Case Document 1 Filed 08/09/04 Page 1 of 12 tiff ?so STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK GLORIA OUEIRUGA and THOMAS 7 QUEIRUGA. Plaintiffs, COMPLAINT -against- THE CITY OF NEW YORK. PAULA PAUL GAGLIO, MALDONADO and PAGLIA. the first names being unknown. and 1 through 5, the names being fictitious and presently unknown, individually and in their official capacity as employees of the New York City . Police Department, Defendants Jury Trial Dema?ndeclli . i GLORIA QUEIRUGA and THOMAS QUEIRUGA, by their .1- Law Offices of Matthew Flamm, allege the following as their Complaint: in Nature of the Action 1. This civil rights action arises from the May 14, 2003 arrest of and use of force against Gloria Oueiruga and Thomas Queiruga. Plaintiffs seek declaratory relief pursuant to 28 U.S.C. ?2201 and, under 42 U.S.C. ??1983, compensatory and punitive damages for violation of their civil rights, Jurisdiction 2. This action arises under the United States Constitution and 42 U.S.C. ?1983. This Court has subject matter jurisdiction pursuant to 28 U.S.C. ?1331 and ?1343(3). Plaintiffs assert jurisdiction over the City of New York under 28 U.S.C. ?1367. Plaintiffs request that this Court exercise pendent Case Document 1 Filed 08/09/04 Page 2 of 12 jurisdiction over those state law claims arising out of the same common nucleus of operative facts as do plaintiffs? federal claims. 3. Under 28 U.S.C. ?1391, venue is proper in the Southern District of New York because the events giving rise to this suit occurred in that judicial District. EM 4. Plaintiff Gloria Queiruga, resides in Sunrise, Florida, County of Broward. She is the wife of Thomas Oueiruga. At the time of the incident Gloria Queiruga was residing in the City and State of New York, County of Bronx. 5. Plaintiff Thomas Oueiruga is a Citizen of the United States, residing in Sunrise, Florida, County of Broward. He is the husband of Gloria Oueinrga. At the time of the incident Thomas Oueiruga was residing in the City and State of New York, County of Bronx. 6. Defendant City of New York is a Municipal Corporation within New York State. Pursuant to ?431 of its Charter, the City of New York has established and maintains the Department of Police as a constituent department or agency. At all times relevant, the City of New York employed L11e Police personnel involved in the incident underlying this lawsuit. Defendant Paula (Shield Number 13379), was at all times relevant a duly appointed and acting employee of the New York City Police Department assigned to the 45? Police Precinct in Bronx, New York. Case Document 1 Filed 08/09/04 Page 3 of 12 8. Defendant Paul Gaglio was at all times relevant a duly appointed and acting empIOyee of the New York City Police Department assigned to the 46?? Police Precinct in Bronx, New York. 9. Defendant ?John" Maldonado was at all times relevant a dulyr appointed and acting employee of the New York City Police Department assigned to the 48?" Police Precinct in Bronx. New York. 10. Defendant ?John" Paglia was at all times relevant a duly appointed and acting employee of the New York City Police Department assigned either to the 45?h or 46th Police Precinct Bronx, New York. 11. Defendants "John Doe? 1 through 5, were at all times relevant duly appointed and acting employees of the New York City Police Department assigned either to the 45th or 46th Police Precinct Bronx, New York. 12. Defendants Gaglio, Maldonado. Paglia and ?John Doe? 1 through 5 (collectively the ?individual defendants") were at all times relevant acting under color of state law. 13. The individual defendants involved in the incident underlying this lawsuit were, at all times relevant, agents, servants and employees acting within the scope of their employment by defendant City of New York. Notice of Claim 14. On or about May 23, 2003, and Within ninety days after claims arose, plaintiffs filed a Notice of Claim upon defendant City of New York, by delivering copies thereof to the person designated by law as a person to whom such claims may be served. 15. The Notice Of Claim in mn'i?ng, tn by plaintiff Thomas Queiruga, and contained the name and the then current post office address of the plaintiffs. Case 1 Filed 08/09/04 Page 4 of 12 16. The Notice of Claim set out the nature of the claim, the time when, the place where and manner by which the claim arose, and the damages and injuries claimed to have been sustained by plaintiffs. 1'7. The New York City Comptroller's Office assigned the case claim number 2003P1012935. 18. The City of New York has neglected and failed to adjust the claims within the statutory time period. 19. This action was commenced within one year and ninety days after the happening of the event upon which the claims are based. Facts Underlying Plaintiffs' Claims for Relief 20. On May 14. 2003 at approximately 7:30 p.m. at and around 2824 Middleton Road, Bronx, New York the individual defendants unlawfully assaulted and arrested plaintiffs Gloria and Thomas Queiruga. 21. At the above-referenced time and place the plaintiffs were accosted by two Direct TV representatives. ovanny Arias and his brother Angel Arias, who demanded that Mr. Queiruga return cable television boxes. 22. Mr. Queiruga told the cable men to return at another time but they refused to leave. 23. The two men from Direct TV engaged in verbal abuse of the Queirugas and otherwise threatened the family. Mr. Queiruga told the men to leave and told them that if they did not leave he would call the police. 