendant's unlawful acts described above; Award exemplary and punitive damages to Plaintiff, in 25 an amount to be ascertained at trial, to deter similar unlawful 26 acts in the future; PAUL MALIKOWSKJ, ESO. RENO. NEVADA NEVADA - CALIFORNIA WWWNVLAW.C FAXNOIC

10 Case 3:05-cv RCJ-VPC Document 19 Filed 11//2006 Page 10 of Award Plaintiff's costs, ezrerlses, and reasonable 2 artorneys' fees; 3 4. For pi:ejudgment interest at the highest lawful rate; and 5. Award such other and further relief as this Court 6 deems necessary and proper. 7 Jury trial requested 8 I Dated O, PAUL J. MALIKOWSKI, ESQ. 11 Post Office Box 9030 Rena, Nevada (775) I Attorney for Plaintiff PAUL MAL.pKOwSKI ESO Box 8030 REND NEVADA907 Tm 76fi Q75 NEVAflA CAliFORNIA \\ I 'V n. BOO FM/VOIC '0