Garo Mardirossian, Esq., SBN 101812 are arol.w.com i-@5775--E ORNIA owena IZOH, sq., SBN 171365 rdrzon arolawcom GENTRR . ., SBN 153460 Sq 101, 0 5 Armen ara?an, Esq. SBN 2423 03 aakafagiang )garOlaW_ Com RL-AN Qf R153 MARDIROSSIAN ASSOCIATES, INC. A Law Corporation 6311 1lsh1re Boulevard Los Angeles CA 90048-5001 Telephone g323) 653-6311 Facs1m1le 23) 651-5511 Attorneys for Plaintiff FREDERICK RONALD THOMAS, I R. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE 2 FREDERICK RONALD THOMAS, JR., case No.; individually and as successor-in-interest of 3 2 KELLY JABIES THOMAS, deceased, Plaintiff, COMPLAINT FOR DAMAGES vs. Assault and Battery Negligence CITY OF MICHAEL Wrongful Death_ SELLERS, Ch1efofPol1ce 1nd1v1duia?ly and Vlolation of C1v1l Rights as a eace officer' PATRICK Q42 USC. 1 83) MAN I JEL ANTHONY RAMOS Badge Supervisor L1ab1l1ty Number Unknown 1I1d1V1Cl1l&llE and as a 542 U.S.C. 1983) R_eace officer; JOSEPHWOLF Badge Mono! Cla1m urnber Unknown 1nd1v1dually and as a (42 U.S.C. 1983_)_ Eeace officer; PATRICKCICINELLI V1olat1on of State Civil 1_ghts adge Number Unknown, 1n.d1v1duall_y and (Cal. Civ. Code 5 .7) as a peace officer' KENTON HAMP ON Badge l;_Tfumbe? %1ddas a DEMAND FOR JURY TRIAL eace rcer*Ki Number Unknown 1nd1v1dual1 and as a UDGE I Rfeace officer; SGT. QVIN CRAIG Badge umber Unknown mdividually and as a (Amount demanded exceeds $25,000) peace officer; and DOES 1-50, inclusive, Defendants. 1 COMPLAINT OR DEMAND FOR JURY TRIAL JURISDICTION AND VENUE 1. This Court has original jurisdiction over this action for damages under the laws of the State of Califomia, under 42 U.S.C. 1983, the United States Constitution and common law principles, to redress a deprivation under color of state law of rights, privileges and immunities secured to Plaintiff and his decedent, by said statutes, and by the First, Fourth, and Fourteenth Amendments of the United States Constitution. 2. Venue is proper in this Court because the parties reside in, and all incidents, events and occurrences giving rise to this action occurred in, the County of Orange, California. 3. On August 9, 2011 Plaintiff FREDERICK RONALD THOMAS, JR. (hereinafter RON THOMAS) presented to the City Council of the City of Fullerton a Claim for Damages based on the acts, omissions, damages and injuries herein complaine of, pursuant to Government Code Section 911.2. On December 2, 2011, Plaintiff presented an amended claim. Defendant CITY OF FULLERTON did not send Plaintiff a Written rejection Within 45 days and the Claim is deemed rejected by operation of lavv. PRELIMINARY ALLEGATIONS 4. The incidents complained of occurred at the Fullerton Transportation Center's north bus entrance lane near the intersection of East Santa Fe Avenue and South Pomona Avenue, in the City of Fullerton. The incident was recorded on video and audio. 5. On July 5, 2011 at approximately 8:23 p.m. Plaintiff' son KELLY, a lifelong resident of the City of Fullerton, Who was shirtless, Wore long pants, slippers and a backpack, was detained by Defendant RAMOS to investigate a call regarding a "homeless" man looking in car Windows and pulling door handles of parked cars. At the beginning of his contact With KELLY, RAMOS displayed his baton at KELLY by swinging it repeatedly in front of KELLY. Although KELLY already denied that he Was the suspect they were looking for, Defendant RAMOS, who is soon joined by Defendant WOLFE, began to taunt and thereby confuse KELLY about Whether he spoke foreign languages. Even after KELLY had given his name, Defendant RAMOS harassed and 2 COMPLAINT FOR DEMAND FOR JURY TRIAL confused KELLY by repetitively asking KELLY the same questions while claiming to forget KELLY's name. RAMOS continued to harass, frustrate and confuse KELLY by repetitively asking KELLY questions about whether he was pulling on car doors which KELLY had already denied. RAMOS knew or should have known that KELLY was mentally ill, and did indicate that he knew KELLY from prior encounters, stating "it seems like every day, we have to talk to you about somethin' do you enjoy it?" During the detention, KELLY allowed Defendant WOLFE to Search his backpack by giving it to WOLF E, and then KELLY sat down on the curb at Defendant command. Neither RAMOS nor WOLFE patted KELLY down for weapons and both RAMOS and WOLFE behaved in a manner consistent with the belief that KELLY did not pose any risk of harm or flight. Indeed, KELLY was unarmed and posed no threat to the officers' safety or to others. 6. During WOLFE's search of KELLY's backpack, WOLFE found some mail addressed to an attorney named "Casey Hull" and wondered whether the letters were stolen. Neither WOLFE nor RAMOS asked KELLY how he got the letters. RAMOS walked away from KELLY and told WOLFE that they should take KELLY for "496" as they "get a call on him every night." ("496" refers to the California Penal Code section for "receiving stolen property.") 7. At this, RAMOS walked back toward KELLY, made a show of putting gloves on his hands, and with increasingly aggressive language, began ordering KELLY to put his feet in front of him and to put his hands on his knees. KELLY was confused orders and said: "which one is it dude? I can't do both." RAMOS did not advise KELLY that he was being placed under arrest, and RAMOS did not advise KELLY what crime RAMOS was arresting him for. In fact, KELLY had committed no crime, and the attorney's mail in his backpack were items he found in the trash. Instead, RAMOS threatened KELLY with physical harm and said: "Now you see my fists? They're getting ready to fuck you up." While KELLY was still saying that he did not understand commands, RAMOS struck neck and shoulder, which 3 COMPLAINT OR DEMAND FOR JURY TRIAL caused KELLY to stand and step away from RAMOS with both hands up, open palms facing RAMOS, in the universally recognized signal of surrender. RAMOS immediatel took his baton out and began ordering KELLY to get on the ground. Even though KELLY was merely standing with his hands up, and without giving KELLY time to comply, WOLFE quickly approached KELLY with his baton at the ready, and immediately swung it with full force, striking KELLY. At this, KELLY began to run, to escape from what he undoubtedly knew was not an arrest, but a beating. 