Case Document 1 Filed 12/07/16 Page 1 of 13 TN THE UNITED STATES DISCTRICT COURT FOR THE DISTRICT OF WESTERN TEXAS AUSTIN DIVISION JUSTIN SCOTT, PLAINTIFF v. CIVIL ACTION NO. 16-1287 CITY OF AUSTIN AND JURY DEMANDED OFFICER GREGORY WHITE, DEFENDANTS ORIGINAL COMPLAINT TO THE HONORABLE COURT: Plaintiff JUSTIN SCOTT brings this action against Defendant City of Austin (the "City") and Defendant Of?cer Gregory White ("Officer White", and collectively with the City, "Defendants"), for injuries and damages resulting to Plaintiff, pursuant to 42 U.S.C. 1983 and 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. Plaintiff complies with the pleading requirements of Fed. R. Civ. P. and the requirements of Ashcroft v. Iqbal, 556 US. 662, 678 (2009), that claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." I. PARTIES 1.1 Plaintiff JUSTIN SCOTT is a citizen of the United States and a resident of Travis County, Texas. 1.2 Defendant City of Austin is a municipal corporation located within the boundaries of the Austin Division Of the Western District of Texas. Defendant City of Austin can be served Case 1:16-cv-01287-RP Document 1 Filed 12/07/16 Page 2 of 13 through the Interim City Manager, Elaine Hart, at 301 West 2nd Street, 3rd Floor, Austin, Texas 78701. 1.3 Defendant Of?cer Gregory White is and was at all times relevant to this cause of action a duly appointed and acting of?cer of the Austin Police Department. Defendant Officer Gregory White can be served at his place of business, Austin Police Department Headquarters, 715 East 8th Street, Austin, Texas 78701. 11. JURISDICTION AND VENUE 2.1 Plaintiff brings these claims pursuant to 42 U.S.C 1983 and 1988, and these statutes provide jurisdiction over Plaintiffs constitutional claims for redress, which are conferred on this Court by 28 U.S.C. ?l343(a)(3). 2.2 Federal question jurisdiction is conferred on this Court by 28 U.S.C. 1331, because this action arises under the Constitution and laws of the United States. 2.3 This Court has supplemental jurisdiction over all other claims asserted under the laws of the State of Texas, pursuant to 28 U.S.C. ?1367(a). 2.4 This Court has personal jurisdiction over Defendant Of?cer Gregory White, as he resides in and works in the Western District of Texas. 2.5 This Court has personal jurisdiction over Defendant City of Austin, as it is a political subdivision of the State of Texas, located within the boundaries of the Austin Division of the United States District Court for the Western District of Texas. 2.6 Venue is proper in the Western District of Texas, Austin Division, as this is the district where the claim arose in accordance with 28 U.S.C. 1391 DUTY AND LAW APPLICABLE Case Document 1 Filed 12/07/16 Page 3 of 13 3.1 Plaintiff JUSTIN SCOTT was subjected to excessive force in violation of the rights guaranteed to him by the Fourth and Fourteenth Amendments of the United States Constitution and by 42 U.S.C. 1983, and 1988. 3.2 Plaintiff pursues this action pursuant to 42 U.S.C. 1983, which provides in relevant part for redress for every person within the jurisdiction of the United States for the deprivation, under color of state law, of any rights, privileges, or immunities secured by the Constitution and laws of the United States. 3.3 Defendant Of?cer White was acting under color of law and is liable under 42 U.S.C. 1983. IV. FACTS 4.1 On or about February 20, 2015, in the city of Austin, Texas, Austin Police Sergeant Gregory White violated the Plaintiff?s civil rights. Plaintiff, Justin Scott, was at the time of the events which are the subject matter of this claim, a resident of this district. 4.2 Plaintiff has satis?ed all prerequisites to suit speci?ed by the Texas Tort Claims Act, VTCA Civil Practice and Remedies Code 101.101 for each claim in this complaint to which these laws apply. 4.3 The City had actual notice of the injury due to a complete statement of claim which was delivered to the City of Austin Law Department and the Austin Police Department. 4.4 On the morning of February 20, 2015 Justin Scott was standing on the sidewalk on Wheless Lane, Austin. Being homeless Mr. Scott was simply occupying a space on a public sidewalk, he was not interfering with other members of the public, he was not engaged in soliciting other members of the public for money and he was not otherwise engaged in illegal activity. Case Document 1 Filed 12/07/16 Page 4 of 13 4.5 At or around 10:00 am. Mr. Scott was approached by Of?cer White. Defendant Of?cer White was responding to a report of a suspicious person, the report clearly identi?ed the suspicious individual as a black female. 