2017-44946 / Court: 165

7/7/2017 11:52 AM
Chris Daniel - District Clerk Harris County
Envelope No. 18052895
By: Nelson Cuero
Filed: 7/7/2017 11:52 AM

NO. _________________
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Plaintiff,
V.
HOUSTON POLICE DEPARTMENT,
CITY OF HOUSTON and individually,
KEVIN HUBENAK
Defendants.

IN THE DISTRICT COURT

_____ JUDICIAL
DISTRICT

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LARRY MOORE, JR.

OF HARRIS COUNTY, TEXAS

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PLAINTIFF’S ORIGINAL COMPLAINT AND DEMAND FOR JURY TRIAL

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NOW COMES Plaintiff, LARRY MOORE, hereinafter referred to as (“Plaintiff”), and by and

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through their attorney, Andre D. Evans of Andre Evans & Associates, PLLC., files this Original

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Complaint complaining of Defendants The City of Houston, Houston Police Department

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(“HPD”) and Officer KEVIN HUBENAK, hereinafter collectively referred to as (“Defendants”)

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and for causes of action, would respectfully show unto the Court and jury the following:

I.

PRELIMINARY STATEMENT

Early in the afternoon of July 7, 2015, Larry Moore, was violently beaten, harassed,

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“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 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.1”

taunted, wrongfully arrested and denied medical attention. Houston Police Department Officer
HUBENAK used excessive force, and his fellow Houston Police Officers acted in concert while
violating the constitutionally protected rights of Mr. Moore.
                                                        
1
 42 U.S.C. § 1983 (emphasis added).
Plaintiff’s Original Petition and Request for Disclosure

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 II.

PARTIES

2.

Plaintiff Larry Moore, is an individual who resides in HPD County, Texas.

3.

Defendant CITY OF HOUSTON is a Governmental Entity and political subdivision of

the State of Texas. At all times material to the claims set forth herein, Mayor Anise Parker

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(hereinafter “Mayor Parker”) was the top elected official of the City of Houston and its top
policymaker for the City of Houston, along with members of the City Council.
4.

Defendant HOUSTON POLICE DEPARTMENT is a Governmental Agency, was and is

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and agency, department and/or subdivision of the City of Houston organized and existing

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pursuant to the laws of the State of Texas, engaged in the hiring, training and supervision of law

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Defendant Officer KEVIN HUBENAK, sued in their individual capacities, at all times

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enforcement/corrections officers.

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Defendants John and Jane Doe, sued in their individual capacities, at all times acted

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acted under color of law, and was employed by Defendant Houston Police Department.

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under color of law, and were employed by Defendant Houston Police Department and City of

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One or more of the individual Defendants had supervisory responsibilities with respect to

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Houston.

At all times material to the claims set forth herein, Charles A. McClelland, Jr. (hereinafter

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individual Defendants, and with respect to operations of the Houston Police Department.

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“Chief McClelland”) was the director of the Houston Police Department and was responsible for
the oversight of the Houston Police Department, the development, promulgation, and
implementation of policies, procedures and standards for the Houston Police Department.
Specifically, McClelland is the chief policymaker for the Houston Police Department and was
directly responsible for the operations of the Houston Police Department and all of its officers,

Plaintiff’s Original Petition and Request for Disclosure

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 including those named herein.
9.

The Houston Police Department is responsible for, among other things, development,

promulgation, and implementation of policies and procedures and standards for the Houston
Police Department and more specifically policies, procedures and standards relating to the use of

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force, arrest, internal affairs investigations, discipline and overall conduct of officers working at
the Houston Police Department.
10.

The City of Houston funds and operates the Houston Police Department, which, along

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with the Houston City Controller’s Office, is responsible for the implementation of the police

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department’s budget, policies, procedures, practices and customs, as well as the acts and

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omissions, challenged by this suit. The Houston Police Department is also responsible for

Defendant City of Houston is the employer of individual Defendant KEVIN HUBENAK,

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preventative investigative, and enforcement services for all citizens of the City of Houston.

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and other unknown employees (“John and Jane Doe”) defendants and is responsible for the acts

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and/or omissions of same that were performed in the course and scope of their employment for

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JURISDICTION, VENUE, AND BASIS FOR RELIEF

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III.

Jurisdiction exists under 28 U.S.C. §§ 1331 & 1343 since Plaintiff is suing for relief

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reasons set forth herein.

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under 42 U.S.C. § 1983. This Court has jurisdiction over Plaintiff’s other claims under

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principles of pendent, ancillary and supplemental jurisdiction under 28 U.S.C. § 1367.
Venue is appropriate in this District, since the events complained of occurred in this

District and this Division pursuant to 24 U.S.C. § 1391.
14.

For violations of his federal constitutional rights, Plaintiff is entitled to the requested

relief against all Defendants and their employees because at all relevant times herein, their

Plaintiff’s Original Petition and Request for Disclosure

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 conduct was subject to 42 U.S.C. §§ 1983, 1985, 1986 and 1988.
IV.
15.

ACTS OF AGENTS

Whenever in this petition it is alleged that Defendant entities performed any act or thing,

it is meant that the Houston Police Department and the City of Houston through their agents,

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servants, employees, or representatives performed such act or thing and at the time such act or
thing was done, it was done with the full authorization or ratification of the Defendants and was

Department or the City of Houston as the facts may show.

On or about July 7, 2015, Larry Moore was driving his vehicle, travelling westbound in

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FACTS

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done in the normal and routine course and scope of employment with the Houston Police

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the 5600 block of Mykawa Rd. In the car with him was passenger Michael Brooks, who was

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Officer KEVIN HUBENAK (employee no. 133964), and his partner, who’s name and

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riding in the front passenger seat.

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title is unknown, were assigned to a Crime Reduction Task Force. At approximately 1940 hours,

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Officer KEVIN HUBENAK initiated a traffic stop of Larry Moore’s vehicle, purportedly for a

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defective tail light. Mr. Moore complied, pulling his vehicle over near the entrance of the Fiesta

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Mart located at 5600 Mykawa Rd, and Officer HUBENAK parked his patrol car directly behind

Officer HUBENAK approached the driver side of the vehicle while his partner

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Mr. Moore’s vehicle.

approached the passenger side.
19.

Officer HUBENAK instructed Mr. Moore to step out of the vehicle while Officer

HUBENAK’s partner instructed Michael Brooks to step out of the vehicle. Mr. Moore and Mr.
Brooks complied.

Plaintiff’s Original Petition and Request for Disclosure

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 20.

While Mr. Moore was talking with Officer HUBENAK, an argument was overheard

between Mr. Brooks and officer HUBENAK’s partner.
21.

Shortly thereafter, Mr. Brooks ran from officer HUBENAK’s partner but was

subsequently arrested after a foot pursuit.

