Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 1 of 25 STATE OF NEW MEXICO COUNTY OF BERNALILLO SECOND JUDICIAL DISTRICT FILED IN MY OFFICE DISTRICT COURT CLERK 11/4/2016 3:53:09 PM James A. Noel Latoya Grayes JUSTIN ALLEN, Plaintiff, D-202-CV-2016-06918 v. BERNALILLO COUNTY, THOMAS SWISSTACK, Individually and in his official capacity, ERIC ALLEN, Individually and in his official capacity and JOHN or JANE DOE CORRECTIONAL OFFICERS A AND B, Individually and in their official capacities. Defendants. COMPLAINT FOR VIOLATION OF NEW MEXICO TORT CLAIMS ACT, 1983 VIOLATION OF CIVIL RIGHTS, NEGLIGENT TRAINING, SUPERVISION AND RETENTION AND PUNITIVE DAMAGES THE PLAINTIFF Justin Allen, by undersigned counsel, for his Complaint for Violation of New Mexico Tort Claims Act, for Violations of Civil Rights under 42 U.S.C 1983, for Negligent Training, Supervision and Retention, and for Punitive Damages, states as follows: JURISDICTION AND VENUE 1. This matter concerns the mistreatment by Defendants of Plaintiff Justin R. Allen while he was detained at the Bernalillo County Metropolitan Detention Center in November 2015. 2. All circumstances that form the basis of this matter occurred in Bernalillo County, New Mexico. 3. Plaintiff Justin R. Allen is and was at all times pertinent hereto a resident of Sandoval County, New Mexico. 4. The Defendant Bernalillo County is an organized county located within the State of New Mexico, which at all times pertinent hereto acted through its employees and agents who operate the Bernalillo County Metropolitan Detention Center.
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 2 of 25 5. The Defendant Thomas Swisstack was acting as the Chief of Corrections at the Bernalillo County Metropolitan Detention Center at the time of the facts giving rise to this matter. 6. Defendant Eric Allen is an employee of Bernalillo County; he was working as a Correctional Officer at the Bernalillo County Metropolitan Detention Center at the time of the incident giving rise to this matter. 7. Defendants John or Jane Doe Correctional Officers A and B, upon information and belief, are employees of Bernalillo County who work as correctional officers at the Bernalillo County Metropolitan Detention Center. Plaintiff is without sufficient information to identify these individuals by name. 8. Defendant Eric Allen and the Defendants John or Jane Doe Correctional Officers A and B are herein referred to collectively as the "Correctional Officer Defendants." 9. Each of the named natural person Defendants acted, and was acting, in their official capacity ttpursuant to the laws, ordinances, regulations and customs of the County of Bernalillo, New Mexico, and each is considered to be a "state actor." 10. State and federal courts share concurrent jurisdiction over Section 1983 claims for the denial of federal constitutional rights. Carter v. City of Las Cruces, 1996-NMCA-47, ~5, 121 N.M. 580, 582, citing to Martinez v. California, 444 U.S. 277, 283 n.7, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980). 11. Title 42 U.S.C. 1983 provides, in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 2
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 3 of 25 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 12. Jurisdiction and Venue is proper before the Second Judicial District Court, Bernalillo County, New Mexico. FACTS 13. Plaintiff Justin Allen is unaware of the full, true and correct names of the "John Doe" and "Jane Doe" Defendants; after discovery of the true and correct names of said Defendants, Plaintiff will provide the same to this Court and Plaintiff respectfully requests to be allowed to proceed accordingly. 14. John Doe Correctional Officer A is described as a Hispanic male, likely in his late 20's or early 30's, dark hair with a beard and moustache facial hair, tall and of a "burly" build with a strong Mexican accent. He was under the supervision Defendant Eric Allen. 15. Jane Doe Correctional Officer B is described as a white or Hispanic female, likely age late 20's or early 30's, short and petite with dark brown hair. She was under the supervision Defendant Eric Allen. 16. Justin Allen was convicted of certain criminal charges in the matter of State of New Mexico v. Justin Allen, D-202-CR-2008-03 513. He had served a portion of his sentence at the Southern New Mexico Correctional Facility in Las Cruces, N.M. and had been released on parole in June 2014. 17. In March 2015, Justin Allen was arrested for a parole violation, which also gave rise to his being charged in the matter of State of New Mexico v. Justin Allen, T-4-CR-2015-003193. He was incarcerated at the Southern New Mexico Correctional Facility in Las Cruces, N.M. to serve the remainder of his sentence imposed in the D-202-CR-2008-03 513 matter. 3