24. Upon information and belief, the two cable TV men telephoned the Police and falsely reported to the police that the Mr. Queiruga had threatened them with a gun. -4- Case "Document 1 Filed 08/09/04 Page 5 of 12 25. Police officers, including one or more of the individual defendants, responded to the scene. 26. Answering a knock at the door, Mr. Clueiruga was grabbed by one or more of the individual defendants, who entered the vestibule of plaintiffs? building and threw Mr. Queiruga up against a wall demanding that plaintiff hand over the weapon. 27. Mr. Oueiruga told the officers that he did not have a weapon. 28. Thereupon. without consent the individual defendants. or some of them, proceeded upstairs and entered the family apartment and searched the premises. 29. One or more of the individual defendants assaulted Gloria Oueiruga hitting her arm and throwing her onto a bed. During the incident, one or more of the individual defendants kicked Mrs. Oueiruga, hit her in the face with a police radio, and kneed her in her lower back. 30. The police officers, including one or more of the individual defendants, continued to accuse Mr. and Mrs. Queiruga of hiding a weapon, though a thorough and search of premises never yielded any evidence of a weapon. 31. Despite that numerous police officers had thoroughly searched the premises and found no gun or indeed any evidence of any crime, the individual defendants handcuffed Mr. and Mrs. Queiruga and placed them under arrest. 32. The plaintiffs were taken to a nearby Police Precinct Stationhouse where they were photographed and fingerprinted and held over night. Case Document 1 Filed 08/09/04 Page 6 of 12 33. The following day the plaintiffs were, upon information and belief, taken to the Bronx County Courthouse whore they were kept in holding cells for another night. 34. Thomas Oueiruga was charged with Criminal Possession of a Weapon Fourth Degree (PL. two counts of Menacing in the Second Degree (PL. Resisting Arrest (PL. 53205.30), and Harassment in the Second Degree (P.L. $5240.26 35. Gloria Oueiruga was charged with Obstructing Governmental Administration (P.L. ?195.05), Resisting Arrest (PL. ?205.05), Disorderly Conduct (PL. ?240.20 and Reckless Endangerment (PL. ?120.25). 36. Mr. Oueiruga plead guilty to the violation of charge of Harassment in the Second Degree. 3'7. Plaintiff Gloria Oueiruga was forced to appear on numerous occasions in criminal court to contest the baseless charges, until on or about February 17, 2004 the charges were adjourned in contemplation of dismissal. 38. The individual defendants, despite having a reasonable opportunity to do so, took no action to prevent or end the unlawful use of force, detention, and prosecution of Thomas Oueiruga and Gloria Oueiruga. 39. As a result of the foregoing, plaintiffs suffered mental anguish, shock, fright, debasernent, trauma and deprivation of their constitutional rights, among other injuries. 40. Plaintiff Gloria Oueiruga suffered, among other physical injuries, injury to her lower back, right shoulder, and right leg. The full scope and extent of her physical injuries are at present unknown. 41. Plaintiff Thomas Oueiruga suffered, among other injuries, soreness and pain to his right arm. -5- Case Document 1 Filed 08/09/04 Page 7 of 12 42. At all times relevant the individual defendants acted intentionally, willfully. maliciously, negligently, and with reckless disregard for and deliberate indifference to plaintiffs' rights. FIRST CLAIM FOR RELIEF FOR VIOLATING RIGHT TO BE FREE FROM UNREASONABLE AND EXCESSIVE FORCE UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION 43. Plaintiffs repeat the allegations of paragraphs 1-42 as though fully stated herein. 44. By the actions described above, the individual defendants, or some of them, deprived the plaintiffs of their secured by the Constitution and laws of the United States including, but not limited to1 their right to be free from excessive and unreasonable force. 45. As a consequence thereof, Gloria Oueiruga and Thomas Queiruga have been injured SECOND CLAIM FOR RELIEF FOR ASSAULT 46. Plaintiffs repeat the allegations of paragraphs 1-42 as though fully stated herein. 47. By the actions described above, the plaintiffs were intentionally placed in apprehension of imminent harmful and offensive contact. 48. As a consequence thereof, Gloria Oueiruga and Thomas Oueiruga have been injured. THIRD CLAIM FOR RELIEF FOR BATTERY 49. Plaintiffs repeat the allegations of paragraphs 1-42 as though fully stated herein. Case "Document 1 Filed 08/09/04 Page 8 of 12 50. By the actions described above, the plaintiffs were intentionally touched in a harmful and offensive 51. As a consequence thereof, Gloria Oueiruga and Thomas Queiruga have been injured. FOURTH CLAIM FOR RELIEF FOR VIOLATING RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION 52. Plaintiffs repeat the allegations of paragraphs 1-42 as though fully stated herein. 53. By the actions described above, the individual defendants. or some of them, deprived Gloria Oueiruga of rights secured by the United States Constitution, including, but not limited to plaintiff's right to be free and secure in her persons and the right to be free from arrest or search, except on probable cause or pursuant to a warrant. 