Case 2:10-cv TS Document 2 Filed 11/15/10 Page 1 of 9

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1 Case 210-cv TS Document 2 Filed 11/15/10 Page 1 of 9 MARK A. FLORES (8429) CORPORON & WILLIAMS, P.C. Attorney for Plaintiff 405 South Main Street, Suite 700 Salt Lake City, Utah Telephone Facsimile IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH RAY TATUM, v. Plaintiff, DAVID MOORE, individually and in his capacity as a Provo City Police Officer; and PROVO CITY CORP., a subdivision of the State of Utah. Defendant. COMPLAINT Case No. 210 CV Judge Ted Stewart The plaintiff RAY TATUM states and complains of defendant David Moore and Provo City Corporation as follows INTRODUCTION 1. Plaintiff Ray Tatum ( Tatum ) brings his suit under 42 U.S.C alleging defendant David Moore, acting in his capacity as a Provo City Police Officer, violated the rights guaranteed Tatum under the Fourth Amendment of the United States Constitution when Moore G\MAF\CLIENTS\T\Tatum, Ray\Complaint - Tatum.wpd/maf-tb Page 1

2 Case 210-cv TS Document 2 Filed 11/15/10 Page 2 of 9 repeatedly tasered Tatum after Tatum was handcuffed, and that such acts of violence were done with a deliberate indifference to Tatum s constitutional rights. 2. Tatum, upon information and good faith belief, files suit against Provo City Corporation under 42 U.S.C for failing to train and supervise Moore, knowing that Moore posed a danger to the public through his historic use of excessive force when acting in his capacity of a Provo City Police Officer, and that Provo City Corporation ( Provo City ) did condone such conduct by failing to train and or discipline Moore, when his prior acts of excessive force were made known to Provo City. 3. Tatum further brings his claims under 42 U.S.C because the acts and omissions of the defendants intentional, knowing, and reckless behavior deprived Mr. Tatum of his rights, privileges, and immunities guaranteed him by the United States Constitution. PARTIES 4. Plaintiff Taum is a citizen of the Untied States of America, over the age of 18 years, and at the time of the acts and omissions complained of, he was domiciled in Provo City, Utah. 5. The defendant Moore is a Provo City Police Officer, employed by Provo City Corporation, and at all times complained of herein was acting in his capacity as a Provo City Police Officer. 6. The defendant Provo City Corporation, is a municipality duly charted under the laws of the State of Utah, and the employer of defendant Moore. G\MAF\CLIENTS\T\Tatum, Ray\Complaint - Tatum.wpd/maf-tb Page 2

3 Case 210-cv TS Document 2 Filed 11/15/10 Page 3 of 9 JURISDICTION AND VENUE 13. Th Court has jurisdiction pursuant to 28 U.S.C. 1331, 1343, because Tatum s claims arise under the Constitution and laws of the United States. 14. Venue is proper in this Court pursuant to 28 U.S.C because all Defendants are domiciled or incorporated in the State of Utah and the acts complained of occurred in Utah County, State of Utah, FACTS RELATING TO ALL CLAIMS 15. In May 2008, in Provo City, Utah, an individual knocked on the front door of Tatum s apartment. Tatum answered the door and when the individual asked if Tatum was home he replied no and shut the door. 16. Shortly thereafter there was another knock on Tatum s front door. When Tatum answered the door there was a Provo City Police officer, later identified as Moore, standing with his sidearm drawn and pointed at Tatum. 17. Although Tatum was standing inside his doorway, Officer Moore ordered Tatum, at gunpoint, to immediately exit the apartment with his hands above his head. Tatum complied by stepping out of his home with his hands above his head. 18. As Tatum exited his home Officer Moore holstered his sidearm and withdrew his Taser weapon, again pointing it at Tatum. 19. Outside Tatum was ordered to place his hands behind his back. When Tatum asked what was going on Officer Moore tasered him without warning. The taser prongs, however, did G\MAF\CLIENTS\T\Tatum, Ray\Complaint - Tatum.wpd/maf-tb Page 3