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 4 of 25 18. On 10/21/15, a Criminal Complaint was filed in the matter of State of New Mexico v. Justin Allen, D-202-CR-2015-02778, based upon the same facts giving rise to the T-4-CR-2015-003193 matter. 19. On November 23, 2015, Plaintiff Justin Allen was transported from the Southern New Mexico Correctional Facility in Las Cruces, N.M. to the Bernalillo County Metropolitan Detention Center ("MDC") in order to be arraigned on criminal charges in the D-202-CR- 2015-02778 matter. 20. When Justin Allen was booked into the Bernalillo County MDC, he was an inmate in the custody of the New Mexico Department of Corrections. 21. When Justin Allen was booked into the Bernalillo County MDC, an "Intake Health Assessment" was supposed to be properly performed. 22. As part of the "Intake Health Assessment" conducted when Justin Allen was booked into the Bernalillo County MDC, MDC personnel were made aware that Justin Allen was taking certain anti-depressant medication as well as utilizing an asthma inhaler (albuterol) for breathing issues. 23. When Justin Allen was booked into the Bernalillo County MDC, his medical treatment records from the Southern New Mexico Correctional Facility in Las Cruces accompanied him and were made provided to the MDC personnel. Upon information and belief, these medical treatment records showed that he was taking certain anti-depressant medication as well as utilizing an inhaler for asthma-type breathing problems. 24. Based upon receipt of his medical records from the Southern New Mexico Correctional Facility, MDC personnel were made aware that Justin Allen was taking certain antidepressant medication as well as utilizing an inhaler for asthma-type breathing problems. 4
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 5 of 25 25. Upon arrival at MDC, Justin Allen informed the MDC correctional and medical personnel that he needed both his anti-depressant medication and inhaler; he was instructed to fill out a request for medical call and was then placed in the jail segregated population. 26. While in the segregated population, Justin Allen was on a 23-hour per day lockdown, which is standard procedure for the segregated population due to the known overcrowding conditions at the Bernalillo County MDC. 27. A standard procedure for segregated population inmates to be permitted to go to the infirmary during sick call is that the inmate must submit a written request to the on-duty correctional officers in order to obtain medical treatment. 28. Justin Allen followed this required procedure and four times submitted written requests to obtain his prescribed anti-depressant medication as well as an inhaler. 29. At each shift change, Justin Allen requested the incoming on-duty correctional officers to obtain for him his prescribed anti-depressant medication as well as an inhaler as none had been provided even though he had followed the procedures he was instructed to follow. 30. Upon information and belief, the on-duty MDC correctional officers knowingly and intentionally refused or failed to submit Justin Allen's sick call requests or to undertake any measure to obtain for him his prescribed anti-depressant medication as well as an inhaler. 31. Due to his medical conditions and not being provided prescribed medications, Justin Allen began experiencing severe anxiety and depression, as well as having difficulty breathing, while incarcerated in the segregation unit of the Bernalillo County MDC in November 2015. 32. While incarcerated in the segregation unit of the Bernalillo County MDC, on November 26, 2015, Justin Allen asked the Jane Doe Defendant B to call the Psychiatric Services Unit ("PSU") to obtain his anti-depressant medications; Jane Doe Defendant B threw his written 5
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 6 of 25 request on the table. After this, Justin Allen banged on the cell door to get the attention of the male correctional officer, John Doe Defendant A, who came to the cell door. 33. Justin Allen explained to John Doe Defendant A that Jane Doe Defendant B had thrown his written request on the table, and he asked John Doe Defendant A to turn in his sick call request so that he could obtain his needed prescription medications. 34. After Justin Allen informed John Doe Defendant A of what had transpired (his request for PSU to be notified and of Defendant Jane Doe's actions), the two Doe Defendants had a discussion; Justin Allen does not know what these two Defendants discussed. 35. After the two Doe Defendants had a discussion, Justin Allen was not provided any requested medical attention or provided his prescribed medications. 36. Shortly after the two Doe Defendants engaged in a discussion, Defendant Eric Allen arrived at the door of Justin Allen's cell in the MDC segregation unit. 37. Defendant Eric Allen spoke to Justin Allen in a condescending and insulting manner in an obvious attempt to illicit an adverse and confrontational reaction from Justin Allen. 38. Justin Allen did not react adversely or confrontationally towards Defendant Eric Allen; rather he politely and in a very straightforward manner informed Defendant Eric Allen that he had been requesting his prescribed medication and inhaler for more than four days and had not yet been provided with this medication. 39. Defendant Eric Allen stated to Justin Allen that he was not going to get any medications for any reason and that if he did not behave he would "get sprayed" (meaning that he would be maced). 6
