Case 3:18-cv Document 1 Filed 10/29/18 Page 1 of 12 PageID #: 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA

Transcription

1 Case 3:18-cv Document 1 Filed 10/29/18 Page 1 of 12 PageID #: 1 NATHANIEL DEVERS; CORY SHIMENSKY; and, STEPHEN SHIMENSKY, Plaintiffs, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA v. Civil Action No.: 3:18-cv CITY OF HUNTINGTON, d/b/a CITY OF HUNTINGTON POLICE DEPARTMENT, a municipal corporation; RONNIE LUSK, individually and in his official capacity; COLIN COOPER, individually and in his official capacity; AARON LAWHON, individually and in his official capacity; and, TYLER MEADE, individually and in his official capacity; SHAWN HENSON, individually and in his official capacity; and, JOHN DOE SUPERVISOR, Defendants. COMPLAINT Plaintiffs, for their Complaint against the defendants, states as follows: I. JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked under 28 U.S.C et. seq. This action at law for money damages arises under 42 U.S.C. 1983, 1988, the United States Constitution, the laws and Constitution of West Virginia and common law principles to redress a deprivation under color of state law of rights, privileges and immunities secured

2 Case 3:18-cv Document 1 Filed 10/29/18 Page 2 of 12 PageID #: 2 to Plaintiff by said statutes and by the Fourth, Fifth and Fourteenth Amendments of the Unites States Constitution. This Court has jurisdiction over Plaintiff s claims for violations of his federal constitutional rights pursuant to 28 U.S.C and 28 U.S.C. 1343(a)(3). 2. This Court has supplemental jurisdiction over Plaintiff s state law claims pursuant to 28 U.S.C. 1367(a) because these claims arise out of the same set of facts as the federal claims such that all claims form part of the same case or controversy. 3. Venue lies in this District pursuant to 28 U.S.C. 1391(e) because a substantial part of the events giving rise to the claim occurred in the Cabell County, WV which is located in the Southern District of West Virginia. II. PARTIES 4. Plaintiff, Nathaniel Devers, was at the times relevant to this Complaint a resident of Cabell County, West Virginia and subject to the unlawful actions of the Defendants. 5. Plaintiff, Cory Shimensky, was at the times relevant to this Complaint a resident of Cabell County, West Virginia and subject to the unlawful actions of the Defendants. 6. Plaintiff, Steven Shimensky, was at the times relevant to this Complaint a resident of Ohio and subject to the unlawful actions of the Defendants. 7. Defendant, City of Huntington, is a municipal corporation established by the laws of West Virginia. Pursuant to West Virginia law, the City created a police force, the Huntington Police Department ( HPD ). HPD is subject to the authority, control and discipline of its administrative authority, the City of Huntington. The City of Huntington is a person as that term is defined in 42 U.S.C

3 Case 3:18-cv Document 1 Filed 10/29/18 Page 3 of 12 PageID #: 3 8. Defendant, Ronnie Lusk, is a police officer employed by HPD. He is a person within the meaning of 42 U.S.C and at all relevant times was acting under color of state law. He is sued in both his individual and official capacities. 9. Defendant, Colin Cooper, is a police officer employed by HPD. He is a person within the meaning of 42 U.S.C and at all relevant times was acting under color of state law. He is sued in both his individual and official capacities. 10. Defendant, Aaron Lawhon, is a police officer employed by HPD. He is a person within the meaning of 42 U.S.C and at all relevant times was acting under color of state law. He is sued in both his individual and official capacities. 11. Defendant, Tyler Meade, is a police officer employed by HPD. He is a person within the meaning of 42 U.S.C and at all relevant times was acting under color of state law. He is sued in both his individual and official capacities. 12. Defendant, Shawn Henson, is a police officer employed by Marshall University. He is a person within the meaning of 42 U.S.C and at all relevant times was acting under color of state law. He is sued in both his individual and official capacities. III. FACTS 13. On or about October 29, 2017, plaintiffs, and their friends and family were dining at a restaurant in Huntington, WV. of 14. While there, a female member of their party was assaulted by another patron the restaurant. 15. Plaintiffs asked a restaurant worker to call the police after this assault and a subsequent argument. 3

4 Case 3:18-cv Document 1 Filed 10/29/18 Page 4 of 12 PageID #: The defendants, and other HPD officers arrived on scene and told all parties to exit the restaurant. 17. Once outside, Stephen Shimensky asked the defendants to file a police report on behalf of the woman in their party that was assaulted. 18. Defendants refused to file a police report on the matter. 19. Office Lusk became extremely agitated when Mr. Shimensky, again, asked that a police report be filed on the assault. Lusk shoved Shimensky extremely hard and almost knocked him down. 20. After Lusk s initial, unwarranted violence the scene became chaotic and the officers began assaulting all of the plaintiffs. 21. Due to the number of officers, it is difficult to determine exactly which officer committed each act, nevertheless, plaintiffs attempt to do so below. 22. After Lusk pushed Stephen Shimensky, he told Cory Shimensky to turn around and put his hands behind his back. 23. Even though Cory Complied with this command, he was violently shoved to the ground face first. 24. Shawn Henson then grabbed Stephen Shimensky. Stephen Shimensky pleaded with the officers to treat his shoulder with care because he recently had rotator cuff surgery. 25. His plea went unheeded as officer Henson threw him face first into the dement and wrenched his arms behind his back. 4

