Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 1 of 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 LA’MARCUS MCDONALD, 11 12 13 14 15 No. Plaintiff, COMPLAINT FOR THE VIOLATION OF CIVIL RIGHTS; 42 U.S.C. § 1983, THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED COUNTY OF SONOMA, TOWN OF WINDSOR, STATES CONSTITUTION AND PENDENT MARK ESSICK, TRAVIS PERKINS, BRENT STATE CLAIMS KIDDER, and GREGORY CLEGG, v. 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 010930-11/1317796 V1 DEMAND FOR JURY TRIAL Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 2 of 30 1 TABLE OF CONTENTS 2 I. NATURE OF THIS ACTION .................................................................................................1 3 II. JURISDICTION AND VENUE ..............................................................................................3 4 III. PARTIES .................................................................................................................................4 5 IV. NOTICE OF TIMELY CLAIM ..............................................................................................6 6 V. FACTUAL ALLEGATIONS ..................................................................................................6 7 VI. DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF ...........................................11 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 FIRST CAUSE OF ACTION (Violation of Plaintiff’s Civil Rights, 42 U.S.C. § 1983 Against Individual Officer Defendants and Does 1-50) ............................................12 SECOND CAUSE OF ACTION (Violation of Plaintiff’s Civil Rights, 42 U.S.C. § 1983 — Monell Action Against the Public Entity Defendants and Admin. Sgt. Kidder) ...............................14 THIRD CAUSE OF ACTION (Violation of Plaintiff’s Civil Rights, 42 U.S.C. § 1983, Substantive Due Process Against All Defendants) ............................................................................................17 FOURTH CAUSE OF ACTION (Violation of Plaintiff’s Civil Rights under California Constitution Against All Defendants) ............................................................................................18 FIFTH CAUSE OF ACTION (Negligent Hiring & Retention Against Public Entity Defendants) ............................................................................19 SIXTH CAUSE OF ACTION (Negligence Against Defendants Deputy Sheriff Perkins and Deputy Clegg) ..............................20 SEVENTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress Against Defendants Deputy Sheriff Perkins and Does 1-50) ....................................20 EIGHTH CAUSE OF ACTION (Battery Against Defendant Deputy Sheriff Perkins) ..............................................................21 NINTH CAUSE OF ACTION (False Arrest and Imprisonment Against the Individual Officer Defendants) ..............................................................21 TENTH CAUSE OF ACTION (Unreasonable Seizure Against Defendant Deputy Sheriff Perkins and Does 1-50) .....................................22 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -1 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 3 of 30 1 ELEVENTH CAUSE OF ACTION (Violation of Cal. Civ. Code § 52.1, Bane Civil Rights Act Claim Against Defendant Deputy Sheriff Perkins) ..............................................................22 2 3 TWELFTH CAUSE OF ACTION (Violation of Cal. Civ. Code § 52.1, Bane Civil Rights Act Claim Against the Public Entity Defendants and Sheriff Essic) ..........................................23 4 5 THIRTEENTH CAUSE OF ACTION (Violation of Cal. Civ. Code § 51.7, 52(b), Ralph Civil Rights Act Claim Against Defendant Deputy Sheriff Perkins) ..............................................................24 6 7 FOURTEENTH CAUSE OF ACTION (Violation of Cal. Civ. Code § 51.7, 52(b), Ralph Civil Rights Act Claim Against the Public Entity Defendants and Sheriff Essick) ........................................25 8 9 FIFTEENTH CAUSE OF ACTION (Respondeat Superior State Law Claims Against Public Entity Defendants) ............................................................................25 10 11 VII. PRAYER FOR RELIEF ........................................................................................................26 12 JURY DEMAND...............................................................................................................................27 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -2 