8. For the next 9 minutes and 40 seconds, the defendant police officers, including RAMOS, WOLFE, CICINELLI and HAMPTON continued to beat KELLY with their batons, hands, elbows, fists, knees and a Taser gun, even while KELLY repeatedly apologized and said "I'm sorry" at least 15 times and said "okay" at least 30 times as he tried to comply and begged for help. Even though KELLY repeatedly told the officers at least 8 times that he could not breathe, the officers ignored him and continued to place their combined body weight on top of KELLY's body. Even though KELLY could have been restrained with the use of less than lethal control holds and handcuffs, the defendant officers, and each of them, used deadly force by striking KELLY repeatedly in the head and face, causing multiple facial and nose fractures. Despite the fact that KELLY was on the ground with several officers on top of him, Defendants agreed to use and CICINELLI did use his Taser gun to apply painful electrical shocks into a terrified KELLY. Defendants and each of them, ignored the 12 times KELLY said "please" and "please sir", and the 26 times he asked for help. Defendant WOLFE used his elbow at least twice to strike KELLY on the face. Defendant CICINELLI struck KELLY repeatedly in the face with his Taser gun, and by his own admission, "smashed his face to hell." KELLY knew that the officers intended to hurt him and he called out at least 31 times for his dad to rescue him. Indeed, KELLY uttered "Dad, they're killing me Dad," while he lay bleeding on the ground and drowning in his blood. 4 COMPLAINT FOR DEMAND FOR JURY TRIAL 9. In doing the acts and omissions alleged in this Complaint, Defendant police officers pursued an unprivileged course of extreme and outrageous conduct directed at KELLY, with the intent to cause KELLY to suffer extreme terror, fear, shock, anxiety, remorse, mental anguish, despair and emotional distress. Defendants committed these outrageous acts and omissions with the intent to terrorize KELLY, and place him in fear for his life and to experience other very highly unpleasant emotions. 10. KELLY did not die immediately, but he was in respiratory distress when paramedics transported him to St. Jude Medical Center and then to UC Irvine Medical Center for medical treatment, where he was diagnosed with significant facial trauma including multiple nasal fractures with significant bleeding and swelling, left cheekbone fracture, swollen black eyes and a hemorrhaged left eye, facial and lip lacerations, contusions and abrasions. He also had left and right rib fractures and multiple bruises, abrasions and swelling all over his body. He was found with severe metabolic acidosis, hemorrhagic shock, and aspiration of blood into his lungs. MRI scans showed he had suffered a diffuse anoxic brain injury. He remained hospitalized until his death on July 10, 201 1. ll. The Orange County Coroner's Office ruled KELLY's death to be a homicid and that his injuries occurred during the physical altercation with law enforcement officers. 12. The Orange County District Attorney, Anthony Rackauckas, filed criminal charges against Defendants RAMOS and CICINELLI who have been ordered to stand trial for the murder of KELLY THOMAS. At the time of this filing, Plaintiff is informed and believes that criminal charges against the other officers are still under review. 13. At all times material hereto, Defendants, and each of them, knew that KELLY was mentally ill and was homeless as a result. Despite the CITY's knowledge and awareness that its police officers had daily encounters with the mentally ill and homeless population in its city, the CITY did not and otherwise failed to obtain, provide and utilize resources available to it in order to properly train its police officers, including 5 COMPLAINT FOR DEMAND FOR JURY TRIAL the individual Defendant officers, on howto deal with persons who are homeless and with mental illness during encounters with police. 14. The murder of KELLY THOMAS was the inevitable result of the culture of corruption and deliberate indifference within the City of Fullerton Police Department. The City's police department has a longstanding reputation of running roughshod on its citizens' constitutional rights, ignoring citizen complaints and issuing no discipline to officers accused of wrongdoing. The CITY has a long history of ignoring its officers' abusive practices and is deliberately indifferent to the violations of constitutional rights resulting from the C1TY's customs, practices and policies. It fails to monitor and supervise its officers' violations of written policies including officers who do not report their use of force, and officers who do not document their contact with citizens by turnin off their Digital Audio Recorder (DAR). It condones its police officers' aggressive practices of arresting citizens without probable cause, using "cover up" offenses such as "resisting arrest" or "drunk in public" and using arrests as punishment for citizens' exercise of their First Amendment rights which its officers instead perceive as "contempt ofcopf' 15. Over time, these unconstitutional practices were considered standard operating procedure such that, wrongful arrests went unquestioned and were presumed lawful, and uses of force went unreported and not investigated. Allegations of misconduct were routinely ignored, and witnesses not favorable to the fellow officer are not interviewed nor documented. With the knowledge that their actions are not scrutinized, Fullerton officers are thereby encouraged to behave with impunity and to act without regard to protecting citizens' rights, and to file false, fabricated and misleading reports and to offer perjurious testimony designed to justify their abuses including false arrests and/or the excessive use of force. 16. Due to the publicity that has focused attention onto the CITY and its Police Department, several recent examples of the CITY's and its Department's unconstitutional policies and customs which have resulted in constitutional violations have come to light: 5 COMPLAINT FOR DEMAND FOR JURY TRIAL a. In 2008, Defendants knew of at least seven female victims of sexual assault and battery by Fullerton officer Albert Rincon and did not terminate his employment until after a federal lawsuit exposed Defendants' deliberate indifference to the victims by its utter failure to supervise, monitor and discipline Rincon. Defendants acted only after a federal district court judge, who had examined the evidence, issued a scathing opinion against the CITY and its police department for its "total" "failure to sufficiently enforce the DAR and pat-down policies" because Rincon's complete disregard of mandatory department policy "went completely undetected, or deliberately ignored" by the that the CITY's "failure to investigate or punish sexual harassment allegations" despite the "sheer volume of incidents" combined with the CITY's "most shocking" and "weak" "reprimand" of Rincon in response to the citizen allegations, demonstrated that the CITY was "complicit" in Rincon's sexual assaults on women he arrested, and "that the City did not care about what its officers did to women during arrest." Initially the CITY denied liability and forced the lawsuit to be filed, but one week after the district court's finding, the CITY settled the civil case and only then, finally made a move to terminate Rincon's employment. b. On August I7, 2008, several