4.6 Plaintiff Justin Scott is a Caucasian male. 4.7 At no time did Justin Scott do anything to give the Defendant Of?cer White reasonable suspicion to believe he committed a crime. 4.8 Upon approaching Mr. Scott, Defendant Of?cer White began to interrogate him in regards to his reason for being on the sidewalk, but also asked Mr. Scott about the other person that he supposedly was with. 4.9 Mr. Scott was not then, nor was he prior, accompanied by anyone else. 4.10 Confused by Defendant Of?cer White?s questions, Mr. Scott asked Of?cer White why he had stopped to speak with him. Of?cer White ignored Mr. Scott?s questions and continued with his interrogation. 4.11 At no time during this conversation did Mr. Scott make any threatening statements or movements. 4.12 Suddenly, without provocation, Of?cer White grabbed Mr. Scott?s hand and arm. Defendant Of?cer White then began twisting and applying force to Plaintiffs arm, hand and shoulder. Defendant Of?cer White then cold-cocked Plaintiff?s head with his elbow, thereafter proceeding to repeatedly violently punch, elbow, taser and knee the Plaintiff. Defendant Of?cer White threw Mr. Scott to the pavement and violently stuck him repeatedly in the head, neck and body. The Taser discharges resulted in multiple electrical charges very near Mr. Scott?s heart. Because of this Mr. Scott suffered episode of increased heart rate and injury to his body and mental status. Case Document 1 Filed 12/07/16 Page 5 of 13 4.13 The violent assault ?nally ended when back-up of?cers arrived at the scene. 4.15 After the assault Justin Scott was placed under arrest for assault on a public servant, resisting arrest and taking a weapon from an officer. 4.16 Mr. Scott was then taken to University Medical Center, Brackenridge for the treatment of injuries received from Defendant Of?cer White?s assault. 4.17 On August 18, 2015, upon his attomey?s motion, the criminal charges ?led against Mr. Scott were dismissed by the Honorable P. David Wahlberg, Judge presiding, In the 167th Judicial District Court of Travis County, Texas. 4.18 Since no response to the claim was received from the Defendant City of Austin, Plaintiffs counsel on 11.09.2016 made a ?nal attempt at a dialog with the City of Austin through a letter sent to Ms. Megan Riley of the City?s legal department. At the time of the ?ling of this Complaint, neither Plaintiff nor his attorneys have received a response from any representative of the City. 4.19 Plaintiff suffered and suffers from physical injuries, extreme injuries, mental anguish, humiliation, trauma, and the indignity of being subjected to a violent beating and excessive force by law enforcement of?cers as a result of the use of force by Of?cer White and the City's inadequate policies, practices and customs without any reasonable justi?cation. V. 42 U.S.C. 1983 Fourth Amendment 5.1 Each Paragraphs of this Complaint is incorporated as if restated fully herein. 5.2 As described in the preceding paragraphs, the Defendant Of?cer White violated Plaintiffs Fourth Amendment right to be free from unreasonable search and seizure. Case Document 1 Filed 12/07/16 Page 6 of 13 5.3 As described in the preceding paragraphs, the Defendant Of?cer White violated Plaintiffs Fourth Amendment right in that they seized Plaintiff without justi?cation and without probable cause and conducted and illegal search of his body. 5.4 The misconduct described in this Count was objectively unreasonable and was undertaken intentionally with willful indifference to Plaintiffs constitutional rights. 5.5 The misconduct described in this Count was undertaken with malice, willfulness, and reckless indifference to the rights of others. 5.6 The misconduct described in this Count was undertaken by Defendant Of?cer White within the scope of his employment and under color of law such that his employer, City of Austin, is liable for his actions. 5.7 As a result of the unreasonable conduct of the Defendant Of?cer White, Plaintiff has suffered injuries, including emotional distress, physical injuries, extreme injuries, mental anguish, humiliation, trauma, and the indignity of being subjected to a beating and excessive force by law enforcement of?cers. VI. 42 U.S.C. 1983 Due Process 6.1 Each Paragraphs of this Complaint is incorporated as if restated fully herein. 6.2 As described more fully above, Defendants denied Plaintiff due process of law in that they engaged in arbitrary government action that deprived him of his liberty, violated his right to bodily integrity, and was so malfeasant as to shock the conscience. 6.3 The misconduct described in this Count was undertaken with malice, willfulness, and reckless indifference to the rights of others, and was objectively unreasonable. Case Document 1 Filed 12/07/16 Page 7 of 13 6.4 The misconduct described in this Count was undertaken by Defendant Of?cer White within the scope of his employment and under color of law such that their employer, City of Austin, is liable for his actions. 