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HPD OFFICERS VIOLENTLY ASSAULTED MR. MOORE
After Mr. Brooks ran from the scene, officer HUBENAK suddenly and violently body

slammed Mr. Moore on his neck, head and face, causing him to go into a brief state of shock, as

Once Mr. Moore regained consciousness, he felt that he had a handcuff on one of his

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well as a severe laceration and extreme swelling.

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wrists and observed officer HUBENAK punching him in the face and body. Officer HUBENAK

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Officer HUBENAK stopped assaulting Mr. Moore only when witnesses who were

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then began kicking Mr. Moore.

After Officer HUBENAK fully handcuffed Mr. Moore, he placed his boot on Mr. Moore

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walking to and from Fiesta Mart started yelling for him to stop beating Mr. Moore.

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head, so forcefully that it left a dirt boot print in Mr. Moore’s hair. The boot print stayed in Mr.

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Moore’s hair until a member of Ben Taub Hospital’s staff removed it. After Officer HUBENAK

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saw the injuries to Plaintiff’s face, he enlisted a security guard to detain Plaintiff in the same

At the time of the assault, Mr. Moore was not attempting to evade or resist arrest, or

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manner in which he was detaining him, with a boot.

otherwise harm any person.
27.

Mr. Moore sustained a blood clot in his face and Mr. Moore’s face still has not returned

to its original condition. Below are photographs of Mr. Moore taken hours after his arrest.

Plaintiff’s Original Petition and Request for Disclosure

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When Mr. Moore was handcuffed and before he was placed into the backseat of the

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HPD OFFICERS CONFISCATED MR. MOORE’S CELL PHONE AND TOWED
HIS VEHICLE

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patrol car, his cell phone was in his pants pocket.

Mr. Moore’s cell phone was removed from his pocket during a search of his person.

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When Mr. Moore, who was not arrested and was released from custody, asked the HPD

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officers on the scene to return his phone back into his pocket, Officer HUBENAK said “no” and

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threw his phone inside of Mr. Moore’s vehicle, which he knew would be subsequently towed and

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kept at a storage lot.

Mr. Moore plead with them to give him his phone so that he could contact his family

upon release. The HPD officers displayed an insulting indifference and refused to return Mr.
Moore’s cell phone.
32.

Because the unknown HPD Officers refused to return Mr. Moore’s phone to its original

location, Mr. Moore was unable to use or access his phone for several days, although he was

Plaintiff’s Original Petition and Request for Disclosure

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 released. Although Mr. Moore was eventually released from police custody, his vehicle was not
released to him.
MR. MOORE WAS RIDICULED AND DENIED IMMEDIATE MEDICAL
TREATMENT
After the assault, Mr. Moore was placed into the back of an HPD patrol car. Mr. Moore

was left in the patrol car for approximately two (2) hours.
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33.

To exacerbate the physical pain Mr. Moore was experiencing, he was forced to listen as

other HPD officers on the scene praised officer HUBENAK for the severity of the injuries he

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caused Mr. Moore. While Mr. Moore was in the backseat of the patrol car, he heard officers

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laughing and joking about how hideous his face looked. The unknown HPD Officers

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congratulated officer HUBENAK as if he were in a competition to see who could inflict the most

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Despite Mr. Moore’s several requests for an ambulance, no one called an ambulance to

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harm.

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the scene to assess and treat Mr. Moore’s injuries. Mr. Moore’s injuries were:

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c. in need of medical attention; and

Instead, Mr. Moore was transported to HPD Central Jail, where he was refused

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d. severe.

admittance due to his “blunt facial trauma.”
37.

The medical examiner at the jail instructed the transporting officer to take Mr. Moore to

Ben Taub Hospital for immediate treatment.
38.

The transporting officer was instructed not to arrest Mr. Moore by:
a. an HPD supervisor; or

Plaintiff’s Original Petition and Request for Disclosure

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 b. an HPD Officer.
39.

Mr. Moore was transported to Ben Taub Hospital in a HPD patrol car driven by another

HPD officer who was instructed by an HPD sergeant to transport him to the hospital in the patrol
car.
Although Mr. Moore was not under arrest, Mr. Moore was transported to Ben Taub

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Hospital in handcuffs. Mr. Moore did not request to be transported to Ben Taub Hospital.
OFFICER HUBENAK REFUSED TO ANSWER QUESTIONS OR GO TO BEN
TAUB DESPITE THE HOSPITAL’S REQUEST

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After being transported to Ben Taub Hospital, Mr. Moore was treated by Dr. J. Wuhantu.

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While treating Mr. Moore, Dr. Wuhantu had several questions regarding the cause of Mr.

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Moore’s injuries. Dr. Wuhantu asked the transporting officer what happened and the

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transporting officer stated that he did not know and that Mr. Moore already had the injuries when

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he arrived on the scene. Dr. Wuhantu later asked if Mr. Moore was under arrest and the

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transporting officer replied “no.” Dr. Wuhantu then asked then “why is he in handcuffs” and

Dr. Wuhantu then asked the transporting officer to contact the officer responsible for Mr.

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instructed the officer to remove the handcuffs.

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Moore’s injuries and tell him to come to the hospital to answer questions about Mr. Moore’s

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injuries. Officer HUBENAK refused to report to the hospital or answer any questions about how

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Mr. Moore received his injuries.
IN ATTEMPT TO PROTECT THE DEPARTMENT HPD OFFICERS
LIED TO JUSTIFY THEIR MISCONDUCT

43.

Officer HUBENAK knew that he wrongfully used excessive force against an innocent

man and in an attempt to justify his actions, stated that he was trying to “protect” Mr. Moore.
44.

At no time did Officer HUBENAK allege that Mr. Moore ever attempted to evade or

Plaintiff’s Original Petition and Request for Disclosure

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 resist arrest.
45.

Officer HUBENAK and another unknown HPD officer, the same officer who transported

Mr. Moore to the hospital, engaged in a conspiracy to cover up Officer HUBENAK’s use of
excessive and unreasonable force.

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MR. MOORE WAS LATER CHARGED FOR POSSESSION OF MARIJUANA
Mr. Moore was later charged and arrested for violating Texas Penal Code § 481.121,

“Possession of Marijuana.” A violation under this statute is a state jail felony.

Mr. Moore bonded out of custody before his arrest, and subsequently hired a criminal

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Mr. Moore has consistently maintained his innocence and Mr. Brooks consistently

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defense attorney to assert his innocence, both causing Mr. Moore financial hardship.

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admitted that the marijuana found in the truck belonged to him and that Mr. Moore was not

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Officer HUBENAK lied and stated that he found the drugs in the center console,

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aware of the drugs.

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although according to Michael Brooks, the owner of the drugs, they were hidden in the back of

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the truck underneath the passenger seat.