Fullerton officers including Officer Perr Thayer and Officer Anthony Diaz, assaulted, battered and terrorized Christopher Spicer-Janku and filed a false arrest report claiming that Mr. Spicer-.Ianku was "drunk in public." No charges were filed. Although Mr. Spicer-Janku filed a personnel complaint against the officers, Mr. Spicer-Janku never received any I response from the CITY as to Whether it even investigated the officers involved. c. From at least 2010, despite Defendants' knowledge that Fullerton officer Vincent Mater had a propensity for falsifying evidence and testimony, Defendants continued to retain and employ Officer Mater. Defendants continued to retain and employ Officer Mater despite the fact he was on the district attorney's 'Brady list' which meant that Officer Mater had a record and reputation of 7 COMPLAINT FOR DEMAND FOR JURY TRIAL dishonesty. Plaintiff is informed and believes that one notorious instance was the case of Emmanuel Martinez, who wrongfully spent 5 months in jail, based on his false arrest and false testimony by Officer Mater and another Fullerton officer Miguel Siliceo. It is unknown whether Defendants imposed any discipline on Officer Mater and Officer Siliceo as a result of the Martinez incident. However, Defendants continued to retain and employ Officer Mater until he destroyed his DAR recording of his contact with Dean Francis Gochenour, whom he had arreste and taken into custody, after Mr. Gochenour was found dead in his jail cell. d. On March 17, 2010 several Fullerton police officers, including HAMPTON, battered, beat and abused Andrew Trevor Clarke. Fullerton officers broke l\/lr. Clarke's finger resulting in permanent injury and stole his money. Although the department claimed that it conducted an extensive investigation, it "sustained" Mr. Clarke's personnel complaint against only one officer, Cary Tong and held it "unfounded" as to the rest, including HAMPTON. It is unknown what discipline, if any, Defendants imposed on Officer Tong. e. On June 27, 2010, HAMPTON battered Edward M. Quinonez causin a head injury and filed a false police report to support his false arrest of Mr Quinonez for P.C. 647 "drunk in public" afier a perceived "contempt of cop.' HAMPTON ignored Mr. Quinonez' repeated pleas for a breathalyzer so he ca prove his innocence. Ultimately a test administered at the station revealed a 0.0 alcohol level. The District Attorney refused to file charges. l\/fr. Quinonez filed personnel complaint with the Department the day after his false arrest, and over years after the incident, Mr. Quinonez has not received a response from the CITY. f. On October 27, 2010 HAMPTON battered Veth Mam and in conspiracy with several other Fullerton officers, filed false reports to support and cover up Mr. Mam's false arrest by causing him to be charged for violating P.C. 148 "resisting arrest"; 241 "assault"; and 243 "battery on a peace officer". Despite videotape evidence showing HAMPTON's unjustified use of force, no 3 COMPLAINT FOR DEMAND FOR JURY TRIAL officer reported that HAMPTON used force on Mr. Mam. Mr. Mam endured almost a year with pending criminal charges. It was only after a jury found Mr. Mam "not guilty" that the acting Fullerton police chief Kevin Hamilton admitted that the officers "arrested the Wrong man" and opened an internal investigation. Close to a year later, no results from the internal investigation are forthcoming. g. On February 11, 2011, Fullerton officer A. Cicciarelli Went to Matthew Goggans' home on a noise disturbance call and after directing Mr. Goggans to step out on his porch, falsely arrested Mr. Goggans for PC 647 for "drunk in public" and PC 148(a)(1) "resisting arrest" after a perceived "contempt of cop." The District Attorney refused to file charges. 17. The individual officer Defendants' actions and omissions during their encounter with KELLY on July 5, 2011 were a product of the reckless and callous indifference by the CITY, its Police Chief and departmental supervisory personnel to citizens' rights, and specifically KELLY's constitutional rights to be safe and secure in his person. The actions and omissions by Defendants, and each of them, caused KELLY to lose his life, and Plaintiff RON THOMAS to lose his son. PARTIES 18. Decedent, KELLY JAMES THOMAS, at all times herein mentioned, was a resident of the County of Orange, State of California. He Was mentally ill and homeless. He died on July 10, 2011 after causes of action alleged herein arose in his favor. KELLY would have been the plaintiff in this action if he had lived. 19. RON THOMAS is the natural father of decedent KELLY JAMES THOMAS and is his surviving heir-at-law. Plaintiff is the successor-in-interest and succeeds to KELLY's causes of action against Defendants named herein because there is no personal representative of the estate of KELLY JAMES THOMAS. Plaintiff has executed and filed the declaration under penalty of perjury required by Code of Civil Procedure Section 37732. 9 COMPLAINT OR DEMAND FOR JURY TRIAL 20. At all times herein mentioned, Plaintiff RON THOMAS is a resident of the County of Orange, State of California. 21. At all times herein mentioned, Defendants MICHAEL SELLERS, Chief of Police individually and as a peace officer, PATRICK MCKINLEY, individually and as Fullerton City Councilmember and former Chief of Police, MANUEL ANTHONY RAMOS Badge Number Unknown, individually and as a peace officer; JOSEPH WOLFE Badge Number Unknown, individually and as a peace officer; JAY PATRICK CICINELLI Badge Number Unknown, individually and as a peace officer; KENTON HAMPTON Badge Number 1337, individually and as a peace officer; JAMES BLATNEY Badge Number Unknown, individually and as a peace officer; SGT. KEVIN CRAIG Badge Number Unknown, individually and as a peace officer; and DOES 1-50, inclusive, and each of them, were employees ofthe City of Fullerton and the Fullerton Police Department. 22. Defendant SELLERS was at all relevant times, the highest-ranking law enforcement policymaker for the City of Fullerton. Defendant was at all relevant times, a member of the CITY's City Council and former Chief of Police of the CITY's Police Department, with the power to hire and fire, discipline and supervise officers of the Fullerton Police Department. 23. Defendants DOES 26 through 50 were each duly appointed qualified and acting ranking officers, officials and employees of the Fullerton Police Department and Defendant CITY, also charged by law with the supervision, management, control, operation and administration of the Fullerton Police Department and with the responsibility, control, supervision, training, employment, assignment, discipline and removal of peace officers of the Fullerton Police Department and CITY. 24. At all relevant times, each individual Defendant was acting within the course and scope of their employment as police officers of the CITY, and under the color of state law, and as the employee, agent and representative of each and every other Defendant. 