6.5 As a result of the unjusti?ed and unreasonable conduct of the Defendant Of?cer White, Plaintiff has suffered injuries, including emotional distress, physical injuries, extreme injuries, mental anguish, humiliation, trauma, and the indignity of being subjected to a beating and excessive force by law enforcement o?icers. VII. 42 U.S.C. 1983 False Arrest 7.1 Each Paragraphs of this Complaint is incorporated as if restated ?illy herein. 7.2 As described more fully above, Defendants denied Plaintiff due process of law in that they falsely arrested and unlawfully detained Plaintiff without justi?cation and without probable cause. 7.3 The misconduct described in this Count was undertaken with malice, willfulness, and reckless indifference to the rights of others, and was objectively unreasonable. 7.4 The misconduct described in this Count was undertaken by Defendant Of?cer White within the scope of his employment and under color of law such that their employer, City of Austin, is liable for his actions. 7.5 As a result of the unjusti?ed and unreasonable conduct of the Defendant Officer White, Plaintiff has suffered injuries, including emotional distress, physical injuries, extreme injuries, mental anguish, humiliation, trauma, and the indignity of being subjected to a beating and excessive force by law enforcement of?cers. 42 U.S.C. 1983 Excessive Force, Wrongful Arrest and Imprisonment Case Document 1 Filed 12/07/16 Page 8 of 13 8.1 Each Paragraphs of this Complaint is incorporated as if restated fully herein. 8.2 As described more fully herein Of?cer White?s excessive, inappropriate, and improper use of force -by beating and tasing Plaintiff was a proximate cause of Plaintiffs injuries and damages. Of?cer White?s excessive use of force caused Plaintiff to suffer physical and injuries as well as the pain and suffering resulting from those injuries. Plaintiffs injuries resulted directly from the use of force, and the excessiveness of that use of force was unreasonable. 8.3 The Fourth Amendment of the United States Constitution guarantees each citizen the right to be free from ?unreasonable searches and seizures?. Mr. Scott?s Fourth Amendment right was violated when he was seized by Defendant Of?cer White without reasonable suspicion or lawful warrant. Said seizure was effected with a clear excess of force, which ultimately caused such severe injuries that Mr. Scott required emergency medical treatment. 8.4 The Fourth Amendment of the United States Constitution guarantees each citizen protection against unlawful arrest. Mr. Scott?s Fourth Amendment right in regards to this protection was violated when, without reasonable suspicion, Mr. Scott was approached, apprehended, placed under arrest by Defendant Of?cer White and continuously incarcerated for approximately 176 days. The absence of reasonable suspicion is evidenced by the recorded 911 call which prompted Defendant Of?cer White?s investigation of the proximate area in which he came upon Mr. Scott. The illegality of the. arrest was con?rmed by the criminal court that dismissed the charges against Mr. Scott. 8.5 After the assault by Defendant Of?cer White, Mr. Scott was incarcerated for a period of approximately 176 days, this loss of liberty was a violation of Mr. Scott?s Fourth Amendment protection against wrongful arrest and imprisonment. Case 1:16-cv-01287-RP Document 1 Filed 12/07/16 Page 9 of 13 8.6 The misconduct described in herein was undertaken with malice, willfulness, and reckless indifference to the rights of others, and was objectively unreasonable. 8.7 The misconduct described in this Count was undertaken by Defendant Of?cer White within the scope of his employment and under color of law such that their employer, City of Austin, is liable for his actions. 8.8 As a result of the unjusti?ed and unreasonable conduct of the Defendant Of?cer White, Plaintiff has suffered injuries, including emotional distress, physical injuries, extreme injuries, mental anguish, humiliation, trauma, and the indignity of being subjected to a beating and excessive force by law enforcement of?cers. 8.9 The acts and omissions of Defendants on the occasion in question were unreasonable, unconscionable, deliberately indifferent, and were the proximate and producing cause of the injuries, aggravation of injuries, damages, and aggravation of damages sustained by Plaintiff. Defendants are liable to Plaintiff under 42 U.S.C. 1983 for violating Plaintiff?s constitutional rights under the Fourth and Fourteenth Amendments and his federal rights under 1983 and 1988. 