5 Case 3:18-cv Document 1 Filed 10/29/18 Page 5 of 12 PageID #: Stephen Shimenksy was then handcuffed in an extremely tight manner in order to cause pain and suffering. 27. About the same time, Lusk, Lawhon and Cooper attacked Nathaniel Devers without provocation. 28. Lusk punched Devers in the face with handcuffs striking him in the mouth and under the eye. 29. Lawhon then fired his Taser probes at Devers striking and electrocuting him in his back. 30. Lusk, Lawhon and Cooper then deployed their metal batons and severely beat Devers repeatedly. 31. While Devers was handcuffed, immobile and face down on the ground, the assault continued. 32. From a standing position, Lawhon jumped down onto Devers and drove his knee into his kidney area. 33. Devers was then placed in a standing position. 34. Lusk instructed Devers to get into the police car, which was impossible because he was handcuffed behind his back and the police car door was closed. 35. Lusk then placed his Taser in drive mode and electrocuted Devers in the neck for no reason. 36. Collin Cooper then placed Stephen Shimensky into his police car. Stephen repeatedly asked for his handcuffs to be loosened due to their cutting off his circulation. Cooper refused. 5

6 Case 3:18-cv Document 1 Filed 10/29/18 Page 6 of 12 PageID #: Stephen Shimensky was later transported to the hospital. He suffered a concussion and nerve damage in his hand as a result of the officers treatment. 38. Nathaniel Devers was also transported to the Hospital. He suffered multiple lacerations and bruises, a concussion, received stitches in his face, was missing a tooth, and had burns from the Taser. 39. Due to undersigned counsel s previous lawsuits, HPD made a showing of having operable mobile video and audio recordings in their cruisers and a policy on how to use these systems. Of the multiple cruisers from the defendants on scene, not one recorded audio or video of this incident. Nor was the policy followed. 40. Nathaniel Devers was falsely charged with two counts of battery of an officer, disorderly conduct, public intoxication and obstructing. The day of trial, the State of West Virginia dismissed the public intoxication charge. Mr. Devers was acquitted by the jury of all other charges. 41. Cory Shimensky was falsely charged with disorderly conduct, obstructing and public intoxication. After numerous discovery requests for information regarding these charges, Cory Shimensky was forced to file a motion to compel, which was granted and the evidence was finally turned over. Despite a request for a speed, jury trial, he has been afforded neither. Due the failure to afford the speedy trial and the statute of limitations, the charges will have to be dismissed. 42. Stephen Shimensky was falsely charged with disorderly conduct, obstructing and public intoxication. Due to living out of state he pled guilty to public intoxication and a fine to avoid returning for a trial. All other charges were dismissed. 6

7 Case 3:18-cv Document 1 Filed 10/29/18 Page 7 of 12 PageID #: 7 IV. ALLEGATIONS COUNT I CIVIL RIGHTS VIOLATION (Excessive Force 42 U.S.C Against All Defendants) 43. Plaintiffs refer to and re-plead each and every allegation contained in the preceding paragraphs of this Complaint, and by this reference incorporates the same herein and make each a part hereof. 44. The degree of force actually used against the Defendants was objectively unreasonable, excessive and unwarranted and violated the Plaintiffs clearly established rights to be free from excessive force when the person had not done anything to require force and/or already surrendered, which a reasonable police officer should have known pursuant to the Fourth and Fourteenth Amendments of the United States Constitution and the Constitution of West Virginia. 45. The officers actions were willful, wanton, intentional, malicious and done with callous or reckless disregard for Plaintiffs constitutional rights. 46. The officers actions were the direct and proximate cause of the injuries and constitutional violations of which Plaintiff complains. COUNT II CIVIL RIGHTS VIOLATION (Unlawful Search And Seizure Of Person And Property 42 U.S.C Against All Defendants) 7