10 COMPLAINT FOR DEMAND FOR JURY TRIAL 25. Defendant CITY OF FULLERTON (hereinafter referred to as is and at all times herein mentioned has been a public entity and an incorporated city duly authorized and existing as such in and under the laws of the State of California; and at all times herein mentioned, Defendant CITY has possessed the power and authority to adopt policies and prescribe rules, regulations and practices affecting the operation of the Fullerton Police Department, and particularly said Department's Patrol, Internal Investigations, Training and Personnel Divisions and other operations and subdivisions presently unidentified to Plaintiff, and their tactics, methods, practices, customs and usages related to their dealings with the mentally ill and the homeless, the use and deployment of dangerous weapons, the use of force, the powers of arrest by its rank and file, internal investigations, personnel supervision and meaningful records review and maintenance. 26. Plaintiff is informed and believes and thereon alleges that each of the Defendants designated as a DOE is intentionally and negligently responsible in some marmer for the events and happenings herein referred to, and thereby proximately caused injuries and damages as herein alleged. The true names and capacities of DOES through 50, inclusive, and each of them, are not now known to Plaintiff who therefore sues said Defendants by such fictitious names, and Plaintiff will seek leave to amend this complaint to show their true names and capacities when the same have been ascertained. 27. Defendants, and each of them, did the acts and omissions hereinafter alleged in bad faith and with knowledge that their conduct violated well established and settled law. INCORPORATION BY REFERENCE 28. Plaintiffs refer to and replead each and every allegation contained in paragraphs through 27, inclusive, of this Complaint, and by this reference incorporates the same into each cause of action herein. 11 COMPLAINT FOR DEMAND JURY TRIAL FIRST CAUSE OF ACTION (ASSAULT AND BATTERY - Survival Claim) (By Plaintiff RON THOMAS as Successor-in-Interest of KELLY THOMAS Against All Defendants) 29. At or about the dates, time and places alleged herein, Defendants, without provocation, warrant, necessity or legal justification, assaulted and battered KELLY by striking him with their batons, fists, hands, elbows, knees, and a Taser gun, all over his head, face and body, and did subject KELLY to verbal threats and unnecessary, unreasonable and excessive force and violence, thereby causing KELLY's injuries and death as herein described. 30. Plaintiffs are informed and believe, and upon such information and belief alleges, that defendants, CITY, SELLERS, MCKINLEY and DOES 26 through 50, and each of them, are responsible for implementing, maintaining, sanctioning, ratifying and/or condoning a policy, custom, or practice under which the individual Defendants committed the aforementioned illegal and wrongful acts. 31. Defendants CITY, SELLERS, MCKINLEY and DOES 26 through 50 and each of them, are vicariously liable for the injuries and damages to KELLY because they knew or should have known of the customs, practices, policies and acts of the individual Defendant police officers who caused KELLY's injuries and death, and authorized and acquiesced in such customs, practices and policies and the commission of such acts. 32. As a legal result of Defendants' acts and omissions as heretofore described, Plaintiff' decedent KELLY suffered serious injuries and incurred medical bills for healt care services necessary to try and save his life, until he died on July 10, 2011. As a further legal result of the aforesaid acts and omissions by Defendants and KELLY's death, Plaintiff has incurred funeral and burial expenses in an amount according to proof. 33. Defendants, and each of them, committed the aforementioned acts and omissions knowingly, willfully and maliciously, and with the intent to harm, injure, Vex, harass and oppress KELLY with conscious disregard to KELLY's known rights and 12 COMPLAINT FOR DEMAND FOR .TURY TRIAL deliberate indifference to the risk of death to KELLY. By reason thereof, Plaintiff seeks punitive and exemplary damages from Defendants individually, (except the CITY) in an amount according to proof. SECOND CAUSE OF ACTION (NEGLIGENCE - Survival Action) (By Plaintiff RON THOMAS as Successor-in-Interest of KELLY THOMAS Against All Defendants) 34. On or about the dates, time and places alleged herein, Defendants were charged with the duty to protect and serve the citizens of Fullerton, including the mentally ill, and to ensure their safety. Plaintiff is informed and believes that Defendants had received training as police officers to use good judgment and use sound and reasonable police practices toward that end. Defendants also owed the public, including KELLY, the duty not to cause harm. 35. Defendants, and each of them, breached these duties by injuring KELLY an causing his death, and in doing so they negligently, carelessly and/or recklessly failed to employ reason and restraint, effective communication techniques, proper control holds, and other similar methods inherent in their employment and training that were available to them, to ensure KELLY's safety. To Wit, Defendants RAMOS and WOLFE used improper tactics against a person who they knew or should have known was mentally ill and escalated the need to use force, and increased the use of force under situations likely to exacerbate the situation instead of controlling it and protecting KELLY's safety. 36. As a legal result of Defendants' acts and omissions as heretofore described KELLY died. 37. As a legal result of Defendants' acts and omissions as heretofore described, Plaintiff' decedent KELLY suffered serious injuries and incurred medical bills for healt care services necessary to try and save his life, until he died on July 10, 2011. As a further legal result ofthe aforesaid acts and omissions by Defendants and KELLY's death, Plaintiff has incurred funeral and burial expenses in an amount according to proof. 13 COMPLAINT FOR DEMAND FOR JURY TRIAL 38. The aforementioned acts and omissions of Defendants were committed by each of them knowingly, willfully and maliciously, with the intent to harm, injure, vex, harass and oppress KELLY with conscious disregard to KELLY's known rights and deliberate indifference to the risk of death to KELLY. By reason thereof, Plaintiff seeks punitive and exemplary damages from Defendants, and each of them, (except Defendant CITY) in an amount as proved. THIRD CAUSE OF ACTION (WRONGFUL DEATH, C.C.P. 37 7 (By Plaintiff RON THOMAS Individually Against All Defendants) 39. At or about the aforementioned time, date and place, Defendant police officers intentionally, negligently and recklessly threatened, assaulted, battered and beat, and thereby killing his son KELLY. 