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At the scene of the arrest, there was at least one HPD sergeant present. The HPD sergeant

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SUPERVISORS WITHIN HPD WERE AWARE OF
THE FABRICATED CHARGES

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either assisted in the false arrest and imprisonment of Mr. Moore, or failed to prevent his/her
subordinate officers from doing so.
51.

Despite the drug being found in the immediate possession of the passenger seat, Mr.

Brooks admitting to ownership of the marijuana and informing the arresting officers the Mr.
Moore was not aware of the drugs, HPD failed to drop the charges against Mr. Moore.

Plaintiff’s Original Petition and Request for Disclosure

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 52.

While at the City of Houston Jail, Mr. Moore made HPD sergeants, as well as other City

of Houston employees, were made aware of the excessive force used against him. However, no
actions were taken to investigate the allegations made by Mr. Moore, specifically, no City of
Houston employees instructed Mr. Moore on how to file a formal complaint. Mr. Moore was

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under the impression that he filed a formal complaint when he informed an HPD sergeant of the
actions of an HPD officer.
53.

Therefore, the deprivation of Mr. Moore’s federal rights was proximately

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caused by the customs, policies and practices of the Houston Police Department, or alternatively,

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were a moving force behind Plaintiff’s injury. Undoubtedly, it was the policies, practices and

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customs of the Houston Police Department that prolonged the deprivation of Mr. Moore’s federal

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rights.

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As a direct and proximate result of the brutal assault, denial of medical treatment and

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MR. MOORE SUFFERED SIGNIFICANT PAIN AND ANGUISH

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conversion of personal property, Mr. Moore suffered significant pain and mental anguish. In

The harm suffered by Mr. Moore is exacerbated by the fact that the fabricated, yet

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addition, the pain in Mr. Moore’s face is chronic and excruciating.

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heinous felony charge on his criminal record is available to the public. HPD’s morally destitute

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and malevolent action does not simply exacerbate Mr. Moore’s pain and anguish, it also prolongs

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it. Mr. Moore, who considers himself a man of pride and integrity, has to live knowing that a
felony charge, which paints him as a criminal, and serves as a constant reminder of one of his
most traumatizing and humiliating moments is memorialized in the public domain due to the
actions, policies, customs and practice of the Houston Police Department. Mr. Moore states that
he has difficulty sleeping, recurring nightmares, migraines, hearing loss and sporadic feelings of

Plaintiff’s Original Petition and Request for Disclosure

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 rage due to the treatment he endured while being arrested by HPD officers. Mr. Moore also lost
his job due to his injuries and has been denied employment due to his pending felony charge.
VI.
56.

HARMS

The actions and inactions by individual Defendants, as well as the conditions of

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employment and policies, practices, and customs of Houston Police Department, actually and
proximately caused the following injuries and damages:
a.

Violations of his rights under the Fourth, Eighth, and Fourteenth Amendments to

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the Constitution;
Loss of physical liberty;

c.

Physical injuries, pain and suffering, extreme fear, emotional trauma;

d.

Permanent facial disfigurement;

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Humiliation,

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b.

loss

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opportunities,

The physical, psychological, and economical consequences of Defendants’ actions

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embarrassment and injury to reputation.

Upon information and belief, HUBENAK’s vehicle or person was equipped with a dash or

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continue to date, and upon information and belief, will continue into the future.

At the time of the assault, HUBENAK was in his HPD uniform and driving an HPD patrol

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body camera, which would have captured the entirety of the assault.

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vehicle. It is clear that Officer HUBENAK, while acting under color of his authority as a peace
officer, wrongfully body slammed, punched, kicked and wrongfully charged Mr. Moore, causing
him to sustain severe and permanent injuries.
VII.

COUNT 1: THE RIGHT TO BE FREE FROM EXCESSIVE FORCE PURSUANT
TO 42 U.S.C. § 1983 AND THE 4TH AMENDMENTS OF THE U.S.
CONSTITUTION (OBJECTIVE STANDARD)

Plaintiff’s Original Petition and Request for Disclosure

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 60.

Plaintiff re-alleges all of the allegations in the previous paragraphs, as though fully set

forth herein.
61.

At all times relevant hereto, the DEFENDANT HPD’S OFFICERS were acting under

color of state law, ordinance and/or regulation, statutes, custom and usages of the HPD. The

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DEFENDANT HPD’S OFFICERS were also acting in concert with one another.

DEFENDANT HPD’S OFFICERS acted under color of state law to deprive LARRY

MOORE of certain constitutionally protected rights under the Fourth Amendment to the

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Constitution of the United States, including, but not limited to (a) the right to be free from

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unreasonable searches and seizures, and (b) the right to be free from excessive use of force by

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Carefully balancing of the nature and quality of the intrusion on LARRY MOORE’s 4th

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persons acting under color of state law.

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Am. Interest against the countervailing governmental interest at stake, DEFENDANT HPD and

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its HPD OFFICERS, namely Officer K. Hubenak, used excessive force against LARRY

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MOORE, pursuant to Graham v. Connor, 490 U.S. 386, 395-96 (1989) – to wit:

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a. when Officer K. Hubenak body slammed, punched and placed his boot on the face and

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head of LARRY MOORE for a period up to five minutes in violation of his 4th/14th

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Amendment Right to be Free from Excessive Force; and

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b. enlisting a civilian security guard and allowing him to restrain LARRY MOORE by

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placing his boot on him.
DEFENDANT HPD and its OFFICERS’ use of force was objectively unreasonable in

light of the totality of the circumstances confronting the Officers, without regard to the Officers’
underlying intent or motivation2. Graham at 397. That is, when the excessive force was applied,
                                                        
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An Officer’s intent or subjective motivations may be considered by a fact-finder when evaluating the credibility of his
testimony. Graham at 399.

Plaintiff’s Original Petition and Request for Disclosure

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 there was no crime or serious crime at issue, LARRY MOORE did not pose an immediate threat
to the safety of the Officers or others, and did not actively or passively resist
custody/detention/arrest. And, the totality of the circumstances surrounding the above-described
excessive force and that gave rise to LARRY MOORE’s legal and constitutional resistance

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included the unjustifiable and unreasonable cussing, threatening, detaining, cuffing, arresting,
kicking, stepping on the face of LARRY MOORE, suffocating, and assisting in the injection of
LARRY MOORE by the DEFENDANT HPD’S OFFICERS – including Officer K. Hubenak.
DEFENDANT HPD and its HPD OFFICER – Officer K. HUBENAK used deadly force

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when he used his feet and a body-slam as a means of use of force when he had no probable cause

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to believe that LARRY MOORE posed a significant threat of death or serious physical injury to

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LARRY MOORE suffered “(1) an injury,” “(2) which resulted from the use of force that

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the Officer or others3.