54. As a consequence thereof, Gloria Queiruga has been injured. FIFTH CLAIM FOR RELIEF FOR VIOLATING RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES UNDER ARTICLE ONE SECTION TW EW RK TATE TI I 55. Plaintiffs repeat the allegations of paragraphs 1-42 as though fully stated herein. 56. By the actions described above, the individual defendants, or some of them, deprived Gloria Oueiruga of rights secured by the Constitution of the State of New York, including, but not limited to, the right to be free and secure in her person, and the right to be free from arrest or search except on probable cause or pursuant to a warrant. 57. As a consequence thereof, Gloria Queiruga have been injured. -8- Case Document 1 Filed 08/09/04 Page 9 of 12 SIXTH CLAIM FOR RELIEF FOR FALSE IMPRISONMENT 58. Plaintiffs repeat the allegations of paragraphs 1?42 as though fully stated herein. By reason of the foregoing, plaintiff Gloria Queiruga was confined without privilege or probable cause to believe a crime had been committed. Plaintiff was aware of and did not consent to the confinement. Plaintiff was thereby falsely arrested and imprisoned. 60. As a consequence thereof, Gloria Queiruga has been injured. SEVENTH CLAIM FOR RELIEF FOR VIOLATION Db' GLORIA RIGHTS UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION 61. Plaintiffs repeat the allegations of paragraphs 1-42 as though fully stated herein. 62. By the actions described above, and by filing or allowing to be filed false allegations with the Criminal Court of the City of New York, County of Bronx, the individual defendants, or some of them, deprived plaintiff of her rights secured by the United States Constitution. including, but not limited to, her right to a fair trial. 63. As a consequence thereof, Gloria Queiruga has been injured. EIGHTH CAUSE OF ACTION FOR ABUSE OF PROCESS 64. Plaintiffs repeats the allegations of paragraphs 1-42 as though fully stated herein. 65. The individual defendants, or some of them, maliciously used criminal process for a purpose other than bringing a suspected wrongdner to justice, to wit, in order to intimidate Gloria Queiruga from asserting her rights -9- Case Document 1 Filed 08/09/04 Page 10 of 12 against the individual defendants and in order to cover up their own wrongdoing and avoid civil and criminal liability for their acts. 66. As a consequence thereof, Gloria Oueiruga has been injured. NINTH CLAIM FOR RELIEF FOR FAILURE TO INTERVENE TO PREVENT THE VIOLATION OF CIVIL RIGHTS 67. Plaintiffs repeat the allegations of paragraphs 1-42 as though fully stated herein. 68. The individual defendants failed to intervene to prevent or end or truthfully report the unlawful search, assault, arrest, abuse of process, and false allegations made ag the plaintiffs, despite having a realistic opportunity to do so. 69. As a consequence thereof, Gloria Queiruga and Thomas Queiruga have been injured. TENTH CLAIM FOR RELIEF FOR NEGLIGENCE 70. Plaintiffs repeat the allegations of paragraphs 1-42 as though fully stated herein. 71. The acts complained of herein resulted from defendant City of New York, thIOugh its agents, servants and employees, breaching its duty properly to assign, train, supervise or discipline its law enforcement personnel, including assigning, training, supervising or disciplining individual Police personnel who unlawfully search, use unreasonable force, arrest or otherwise act to deprive individuals of their constitutionally protected rights. 72. The defendant City of New York's failure properly to assign, train, supervise or discipline its Police personnel, including the Police personnel involved herein, constitutes acquiescence in and tolerance of ongoing -10- Case Document 1 Filed 08/09/04 Page 11 of 12 unconstitutional searches, use of force, arrest, and false allegations. Such acquiescence created the atmosphere allowing the individual defendants to believe that they could unlawfully make false allegations against. search. assault. and arrest the plaintiffs with impunity. 73. By reason of the foregoing, the defendant City, and through its agents. servants and employees. failed and refused to use such care in the performance of its duties as a reasonably prudent employer of law enforcement personnel would have used under similar circumstances. 74. As a consequence thereof, Gloria Queiruga and Thomas Oueiruga have been injured. Request for Relief WHEREFORE, plaintiffs respectfully requests that judgment be entered as follows: (A) Declaratory relief as follows: 1. A declaration that plaintiffs' right to be free from unreasonable and excessive force under the United States Constitution was violated; 2. A declaration that plaintiffs' right to be free from unreasonable searches and seizures under the United States Constitution was violated; 3. A declaration that plaintiffs' right to a fair trial under the Sixth Amendment to the United States Constitution was violated; (B) Compensatory damages in an amount to be fixed at trial; (C) By reason of the wanton, willful and malicious Character of the conduct complained of herein, punitive damages in an amount to be fixed at trial; (D) An award to plaintiffs of the costs and disbursements herein; -11- Case Document 1 Filed 08/09/04 Page 12 of 12 Dated: (E) An award of attorney's fees under 42 U.S.C. ?1988; (F) Such other and further relief as this Court may deem just and proper. August 9. 2004 Brooklyn. New York Law Offices of Matthew Flamm Attorneys for Plaintiffs By: MWW FLAMM MF1309 26 Court Street, Suite 600 Brooklyn, New York 11242 (718) 797-3117 -12-