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 4 of 30 1 La’Marcus McDonald (hereinafter “Plaintiff”) alleges against Defendants (1) the County of 2 Sonoma (“Sonoma County” or the “County”); (2) the Town of Windsor (“Windsor” or the “Town”) 3 (together with the County of Sonoma, the “Public Entity Defendants”); (3) Sheriff Mark Essick 4 (“Sheriff Essick”), individually, and in his capacity as the Sheriff of the Sonoma County Sheriff’s 5 Office; (4) Deputy Sheriff Travis Perkins (“Deputy Sheriff Perkins”), individually, and in his 6 capacity as a Police Officer with the Windsor Police Department; (5) Administrative Sergeant Brent 7 Kidder (“Admin. Sgt. Kidder”), individually, and in his capacity as a Police Officer with the 8 Windsor Police Department; and (6) Deputy Gregory Clegg (“Deputy Clegg”), individually, and in 9 his capacity as a Police Officer for the City of Windsor Police Department; and Does 1 through 50, 10 inclusive (collectively, “Defendants”), as follows: 11 12 I. 1. NATURE OF THIS ACTION This is an action for deprivation of civil rights in which Plaintiff seeks relief for the 13 violation of his rights secured by the Civil Rights Act of 1964, 42 U.S.C. § 1983 (civil action for 14 deprivation of rights), § 1988, the Fourth and Fourteenth Amendments to the United States 15 Constitution, and pendent state law claims. 16 2. The claims arise from a July 9, 2019 incident in which officers of the Windsor Police 17 Department, acting under color of state law responded to a welfare check of Plaintiff who was 18 sleeping in a legally parked car with the door open. During the encounter, Deputy Sheriff Perkins 19 intentionally and willfully subjected Plaintiff to, inter alia, the use of excessive and deadly force by 20 slamming Plaintiff head first into the ground while holding his right arm, breaking off Plaintiff’s two 21 front teeth, knocking out a third, causing bleeding from the mouth, facial and arm lacerations, and 22 rendering him unconscious. 23 3. To cover up the misdeed, Deputy Sheriff Perkins falsely arrested Plaintiff for 24 “resisting arrest,” and had him falsely imprisoned. Admin. Sgt. Kidder signed off on the false arrest 25 charges of “resisting arrest,” which the Sonoma County District Attorney refused to prosecute after 26 receipt of the body camera footage. 27 28 4. Defendants then wrongfully had the car towed and impounded, where it remains today, as a result of the unaffordable and excessive storage charges. Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -1 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 5 of 30 1 5. Plaintiff was initially transported to the hospital, handcuffed and denied water, by 2 Deputy Clegg. Subsequently, Plaintiff was transported to the county jail, and held involuntarily, until 3 he could make bail. Plaintiff was never informed that the charges against him had been dropped 4 within days, as the District Attorney refused to prosecute the case, and was required to attend a court 5 hearing a month later to learn that he was not being prosecuted. 6 6. Plaintiff was further denied access to the body camera video. Only after several 7 written and oral requests, and denials, was Plaintiff allowed to view the video in the presence of a 8 Sonoma County Police officer. Still, Sonoma County withheld the copies of the body camera video. 9 The County of Sonoma continues to withhold the video footage despite repeated requests, as 10 required under Govt. Code 6254(f)(4), which states: (4) Notwithstanding any other provision of this subdivision, commencing July 1, 2019, a video or audio recording that relates to a critical incident, as defined in subparagraph (C), may be withheld only as follows: (A) (i) During an active criminal or administrative investigation, disclosure of a recording related to a critical incident may be delayed for no longer than 45 calendar days after the date the agency knew or reasonably should have known about the incident, if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with the investigation, such as by endangering the safety of a witness or a confidential source. 11 12 13 14 15 16 17 A critical incident under this statute includes, “[a]n incident in which the use of force by a peace 18 officer or custodial officer against a person resulted in death or in great bodily injury.” Sonoma 19 County and the Sheriff’s Office claim that the loss of three front teeth and being rendered 20 unconscious is “not great bodily harm,” and further argue that the California penal statutes and case 21 law, which are contrary to their position, have no bearing on the Government Code statutes. 