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 7 of 25 40. Defendant Eric Allen then, without any reason or provocation, sprayed mace through the door food port into the cell where Justin Allen was detained; this caused Justin Allen to cry and resulted in extreme difficulty in breathing. 41. Justin Allen was subject to pain and physical discomfort due to Defendant Eric Allen's unprovoked and unnecessary use of mace, including the loss of ability to breathe normally. 42. After Defendant Eric Allen sprayed mace into the cell where Justin Allen was detained, he pointed his taser weapon at Justin Allen's crotch. Justin Allen was aware of this because he could see the red dot illuminated on his crotch. 43. After Defendant Eric Allen aimed his taser weapon at Justin Allen's crotch, he sprayed mace through the door food port at Justin Allen's face; this resulted in a worsening of Justin Allen being unable to breath. 44. Defendant Eric Allen had no reason or justification to spray mace into the cell where Justin Allen was detained or at Justin Allen's face. 45. After Defendant Eric Allen sprayed mace a second time, he and the two Doe Correctional Officer Defendants laughed and made crude jokes about the reaction Justin Allen was having to the unprovoked mace attack. 46. After Defendant Eric Allen sprayed mace a second time into the cell where Justin Allen was detained, he ordered Justin Allen to "turn around and get on the floor," which Justin Allen understood was the verbal command to get into position for cuffs to be placed on him. 47. Justin Allen promptly and without objection obeyed the verbal command from Defendant Eric Allen; he turned around and faced the wall with his hands up. 48. While Justin Allen was obeying the command of Defendant Eric Allen to be in position to be cuffed, Defendant Eric Allen and the two Doe correctional officer Defendants continued to 7
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 8 of 25 laugh and make crude jokes about the reaction Justin Allen was having after he had been subject to the two unprovoked mace attack. 49. As Justin Allen was obeying the command of Defendant Eric Allen and he was facing the wall with his hands up and his back to Defendant Eric Allen, Defendant Eric Allen utilized his taser weapon and shot Justin Allen in the back with his taser weapon through the food port of Justin Allen's cell. 50. Defendant Eric Allen had no justification or reasonable basis to utilize his taser weapon on Justin Allen; at the time Justin Allen was obeying the verbal command of Defendant Eric Allen to get into a kneeling position on the floor of his cell with his hands locked behind his head and facing towards the wall and away from his cell door, just as he had been ordered to do by Defendant Eric Allen. He presented no threat to any of the correctional officers present. 51. Justin Allen was subject to extreme pain due to Defendant Eric Allen' s use of his taser weapon. 52. After Justin Allen had been shot in the back by Defendant Eric Allen using his taser weapon, Defendant Eric Allen and the two Doe Correctional Officer Defendants laughed even more. 53. After Justin Allen had been shot in the back by Defendant Eric Allen using his taser weapon, the two Doe Correctional Officer Defendants took no action to come to Justin Allen's aid or to prevent Defendant Eric Allen from continuing to abuse Justin Allen. 54. While the three Correctional Officer Defendants were laughing about Justin Allen having been shot in the back by Defendant Eric Allen using his taser weapon, Defendant Eric Allen deployed his taser weapon a second time, shooting Justin Allen in the back again. 8
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 9 of 25 55. Justin Allen was subject to excruciating and debilitating pain due to Defendant Eric Allen's use of his taser weapon a second time. 56. Defendant Eric Allen had no justification or reasonable basis to utilize his taser weapon on Justin Allen a second time; at the time Justin Allen was subdued on the floor of his cell from the two mace attacks and the first taser attack. He presented no threat to any of the correctional officers present. 57. After Justin Allen had been shot in the back by Defendant Eric Allen using his taser weapon a second time, Defendant Eric Allen and the two Doe Correctional Officer Defendants laughed ever more hysterically, to the point that their laughter and the incident caused a ruckus with other inmates housed in the segregation unit. 58. After Justin Allen had been shot in the back by Defendant Eric Allen using his taser weapon a second time, the two Doe Correctional Officer Defendants took no action to come to Justin Allen' s aid or to prevent Defendant Eric Allen from continuing to abuse Justin Allen. 59. After Justin Allen had been maced and tased by Defendant Eric Allen, Defendant Eric Allen secured Justin Allen in hand cuffs and placed a black cloth bag over Justin Allen's head. 60. Defendant Eric Allen had no reason to place a bag over Justin Allen's head. 61. Because a bag was placed over Justin Allen's head, the effects of the mace became even more pronounced and exacerbated the difficulty Justin Allen had in breathing. 62. Justin Allen was forced to walk to the MDC infirmary with a bag over his head, and in a condition in which he could barely breathe. 63. While at the MDC infirmary Justin Allen was, for the first time since arriving at MDC, administered his prescribed medication. This was a result of the infirmary personnel looking 9