40. On and for some time before July 5, 2011, Defendants CITY, SELLERS, and DOES 26 through 50, employed, retained, trained, supervised, assigned, controlled Defendants RAMOS, WOLFE, CICINELLI, HAMPTON, BLATNEY, CRAIG, and DOES through 25, who Defendants CITY FULLERTON, MICHAEL SELLERS, and DOES 26 through 50, and each of them, at all times material herein, knew or reasonably should have known had dangerous and dishonest propensities for abusing their authority and for using excessive and punitive force and violence and for falsifying their accounts and reports of their actions, especially where force was used by said defendant officers. Defendants CITY, SELLERS and DOES 26 through 50 are vicariously liable for the acts of Defendants RAMOS, WOLFE, CICINELLI, HAMPTON, BLATNEY, CRAIG, and DOES through 25 committed in the course and scope of their employment as Fullerton police officers. 41. By reason of the aforesaid acts and omissions of defendants, Plaintiff has been and will forever be deprived of KELLY's love, affection, society, companionship, and support, all to Plaintiffs damages according to proof at trial. 14 COMPLAINT FOR DEMAND FOR JURY TRIAL 42. As a further legal result of the aforesaid acts and omissions by Defendants and the death of decedent, Plaintiff has incurred funeral and burial expenses in an amount according to proof. FOURTH CAUSE OF ACTION (VIOLATION OF CIVIL RIGHTS - 42 U.S.C. 1983 Unreasonable Seizure, Excessive and Deadly Force- Survival Claim) (By Plaintiff RON THOMAS as Successor-In-Interest of KELLY J. THOMAS Against Defendants RAMOS, WOLFE, CICINELLI, HAMPTON, BLATNEY, CRAIG and DOES 1 through 25, inclusive.) 43. Commencing at or about the aforementioned date and place, Without cause or justification, and acting under color of law, Defendants RAMOS, WOLFE, CICINELLI, HAMPTON, BLATNEY, CRAIG, and DOES through 25 and each of them, intentionally and maliciously deprived KELLY THOMAS of rights secured to him by the First, Fourth, and Fourteenth Amendments to the United States Constitution in tha Defendants and each of them, subjected Plaintiff to unreasonable, unnecessary and excessive force during his arrest even though no strong government interest compelled the need for the officers to use force, especially the use of deadly force, including but not limited to doing the following: a. Defendants used deadly force even though KELLY had not committed a serious crime, or any crime at all, and even though he did not pose a threat of death or serious physical injury to the officers or to others; b. The force used Was deadly because head strikes and broken nasal bones are reasonably likely to cause death when applied under certain circumstances, as they were in KELLY's case; c. The force used was deadly because pressing Weight on a person Who Was already struggling to breathe and was begging for air Was reasonably likely to cause death, as it did in KELLY's case; 15 COMPLAINT FOR DEMAND FOR JURY TRIAL d. RAMOS threatened and inflicted violence against KELLY, in retaliation for KELLY's exercise of his First Amendment right to free speech; e. RAMOS assaulted and battered KELLY by grabbing KELLY's neck and shoulder and pulling out his baton ready to strike KELLY even though KELLY had not made any aggressive moves that threatened officer safety. f. WOLFE pulled and swung his baton at KELLY even though KELLY had his hands up and was standing. WOLFE struck KELLY With his baton even though KELLY had not made any aggressive or threatening move against RAMOS or WOLFE. g. WOLFE continuously pressed his body Weight on KELLY and ignored KELLY's repeated pleas that he could not breathe. h. WOLFE used his knees to strike KELLY and repeatedly struck KELLY in the head and face With his elbow While KELLY Was on the ground. i. Defendants RAMOS, WOLFE, CICINELLI, and CRAIG, continued to press their combined body Weight on KELLY for close to 10 minutes, repeatedly ignoring KELLY's pleas that he could not breathe, and which should have alerted all of the Defendants of the risk of causing respiratory distress. k. CICINELLI repeatedly fired his Taser, even though KELLY is on the ground with three other officers on top of him. 1. CICINELLI used deadly force by using his Taser gun as an impact Weapon to strike KELLY repeatedly in the face While KELLY Was on the ground. m. Despite having more than sufficient time to do so, HAMPTON failed to intervene to prevent RAMOS, WOLFE and CICINELLI's continued use of excessive and deadly force against KELLY. HAMPTON ignored repeated pleas that he could not breathe. HAMPTON instead assisted the other officers in continuing to use excessive and deadly force including the Taser, and assisted the officers as they continued to press their combined weight on KELLY. 16 COMPLAINT FOR DEMAND FOR JURY TRIAL n. CRAIG added his own body weight to press on KELLY's body and ignored KELLY's repeated pleas that he could not breathe. CRAIG failed to intervene by not instructing and not directing his subordinate officers to make sure KELLY can clear his airway so as to prevent o. HAMPTON and BLATNEY applied the hobble device to restrain KELLY, which increased KELLY's risk of respiratory distress from positional and they failed to intervene by making sure KELLY can clear his airway. 44. At all times during the event described herein, Defendants RAMOS, WOLFE, CICINELLI, HAMPTON, CRAIG, BLATNEY assisted each other in performing the various actions described and lent their physical presence and support and authority of their office to each other during the event and engaged in a conspiracy to cover up the excessive use of force, by among other things, claiming that KELLY was fighting them, that they sustained injuries inflicted by KELLY, by claiming that KELLY was on drugs. 45. The unreasonable use of deadly force by Defendants RAMOS, WOLFE, CICINELLI, CRAIG, BLATNEY and DOES 1 through 25 deprived KELLY of his right to be secure in his person against unreasonable searches and seizures as guaranteed to KELLY under the Fourth Amendment to the United States Constitution and applied to state actors by the Fourteenth Amendment. 46. As a legal result of Defendants' acts and omissions as heretofore described, Plaintiffs decedent KELLY suffered extreme pain and suffering and eventually suffered the loss of his life. KELLY suffered serious physical injuries and incurred medical bills for health care services necessary to try and save his life, until he died on July 10, 2011. 