22 7. Sonoma County and the Sheriff’s Office further claim that the loss of three front teeth 23 and being rendered unconscious is also not “serious bodily injury” for purposes of Govt. Code § 24 12525.2 – a law passed in 2015 that went into force on January 1, 2017 – to require each sheriff and 25 police chief to annually furnish to the Department of Justice a report of specified incidents when a 26 police officer is involved in the use of force. “Serious bodily injury” under that statute is defined as 27 “a bodily injury that involves a substantial risk of death, unconsciousness, protracted and obvious 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -2 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 6 of 30 1 disfigurement, or protracted loss or impairment of the function of a bodily member or organ.”1 As a 2 result, it appears evident that Sonoma County, fails to report this and other similar incidents of “great 3 bodily harm “or serious bodily injury” to the California Department of Justice as required by Govt. 4 Code § 12525.2. 5 8. Defendants’ actions amount to a denial of Plaintiff’s constitutional and state law 6 rights, and are designed to hide a systemic denial of the rights of persons living in or traveling 7 through Sonoma County and the Town of Windsor. The actions are also designed to hide police 8 misconduct and brutality and racism from the citizens of Sonoma County, the State and the United 9 States of America. As shown below, Defendants conduct is not isolated. It is a pattern and practice 10 that has long frustrated and infuriated the local community. This pattern and practice must not be 11 allowed to continue. 12 9. As a result, Plaintiff seeks monetary damages (special, compensatory, and punitive) 13 against Defendants, declaratory and injunctive relief, as well as an award of costs and attorneys’ fees, 14 and such other further relief as the Court deems just and proper. 15 II. 16 10. JURISDICTION AND VENUE This action is brought pursuant to 42 U.S.C. § 1983, and the Fourth and Fourteenth 17 Amendments to the United States Constitution. Title 28 of the United States Code, Sections 1331 18 and 1343 confers jurisdiction upon this Court. Jurisdiction is also vested in this Court under 28 19 U.S.C. § 1343(a)(3)-(4) for violations of the 1871 Civil Rights Enforcement Act, as amended, 20 including 42 U.S.C. § 1983. Supplemental jurisdiction for pendent state claims is provided pursuant 21 to 28 U.S.C. § 1367(a). 22 23 24 25 26 27 28 1 See also, Information Bulletin No. 16-12-CJIS, Use of Force Incident Reporting, Attorney General (Dec. 21, 2016), https://oag.ca.gov/sites/all/files/agweb/pdfs/law_enforcement/16-12-cjisuse-force-incident-reporting-ursus.pdf. [In this bulletin sent to the Sonoma County Sheriff, the Attorney General made clear, four years ago, that serious bodily injury was a low threshold that does not even require a trip to the hospital: “Serious bodily injury should not, however, mean that one must seek or require medical treatment at a hospital (e.g., a person experiences a loss of consciousness or because the injury is such that it is not immediately apparent that hospital care is necessary). Under those or similar circumstances, agencies must still report the use of force incident upon discovering that it resulted in serious bodily injury.” Regardless, Plaintiff’s injuries were of such a nature that Plaintiff was sent to the hospital by the Defendants. Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -3 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 7 of 30 1 11. Venue is laid within the United States District Court for the Northern District of 2 California in that Defendants County of Sonoma and Windsor Police Department are located within, 3 and the events giving rise to the claim occurred within the boundaries of the Northern District of 4 California. Venue is proper in the Northern District of California under 28 U.S.C. § 1391(a)-(b). 5 6 III. 12. PARTIES Plaintiff, La’Marcus McDonald (“Plaintiff” or “Mr. McDonald”) is a legal resident of 7 the United States and at all times here relevant resided in Sonoma County in the State of California. 8 He is African-American and over the age of 21. 9 13. Defendant, the County of Sonoma (“Sonoma County” or the “County”) is, as all times 10 mentioned in this Complaint, a political subdivision of the State of California, duly authorized and 11 existing under the laws of, and by virtue of, the Constitution and laws of the State of California. 