4 Case 210-cv TS Document 2 Filed 11/15/10 Page 4 of 9 not make full contact with Tatum so that despite the considerable shock he was able to pull the prongs from his chest. 20. Although Tatum pulled the prongs from his chest he was in substantial pain, and immediately placed his hands behind his back. 21. Officer Moore grabbed Tatum by the shirt and pulled Tatum face first to the ground. 22, Officer Moore then electrocuted Tatum by driving his taser into Tatum s lower spine, causing Tatum s legs to go numb. 23. Officer Moore then ordered Tatum to get up, and when Tatum replied that he could not because his legs were not working, Officer Moore and the assisting officer pulled Tatum to Officer Moore s patrol car. 24. Tatum was able to lean up against the patrol car to maintain his balance. At this point, however, Officer Moore repeatedly tasered Tatum by drive stunning his Taser into Tatum s kidney area, back, arms, neck. Officer Moore tasered Tatum no less then 10 times, each time asking Tatum, how does that feel? 25. Officer Moore subsequently arrested Tatum for various crimes, including assault on a police officer and resisting arrest. 26. Even after Tatum s arrest, Officer Moore continued to harass Tatum, eventually citing Tatum for trespassing, alleging he entered the liquor store Moore had warned his to stay away from, and on another occasion he cited Tatum for littering, accusing him of throwing a cigarette butt to the ground. G\MAF\CLIENTS\T\Tatum, Ray\Complaint - Tatum.wpd/maf-tb Page 4

5 Case 210-cv TS Document 2 Filed 11/15/10 Page 5 of The purpose of the Taser is to use an 50,000 volt electrical shock to incapacitate a suspect in order to give police officers the opportunity to secure and handcuff the suspect. 28. The pulsating electrical shock of the Taser is sent through the suspect s central nervous system causing severe pain and involuntary muscle contractions, causing temporary paralysis and excruciating pain. 29. Taser International, the company that manufactures the Taser gun has issued warnings to law enforcement officers that repeated, prolonged, and continuous exposure to the Taser electrical discharge may cause strong muscle contractions that may impair breathing and respiration. 30. At the time Officer Moore repeatedly used his Tasers on Tatum he knew or should have known that the electrical discharge of the Taser would cause strong muscle contractions that could impair Tatum ability to breath and would further cause his considerable and prolonged pain and permanent injury. 31. At the time Officer Moore repeatedly used his Taser on Tatum, defendant Provo City knew, or should have known that repeated use of a Taser weapon on its citizens could result in serious injury and death, and should have trained its law enforcement officers regarding this danger. 32. At the time Officer Moore repeatedly used his Tasers on Tatum he knew he was causing Tatum sever pain and placing him at substantial risk of serious injury or even death. 33. Upon information and belief Provo City failed to properly train Officer Moore in proper use of force against unarmed citizens, the proper procedures in effecting an arrest of an G\MAF\CLIENTS\T\Tatum, Ray\Complaint - Tatum.wpd/maf-tb Page 5

6 Case 210-cv TS Document 2 Filed 11/15/10 Page 6 of 9 unarmed citizen, the proper use of his Taser, the ascertainment of threats against him and the proper response to such threats. 34. Upon information and belief Provo City deliberately and willfully ignored the dangerous and improper conduct of Officer Moore, as demonstrated by his known history of danger one conduct and use of unreasonable force against unarmed citizens, thereby endangering the citizens of Utah, including Tatum. 35. Upon information and belief Provo City promulgated and carried out a hiring, training, and supervisory regime and policy that encouraged Officer Moore to engage in dangerous and improper conduct and to use unreasonable force against the citizens of Utah, including Tatum. 36. Upon information and belief Provo City failed to properly investigate, hire, supervise, train, test, discipline, and monitor Officer Moore in his capacity as a Provo City Police Officer. herein. FIRST CAUSE OF ACTION (Excessive Force in Violation of Fourth Amendment ) 37. Tatum realleges and incorporates paragraphs 1 through 36 as though fully set forth 38. Officer Moore, acting under the color of state law and without legal justification, used excessive force before and during his arrest of Tatum in violation of Tatum s rights guaranteed by the Fourth Amendment of the United States Constitution, thereby denying him his rights, privileges and immunities of citizenship. 39. Officer Moore used such force intentionally, recklessly and with a wanton disregard for Tatum s right to be free from unreasonable seizure by the police. G\MAF\CLIENTS\T\Tatum, Ray\Complaint - Tatum.wpd/maf-tb Page 6