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was clearly excessive to the need,” and “(3) the excessiveness of which was objectively

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HPD implicitly or explicitly adopted and implemented careless and reckless policies,

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MOORE, as described above.

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unreasonable” when Defendant Officer K. Hubenak used excessive force against LARRY

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customs, or practices. These included, among other things, allowing DEFENDANT HPD and

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its HPD OFFICERS, namely Officer K. Hubenak, to unconstitutionally and excessively use of

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force in violation of the United States Constitution.

                                                        
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Tennessee v. Garner, 471 U.S. 1, 3 (1985) (holding that “Where the suspect poses no immediate threat to the Officer and no
threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so;” and “that
the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally
unreasonable.); see also, Brockington v. Boykins, 637 F.3d 503 (4th Cir. 2011) (holding that it is unreasonable for an Officer to
continue shooting someone who is already incapacitated – i.e. an Officer may not continue to use deadly force once the threat
posed by a suspect has been eliminated); Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005) (holding that once the justification
for the initial use of force has been eliminated, a subsequent use of force is improper).

 
Plaintiff’s Original Petition and Request for Disclosure

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 68.

HPD failure to adequately train and supervise DEFENDANT HPD’S OFFICERS

amounted to deliberate indifference to LARRY MOORE’s rights to be free from excessive force
and unreasonable seizures under the Fourth and Fourteenth Amendments to the United States
Constitution.
HPD’s ratification and/or concealment of DEFENDANT HPD’S OFFICERS’ actions or

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69.

omissions amounted to deliberate indifference to LARRY MOORE’s rights to be free from
excessive force and unreasonable seizures under the Fourth and Fourteenth Amendments to the

What’s more, HPD’S continued adherence to an approach that they know or should

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United States Constitution.

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know has failed to prevent tortious conduct by employees establishes the conscious disregard for

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the consequences of their action—the “deliberate indifference”—necessary to trigger municipal

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DEFENDANTS’ conduct, actions, and/or inactions were the moving force, directly

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liability. Bd. of the County Comm'Rs v. Brown, 520 U.S. 397, 407 (U.S. 1997).

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caused, proximately caused, and/or were a substantial factor in causing the Constitutionally-

Plaintiff seek unliquidated damages within the jurisdictional limitations of this court.

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violative injuries sustained by LARRY MOORE and his damages, as set forth more fully below.

Plaintiff re-alleges all of the allegations in the previous paragraphs, as though fully set

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VIII. COUNT 2: THE RIGHT TO BE FREE FROM EXCESSIVE FORCE PURSUANT
TO 42 U.S.C. § 1983 AND THE 14TH AMENDMENTS OF THE U.S.
CONSTITUTION (SUBJECTIVE STANDARD)

forth herein.

Plaintiff’s Original Petition and Request for Disclosure

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 74.

Once an individual is taken into custody, he is considered a pre-trial detainee (also

referred to in cases as an “arrestee”)4. On the afternoon of July 7, 2015, LARRY MOORE was
taken into custody.
75.

Defendant HPD and its HPD OFFICERS, namely Officer K. Hubenak, “inflicted

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unnecessary and wanton pain and suffering5” – to wit:

a. when Officer K. Hubenak body slammed, punched, kicked and placed his boot over the
face, nose, and mouth of LARRY MOORE for a period up to three minutes in violation

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of his 4th/14th Amendment Right to be Free from Excessive Force; and

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b. enlisting a civilian security guard and allowing him to restrain LARRY MOORE by

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Defendant HPD and its HPD OFFICERS, namely Officer K. Hubenak’s, conduct was a

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placing his boot on him.

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Constitutionally-violative “infliction of unnecessary and wanton pain and suffering” in light of

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the following factors:

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a. the need for the application of force (use of feet and a body-slam as a means of use of

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above) was zero;

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b. the relationship between the need (protection from harm) and the amount of force that

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was used (use of a body-slam, punches and feet as a means of use of force as described

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above) was disproportionate as to be excessive,
c. the extent of injury inflicted was serious bodily harm, and
                                                        
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The Fourth Amendment no longer applies once the individual is subject to pre-trial detainment. Instead, a claim of excessive
force by a pre-trial detainee is governed by the Due Process Clause of the Fourteenth Amendment. Orem v. Rephann, 523 F.3d
442, 445-46 (4th Cir. 2008); Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997) (en banc)). Under the Due Process Clause, a pretrial
detainee has the right to be free from excessive force that amounts to punishment. Bell v. Wolfish, 441 U.S. 520, 534-37
(1979); Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989). When a detained individual is punished prior to an adjudication of
guilt, he is deprived of his liberty without due process of law and has a substantive due process claim. Johnson v. Glick, 481
F.2d 1028, 1032 (2nd Cir. 1973).
5
Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998).

Plaintiff’s Original Petition and Request for Disclosure

15

 d. the force applied was in bad faith or was maliciously and sadistically applied for the
very purpose of causing harm.6”
77.

What’s more, DEFENDANT HPD and its HPD OFFICERS, namely Officer K.

ignored a substantial risk of injury to LARRY MOORE.
78.

What’s more, DEFENDANT HPD and its HPD OFFICERS, namely Officer K. Hubenak,

subjectively recognized a substantial risk of harm.

What’s more, DEFENDANT HPD and its HPD OFFICERS, namely Officer K. Hubenak,

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79.

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Hubenak’s, conduct exhibited “Deliberate Indifference7” – Defendants actually knew of and

What’s more, DEFENDANT HPD and its HPD OFFICERS, namely Officer K. Hubenak,

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80.

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subjectively recognized that their actions were inappropriate in light of that risk.

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had actual knowledge of the risk of injury – the risk was so obvious that a fact-finder could

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conclude that “the Officer did know of it because he could not have failed to know of it.” Id.; see

What’s more, DEFENDANT HPD and its HPD OFFICERS, namely Officer K. Hubenak,

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81.

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also Farmer v. Brennan. 511 U.S. 825, 842 (1994).

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had actual knowledge of the inappropriateness of his response – it was “so patently inadequate”

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as to justify an inference that the Officer actually recognized that his response was inappropriate

LARRY MOORE suffered “(1) an injury,” “(2) which resulted from the use of force that

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82.

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under the circumstances.

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was clearly excessive to the need,” and “(3) the excessiveness of which was objectively
                                                        
 Johnson, 481 F.2d at 1033 (quoted with approval in Orem, 523 F.3d at 446). 
6
7

The rights of a pre-trial detainee under the Due Process Clause are at least as great as the rights of a convicted prisoner
under the Eighth Amendment. City of Revere v. Massachusetts General Hosp., 463 U.S. 244 (1983) (holding that the Due Process
Clause requires government to provide medical care to individuals who have been injured while being apprehended by the
police). An Officer’s deliberate indifference to a pre-trial detainee’s serious medical needs or deliberate indifference to the
need to protect a pre-trial detainee from a substantial risk of harm are actionable under the Due Process Clause. Young v. City
of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001). The deliberate indifference of governmental officials to a pre-trial
detainee’s serious medical needs or substantial risk of harm meets the shock the conscience standard for a substantive due
process violation. Id.