12 Under its supervision, Sonoma County operates the Sonoma County Sheriff’s Department (the 13 “Sheriff’s Department”) which staffs the Windsor Police Department through a contract negotiated 14 between the Town of Windsor and Sonoma County. The Sheriff’s Department employed, trained and 15 supervised the individual defendants and, as part of Sonoma County, set the policies, procedures and 16 customs complained of herein. 17 14. Defendant, the Town of Windsor (“Windsor” or “Town”) is a political subdivision of 18 the State of California, and is incorporated town under California general law in the County of 19 Sonoma, California. Windsor contracts with the County of Sonoma to provide police services 20 through the Sheriff’s Department. Windsor is responsible for the conduct herein as it has delegated 21 the policies, procedures and customs complained of herein to the County of Sonoma. 22 15. Defendant, Sheriff Mark Essick (“Essick” or “Sheriff Essick”) has been a member of 23 the Sonoma County Sheriff’s Office since 1994, holding many positions including Sergeant, 24 Lieutenant and Captain, manager of the Sheriff’s Office Personnel and Internal Affairs units, 25 managed the police service contract with Windsor, and commanded Professional Standards, 26 Investigations/Coroner Bureaus, Personnel, and Community Outreach. Essick was elected 27 Sheriff/Coroner in June of 2018 and was sworn in as Sonoma County’s Sheriff on January 7, 2019. 28 In his current position, Essick sets or is responsible for the customs, policies and practices Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -4 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 8 of 30 1 complained of herein. At all times relevant to the acts and omissions herein alleged, Defendant 2 Essick was Sheriff/Coroner, and was acting in the course and scope of his employment with the 3 County of Sonoma, and the Sonoma County Sheriff’s Office. 4 16. Plaintiff is informed and believes and thereupon alleges that Defendant, Deputy 5 Sheriff Travis Perkins (“Deputy Sheriff Perkins”) is and at all relevant times mentioned herein is a 6 resident of the State of California and County of Sonoma. At all relevant times stated herein, Deputy 7 Sheriff Perkins was a police officer and was acting in the course and scope of his employment with 8 the County of Sonoma and the Sheriff’s Department, and is sued in his individual and official 9 capacities. 10 17. Plaintiff is informed and believes and thereupon alleges that Defendant, Deputy 11 Gregory Clegg (“Deputy Clegg”) is and at all relevant times mentioned herein is a resident of the 12 State of California and County of Sonoma. At all times stated herein, Deputy Clegg was a police 13 officer and was acting in the course and scope of his employment with the County of Sonoma and for 14 the Sheriff’s Department, and is sued in his individual and official capacities. 15 18. Plaintiff is informed and believes and thereupon alleges that Defendant, 16 Administrative Sergeant Brent Kidder (“Admin. Sgt. Kidder”) is and at all relevant times mentioned 17 herein is a resident of the State of California and County of Sonoma. Plaintiff is informed and 18 believes and thereupon alleges that Admin. Sgt. Kidder supervised both Deputy Sheriff Perkins and 19 Deputy Clegg, and signed the false arrest report. At all times stated herein, Admin. Sgt. Kidder was a 20 supervising police officer and was acting in the course and scope of his employment with the County 21 of Sonoma and for the Sheriff’s Department, and is sued in his individual and official capacities. 22 23 24 19. Defendants Deputy Sheriff Perkins, Admin. Sgt. Kidder and Deputy Clegg are collectively referred to herein as the “Individual Officer Defendants.” 20. Plaintiff is unaware of the true names and capacities of those Defendants sued herein 25 as DOE Defendants. Plaintiff will amend this complaint to allege said Defendants’ true names and 26 capacities when that information becomes known to him. Plaintiff is informed, believe, and thereon 27 alleges that these DOE Defendants are legally responsible and liable for the incident, injuries and 28 damages hereinafter set forth, and that each of said Defendants proximately caused the injuries and Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -5 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 9 of 30 1 damages by reason of negligent, careless, deliberately indifferent, intentional, willful or wanton 2 misconduct, in creating and otherwise causing the incidents, conditions and circumstances 3 hereinafter set forth, or by reason of direct or imputed negligence or vicarious fault or breach of duty 4 arising out of the matters herein alleged. Plaintiff will seek leave to amend this complaint to set forth 5 said true names and identities of the unknown named DOE Defendants when they are ascertained. 