UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
TENNESSEE AT KNOXVILLE
)
ERNESTO DELGADILO RODRIDGUEZ
)
)
Plaintiff,
)
)
vs.
)
)
THOMAS THURMAN individually and in his
)
official capacity; and
)
FREDRICK KIMBER, individually and in his
)
official capacity; and
)
TRAVIS STEVEN BAKER individually and in his )
official capacity; and
)
DAVID RAUSCH in his official capacity; and
)
THE CITY OF KNOXVILLE, TENNESSEE
)
)
Defendants.
)
)

No. _____________

JURY TRIAL DEMANDED

COMPLAINT

Plaintiff ERNESTO DELGADILLO RODRIGUEZ, by and through his undersigned
attorneys, sues Defendants and allege as follows:
JURISDICTION
1. This is a civil rights action, pursuant to 42 U.S.C. § 1983 and 1988 and the Fourth and
Fourteenth Amendments to the United States Constitution, seeking compensatory and
punitive damages and equitable relief against the Defendants for committing acts under
color of law, and depriving Plaintiff of rights secured by the Fourth and Fourteenth
Amendments to the United States Constitution; and claims under state law for assault,
battery, malicious prosecution, in that Defendants engaged in concerted action or a
pattern and practice of conduct, or intentional acts all of which resulted in serious bodily
injuries, and the violation  of  Plaintiff’s  rights  as  set  out  below. Jurisdiction is founded
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 upon 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights), and Plaintiff requests this
Court to exercise its supplemental jurisdiction pursuant to 28 U.S.C. §1367, for his
Tennessee law claims. Plaintiff asserts that the amount in controversy is greater than
$75,000.00.

PARTIES
2. Plaintiff is Mexican citizen who is currently a resident of Knox County, Tennessee.
3. Defendant Thomas Thurman,  (hereinafter,  “Thurman”) is an officer with the Knoxville
Police Department, for the City of Knoxville, Tennessee, and in committing each of the
acts complained of herein, he is sued both in his official capacity as a Knoxville Police
officer, and in his individual capacity.
4. Defendant Frederick  Kimber,  (“hereinafter,  “Kimber”),  is an officer with the Knoxville
Police Department, and in committing each of the acts complained of herein, he is sued
both in his official capacity as a Knoxville Police Officer and in his individual capacity.
5. Defendant Travis Steven Baker,  (hereinafter,  “Baker”), is an officer with the Knoxville
Police Department, and in committing each of the acts complained of herein, he is sued
both in his official capacity as a Knoxville Police Officer and in his individual capacity.
6. Defendant  David  Rausch,  (“hereinafter  Chief  Rausch”),  is  sued  in  his  official  capacity  as  
the police chief for the City of Knoxville. At all times relevant to this action, Chief
Rausch was the appointed police chief for the City of Knoxville, Tennessee whose duties
are set out in the City of Knoxville Charter, Chapter two, Article two, §2-351. As police
chief, this defendant acted under color of law and the customs and useages of the State of

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 Tennessee and was the final and highest decision-maker in the establishment, formulation
and implementation of policies and customs for the City of Knoxville Police Department.
7. Defendant City Knoxville, Tennessee is a governmental entity organized and formed
pursuant to T.C.A. § 5-1-101 et seq. and subject to suit pursuant to T.C.A. § 40-7-121(f)
and T.C.A. § 29-20-101 et. seq. Defendant  City  of  Knoxville  is  a  “person”  capable  of  
being sued pursuant to 42 U.S.C. § 1983.
8. Further, Plaintiff avers that Defendants Rausch is liable to the Plaintiff for the wrongful
acts committed as described herein because of the wrongful conduct of defendants
Thurman, Kimber, and Baker, because Rausch had supervisory control over defendants
Thurman, Kimber, and Baker, who committed the wrongful acts described herein to
render Rausch liable to Plaintiff pursuant to the common law doctrine of agency,
including but not limited to the principle of apparent authority, and the common law
doctrine of respondeat superior.
FACTS
9. On July 9th, 2014, Officer Kimber was dispatched to 4313 Roaming Drive, in Knoxville,
Tennessee at approximately 7:30 a.m. Kimber was responding to an alleged domestic
incident involving the Plaintiff. Over the course of the call, the 911 caller reported that
the Plaintiff had thrown a knife that he had been carrying, and was proceeding down the
street.
10. Kimber responded to the scene, encountered the Plaintiff in the roadway, and the Plaintiff
complied with Kimber’s  commands. Kimber proceeded to make an arrest of the Plaintiff,
who was unarmed. Kimber had the Plaintiff prone on the  back  of  Kimber’s  squad  car,  
attempting to cuff the Plaintiff, using cuffs which were too small to cuff the Plaintiff