8.10 The City is liable to Plaintiff under 42 U.S.C. 1983 because its inadequate policies, inadequate training, inadequate hiring practices, and its established customs and/or practices constituted a deliberate indifference to the deprivation of constitutional rights in this case and in similar prior cases and acted as the moving force for Of?cer White's use of excessive force against Plaintiff. These inadequate policies, customs, and/or practices include: An inadequate policy for preventing use of force violations by its police of?cers; An inadequate training program for training its officers in the proper use of force; Case 1:16-cv-01287-RP Document 1 Filed 12/07/16 Page 10 of 13 An inadequate hiring policy in that it failed to screen out potential of?cers who presented a plainly obvious risk of committing use of force violations; An inadequate disciplinary policy in that it failed to adequately punish of?cers who committed excessive force violations. An inadequate disciplinary policy in that it failed to adequately punish of?cers who committed excessive force violations on individuals like the Plaintiff. 8.11 Together with of?cials from the City of Austin, Chief of Police Art Acevedo is or was the official policymaker for the Austin Police Department with regard to all policies relevant to the deprivation of Plaintiffs constitutional and federal rights. 8.12 The acts and omissions of the City were a proximate cause of Plaintiffs injuries and damages. IX. DAMAGES 9.1 Defendants' acts and omissions, as set out above, were proximate causes of Plaintiffs injuries and damages. These damages are far in excess of the minimum jurisdictional amount for this Court and are most probably in excess of a million dollars. Medical care and treatment, past and future, as well as the other elements of damages provided by the law such as mental anguish, loss of enjoyment of life and the other elements of damages recognized by our law are recoverable by Plaintiff. Mr. Scott suffered, and continues to suffer from, signi?cant physical and emotional injuries due to the violent beating in?icted upon him by Defendant Of?cer White. As such Mr. Scott seeks compensatory and punitive damages against Of?cer White for his physical and emotional injuries as well as the loss of liberty suffered due to the wrongful arrest. X. EXEMPLARY DAMAGES 10 Case 1:16-cv-01287-RP Document 1 Filed 12/07/16 Page 11 of 13 10.1 In conjunction with all of the foregoing, the conduct of Of?cer White justi?es an award of punitive and exemplary damages against Of?cer White individually due to his extreme, outrageous, and unjusti?able conduct. Of?cer White acted with malice and acted intentionally, recklessly, and with deliberate or callously or conscious indifference to the deprivation of Plaintiff constitutionally protected rights when he used excessive force, on February 20, 2015, when Mr. Scott was injured, arrested and imprisoned. 10.2 The Plaintiff asks that the jury determine the proper amount to be determined as exemplary damages. XI. FEES 11.1 Plaintiff has had to retain the services of attorneys to represent him in this complex proceeding and cause of action. Plaintiff has retained the undersigned attorneys to represent him, and pursuant to 42 U.S.C. 1988(b) of the Federal Civil Rights Act, he is entitled to recover his reasonable and necessary fees, as well as the reasonable and necessary expenses in pursuit of this claim -at the trial level, the Court of Appeals level if this case is appealed to that court, and in the Supreme Court of the United States, if necessary. XII. PRESERVATION OF EVIDENCE 12.1 Plaintiff requests and demand that all Defendants in this case retain, preserve, and protect from loss, damage, discard, or destruction all physical, written or electronic items that are, or may be, evidence of the incident above described, which may form the basis of this Complaint including, but not limited to, video, recorded statements, photographs, e-mails, text messages, and personal or of?cial notes made by any of the Of?cers or the City. JURY DEMAND 13.1 Plaintiff respectfully demands a trial by jury. 11 Case Document 1 Filed 12/07/16 Page 12 of 13 PRAYER Plaintiff asks for judgment against Defendants and prays for: trial by jury on all issues triable to a jury; judgment against Defendants, jointly and severally, on behalf of the Plaintiff for actual damages pursuant to 42 U.S.C. 1983; statutory and reasonable attorney fees pursuant of 42 U.S.C. 1988(b) of Federal Civil Rights Act, pre-judgment interest, post-judgment interest, and all of their costs herein expended; judgment against Defendants in favor of the Plaintiff for actual damages; (6) judgment