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 10 of 25 up Justin Allen's records; however he had to be given a substitute medication for his prescribed anxiety medication, buspar, as MDC did not have a supply of this medication. 64. After Justin Allen was examined and released from the MDC infirmary, Defendant Eric Allen took Justin Allen to a room, where he was interrogated by Defendant Eric Allen and another male correctional officer. 65. While Justin Allen was in a room with Defendant Eric Allen and another male correctional officer, Defendant Eric Allen took photographs of Justin Allen - both frontal and back. 66. While Justin Allen was in a room alone with Defendant Eric Allen and another male correctional officer, he was intimidated by the actions of Defendant Eric Allen. 67. While being interrogated, Defendant Eric Allen asked Justin Allen why he was taking the prescribed anxiety medications and asked if he had been a victim of sexual abuse 68. While being interrogated, Defendant Eric Allen asked Justin Allen if he wanted to make a report directly to Defendant Allen about Defendant Allen's actions that day. 69. Because Justin Allen was intimidated by and justifiably afraid of Defendant Eric Allen at that time, he declined to make a report directly to Defendant Eric Allen at that time. 70. On November 28, 2015, two days following the use of excessive by Defendant Eric Allen, Justin Allen filed a grievance about the incident utilizing a kiosk in the MDC. 71. Justin Allen experienced substantial and debilitating pain while he was confined at the Bernalillo County MDC due to Constitutionally-prohibited excessive force used by Defendant Eric Allen. 72. Justin Allen was knowingly and intentionally denied adequate medical care while incarcerated at the Bernalillo County MDC despite his multiple requests for medical care and despite the documented need for him to be provided with prescribed medications. 10
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 11 of 25 73. Under Article II, Section 13 of the New Mexico Constitution, Defendants Bernalillo County and its correctional officers employed at the Bernalillo County MDC have a Constitutional obligation to not inflict cruel and unusual punishment upon inmates (or other individuals) housed at the Bernalillo County Metropolitan Detention Center. 74. Under the Eighth Amendment to the United States Constitution, Defendants Bernalillo County and its correctional officers employed at the Bernalillo County MDC have a Constitutional obligation to provide adequate medical care to inmates (or other individuals) housed at the Bernalillo County Metropolitan Detention Center. 75. Under the Eighth Amendment to the United States Constitution, Defendants Bernalillo County and its correctional officers employed at the Bernalillo County MDC have a Constitutional obligation to not subject inmates (or other individuals) housed at the Bernalillo County MDC to excessive force. 76. Under the Fourteenth Amendment to the United States Constitution, Defendants Bernalillo County and its correctional officers employed at the Bernalillo County MDC have a Constitutional obligation to not subject pre-trial detainees housed at the Bernalillo County MDC to excessive force. 77. Prior to November 2015, Defendants Bernalillo County and Thomas Swisstack were aware of Defendant Eric Allen's propensity to use excessive force on individuals incarcerated at the Bernalillo County MDC. 78. Despite being aware of Defendant Eric Allen's propensity to use excessive force on individuals housed at the Bernalillo County MDC, Defendants Bernalillo County and Thomas Swisstack continued to allow Defendant Eric Allen to work at the Bernalillo County MDC where he came in contact with inmates and pre-trial detainees on a daily basis. 11
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 12 of 25 79. The medical care actually provided by the Bernalillo County MDC correctional officers to Justin Allen was so cursory that it amounted to no treatment at all. 80. The medical care actually provided by the Bernalillo County Metropolitan Detention Center to Justin Allen was beneath constitutional standards. 81. At all times pertinent hereto, Plaintiff Justin Allen was acting in a reasonable and peaceful manner; was not disturbing the peace or committing any offense against the MDC or another inmate; was not violating any rule or regulation of the MDC; and did not cause any action that would have justified the conduct of the MDC correctional officer Defendants. 82. At all times mentioned herein, each of Defendants, separately and in concert, were state actors who acted under color of law, to wit: under color of the statutes, ordinances, regulations, customs and policies of the County of Bernalillo and of the State of New Mexico. 83. Each of the Defendants herein, separately and in concert, engaged in the illegal conduct described herein to the injury of Plaintiff and deprived his of his rights, privileges and immunities secured and guaranteed to his under the Constitution of the State of New Mexico, the Constitution of the United States, the laws of New Mexico and the laws of the United States. CLAIMS Countl Violation of New Mexico Tort Claims Act 84. Plaintiff incorporates the proceeding paragraphs as if set forth herein in full. 85. Under the New Mexico Tort Claims Act, Defendant Thomas Swisstack and the three MDC Correctional Officers Defendants are not immune from suit under the facts of this case. See i.e. NMSA 1978, 41-4-12. 12