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 without causing injury. Plaintiff speaks very limited English, but attempted to verbalize
to Kimber that the cuffs were too tight and that Kimber had hurt the Plaintiff when the
Plaintiff gave his arms to Kimber to be cuffed. Kimber continued to try and force the
cuffs  which  did  not  fit  onto  Plaintiff’s  wrists  while  Plaintiff  remained  prone  on  the  back  
of  Kimber’s  squad  car.
11. Kimber called for backup. Officer Kimber threatened to taser the Plaintiff, but did not
taser the Plaintiff. Plaintiff  was  prone  on  the  back  on  Kimber’s  squad  car,  and Kimber
was acting in conformance with Knoxville Police Department handcuffing and arrest
policies and procedures.
12. Thurman responded to the call for backup.
13. Thurman  arrived  as  backup.  Kimber  had  the  Plaintiff  prone  of  the  back  of  Kimber’s  
squad car. Thurman proceeded to beat the Plaintiff to the point of losing consciousness
and being rushed to the emergency room and admitted for critical care.
14. During the beating, Baker also responded to the call for backup.
15. The Plaintiff screamed in agony until he lost consciousness. The Plaintiff did not resist
arrest. The Plaintiff was unarmed. The Plaintiff was eventually handcuffed after losing
consciousness, and has visible scarring on his wrists from the cuffs, which were too tight
to be used on the Plaintiff without causing injuries.
16. Plaintiff had to be transported to the nearest level one trauma center, the University of
Tennessee Medical Center, where he was treated for serious, life threatening, injuries.
The Plaintiff had to be intubated, and was diagnosed with a medial orbital blowout
fracture on the left side of his face. See attached Exhibit One. The plaintiff was
discharged from the hospital on July 10th, wearing a cervical collar, and instructed to

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 follow up at the trauma clinic within two weeks. Plaintiff has had several surgeries since
being discharged from UT Medical Center, including maxillofacial surgery, and eye
surgery  to  attempt  to  save  the  Plaintiff’s  vision.  
17. The UT Medical Center Security Department Agency Request for Patient Hold filled out
at 9:15 a.m., by Kimber after the Plaintiff was transported to the hospital states that the
Plaintiff was being held for failure to obey a court order, in case number G8244, which is
an active civil child support case in Knox County Juvenile Court. Kimber did not note
any assault charges. See Exhibit Two.
18. Nevertheless, Defendant Kimber swore out four warrants, falsely accusing Plaintiff of
two counts of aggravated assault, and two counts of assault. All four cases were
dismissed in their entirety on November 13, 2014.
19. Because of the unjust and wrongful charges and prosecution, the Plaintiff was detained at
the Knox County Detention Facility for several months, and was unable to care for his
family, or run his business during this time. The Plaintiff also had to begin his recovery
from the significant injuries he sustained at the hands of Defendants Kimber, Thurman,
and Baker, while  in  custody.    This  impacted  Plaintiff’s  recovery  negatively,  and  caused  
additional pain and suffering beyond that which Plaintiff was already experiencing. The
Plaintiff was also humiliated and suffered mental anguish.
20. At all times, Defendants Kimber, Thurman, and Baker were acting in conformance with
Knoxville Police Department written and unwritten policies, customs, practices and
procedures.
21. The actions of the individual Defendants and the Defendants acting solely, or in concert
and combination, was reckless, malicious, and intentional.

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 22. Knoxville Police Department has a written policy requiring use of force/response to
resistance reports. See attached Exhibit Three. Upon information and belief, Defendants
Kimber, Thurman, and Baker, did not complete the required reports, supervisory officers
did not review such reports, and documentation was not made concerning a determination
of whether policies and procedures were followed. Despite this, the warrants sworn under
oath by Defendant Kimber, and later dismissed, allege facts consistent with the Plaintiff
resisting arrest. Upon information and belief, supervisory officers reviewed and approved
the warrants, consistent with policies, practices, customs, or procedures of the Knoxville
Police Department in failing to adequately supervise and train officers in the use of force.
CAUSES OF ACTION
COUNT ONE: CIVIL RIGHTS VIOLATIONS
23. Plaintiff re-alleges paragraphs one through twenty-two.
24. Defendant Kimber falsely charged the Plaintiff without probable cause to believe the
Plaintiff had committed the offense with which he was charged. In charging the Plaintiff
with criminal charges, Defendant Kimber acted under color of state law and by virtue of
his authority as a law enforcement official of the Knoxville Police Department.
25. Defendant City of Knoxville, through its employees, agents, and representatives,
possessed the final authority to establish any policies, customs, practices, or procedures
identified herein and was also responsible for establishing the final governmental policy
respecting such activity.
26. Defendants City of Knoxville and Chief Rausch, improperly trained and supervised
Defendants Kimber, Thurman, and Baker by: a) failing to instruct Defendants on how to
properly handle the above described events b) failing to instruct Defendants on how to