6 7 8 9 10 21. In doing the acts alleged herein, Defendants, and each of them, acted within the course and scope of their employment. 22. In doing the acts and/or omissions alleged herein, Defendants, and each of them, acted under color of authority and/or under color of law. 23. Plaintiff is informed, believe, and therefore alleges that, at all times herein mentioned, 11 each of the Defendants was the agent and/or employee and/or co-conspirator of each of the 12 remaining Defendants, and in doing the things hereinafter alleged, was acting within the scope of 13 such agency, employment and/or conspiracy and with the permission and consent of other co- 14 Defendants. 15 16 IV. 24. NOTICE OF TIMELY CLAIM Within six months of this the incident, Plaintiff filed a written Claim with the County 17 of Sonoma in substantial compliance with California Government Code section 910, et seq. On 18 December 27, 2019, the County mailed a Notice of Rejection of the Claim. This action was filed 19 within 6 months of the mailing of that Notice. Accordingly, as of the date of the filing of the 20 Complaint, said claim had been denied, and the state law claims alleged herein against the County of 21 Sonoma are timely. 22 23 V. 25. FACTUAL ALLEGATIONS On July 9, 2019, Plaintiff resided with his mother at 712 Sequoia St., Windsor, CA 24 95492 who was in the process of being evicted. Together they were waiting to find a new place to 25 live and were in the process of packing up her belongings. Plaintiff was younger than the age 26 allowed in the development and had been asked to sleep elsewhere by the property owner. Without a 27 place to stay, Plaintiff was allowed to sleep in his friend’s car parked just outside the development 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -6 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 10 of 30 1 home park located at 7890 Bell Road. On July 9, 2019, Plaintiff was asleep in the car. At some point, 2 the driver’s side door was opened. 3 26. Suspecting a drug overdose, Mr. Andrew Chambers, an individual who drove past 4 Plaintiff sleeping in the car, called 9-1-1 to have someone check on Plaintiff’s well-being. Deputy 5 Sheriff Perkins was dispatched, along with an ambulance and one or more patrol officers. 6 27. Deputy Sheriff Perkins did not wait for the ambulance pulling up behind him. Deputy 7 Sheriff Perkins approached the vehicle that Plaintiff, who is African-American, was in and observed 8 him curled up in the front driver’s seat, facing the open door and street, and sound asleep. Plaintiff 9 was completely inside the car, though the door was open. 10 28. Deputy Sheriff Perkins attempted to arouse Plaintiff by speaking to him. Plaintiff 11 soon responded to Deputy Sheriff Perkins’s verbal and/or physical prodding. Plaintiff was confused 12 and disoriented. Plaintiff slowly looked at Deputy Sheriff Perkins and attempted to respond to 13 Deputy Sheriff Perkins’s questions, while trying to comprehend the scene as other police and 14 paramedic vehicles approached. 15 16 29. for the red comb and removed the comb from Plaintiff’s head, for no apparent reason. 17 30. 18 he had not. 19 31. 20 21 22 23 Plaintiff was wearing a red plastic comb in his hair. Deputy Sheriff Perkins reached Deputy Sheriff Perkins asked Plaintiff if he had been taking any drugs. Plaintiff stated Plaintiff pleaded with Deputy Sheriff Perkins that he had not done anything wrong and was not causing any trouble. 32. When asked if he had been drinking, Plaintiff truthfully responded that he had been drinking earlier. 33. Deputy Sheriff Perkins then asked Plaintiff to exit the vehicle. Disoriented, Plaintiff 24 complied, slowly putting his feet on the ground and slowly standing up. As he exited the vehicle, 25 Deputy Sheriff Perkins spun him around and grabbed his right hand. Deputy Sheriff Perkins did not 26 tell Plaintiff that he was under arrest or tell him to turn around so that he could hand-cuff him. 27 Instead, Deputy Sheriff Perkins began to try to hand-cuff Plaintiff immediately and forcefully. 