47. The aforementioned acts and omissions of Defendants were committed by each of them knowingly, willfully and maliciously, with the intent to harm, injure, Vex, harass and oppress KELLY, with a conscious disregard of KELLY's constitutional rights and conscious and deliberate indifference to the risk of death to KELLY, and by reason 17 COMPLAINT FOR DEMAND OR JURY TRIAL thereof Plaintiff seeks punitive and exemplary damages from Defendants, and each of them, (except Defendant CITY) in an amount as proved. FIFTH CAUSE OF ACTION (VIOLATION OF CIVIL RIGHTS - 42 U.S.C. 1983 - Substantive Due Process) (By Plaintiff RON THOMAS Individually Against Defendants RAMOS, WOLFE, CICINELLI, HAMPTON, BLATNEY, CRAIG and DOES 1 through 25, inclusive) 48. RON THOMAS has a cognizable interest under the Substantive Due Process Clause of the Fourteenth Amendment of the United States Constitution to be free from state actions that deprive him of life, liberty or property in such a manner as to shock the conscience, including but not limited to, unwarranted state interference in Plaintiffs familial relationship with his son, KELLY. 49. As a result of the excessive force and failure to intervene by Defendants RAMOS, WOLFE, CICINELLI, HAMPTON, BLATNEY, CRAIG, and DOES I through 25, KELLY died. Defendants interfered with and permanently deprived Plaintiff RON THOMAS of his constitutional right to a familial relationship with KELLY. 50. As a further legal result of the aforesaid acts and omissions by Defendants and KELLY's death, Plaintiff has incurred funeral and burial expenses in an amount according to proof 51. Defendants' actions, along with other undiscovered conduct, shock the conscience, and they acted with conscious and deliberate indifference to KELLY's and RON constitutional rights, and with the purpose of depriving them of such rights, unrelated to any legitimate law enforcement objective. 52. Defendants, and each of them, committed the aforementioned acts and omissions knowingly, willfully and maliciously, and with the intent to harm, injure, vex, harass and oppress Plaintiff with conscious disregard of Plaintiff known rights and by reasons thereof, Plaintiff seeks punitive and exemplary damages from Defendants individually, (except CITY) in an amount according to proof. 18 COMPLAINT FOR DEMAND FOR JURY TRIAL SIXTH CAUSE OF ACTION (SUPERVISOR LIABILITY UNDER 42 U.S.C. 1983 - Survival Claim) (By Plaintiff RON THOMAS as Successor-in-Interest of KELLY J. THOMAS Against Defendant CRAIG) 53. While acting under color of law as a Sergeant in the Fullerton Police Department, Defendant Sgt. CRAIG, knew or reasonably should have known that his subordinates, including Defendants RAMOS, WOLFE, CICINELLI, HAMPTON and BLATNEY, were engaging in the unlawful acts alleged herein and that his subordinates' conduct was depriving KELLY of his constitutional rights. 54. At all times, Defendant Sgt. CRAIG knew that KELLY had sustained massive head and facial trauma and was bleeding heavily from his nose. Defendant Sgt. CRAIG also knew that KELLY could not breathe. Despite this knowledge, and with willfull blindness to the excessive force already inflicted on KELLY, Defendant CRAIG acted with conscious and deliberate indifference to the risk of death to KELLY and instead of controlling, directing and otherwise terminating his subordinates' conduct, CRAIG assisted his subordinates in putting more weight on KELLY. Defendant CRAIG failed to and did not instruct his subordinate officers to keep KELLY's airway open so that KELLY could breathe. Instead Defendant CRAIG's assistance and instructions contributed to KELLY suffering respiratory distress due to compression and positional Defendant CRAIG so grossly mismanaged the situation and failed to remedy the wrong, such that even though CRAIG arrived while KELLY was still alive, CRAIG did not take steps to prevent KELLY's death. 55. In doing the acts as alleged herein, Defendant CRAIG inadequately trained, supervised and controlled his subordinate officers Defendants RAMOS, WOLFE, CICINELLI, HAMPTON and he acquiesced in the deprivation of KELLY's constitutional rights and his subordinate officers' use of excessive, unreasonable and deadly force; and he acted in a manner that showed a reckless and callous indifference to the rights of others, specifically KELLY THOMAS. 19 COMPLAINT FOR DEMAND FOR JURY TRIAL 56. As a legal result of Defendant CRAIG's actions and omissions as heretofore described CRAIG deprived KELLY of his right to be secure in his person against unreasonable searches and seizures as guaranteed to KELLY under the Fourth Amendment to the United States Constitution and applied to state actors by the Fourteenth Amendment. 57. As a legal result of Defendant CRAIG's acts and omissions as heretofore described, KELLY suffered extreme pain and suffering and eventually suffered the loss of his life. KELLY suffered serious physical injuries and incurred medical bills for health care services necessary to try and save his life, until he died on July 10, 2011. As a further legal result of the aforesaid acts and omissions by Defendants and KELLY's death, Plaintiff has incurred funeral and burial expenses in an amount according to proof 58. Defendant CRAIG committed the aforementioned acts and omissions knowingly, willfully and maliciously, and with the intent to harm, injure, Vex, harass and oppress KELLY with conscious disregard of KELLY's known rights and by reasons thereof, Plaintiff seeks punitive and exemplary damages from Defendant CRAIG individually, in an amount according to proof. SEVENTH CAUSE OF ACTION (UNLAWFUL CUSTOM AND PRACTICE UNDER 42 U.S.C. 1983) (By Plaintiff RON THOMAS Individually and as Successor-in-Interest of KELLY THOMAS Against Defendants CITY, SELLERS, MCKINLEY and DOES 26 through 50, inclusive.) 59. Plaintiff is informed and believes, and based thereon alleges, that on July 5, 2011, and for some time prior thereto, Defendants CITY, SELLERS, and DOES 26 through 50, inclusive, with deliberate indifference towards the civil rights of persons residing in or passing through the City of Fullerton, knowingly and willfully did maintain, enforce, and apply a custom, practice, policy and usage tending to encourage, promote, sanction, tolerate and ratify the abuse of authority, and the use of unreasonable, 20 COMPLAINT FOR DEMAND FOR JURY TRIAL unnecessary and excessive force by law enforcement personnel they employed in the Fullerton Police Department. 60. At all times herein mentioned, Defendants SELLERS, MCKINLEY and DOES 26 through 50, and each of them, were employees acting under the CITY's direction and control, who knowingly and intentionally promulgated, maintained, applied, enforced and suffered the continuation of policies, customs, practices and usages in violation of the First, Fourth and Fourteenth Amendments to the United States Constitution, which customs, policies, practices and usages at all times herein mentioned required and encouraged the employment, deployment and retention of persons as peace officers who have demonstrated their brutality, dishonesty, and numerous other serious abuses of their powers as peace officers in the employment of the CITY. 6l. Defendant CITY, SELLERS, MCKINLEY and DOES 26 through 50, inclusive, have demonstrated their deliberate indifference to widespread police abuses by failing and refusing to impartially investigate personnel complaints, failing to discipline or prosecute peace officers who commit acts of felonious dishonesty and crimes of violence. 