 
Plaintiff’s Original Petition and Request for Disclosure

16

 unreasonable” when Defendant Officer K. Hubenak used excessive force against LARRY
MOORE, as described above.
83.

HPD implicitly or explicitly adopted and implemented careless and reckless policies,

customs, or practices. These included, among other things, allowing DEFENDANT HPD and

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its HPD OFFICERS, namely Officer K. Hubenak, to unconstitutionally and excessively use their
feet, punching and a body-slam as a means of use of force in violation of the United States
Constitution.

HPD failure to adequately train and supervise DEFENDANT HPD’S OFFICERS

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84.

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amounted to deliberate indifference to LARRY MOORE’s rights to be free from excessive force

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and unreasonable seizures under the Fourth and Fourteenth Amendments to the United States

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HPD ratification and/or concealment of DEFENDANT HPD’S OFFICERS’

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85.

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Constitution.

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actions or omissions amounted to deliberate indifference to LARRY MOORE’s rights to be free

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What’s more, HPD’S continued adherence to an approach that they know or should

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86.

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the United States Constitution.

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from excessive force and unreasonable seizures under the Fourth and Fourteenth Amendments to

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know has failed to prevent tortious conduct by employees establishes the conscious disregard for

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the consequences of their action—the “deliberate indifference”—necessary to trigger municipal

87.

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liability. Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 407 (U.S. 1997).
DEFENDANTS’ conduct, actions, and/or inactions were the moving force, directly

caused, proximately caused, and/or were a substantial factor in causing the Constitutionallyviolative injuries sustained by LARRY MOORE and his damages, as set forth more fully below.
88.

Plaintiff seeks unliquidated damages within the jurisdictional limitations of this court.

Plaintiff’s Original Petition and Request for Disclosure

17

 IX.
89.

COUNT 3: 42 U.S.C. § 1983 AND 14TH AMENDMENT OF THE U.S.
CONSTITUTION SUBSTANTIVE DUE PROCESS CLAIM
Plaintiff re-alleges all of the allegations in the previous paragraphs, as though fully set

forth herein.
DEFENDANT HPD and its HPD OFFICERS, namely Officer K. HUBENAK, used

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90.

excessive force against LARRY MOORE – to wit:

a. when Officer K. Hubenak body-slammed, punched, kicked and placed his boot over
the face or head of LARRY MOORE for a period up to five minutes in violation of his

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4th/14th Amendment Right to be Free from Excessive Force; and

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b. when Officer HUBENAK instructed a private security guard to detain Plaintiff by

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DEFENDANT HPD and its HPD OFFICERS, namely Officer K. Hubenak’s, conduct

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91.

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placing his boot on Plaintiff.

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DEFENDANT HPD and its HPD OFFICERS, namely Officer K. Hubenak’s, action

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92.

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was “deliberate decision to deprive a person of life, liberty, or property.”

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“can properly be characterized as conscience shocking, in a constitutional sense8” and/or was

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recklessness, gross negligence, or deliberate indifference to the rights of LARRY MOORE.

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The Due Process Clause in the Fourteenth Amendment states, “[N]or shall any State deprive any person of life, liberty, or
property, without due process of law…” U.S. Const. Amend. XIV, § 1. Due process also has a substantive component which
prohibits certain governmental actions regardless of the fairness of the procedures used to implement them. Daniels v.
Williams, 474 U.S. 327, 331 (1986).

LARRY MOORE suffered “(1) an injury,” “(2) which resulted from the use of force that

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93.

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30

was clearly excessive to the need,” and “(3) the excessiveness of which was objectively

                                                        
8

Conduct that “shocks the conscience” is the type that violates the “decencies of civilized conduct.” Rochin v. California, 342
U.S. 165, 172-73 (1952). It is also conduct that is so brutal and offensive that it does not comport with “traditional ideas of fair
play and decency.” Whitley v. Albers, 475 U.S. 312, 327 (1986). The “shock the conscience” standard is found “at the ends of the
tort law’s spectrum of culpability.” County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998). As a result, “conduct intended to
injure in some way unjustifiable by any government interest is the sort of official action most likely to give rise to the
conscience-shocking level.” Lewis, 523 U.S. at 849.

 
Plaintiff’s Original Petition and Request for Disclosure

18

 unreasonable” when Defendant Officer K. Hubenak used excessive force against LARRY
MOORE, as described above.
94.

HPD implicitly or explicitly adopted and implemented careless and reckless policies,

customs, or practices. These included, among other things, allowing DEFENDANT HPD and

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its HPD OFFICERS, namely Officer K. Hubenak, to unconstitutionally and excessively use their
feet, punching and a body-slam as a means of use of force in violation of the United States
Constitution.

HPD failure to adequately train and supervise DEFENDANT HPD’S OFFICERS

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95.

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amounted to deliberate indifference to LARRY MOORE’s rights to be free from excessive force

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and unreasonable seizures under the Fourth and Fourteenth Amendments to the United States

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HPD ratification and/or concealment of DEFENDANT HPD’S OFFICERS’ actions or

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96.

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Constitution.

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omissions amounted to deliberate indifference to LARRY MOORE’s rights to be free from

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What’s more, HPD’S continued adherence to an approach that they know or should

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97.

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United States Constitution.

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excessive force and unreasonable seizures under the Fourth and Fourteenth Amendments to the

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know has failed to prevent tortious conduct by employees establishes the conscious disregard for

fic

the consequences of their action—the “deliberate indifference”—necessary to trigger municipal

98.

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liability. Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 407 (U.S. 1997).
DEFENDANTS’ conduct, actions, and/or inactions were the moving force, directly

caused, proximately caused, and/or were a substantial factor in causing the Constitutionallyviolative injuries sustained by LARRY MOORE and his damages, as set forth more fully below.
99.

Plaintiff seeks unliquidated damages within the jurisdictional limitations of this court.

Plaintiff’s Original Petition and Request for Disclosure

19

 XVI. COUNT 4: OFFICIAL POLICY CLAIM9 PURSUANT TO 42 U.S.C. § 1983 AND
THE 4th & 14TH AMENDMENT OF THE U.S. CONSTITUTION
(EXCESSIVE FORCE)
100.

Plaintiff re-alleges all of the allegations in the previous paragraphs, as though fully set

forth herein.
HPD, by and through its policymakers as set forth above, implicitly or explicitly adopted

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101.

and implemented careless and reckless policies, customs, or practices. These included, among
other things, allowing DEFENDANT HPD and its HPD OFFICERS, namely Officer K.