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 properly respond with reasonable force, c) failing to appropriately supervise and monitor
usage of force by officers, and d) failing to train officers how to properly handcuff
arrestees by using a deficient handcuffing policy.
27. Acting under the color of law, defendants Thurman, Kimber, and Baker used
unreasonable excessive force in making an arrest of Plaintiff, in violation of 42 U.S.C.
§1983.
28. In arresting Plaintiff, Defendants Thurman, Kimber, and Baker acted under color of state
law and by virtue of their authority as law enforcement officials of the City of Knoxville
Police Department.
29. Defendants  Thurman,  Kimber,  and  Baker’s  actions  deprived Plaintiff of clearly
established rights, privileges, and immunities guaranteed him by the Fourth and
Fourteenth amendments to the United States Constitution, in violation of 42 U.S.C. §
1983, including but not limited to the right of people to be secure in their persons against
unreasonable searches of the person.
30. The conduct of Defendants Rausch and the City of Knoxville, in failing to adequately
supervise and train officers to address the special needs of arrestees with limited English
speaking abilities demonstrates a reckless indifference, comparable to deliberate action,
so that the reasonably foreseeable consequence of this failure included deprivation of
constitutional rights and serious bodily injuries.
31. As a direct and proximate result of the joint acts and omissions of the Defendants, the
Plaintiff was arrested with excessive lethal force, as defined by Knoxville Police
Department General Order No. 1.6, and sustained life threatening bodily injuries.
STATE LAW CLAIMS

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 COUNT TWO: ASSAULT
32. Plaintiff realleges paragraphs one through thirty-one.
33. Defendants Thurman, Kimber, and Baker acted with intent to injure Plaintiff.
34. Defendants  Thurman,  Kimber  and  Baker’s  actions  and  intent  to  was  the  cause  of  the  
Plaintiff’s  apprehension  of  an  immediate  battery.
COUNT THREE: BATTERY
35. Plaintiff realleges paragraphs one through thirty-four.
36. Defendants  Thurman,  Kimber,  and  Baker’s  conduct  resulted  in  harmful  contact  with  
Plaintiff.
37. Defendants Thurman, Kimber, and Baker intended to conduct themselves in such a
manner as to result in contact with Plaintiff.
38. Defendants Thurman,  Kimber,  and  Baker’s conduct and intent to conduct themselves in
such a manner was the direct and proximate cause of their harmful contact with Plaintiff.
COUNT FOUR: MALICIOUS PROSECUTION
39. Plaintiff re-alleges paragraphs one through thirty-eight.
40. Defendant Kimber prepared warrants containing false information, and filed these
warrants against the Plaintiff, two charging the Plaintiff with aggravated assault, and two
charging the Plaintiff with assault, despite the fact that the objective information
available to him clearly failed to show that probable cause existed to believe that the
Plaintiff committed the charged offenses. Kimber acted maliciously or with reckless
disregard to the rights of the Plaintiff when he prepared the warrants containing the false
information.
41. The charges against the Plaintiff were dismissed November 14, 2014.

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 42. Defendant Kimber is individually liable for the malicious prosecution of the Plaintiff.
DAMAGES
43. As a direct and proximate result of the wrongful acts and omissions set forth above which
were committed by and are attributable to the defendants, the Plaintiff sustained losses in
the rights guaranteed him by the United States Constitution and Tennessee Constitution
as he was wrongfully and unjustly severely beaten.
44. As a direct and proximate result of the wrongful acts and omissions set forth above which
were committed by or are attributable to the defendants, Plaintiff sustained injuries and
damages, including but not limited to: reasonable and necessary medical expenses, pain
and suffering, permanent injuries, disfigurement, loss of earning capacity, loss of
enjoyment of life
45. Additionally, defendants conduct was reckless, malicious, or otherwise intentional, and
the Plaintiff is entitled to punitive damages.
WHEREFORE, Plaintiff respectfully requests:
A. Full restitution as provided by law for compensatory damages in the amount the trier of
fact finds to be just as to each of them, based on the proof and the applicable law, not to
exceed the total sum of two million dollars; and
B. To the extent appropriate based upon reckless conduct by the individual defendants,
punitive damages in the amount the trier of fact finds to be just, based on the proof and
the applicable law, not to exceed the total sum of five-hundred thousand dollars; and
C. That Plaintiff be awarded all court costs, discretionary costs allowable under statute, and
any and all other costs allowable by statute, common law, or pursuant to the Federal
Rules of Civil Procedure; and

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 D. That the Plaintiff be awarded all pre-judgment interest and post-judgment interest
allowable by common law or statute as part of his relief requested herein; and
E. That the Plaintiff be awarded all attorneys’ fees and costs, pursuant to 42 U.S.C. §1988,
other federal statutory and common law, and state statutory and common law; and
F. That a jury of twelve persons be impaneled for a trial in this cause; and
G. That Plaintiff be awarded such other relief as this Court deems appropriate.
PLAINTIFFS DEMAND A JURY TRIAL OF ALL ISSUES SO TRIABLE.
RESPECTFULLY SUBMITTED, this 9th day of July, 2015.
ERNESTO DELGADILO RODRIGUEZ, Plaintiff
/s/ Amy Benner Johnson
Amy L. Benner, BPR #031349
Attorney for Plaintiff
606 West Main Street, Suite 202
Knoxville, Tennessee 37902
Ph: 865-633-0290
Fax:
/s/ Mike Whalen____________________________
Mike Whalen, BPR #018955
Attorney for Plaintiff
905 Locust Street
Knoxville, Tennessee 37902
Ph: 865-525-1393
Email: whalenlaw@bellsouth.net

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