62. The unconstitutional policies, practices or customs promulgated, sanctioned or tolerated by Defendants CITY, SELLERS, MCKINLEY and DOES 26 through 50 include, but are not limited to: hiring and retaining law enforcement personnel, including Defendants RAMOS, WOLFE, CICINELLI, HAMPTON, BLATNEY, CRAIG, and DOES l- 25, who lack sufficient mental, emotional and intellectual character, temperament, capacity or disposition to exercise sound judgment when exercising their authority as police officers; Defendants CITY, SELLERS, MCKINLEY and DOES 26 through 50 had knowledge, prior to and since this incident, of repeated allegations against its officers of abuse and assaultive misconduct toward detainees and arrestees. Specifically, CITY, SELLERS, MCKINLEY and DOES 26 through 50 knew 2] COMPLAINT FOR DEMAND FOR JURY TRIAL Defendants had in the past committed acts of police abuse, dishonesty and prevarication; Despite the CITY, SELLERS, and DOES 26 through 50's knowledge of abuse and misconduct, it failed or refused to enforce establishe administrative procedures, to ensure the safety of detainees and arrestees; Defendants CITY SELLERS, and DOES 26 through 50 failed to adequately train and educate officers in the use of reasonable and proper force and failed to enforce the department's written regulations with respect to use of force; Defendants CITY, SELLERS, MCKINLEY and DOES 26 through 50, encouraged, condoned, failed to enforce the department's written regulations with respect to the laws and procedures of arrest, and refused to re-train its officers who arrested citizens without probable cause and who used arrests as punishment for perceived "contempt of cop" and for citizens' exercise of their First Amendment rights. (D Defendant CITY, SELLERS, and DOES 26 through 50 failed to adequately monitor and supervise the actions of officers under their control and guidance; Defendants CITY, SELLERS, and DOES 26 through refused to competently and impartially investigate allegations of abuse and misconduct alleged to have been committed by Fullerton Police Department officers; Defendants CITY, SELLERS, and DOES 26 through 50 refused to adequately discipline individual officers and employees found to have committed similar acts of abuse and misconduct; Defendants CITY, SELLERS, MCKINLEY and DOES 26 through 50 rewarded officers who displayed aggressive and abusive behavior towards detainees and arrestees; _22_ COMPLAINT FOR DEMAND FOR JURY TRIAL Defendants CITY, SELLERS, and DOES 26 through 50 reprimanded, threatened, intimidated, demoted and fired officers who reported acts of abuse by other officers; Defendants CITY, SELLERS, MCKINLEY and DOES 26 through 50 condoned and encouraged a conspiracy of silence among their employees for the purpose of concealing and furthering wrongful and illegal conduct by their employees; Defendants CITY, SELLERS, MCKINLEY and DOES 26 through 50 fostered and encouraged an atmosphere of lawlessness, abuse and unconstitutional misconduct, as to encourage their police officers to believe that improper arrest of residents of the City of Fullerton or persons present therein, the excessive and improper use of force, the submission of false police reports, and the commission of perjury was permissible and would be tolerated, and to believe that unlawful acts of falsification of evidence and perjury would be overlooked without discipline or other official ramifications. By July 2011 and thereafter, these represented the unconstitutional policies, practices and customs of the CITY. 63. Said policies, procedures, customs and practices also called for the CITY and its Police Department not to discipline, prosecute, or objectively and/or independently investigate or in any way deal with, or respond to, known incidents and complaints of excessive and improper use of force, false arrest, falsification of evidence, the preparation of false police reports to justify, cover up and conceal wrongful conduct by officers of the Fullerton Police Department. Defendants demonstrated their deliberate indifference to the unconstitutional conduct by their failure to adequately train and more closely supervise or re-train officers and/or discipline or recommend prosecution of those officers who in fact improperly used such force, falsified evidence, submitted false and misleading police reports, and/or committed perjury. 64. Said policies, procedures, customs and practices called for and led to the refusal by Defendants, and each of them, to investigate complaints of previous incidents 23 COMPLAINT FOR DEMAND FOR JURY TRIAL of excessive and improper use of force, the filing of false police reports to conceal such misconduct, the falsification of evidence and perjury and instead, officially claim that such incidents were justified and proper. 65. Said policies, procedures, customs and practices of Defendants, and each of them, evidenced a deliberate indifference to the violations of the constitutional rights of Plaintiff and his son KELLY. This indifference was manifested by the failure to change, correct, revoke or rescind said policies, procedures, customs and practices in light of prior knowledge by Defendants, and each of them, and their subordinate policymakers, of indistinguishably similar incidents of excessive and improper use of force, falsification of evidence, submission of false police reports and perjury. 66. Defendants, and each of them, demonstrated their deliberate indifference to the civil rights of minority groups and other victims of the Fullerton Police Department's unlawful arrests, falsified evidence, false and misleading police reports and false and perjurious testimony by ignoring the history and pattern of prior civil lawsuits alleging civil rights violations arising from such misconduct and the related payment of damages to such individuals. 67. Defendants, and each of them, demonstrated their deliberate indifference by an absence of or by maintenance of an inadequate system of tort claims tracking, use-of- force tracking, and maintenance of an inadequate system of officer discipline and independent and objective investigation by the CITY and its Police Department which failed to identify and investigate instances of false and unlawful arrests, falsification of evidence, submission of false police reports and perjury. 