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HUBENAK, to unconstitutionally and excessively use their feet, punching and a body-slam as a

That is, there is the existence of official policies or customs – namely, Necessary Force in

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102.

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means of use of force in violation of the United States Constitution.

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Making Arrests, Use of Force, Policy for Deadly Force Policy, which were fairly attributable to

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HPD, and that proximately caused the deprivation of his rights10. These specific policies are and

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were Constitutionally-violative for failure to adequately address when the use of an Officer’s

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feet, punching and a body-slam as a form of use of force is appropriate, if ever. Upon

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information and belief, HPD’s “Use of Feet as Form of Use of Force” Policy is deficient and/or

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does not exist, should have been a written policy, and/or was never communicated and/or

What’s more, proof of the LARRY MOORE incident includes proof that it was caused by

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103.

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adequately trained.

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an existing, unconstitutional municipal policy, which policy can be attributed and is attributed to
HPD and its policymakers.
                                                        
9

A municipality may be held liable under 42 U.S.C. § 1983 for an official policy or custom which is the moving force behind a
constitutional violation. Monell v. Dep’t of Social Services of the City of New York, 436 U.S. 658 (1978).
10
Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994); Spell v. McDaniel, 824 F.2d 1380, 1386-90 (4th Cir. 1987). “[M]unicipal
liability will attach only for those policies or customs having a specific deficiency or deficiencies such as to make the specific
violation almost bound to happen, sooner or later, rather than merely likely to happen in the long run.” Carter v. Morris, 164
F.3d 215, 218 (4th Cir. 1999) (quotation and citation omitted).

 
Plaintiff’s Original Petition and Request for Disclosure

20

 104.

HPD failure to adequately train and supervise DEFENDANT HPD’S OFFICERS

amounted to deliberate indifference to LARRY MOORE’s rights to be free from excessive force
and unreasonable seizures under the Fourth and Fourteenth Amendments to the United States
Constitution.
HPD’s ratification and/or concealment of DEFENDANT HPD’S OFFICERS’ actions or

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105.

omissions amounted to deliberate indifference to LARRY MOORE’s rights to be free from
excessive force and unreasonable seizures under the Fourth and Fourteenth Amendments to the

What’s more, HPD’S continued adherence to an approach that they know or should

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106.

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United States Constitution.

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know has failed to prevent tortious conduct by employees establishes the conscious disregard for

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the consequences of their action—the “deliberate indifference”—necessary to trigger municipal

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DEFENDANTS’ conduct, actions, and/or inactions were the moving force, directly

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107.

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liability. Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 407 (U.S. 1997).

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caused, proximately caused, and/or were a substantial factor in causing the Constitutionally-

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violative injuries sustained by LARRY MOORE and his damages, as set forth more fully below.
Plaintiff seeks unliquidated damages within the jurisdictional limitations of this court.

X.

COUNT 5: OFFICIAL CUSTOM CLAIM11 PURSUANT TO 42 U.S.C. § 1983 AND
THE 4th & 14TH AMENDMENT OF THE U.S. CONSTITUTION
(EXCESSIVE FORCE)

109.

Plaintiff re-alleges all of the allegations in the previous paragraphs, as though fully set

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108.

forth herein.
110.

HPD, by and through its policymakers as set forth above, implicitly or explicitly

                                                        
11

A municipal custom “may be found in persistent and widespread practices of municipal officials which although not authorized by law, are
so permanent and well-settled as to have the force of law.” Spell, 824 F.2d at 1386 (4th Cir. 1987) (quoting Monell, 436 U.S. at 691).

 
Plaintiff’s Original Petition and Request for Disclosure

21

 adopted and implemented careless and reckless policies, customs, or practices. These included,
among other things, allowing DEFENDANT HPD and its HPD OFFICERS, namely Officer K.
HUBENAK, to unconstitutionally and excessively use body-slams, punching, kicking and using
their feet as a means of use of force in violation of the United States Constitution.
DEFENDANT HPD and its HPD OFFICERS’ applied the use of their feet as a means of

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111.

use of force was persistent, widespread, and/or pattern of practice at HPD that it was so
permanent and well-settled that HPD had actual or constructive knowledge of its use in violation

What’s more, DEFENDANT HPD and its HPD OFFICERS’ use of body-slams,

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112.

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of the United States Constitution.

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punching, kicking and other use of their feet as a means of use of force:

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a. was widespread without ramification or discipline;

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in the inappropriate conduct;

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b. existed/allowed/encouraged because of HPD’s lack of action – showing acquiescence

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c. existed/allowed/encouraged because of HPD’s failure to enact, enforce,

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implement policies and standards to the contrary;

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d. existed/allowed/encouraged because of HPD’s failure to discipline its Officers;

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e. existed/allowed/encouraged because of HPD’s failure to maintain, categorize,

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access, properly investigate, and/or accept complaints;

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f. existed/allowed/encouraged because of HPD’s failure to train and/or in
training;

g. existed/allowed/encouraged because of a pattern of misconduct by prior incidents; and
h. existed/allowed/encouraged because of a failure of record keeping.

Plaintiff’s Original Petition and Request for Disclosure

22

 113.

HPD failure to adequately train and supervise DEFENDANT HPD’S OFFICERS

amounted to deliberate indifference to LARRY MOORE’s rights to be free from excessive force
and unreasonable seizures under the Fourth and Fourteenth Amendments to the United States
Constitution.
HPD ratification and/or concealment of DEFENDANT HPD’S OFFICERS’

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114.

actions or omissions amounted to deliberate indifference to LARRY MOORE’s rights to be free
from excessive force and unreasonable seizures under the Fourth and Fourteenth Amendments to

What’s more, HPD’S continued adherence to an approach that they know or should

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115.

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the United States Constitution.

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know has failed to prevent tortious conduct by employees establishes the conscious disregard for

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the consequences of their action—the “deliberate indifference”—necessary to trigger municipal

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DEFENDANTS’ conduct, actions, and/or inactions were the moving force, directly

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116.

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liability. Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 407 (U.S. 1997).

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caused, proximately caused, and/or were a substantial factor in causing the Constitutionally-

COUNT 6: OFFICIAL CUSTOM CLAIM PURSUANT TO 42 U.S.C. § 1983 –
DEFICIENT HIRING, TRAINING, SUPERVISION, and RETENTION OF LAW
ENFORCEMENT OFFICERS12
Plaintiff re-alleges all of the allegations in the previous paragraphs, as though fully set

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118.

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XI.

Plaintiff seeks unliquidated damages within the jurisdictional limitations of this court.

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117.

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violative injuries sustained by LARRY MOORE and his damages, as set forth more fully below.

forth herein.

                                                        
12

An unconstitutional custom or policy may also be shown by evidence of deficient or inadequate training, supervision, or
hiring of law enforcement Officers by municipal officials. City of Canton v. HPD, 489 U.S. 378 (1989); Board of County
Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997); Wellington v. Daniels, 717 F.2d 932 (4th Cir. 1983).