7 Case 210-cv TS Document 2 Filed 11/15/10 Page 7 of As a direct and proximate result of Officer Moore s intentional, reckless, and unreasonable use of force, Tatum suffered physical injury, pain, mental anguish, distress, and injury to his dignity. 41. Pursuant to 42 USC 1983 Tatum is entitled to general and punitive damages and an award of attorney fees and cost. SECOND CAUSE OF ACTION (Due Process Violation) 42. Tatum hereby incorporates paragraphs 1 through 41 as though fully set forth herein. 43. Upon information and belief Officer Moore, in his effort to coverup his own misconduct, falsified police reports and provided false testimony against Tatum at Tatum s subsequent criminal trial in a willful and deliberate attempt to deny Tatum as fair trial as guaranteed by the Fourteenth Amendment of the United States Constitution. 44. Officer Moore further used threats of force and future arrests against Tatum to in a deliberate and willful attempt to deny Tatum a fair trial through his acts of intimidation. 45. Officer Moore, prior to Tatum s criminal trial, falsely accused Tatum of criminal trespass and littering, in a willful and deliberate effort to intimidate Tatum prior to his criminal trial. 46. Officer Moore, with a wanton disregard for Tatum s due process right as guaranteed by the Fourteenth Amendment of the United State s Constitution, acted intentionally and recklessly to deny Tatum his right to a fair trial, thereby causing Tatum physical, mental and emotional injuries, as well as the injuries to his reputation and dignity. 47. Pursuant to 42 U.S.C. 1983, Tatum is entitled to an award of general and punitive G\MAF\CLIENTS\T\Tatum, Ray\Complaint - Tatum.wpd/maf-tb Page 7

8 Case 210-cv TS Document 2 Filed 11/15/10 Page 8 of 9 damages, and an award of attorney fees and costs. THIRD CAUSE OF ACTION (Failure to Train and Supervise) 48. Tatum hereby incorporates paragraphs 1 through 47 as though fully set forth herein. 49. Defendant Provo City deprived Tatum of his rights, privileges, and immunities including the right to be free from unreasonable seizures as guaranteed by the Fourth Amendment and his due process rights as guaranteed by the Fourteenth Amendment of the United States Constitution, by failing to properly train and supervise Officer Moore. 50. Provo City committed the acts and omissions with a deliberate indifference to the rights, privileges and immunities of the citizens of Utah, including Tatum, as guaranteed by the United States Constitution. 51. Provo City carried out its duty to train and supervise Officer Moore with gross negligence and so failed to protect Tatum from the constitutional violations he suffered at the hands of Officer Moore. 52. The failure of Provo City to properly train and supervise Officer Moore is the direct and proximate cause of the injuries suffered by Tatum. 53. Tatum is accordingly entitled to an award of general and punitive damages and an award of attorney fees and cost pursuant to 42 U.S.C FOURTH CAUSE OF ACTION 54. Tatum hereby incorporates paragraph 1 through 53 as though fully set forth herein. 55. Officer did violate the right of Tatum to be free from unreasonable seizure by using G\MAF\CLIENTS\T\Tatum, Ray\Complaint - Tatum.wpd/maf-tb Page 8

9 Case 210-cv TS Document 2 Filed 11/15/10 Page 9 of 9 unreasonable and excessive force on Tatum. 56. Provo City s policy and custom was the moving force behind constitutional deprivation suffered by Tatum, including Provo City s failure to discipline and train officers when their conduct constituted unreasonable force against its citizens. 57. Tatum is accordingly entitled to an award of general and punitive damages and attorney fees and costs from Provo City pursuant to 42 U.S.C PRAYER FOR RELIEF WHEREFORE, Tatum prays for the following relief against the Defendants 1. For general damages to fairly compensate him for his physical, mental and emotional injuries, for the injuries to his dignity and reputation, in an amount to be determined at trial. 2. For punitive damages in an amount sufficient to deter Defendants and other similarly situated municipalities, counties, and police officers from depriving others citizens of their rights, privileges, and immunities, through intentional and reckless behavior; 3. For costs and expenses incurred in prosecuting this case; 4. For attorney fees as provided under 42 U.S.C. 1983; and 5. For such other and further relief deemed just and proper by the Court. th DATED this 15 day of November, CORPORON & WILLIAMS Plaintiff s Address /s/ Mark A. Flores MARK A. FLORES Attorney for Ray Tatum PO Box 24 Fountain Green, UT G\MAF\CLIENTS\T\Tatum, Ray\Complaint - Tatum.wpd/maf-tb Page 9