68. Defendants, and each of them, demonstrated their deliberate indifference to the civil rights of minority groups and the weaker members of society, especially the mentally ill and homeless, by tolerating and sanctioning Fullerton police officers' abuse of the rights of the mentally ill and homeless by subjecting them to harassment, intimidation, false arrest and destruction of their personal property, thus fostering an atmosphere that encouraged its officers to disregard the rights of the mentally ill and 24 COMPLAINT FOR DEMAND FOR JURY TRIAL homeless based on the view that the mentally ill and homeless did not deserve respect or protection; 69. Other systemic deficiencies which indicated and continue to indicate, a deliberate indifference to civil rights violations by officers of the Fullerton Police Department include: a. preparation of investigative reports designed to vindicate and/or justify excessive and improper use of force; b. preparation of investigative reports which uncritically rely solely on the word of Fullerton police officers involved in unlawful arrests or improper use of force and which systematically fail to credit testimony by non-officer witnesses; c. preparation of investigative reports which omit factual information and physical evidence which contradicts the accounts of the officers involved; d. failure to maintain centralized department-wide systems for the tracking and monitoring of tort claims and lawsuits alleging false arrests, excessive and improper use of force, planting of evidence, perjury, abuse of authority, and other similar misconduct by individual officers so as to identify those officers who engage in a pattern of abuse of police authority and police misconduct. 70. Defendants, and each of them, also maintained a system of grossly inadequate training pertaining to lawful arrests, reasonable use of force, police ethics, the law pertaining to searches and seizures, testifying in trial and perjury, the collection of evidence, and the preparation of police reports. 71. Defendants, and each of them, demonstrated their deliberate indifference the victims of its Police Department's unlawful arrests, excessive and improper uses of force, and perjury by failing to implement an officer discipline system which would conduct meaningful and independent investigations of citizen complaints of excessive and improper use of force, falsified evidence, evidence tampering, authoring and filing of false and misleading police reports, and the presentation of false testimony at trial. 25 COMPLAINT FOR DEMAND FOR JURY TRIAL 72. Defendants, and each of them, demonstrated their deliberate indifference to the victims of its Police Department's excessive and improper uses of force, falsified evidence, false arrests, false and misleading police reports and false and perjurious testimony by their implementation of a practice and custom within the Fullerton Police Department of permitting their officers to engage in unlawful activities while on duty such as assaults, batteries, and other crimes of moral turpitude, including but not limited to, the following incidents: a. In 2008, Defendants knew of at least seven female victims of sexual assault and battery by Fullerton officer Albert Rincon and did not terminate his employment until after a federal lawsuit exposed Defendants' deliberate indifference to the victims by its utter failure to supervise, monitor and discipline Rincon. Defendants acted only after a federal district court judge, who had examined the evidence, issued a scathing opinion against the CITY and its police department for its "total" "failure to sufficiently enforce the DAR and pat-down policies" because Rincon's complete disregard of mandatory department policy "went completely undetected, or deliberately ignored" by the that the CITY's "failure to investigate or punish sexual harassment allegations" despite the "sheer volume of incidents" combined with the CITY's "most shocking" and "weak" "reprimand" of Rincon in response to the citizen allegations, demonstrated that the CITY was "complicit" in Rincon's sexual assaults on women he arrested, and "that the City did not care about what its officers did to women during arrest." Initially the CITY denied liability and forced the lawsuit to be filed, but one week after the district court's finding, the CITY settled the civil case and only then, finally made a move to terminate Rincon's employment. b. On August l7, 2008, several Fullerton officers including Officer Perr Thayer and Officer Anthony Diaz, assaulted, battered and terrorized Christopher Spicer-.Ianku and filed a false arrest report claiming that Mr. Spicer-Janku was "drunk in public." No charges were filed. Although Mr. Spicer-.Ianku filed a _25_ COMPLAINT FOR DEMAND FOR JURY TRIAL personnel complaint against the officers, Mr. Spicer-Janku never received any response from the CITY as to whether it even investigated the officers involved. c. In January 2009, Fullerton officer Christopher Wren was charged wit battery for using force and violence on another, and later convicted of false imprisonment after a plea deal. That same year Officer Wren was sued together with Officer Rincon and Defendant CITY for falsifying one of Officer Rincon's sexual battery victims' breath test results, in conspiracy with Officer Rincon. lt is presently unknown to Plaintiff what discipline if any, Defendants imposed on Officer Wren as a result of these incidents but Plaintiff is informed and believes that Officer Wren continues to be employed by Defendants. d. On October 29, 2009 Defendant CICINELLI falsely arrested Angel Baltazar for a violation of Health Safety Code l550 "under the influence." The District Attorney refused to file charges. e. From at least 2010, despite Defendants' knowledge that Fullerton officer Vincent Mater had a propensity for falsifying evidence and testimony, Defendants continued to retain and employ Officer Mater. Defendants continued to retain and employ Officer Mater despite as he was on the district attorney's 'Brady list' which meant that Officer Mater had a record and reputation of dishonesty. Plaintiff is informed and believes that one notorious instance was the case of Emmanuel Martinez, who wrongfully spent 5 months in jail, based on false arrest and false testimony by Officer Mater and another Fullerton officer Miguel Siliceo. lt is unknown whether Defendants imposed any discipline on Officer Mater and Officer Siliceo as a result of the Martinez incident. However, Defendants continued to retain and employ Officer Mater until he destroyed his DAR recording of his contact with Dean Francis Gochenour, who he had arrested and taken into custody, after Mr. Gochenour was found dead in his jail cell. f. On March l7, 2010 several Fullerton police officers, including HAMPTON, battered, beat and abused Andrew Trevor Clarke. Fullerton officers COMPLAINT FOR DEMAND FOR JURY TRIAL broke Mr. Clar1