against Of?cer White in favor of Plaintiff for exemplary damages; and (0 any such other and further relief to which the Plaintiff may show himself to be justly entitled. Filed this I day of S) 3C1 2016 Respectfully submitted, Scott lsNasquelz TSB: 20502675 501 North IH-35 Austin, Texas 78702 (512) 975-8300 (512) 992-0498 (Fax) ssvasquez@icloud.com ATTORNEY FOR PLAINTIFF 12 Case 1:16-cv-01287-RP Document 1 Filed 12/07/16 Page 13 of 13 Hae- 12.97 18 44 (Rev. 08t16) CIVIL COVER SHEET The .15 44 civil cover sheet and the information contained herein neither re lace nor supplement the ?ling and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Con erence of the United States 1n September 1974, 15 required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. PLAINTIFFS Justin Scott County of Residence of First Listed Plaintiff Travis (EXCEPTIN U.S. PLAINTIFF DEFENDANTS City of Austin County of Residence (C) Attorneys (Firm Name, Address. and Telephone Number) Scott S. Vasquez 501 N. lH?35 Austin, Texas 78702 (512)975-8300 NOTE: THE TRACT Attorneys (HKnon'n) of First Listed Defendant Travis (IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES. USE THE LOCATION OF OF LAND INVOLVED. II. BASIS OF JURISDICTION {Pittman in OneBox Onfy) U.S. Govemment Plaintiff 2 U.S. Government Defendant 3 Federal Question Government Not a Part?) 4 Diversity (Indicate Citizenship of Parties in Item IV. NATURE OF SUIT (Place an in One Box Univ) (For Diversity Cares Univ) CITIZENSHIP OF PRINCIPAL PARTIES (Place an in One Box for Planing and 0m: ox for Defendant) PTF DEF PTF DEF Citizen ofThis State Incorporated or Principal Place 4 4 ofBusincss In This State Citizen of Another State 2 2 Incorporated and Principal Place 5 5 of Business In Another State Citizen or Subject ofa 3 3 Foreign Nation 6 6 Foreign Countrv of Veteran?s Bene?ts 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise DDCIEI CI I ?Rmm.aessw? 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury - Medical Mal?tice 210 Land Condemnation 220 ForecIOSure 230 Rent Lease Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property CIVIL RIGHTS. or 440 Other Civil Rights 441 Voting 442 Employment 443 Housing] Accommodations 445 Amer. waisabiIities - Employment 446 Amer. w/Disabilities - Other 448 Education 370 Other Fraud Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus 8: Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee - Conditions of Con?nement 625 Drug Related Seizure ofProperty 21 use 881 WW 422 Appeal 23 use 158 423 Withdrawal 23 use 820 Copyrights 830 Patent 840 Trademark CONTRACE- 110 Insurance PERSONAL INJURY PERSONAL INJURY 120 Marine 310 Airplane 365 Personal Injury - 130 Miller Act 315 Airplane Product Product Liability 690 Other 140 Negotiable Instrument Liability 367 Health Card 150 Recovery of Overpayment 320 Assault. Libel Pharmaceutical Enforcement of Judgment Slander Personal Injury l5! Medicare Act 330 Federal Employers? Product Liability I52 Recovery of Defaulted Liability 368 Asbestos Personal Student Loans 340 Marine Injury Product (Excludes Veterans} 345 Marine Product Liability 153 Recovery ovaerpayment Liability PERSONAL PROPERTY Act T20 Labort?Managcment Relations 740 Railway Labor Act 75I Family and Medical Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act IMMIGRATION 462 Naturalization Application 465 Other Immigration Actions . 1m 710 Fair Labor Standards 862 Black Lung (923) 863 (405(g)) 864 SSID Title XVI 865 RSI (405(9) - FEDERALTAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 37I IRS?Third Party 26 USC 7609 noun non no 375 False Claims Act 376 Qui Tam (31 USC 3729(a)) 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 47'0 Racketeer In?uenced and Corrupt Organizations 480 Consumer Credit 490 CabldSat TV 850 Securitiestommoditicsf Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure AcUReview or Appeal of Agency Decision 950 Constitutionality of State Statutes V. ORIGIN (Place an in One Box Only) 1 Original Proceeding VI. CAUSE OF ACTION 2 Removed from State Court 3 Remanded from Appellate Court 4 Reinstated or Reopened 5 Transferred from Another (spect?) Cite the U.S. Civil Statute under which you are ?ling (Do not circjurirdicn?ona! statutes unless diversity): 42 USC. Sec. 1983 and 1988 Brief description of cause: . . Excesswe Force and Violation of Rights Transfer 6 Muitidistrict Litigation- 8 Muitidistrict Litigation - Direct File VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND 3 CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23. JURY DEMAND: 21 Yes No v11]. RELATED IF ANY JUDGE DOCKET NUMBER DATE SIGNATURE or ATTORNEY OF RECORD 121072016 Isl Scott S. Vasquez FOR OFFICE usc ONLY RECEIPT a AMOUNT APPLYING IFP JUDGE MAG. JUDGE