 
Plaintiff’s Original Petition and Request for Disclosure

23

 119.

Defendants are liable to Plaintiff for DEFICIENT HIRING, TRAINING,

SUPERVISION, and RETENTION. HPD has a duty to properly screen and hire applicants, and
their failure to do so may demonstrate a deliberate indifference to citizens’ constitutional rights.
See Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 1392,

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137 L. Ed. 2d 626 (1997). HPD also has a duty to train and supervise the individual Officers
under their command, and their failure to do so may demonstrate a deliberate indifference to
citizens’ constitutional rights. See, e.g., Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1417

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(5th Cir. 1996). However, DEFENDANTS breached that duty when they improperly screened,

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hired, trained, supervised, and retained the DEFENDANT HPD’S OFFICERS whom, inter alia,

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committed the constitutional torts otherwise specified herein. Deficient employment decisions

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regarding hiring, training, and supervision can subject a governmental entity to §1983 liability.

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See Brown, 520 U.S. 397 (1997); Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1417

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PLAINTIFF will show that (1) HPD’s training procedures were inadequate; (2) HPD’s

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120.

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(5th Cir. 1996).

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policymakers were deliberately indifferent in adopting the training policy; and (3) the inadequate

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training policy directly caused the plaintiffs’ injury. Conner v. Travis County, 209 F.3d 794, 796

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(5th Cir. 2000). Second, even if HPD’S training program does not prevent constitutional

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violations, HPD is still liable because its makers were put on notice that a new program was

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called for. Bd. of the County Comm'rs v. Brown, 520 U.S. at 407-408. “Their continued
adherence to an approach that they know or should know has failed to prevent tortious conduct
by employees may establish the conscious disregard for the consequences of their action—the
‘deliberate indifference’—necessary to trigger municipal liability.” Id. (citing Canton v. HPD,
489 U.S. 378, 390 n. 10 (1989). Third, the U.S. Supreme Court in Brown also stated that it did

Plaintiff’s Original Petition and Request for Disclosure

24

 not foreclose the possibility that evidence of a single violation of federal rights, accompanied by
a showing that a governmental entity has failed to train its employees to handle recurring
situations presenting an obvious potential for such a violation, could trigger entity liability,
which is the case here. Id. at 409 (citing Canton v. HPD, 489 U.S. at 390, and n. 10 (“It may

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happen that in light of the duties assigned to specific Officers or employees the need for more or
different training is so obvious . . . that the policymakers of the city can reasonably be said to
have been deliberately indifferent to the need”)). Here, for example, nearly every HPD officer or

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sergeant, failed to document or investigate Plaintiff’s allegations of excessive force, provide

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medical treatment for LARRY MOORE or discipline/retrain the inept employees involved in

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Inter alia, HPD’s lack of training on use of force and excessive force deprived LARRY

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121.

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Plaintiff’s deprivation of rights.

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MOORE of his clearly established Constitutional rights – rights secured by the US Constitution,

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which actions amounted to deliberate indifference and were the moving force, directly caused,

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proximately caused, and/or were a substantial factor in causing the deprivation of LARRY

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MOORE’s Constitutional rights, the injuries sustained by LARRY MOORE, and PLAINTIFFS’

Defendants’ failure to supervise and their lack of training and lack of enforcement of

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122.

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damages.

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their written audio/visual-recording policy deprived LARRY MOORE of his clearly established

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Constitutional rights by allowing the use of force and excessive force to go with impunity and
ignorance to same, which actions amounted to deliberate indifference and were the moving
force, directly caused, proximately caused, and/or were a substantial factor in causing the
deprivation of LARRY MOORE’s Constitutional rights, the injuries sustained by LARRY
MOORE, and PLAINTIFF’S damages.

Plaintiff’s Original Petition and Request for Disclosure

25

 123.

What’s more, HPD, a municipal actor, disregarded a known or obvious consequence of

its action to not implement a proper policy on use of an Officer’s feet as a form of use of force.
That is, the risk that a violation of a particular constitutional or statutory right (i.e. the right
against excessive force and deadly force) will follow the decision to not implement a proper

124.

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policy on use of body-slams and use of an Officer’s feet as a form of use of force.

What’s more, HPD was on actual or constructive notice of the need for training or

supervision because of a pattern of similar unconstitutional acts by its Officers occurred within a

What’s more, HPD acted in conscious disregard of the constitutional rights of its

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125.

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relevant period of time before the incident.

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What’s more, the unconstitutional consequences of failing to train are and were so

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126.

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residents – namely, LARRY MOORE – by failing to train or supervise its Officers.

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patently obvious to HPD that it is liable under § 1983 without proof of a pre-existing pattern of

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HPD failure to adequately train and supervise DEFENDANT HPD’S OFFICERS

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127.

of

violations.

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amounted to deliberate indifference to LARRY MOORE’s rights under the United States

HPD ratification and/or concealment of DEFENDANT HPD’S OFFICERS’ actions or

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128.

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Constitution.

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omissions amounted to deliberate indifference to LARRY MOORE’s rights under the United

129.

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States Constitution.

DEFENDANTS’ conduct, actions, and/or inactions were the moving force, directly

caused, proximately caused, and/or were a substantial factor in causing the Constitutionallyviolative injuries sustained by LARRY MOORE and PLAINTIFF’S damages, as set forth more
fully below.

Plaintiff’s Original Petition and Request for Disclosure

26

 130.

Plaintiff seeks unliquidated damages within the jurisdictional limitations of this court.

XIII. COUNT 7: THE RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND
SEIZURE PURSUANT TO THE FOURTH AMENDMENT
131.

Plaintiff re-alleges all of the allegations in the previous paragraphs, as through fully set

132.

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forth herein.
Plaintiff pleads that Officer K. HUBENAK and other John or Jane Doe officers subjected

Mr. Moore to an unreasonable seizure of his personal property in violation of the Fourth and
Fourteenth Amendment and its “reasonableness” standard, as applied to the States through the

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Mr. Moore was unlawfully displaced from his personal property by Officer Hubenak and

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133.

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Fourteenth Amendment.

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unknown HPD officers, when Officer Hubenak removed Plaintiff’s phone from his pocket and

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placed it in Plaintiff’s vehicle without permission, against his will and in spite of Plaintiff’s

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Said actions resulted directly and only from a seizure that was clearly unnecessary under

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134.

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request for Officer Hubenak to place his phone with his personal belongings.

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the circumstances, and solely for the purpose of maliciously and intentionally inconveniencing

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the Plaintiff, and the tortious interference with Mr. Moore’s personal property was objectively

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unreasonable.

Plaintiff re-alleges all of the allegations in the previous paragraphs, as through fully set

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135.