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 13 of 25 86. Defendants Thomas Swisstack, Eric Allen and the John and Jane Doe Correctional Officers Defendants are both "law enforcement officers" and "public employees" as those terms are defined under Section 41-4-3(D) & (F) of the New Mexico Tort Claims Act [NMSA 1978, 41-4-1 through 41-4-27]. 87. Defendant Bernalillo County is responsible for the acts of the Bernalillo County MDC correctional officers and is liable for the acts of the correctional officers employed at the Bernalillo County MDC. 88. At all times pertinent to the facts set forth herein, Defendant Thomas Swisstack and the Correctional Officer Defendants were agents and employees of Defendant Bernalillo County and were authorized by Bernalillo County to operate the Bernalillo County MDC and were acting in the scope of their employment at all times. 89. The actions and inactions of Defendant Thomas Swisstack and the Correctional Officer Defendants were done in both their individual and their official capacity as agents and employees of the Defendant Bernalillo County, and therefore the Defendant Bernalillo County is liable for the actions set forth herein conducted in their official capacity. 90. Defendants Bernalillo County and Thomas Swisstack had a duty to ensure the correctional officers working at the Bernalillo County MCD were adequately trained to ensure that inmates (and pre-trial detainees) housed at the Bernalillo County MDC are provided proper and adequate medical treatment. 91. The failure of Defendants Bernalillo County and Thomas Swisstack to adequately train the correctional officers working at Bernalillo County MDC to ensure Plaintiff received proper and adequate medical care breached their duty. 92. Plaintiff suffered harm as a result of the Defendants' breach of their duty. 13
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 14 of 25 93. Defendants Bernalillo County and Thomas Swisstack had a duty to ensure the correctional officers working at the Bernalillo County MCD were adequately trained to ensure that inmates (and pre-trial detainees) housed at the Bernalillo County MDC are not subjected to excessive force. 94. The failure of Defendants Bernalillo County and Thomas Swisstack to adequately train the correctional officers working at Bernalillo County MDC to ensure Plaintiff was not subject to excessive force breached their duty. 95. Plaintiff suffered harm as a result of the Defendants' breach of their duty. 96. Defendants Bernalillo County and Thomas Swisstack had a duty to ensure the correctional officers working at the MDC were adequately trained to intervene when they observed another correctional officer using excessive force in violation of an inmate's (or pre-trial detainee' s) constitutional rights. 97. The failure of Defendants Bernalillo County and Thomas Swisstack to adequately train the correctional officers working at Bernalillo County MDC to intervene when they observed another correctional officer using excessive force in violation of Plaintiffs constitutional rights breached their duty. 98. Plaintiff suffered harm as a result of the Defendants' breach of their duty. 99. The John and Jane Doe Correctional Officer Defendants had a duty to intervene when they observed another correctional officer using excessive force in violation of an inmate's (or pre-trial detainee' s) constitutional rights. 100. The John and Jane Doe Correctional Officer Defendants both observed and had reason to know of the constitutional violation of Justin Allen's well-established constitutional rights by 14
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 15 of 25 Defendant Eric Allen and they had a realistic opportunity to intervene on Justin Allen's behalf, but failed to do so. 101. The failure of the Correctional Officer Defendants to intervene on behalf of Justin Allen caused him substantial harm. 102. The John and Jane Doe Correctional Officer Defendants' disregard of the substantial risk of harm to Justin Allen's health and life demonstrates recklessness and/or deliberate indifference. 103. The John and Jane Doe Correctional Officer Defendants' disregard of the substantial harm to Justin Allen's health and life demonstrates recklessness and/or deliberate indifference. 104. Solely for purposes of a claim under the New Mexico Tort Claims Act and in the alternative, Plaintiff asserts that the Correctional Officer Defendants' failed to obtain adequate and proper medical care for Justin Allen and such failure constitutes negligence. The negligence of the Correctional Officer Defendants in failing to obtain adequate and proper medical care for Justin Allen caused him substantial harm. 105. The intentional and/or reckless delay of the Correctional Officer Defendants in obtaining medical treatment for Justin Allen caused him substantial harm. 106. The failure of the Correctional Officer Defendants to obtain adequate and proper medical treatment for Justin Allen caused him substantial harm. 107. The Defendant Bernalillo County has adopted a policy or custom that fails to ensure the correctional officers working at the Bernalillo County MCD are adequately trained to ensure that inmates at the Bernalillo County MDC are provided proper and adequate medical treatment. 15