8 Case 3:18-cv Document 1 Filed 10/29/18 Page 8 of 12 PageID #: Plaintiffs refer to and re-plead each and every allegation contained in the preceding paragraphs of this Complaint, and by this reference incorporates the same herein and make each a part hereof. 48. None of the defendants did anything to justify their arrest. Nevertheless, they were seized against their will and searched. 49. The officers actions were objectively unreasonable, excessive, and unwarranted in violation of Plaintiff s clearly established right to not be seized without a warrant or lawful justification and the right to be free from unlawful search, seizure and takings, that a reasonable officer would have known, pursuant to the Fourth Fifth and Fourteenth Amendments of the United States Constitution and the Constitution of West Virginia. 50. The officers actions were willful, wanton, intentional, malicious and done with callous or reckless disregard for Mr. Ferguson s constitutional rights. COUNT III CIVIL RIGHTS VIOLATION (False Arrest/Detention 42 U.S.C Against All Defendants) 51. Plaintiffs refer to and re-plead each and every allegation contained in the preceding paragraphs of this Complaint, and by this reference incorporates the same herein and make each a part hereof. 52. The officers unlawfully detained and/or arrested Mr. Plaintiffs without probable cause, without a warrant for a conduct that did not occur in their presence, without reasonable articulable suspicion and under circumstances where no reasonable police officer would have believed that the detention/arrest was lawful. 8

9 Case 3:18-cv Document 1 Filed 10/29/18 Page 9 of 12 PageID #: The officers actions were objectively unreasonable, excessive and unwarranted in violation of the Plaintiffs clearly established rights of which a reasonable police officer would have known, pursuant to the Fourth and Fourteenth Amendments of the United States Constitution and Article III, Section 6 of the Constitution of West Virginia. 54. The officers actions were willful, wanton, intentional, malicious and done with callous or reckless disregard for Plaintiffs constitutional rights. COUNT IV MALICIOUS PROSECUTION/ABUSE OF PROCESS (Against defendants Lusk and Meade) 55. Plaintiffs refer to and re-plead each and every allegation contained in the preceding paragraphs of this Complaint, and by this reference incorporates the same herein and make each a part hereof. defendants. 56. The officers swore out the above mentioned criminal complaints against the 57. The charges were without probable cause as the defendants did not do anything. 58. As mentioned above, all but one of the charges have been, or will be, terminated in favor of the defendants. 59. The charges were malicious, and not for the legitimate purpose of criminal punishment for wrongdoing. 60. The charges were fabricated in an attempt to insulate the officers to cover-up the beatings and civil rights violations they inflicted upon the defendants. 61. Had they been able to obtain an obstruction or battery on an officer conviction it could have helped them escape civil liability. 9

10 Case 3:18-cv Document 1 Filed 10/29/18 Page 10 of 12 PageID #: The officers actions were objectively unreasonable, excessive and unwarranted. 63. The officers actions were willful, wanton, intentional, malicious and done with callous or reckless disregard for Plaintiffs constitutional rights. COUNT V MUNICIPAL LIABILITY 64. Plaintiffs refer to and re-plead each and every allegation contained in the preceding paragraphs of this Complaint, and by this reference incorporates the same herein and make each a part hereof. 65. The above-described deprivation of plaintiffs constitutional rights were caused by implementation of customs, policies, or official acts of the Defendant City of Huntington; to wit: Permitting police officers to engage in law enforcement contacts without supervision, failure to adequately train, supervise and discipline its police officers regarding probable cause for an arrest, arrests for misdemeanors not committed in the officers presence without consent or exigency, lawful detention, and the proper use of force to effect an investigative detention and/or arrest. 66. The City of Huntington, by these acts and omissions has exhibited deliberate indifference to the unreasonable risk of the unlawful deprivation of citizens constitutional rights, which its customs and policies pose. 67. Its customs and policies violate the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution and its West Virginia counterparts. 68. The customs, practices and policies of the City of Huntington were the direct and proximate cause of the injuries and constitutional violations of which Plaintiff complains. COUNT IV STATE LAW CLAIMS 10

11 Case 3:18-cv Document 1 Filed 10/29/18 Page 11 of 12 PageID #: Plaintiff refers to and re-pleads each and every allegation contained in the preceding paragraphs of this complaint, and by this reference incorporates the same herein and make each a part hereof. 70. The above-described actions constitute the following state law claims against the Defendant officer: A. Assault and Battery B. False Imprisonment B. Negligence 71. The above-described actions constitute the following state law claims against the City of Huntington: V. PRAYER FOR RELIEF A. Negligent Hiring B. Negligent Retention C. Negligent Supervision D. Negligence Wherefore, based upon the above stated facts, Plaintiff requests judgment against the defendants in an amount that will fully and fairly compensate him for his injuries including medical expenses, pain and suffering, loss of enjoyment of life, annoyance, aggravation, psychological distress and any other compensatory damages to be proved at trial. Mr. Maynard further requests punitive damages against the officer defendant, reasonable attorney fees and costs, all other damages provided by law and any other relief this Court deems just and fair. 11

12 Case 3:18-cv Document 1 Filed 10/29/18 Page 12 of 12 PageID #: 12 PLAINTIFFS DEMAND A JURY TRIAL Nathaniel Devers, Cory Shimensky, Stephen Shimensky Individuals, By Counsel: s/richard Weston Richard W. Weston (WVSB #9734) Connor Robertson (WVSB #11460) WESTON ROBERTSON 337 Fifth Avenue Huntington, WV