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XIV. COUNT 8: 42 U.S.C. § 1983 – DELAY AND DENIAL OF MEDICAL
TREATMENT AND FAILURE TO PROTECT WHILE IN CUSTODY

forth herein.
136.

Under 42 U.S.C. § 1983, Plaintiff claims damages against each individual defendant who,

under color of law, jointly and severally, without right or privilege, proximately and directly
caused harm by delaying or denying him medical attention, in violation of the United States

Plaintiff’s Original Petition and Request for Disclosure

27

 Constitution.
137.

Plaintiff’s injuries were so severe that he was immediately turned away from the jail

because of the severity of his injuries.
Individual Defendants ignored and/or denied Plaintiff’s requests for an ambulance.

139.

Individual Defendants failed to call an ambulance to the scene to evaluate or treat

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138.

Plaintiff’s injuries.
140.

Individual Defendants were aware that Plaintiff sustained injuries due to the actions of

known that Plaintiff’s injuries required urgent care.

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Individual Defendants’ denial of Plaintiff’s requests for an ambulance, failure to provide

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142.

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Any reasonable and prudent officer, in the same or similar circumstance would have

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141.

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Defendant HUBENAK.

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Plaintiff access to medical care until several hours after he sustained his injuries, and only after

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being instructed to do so, clearly shows that the arresting officers acted with a deliberate

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Had the Individual Defendants provided Plaintiff with immediate medical attention,

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143.

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indifference to Plaintiff’s medical condition.

In addition to duties that the individual defendants not personally violate the Constitution,

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144.

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Plaintiff’s facial disfigurement may not have been permanent.

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HPD officers have affirmative duties to protect in-custody detainees and/or arrestees such as

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LARRY MOORE at the time of his arrest. Even if they did not attack him personally, the
defendants acted intentionally, with reckless or callous indifference to constitutional rights, or
otherwise with such disregard of consequences as to show deliberate indifference to the serious
injuries LARRY MOORE sustained, in a manner that deprived him of his constitutional rights
and perpetuated and exacerbated his physical and mental pain and suffering.

Plaintiff’s Original Petition and Request for Disclosure

28

 145.

In addition to individual defendants whose liability reflects the first-hand knowledge of

LARRY MOORE being beaten, supervisory law enforcement officers should have been - and on
information and belief actually were - told of both the assault and LARRY MOORE’s injuries
well before his transport to HPD central jail. Such supervisory officers have, and violated,

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clearly established constitutional duties to protect in-custody detainees such as LARRY
MOORE, including duties to discipline officers, remove them from duty, and provide training, as
well as to assure care for injured arrestees.

Defendants HPD and CITY OF HOUSTON are liable to Plaintiff because they failed to

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146.

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train, re-train, or discipline the officers responsible for his deprivation of rights, and moreover,

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for their failure to promulgate or implement policies that protect arrestees, and adequately

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Defendants’ wrongful activities, actions, and/or inactions, as detailed above, proximately

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147.

DAMAGES

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XV.

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apprises its employees of their duty to provide access to medical treatment.

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a. Nominal Damages.

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caused personal injury and damage to Plaintiff, which include the following:

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b. Actual Damages.

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c. Compensatory Damages.

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d. Past and Future Mental Anguish Damages. The mental anguish Plaintiff suffered in the

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past and will continue to suffer in the future as a result of LARRY MOORE’S injuries.
e. Plaintiff’s loss of companionship and society from the date of the incident and which
will continue in the future.
f. Physical pain in the past. The physical pain and suffering LARRY MOORE suffered as
a result of his injuries sustained due to the actions/omissions of Defendants.

Plaintiff’s Original Petition and Request for Disclosure

29

 g. The physical incapacity and impairment suffered by LARRY MOORE.
h. The mental anguish LARRY MOORE suffered as a result of his physical injuries
sustained by Defendants.
i. The amount of reasonable medical expenses necessarily incurred in the past.

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j. Attorney’s Fees, pursuant to 42 U.S.C. §§ 1983, 1988, et seq.
k. Expert Fees, pursuant to 42 U.S.C. §§ 1983, 1988, et seq.

l. Punitive Damages, as to Defendant Officer KEVIN HUBENAK.

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m. Unliquidated damages within the jurisdictional limits of this court.

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n. Pre-judgment and post-judgment interest. TEX. FIN. CODE §304.001, et seq., and any

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other applicable law.

Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendants disclose,

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148.

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is 

XVI. REQUESTS FOR DISCLOSURE

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of

within 50 days of the service of this request, the information or material described in Rule 194.2.

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PLAINTIFF demands a jury trial and tender the appropriate fee with this petition.

WHEREFORE, PREMISES CONSIDERED, PLAINTIFF asks that the Court issue

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150.

XVIII. PRAYER

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XVII. JURY DEMAND

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citation for Defendants to appear and answer, and that PLAINTIFF be awarded a judgment

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against Defendants for the following:
a. Nominal Damages.
b. Actual Damages.
c. Compensatory Damages.

Plaintiff’s Original Petition and Request for Disclosure

30

 d. Past and Future Mental Anguish Damages. The mental anguish Plaintiff suffered in the
past and will continue to suffer in the future as a result of LARRY MOORE’S injuries.
e. Plaintiff’s loss of companionship and society from the date of the incident and which
will continue in the future.

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f. Physical pain in the past. The physical pain and suffering LARRY MOORE suffered as
a result of his injuries sustained due to the actions/omissions of Defendants.
g. The physical incapacity and impairment suffered by LARRY MOORE.

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h. The mental anguish LARRY MOORE suffered as a result of his physical injuries

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sustained by Defendants.

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i. The amount of reasonable medical expenses necessarily incurred in the past.

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j. Attorney’s Fees, pursuant to 42 U.S.C. §§ 1983, 1988, et seq.

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k. Expert Fees, pursuant to 42 U.S.C. §§ 1983, 1988, et seq.

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of

l. Punitive Damages, as to Defendant Officer K. Hubenak.

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m. Unliquidated damages within the jurisdictional limits of this court.

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n. Pre-judgment and post-judgment interest. TEX. FIN. CODE §304.001, et seq., and any

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PLAINTIFF pray for all other relief to which Plaintiff is justly entitled.

Un
of

151.

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other applicable law.

Respectfully submitted,
ANDRE EVANS & ASSOCIATES, PLLC

Andre
Evans
__________________________________________
ANDRE D. EVANS
TSB#: 24082970
3003 South Loop West, Suite 108
Houston, Texas 77054
281-778-8353 – facsimile
832-304-1059 – phone

Plaintiff’s Original Petition and Request for Disclosure

31

 andre@attorneyandreevans.com

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ATTORNEYS FOR PLAINTIFF

Plaintiff’s Original Petition and Request for Disclosure

32