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 16 of 25 108. The Defendant Bernalillo County has adopted a policy or custom that fails to ensure the correctional officers working at the Bernalillo County MCD are adequately trained to ensure that inmates at the Bernalillo County MDC are not subject to excessive force. 109. The policies and customs adopted by the Defendant Bernalillo County directly caused Justin Allen's injuries. 110. Defendant Thomas Swisstack, while acting as the Chief of Corrections at the Bernalillo County MDC had a duty to ensure the correctional officers working at the Bernalillo County MCD were adequately trained to ensure that inmates at the Bernalillo County MDC are provided proper and adequate medical treatment. 111. Defendant Thomas Swisstack, while acting as the Chief of Corrections at the Bernalillo County MDC had a duty to ensure the correctional officers working at the Bernalillo County MCD were adequately trained to ensure that inmates at the Bernalillo County MDC were not subject to excessive force. 112. Defendants Bernalillo County, Thomas Swisstack and the Correctional Officer Defendants owe a duty to inmates such as Justin Allen to ensure they are provided adequate medical care. 113. Defendants Bernalillo County, Thomas Swisstack and the Correctional Officer Defendants owed a duty to Justin Allen to ensure he was not subjected to excessive force. 114. The John and Jane Doe Correctional Officer Defendants owe a duty to inmates such as Justin Allen to intervene when they observe another correctional officer violating an inmate's constitutional rights. 115. Defendants Bernalillo County, Thomas Swisstack and the Correctional Officer Defendants breached their duties owed to Plaintiff Justin Allen. 16
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 17 of 25 116. Due directly to the breach of Defendants' duty owed to Plaintiff to not subject him to excessive force, Justin Allen has suffered damages. 117. Due directly to the breach of Defendants' duty owed to Plaintiff to provide him with proper and adequate medical care, Justin Allen has suffered damages. 118. Due directly to the breach of the John and Jane Doe Correctional Officers Defendants' duty owed to Plaintiff to intervene to prevent excessive force, Justin Allen has suffered damages. 119. Plaintiff Justin Allen is entitled to an award of damages for Defendants' violation of the New Mexico Tort Claims Act. Count II Excessive Force (Correctional Officers Defendants) 120. Plaintiff incorporates the proceeding paragraphs as if set forth herein in full. 121. When Defendant Eric Allen twice used mace and twice used his taser weapon on Plaintiff, Plaintiff was behind a closed cell door; he was fully compliant with the correctional officer's verbal commands and presented no threat to the correctional officers. 122. The amount of force used by Defendant Eric Allen was inappropriate and unjustified for the circumstances. 123. The amount of force used by Defendant Eric Allen was excessive given the need presented. 124. Defendant Eric Allen had no rational motivation to utilize the excessive force that Plaintiff was subjected to. 125. Defendant Eric Allen had no reason to believe that a lesser amount of force - such as his verbal command - could not exact compliance; this is especially so when Plaintiff had 17
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 18 of 25 already complied with the verbal command given by Defendant Eric Allen when Defendant Eric Allen deployed is taser weapon - twice - upon Justin Allen. 126. The force employed by Defendant Eric Allen was not applied in a good-faith effort to maintain or restore discipline. Rather, the amount of force was applied maliciously and sadistically to cause harm to Plaintiff Justin Allen. Defendant Eric Allen's conduct was "conscience-shocking" 127. Defendant Eric Allen's conduct was motivated by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience, or by malice. 128. Plaintiff suffered excruciating pain due to Defendant Eric Allen' s excessive use of force. 129. Plaintiff Justin Allen is entitled to an award of damages for Defendant Eric Allen's use of excessive force in violation of the U.S. Constitution. Count III Failure to Intervene (John and Jane Doe Correctional Officers Defendants) 130. Plaintiff incorporates the proceeding paragraphs as if set forth herein in full. 131. The John and Jane Doe Correctional Officer Defendants had a duty to intervene when they observed Defendant Eric Allen using excessive force upon Plaintiff in violation of his clearly established constitutional rights. 132. The John and Jane Doe Correctional Officer Defendants both observed and had reason to know of the constitutional violation of Justin Allen's well-established constitutional rights by Defendant Eric Allen and they had a realistic opportunity to intervene on Justin Allen's behalf, but failed to do so. 18
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 19 of 25 133. By failing to intervene when they observed the excessive force being used by Defendant Eric Allen upon Plaintiff, the John and Jane Doe Correctional Officer Defendant knowingly permitted the unjustified use of excessive force in the course of their scope of duties. 134. The John and Jane Doe Correctional Officer Defendants' disregard of the substantial harm to Justin Allen's health and life demonstrates recklessness and/or deliberate indifference. 135. The failure of the Correctional Officer Defendants to intervene on behalf of Justin Allen caused him substantial harm. 136. Plaintiff Justin Allen is entitled to an award of damages for the failure of the Correctional Officer Defendants to intervene on Defendant Eric Allen's behalf when they observed Defendant Eric Allen's excessive use of force in violation of the U.S. Constitution. Count IV Failure to Provide Medical Treatment (Correctional Officers Defendants) 13 7. Plaintiff incorporates the proceeding paragraphs as if set forth herein in full. 138. Well-established rights exist under Article II, Section 13 of the New Mexico Constitution and under the Eighth Amendment to the United States Constitution prohibiting the cruel and unusual treatment of prisoners. 139. A "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976). 140. Justin Allen's initial - and then worsening - medical condition was sufficiently serious such that he had been diagnosed to receive prescription medication for his necessary and proper medical treatment. 19
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 20 of 25 141. Defendant Eric Allen and the John and Jane Doe Correctional Officer Defendants were made aware and knew that Justin Allen's health condition required medical attention and treatment. 142. Despite being made aware and knowing that Justin Allen's health condition required medical attention and treatment and that failure to provide his with immediate medical attention and appropriate care posed a significant risk to his health and life, the Correctional Officer Defendants on multiple occasions intentionally disregarded that substantial risk of harm and recklessly, knowingly or intentionally delayed getting Justin Allen medical care. 143. The failure of the John and Jane Doe Correctional Officer Defendants to obtain needed medical treatment for Justin Allen demonstrates a deliberate indifference to his serious medical needs and to an obvious risk to his health and life. 144. Defendants John and Jane Doe Correctional Officers did not have any justification or reason for depriving Plaintiff of medical attention and/or the authority to deprive Justin Allen from receiving medical attention. 145. Justin Allen was either intentionally or recklessly denied needed medical attention, which constituted cruel and unusual punishment by the Correctional Officer Defendants. 146. The Correctional Officer Defendants did not have any justification or reason for delaying obtaining medical treatment for Plaintiff and/or the authority to delay obtaining medical treatment to Justin Allen. 147. Defendants knew they had no reasonable cause to justify their actions and they intentionally proceeded without legal authority solely because Justin Allen was detained at the Bernalillo County MDC. 20
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 21 of 25 148. The Correctional Officer Defendants' refusal to obtain the medical treatment Plaintiff requested, and denying and/or delaying Justin Allen's access to medical treatment demonstrates a reckless or callous indifference to the Plaintiff's rights. 149. The Correctional Officer Defendants' refusal to obtain needed medical treatment for Plaintiff when requested, and by intentionally denying and/or delaying providing Justin Allen access to medical treatment, demonstrates a deliberate indifference to Justin Allen's rights. 150. The actions of the Correctional Officer Defendants' preventing Justin Allen from receiving needed medical treatment and denying his access to medical personnel capable of evaluating the need for treatment constitute deliberate indifference. 151. A "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976). 152. Each of the Correctional Officer Defendants, acting in their official capacity, violated the prohibition of cruel and unusual punishment under the New Mexico Constitution and the United States Constitution by their demonstrated deliberate indifference to Justin Allen's serious medical needs while he was a prisoner confined at the Bernalillo County Metropolitan Detention Center. 153. The failure of the Correctional Officer Defendants to obtain needed medical treatment for Justin Allen caused his substantial harm that was due solely and directly to the Defendants' failure. 154. The Correctional Officer Defendants' delay in obtaining necessary medical care for Justin Allen caused his substantial harm that was due solely and directly to the delay. 21
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 22 of 25 155. Plaintiff Justin Allen has suffered damages due to the Correctional Officer Defendants' violation of the prohibition of cruel and unusual punishment under the New Mexico Constitution and the United States Constitution. 156. Plaintiff Justin Allen is entitled to an award of damages for Defendants' violation of Justin Allen's rights under Article II, Section 13 of the New Mexico Constitution and under the Eighth Amendment to the United States Constitution prohibiting the cruel and unusual treatment of prisoners. Count V Negligent Training, Supervision and Retention (Bernalillo County and Thomas Swisstack) 15 7. Plaintiff incorporates the proceeding paragraphs as if set forth herein in full. 158. Defendant Bernalillo County was the employer of the Correctional Officer Defendants at all times pertinent hereto. 159. At the time of the incident giving rise to this Complaint, Thomas Swisstack was the Deputy County Manager of Bernalillo County and was serving as the Interim Chief of Corrections at the Bernalillo County MDC. 160. A principal who conducts activity through an agent is subject to liability for harm to a third party caused by the agent's conduct if the harm was caused by the principal' s negligence in selecting, training, retaining, superv1smg, or otherwise controlling the agent. Lessard v. Coronado Paint and Decorating Center, Inc., 2007-NMCA-122, ~~ 28, 37, 142 N.M. 583, 168 P.3d 155 (quoting the Restatement (Third) of Agency 7.05(1) (2006) 161. Defendants Bernalillo County and Thomas Swisstack were negligent in the training, supervision and/or retention of the Correctional Officer Defendants. 22
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 23 of 25 162. The negligence of Defendants Bernalillo County and Thomas Swisstack includes all things mentioned in the Facts as stated above and herein, and includes but is not limited to: A. Inadequate management, training and enforcement of policies and procedures regarding obtaining proper and adequate medical treatment of inmates (and pre-trial detainees) at the Bernalillo County MDC. B. Inadequate management, training and enforcement of policies and procedures regarding the amount of force used by correctional officers on inmates (and pre-trial detainees) at the Bernalillo County MDC. C. Inadequate management, training and enforcement of policies and procedures regarding intervention by correctional officers when they observe an excessive amount of force being used by other correctional officers on inmates (and pre-trial detainees) at the Bernalillo County MDC. 163. Defendants Bernalillo County and Thomas Swisstack knew or should have known that their negligent training, supervision and/or retention of the Correctional Officer Defendants would create an unreasonable risk of injury to individuals who were in need of medical treatment at the Bernalillo County MDC, of which Plaintiff was in this class. 164. Defendants Bernalillo County and Thomas Swisstack knew or should have known that their negligent training, supervision and/or retention of the Correctional Officer Defendant Eric Allen would create an unreasonable risk of injury to individuals who were detained at the MDC due to their knowledge of Defendant Eric Allen's history of the use of, and his propensity to use, excessive force. 23
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 24 of 25 165. Defendant Thomas Swisstack is responsible for the acts of the Correctional Officer Defendants under the theory of respondent superior and is therefore vicariously liable for the acts of these Defendants performed at the Bernalillo County MDC. 166. Defendants Bernalillo County and Thomas Swisstack failed to use ordinary care in the training, supervision and/or retention of the Correctional Officer Defendant Eric Allen. 167. Defendants Bernalillo County and Thomas Swisstack's negligent training, supervision and/or retention of the Correctional Officer Defendant Eric Allen were a cause of Plaintiff's injuries. 168. Defendants Bernalillo County and Thomas Swisstack failed to use ordinary care in the training, supervision and/or retention of the John and Jane Doe Correctional Officer Defendants. 169. The negligent training, supervision and/or retention of the John and Jane Doe Correctional Officer Defendant Eric Allen committed by Defendant Bernalillo County directly caused injuries to Plaintiff Justin Allen. 170. Plaintiff Justin Allen is entitled to an award of damages for Defendants Bernalillo County and Thomas Swisstack's negligent training, supervision and/or retention. Count VI Punitive Damages (Correctional Officers Defendants) 171. Plaintiff incorporates the proceeding paragraphs as if set forth herein in full. 172. At all times pertinent hereto, Defendant Eric Allen and the John and Jane Doe Correctional Officer Defendants were acting within the scope of their employment. 24
Case 1:16-cv-01359-SCY-KK Document 1-1 Filed 12/14/16 Page 25 of 25 173. The Defendant Eric Allen and the John and Jane Doe Correctional Officer Defendants acted with either reckless or callous indifference to the Plaintiffs rights. 174. The conduct of the Defendant Eric Allen and the John and Jane Doe Correctional Officer Defendants was malicious, reckless, wanton and/or in bad faith. 175. Punitive damages should be awarded against each of the Correctional Officer Defendants. WHEREFORE, Plaintiff Justin Allen respectfully requests that the Court: A. Award Plaintiff compensatory damages for each of his State claims against each respective and appropriate Defendant, in an amount to be proven at trial; and, B. Award Plaintiff compensatory damages for each of his Federal claims against each respective and appropriate Defendant, in an amount to be proven at trial; and, C. Award Plaintiff appropriate punitive damages; and, D. Under 42 U.S.C. 1988(b), award Plaintiff reasonable attorneys fees incurred for enforcing his Constitutional rights under 42 U.S.C. 1983; and, E. Award Plaintiff his reasonable attorneys fees and costs incurred as permitted under New Mexico law; and, F. Enter such further relief as the Court deems just and appropriate. Respectfully Submitted, ~~ Charles N. Lakins, Esq. L AKINS LAW FIRM, P. C. P.O. Box 91357 Albuquerque, NM 87199 (505) 404-9377 Charles@LakinsLawFirm.com 25