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -7 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 11 of 30 1 34. In his disoriented and confused condition, Plaintiff did not understand or comprehend 2 what Deputy Sheriff Perkins was trying to do. The next thing Plaintiff remembers is waking up face 3 first on the ground with pain in his head and mouth. According to the false incident report, Deputy 4 Sheriff Perkins claims Plaintiff tensed up, after which, according to body camera footage viewed by 5 Plaintiff, Deputy Sheriff Perkins shouted, “Don’t f*****g do that again,” and then, using deadly 6 force, slammed Plaintiff head first into the ground while holding Plaintiff’s right hand. At no time 7 did Plaintiff pose any significant threat to Deputy Sheriff Perkins and at no time did Deputy Sheriff 8 Perkins consider his or anyone else’s life in danger. Hence, the force used by Deputy Sheriff Perkins 9 against Plaintiff was neither reasonable nor necessary. 10 11 12 35. As a result, Plaintiff landed head first on the pavement knocking him unconscious, breaking two front teeth, knocking out a third, causing facial and arm lacerations and bleeding. 36. Plaintiff was then hand-cuffed by Deputy Sheriff Perkins, unconscious, as the 13 paramedics and Deputy Clegg, arrived. Plaintiff was then transported to the hospital where he was 14 forced to lay in bed handcuffed for hours and denied water by Deputy Clegg. 15 37. Still handcuffed, Plaintiff was illegally transported to Sonoma County Jail without 16 being told why he was under arrest or the charges against him. Plaintiff was held in detention until 17 relatives could post bail. The District Attorney refused to prosecute the charges on or about July 12, 18 2019, after receipt of the false arrest report and body camera footage. 19 20 21 38. Plaintiff could not afford to get the car out of impoundment, where the car remains today and is incurring ever-increasing, unreasonable and unconstitutional charges. 39. Plaintiff was further denied access to the body camera video. Eventually, after much 22 negotiation with Sonoma County, Plaintiff was allowed to view it in the presence of a Sonoma 23 County Police officer, but was denied a copy of the video. The Sheriff’s Department refuses to this 24 day to release the video footage, despite demands as required under Govt. Code 6254(f)(4), which 25 went into effect on July 1, 2019, just preceding this incident. Sonoma County and the Sheriff’s 26 Department claim that having three front teeth knocked out and being rendered unconscious is “not 27 great bodily harm” and claim that California Penal Statutes and case law to the contrary have no 28 bearing on the Government Code statutes. As a result, Sonoma County undoubtedly, has failed to Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -8 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 12 of 30 1 report the incident to the California Department of Justice as required by Govt. Code § 12525.2(d) – 2 a law passed in 2015 that went into force on January 1, 2017 to require each sheriff and police chief 3 to annually furnish to the Department of Justice a report of specified incidents when a police officer 4 is involved in the use of force. 5 40. Plaintiff is informed and believes that evidence will show after discovery, and thereon 6 alleges that Sonoma County and Windsor breached their duty of care to the public in that they have 7 failed to discipline the Individual Officer Defendants for their respective misconduct and 8 involvement in the incident described herein. Defendants Sonoma County’s and Windsor’s failure to 9 discipline the Individual Officer Defendants demonstrates the existence of an entrenched culture, 10 policy or practice of promoting, tolerating and/or ratifying with deliberate indifference the use of 11 excessive and/or deadly force and the fabrication of official reports to cover up misconduct. 12 41. For example, in the 1990’s, police misconduct was so prevalent in Sonoma County 13 that the California Advisory Committee to the United States Commission on Civil Rights convened 14 hearings and approved by a vote of 13-0 a five page report making recommendations for the County 15 and its towns to adopt.2 Police and elected officials rejected such proposals, however, calling current 16 review procedures adequate. 17 42. Again in 2007, the ACLU facilitated a citizen forum to air frustration over police 18 practices said to include racial profiling, abuse of authority and brutality. The citizen forum again 19 called for the creation of a civilian review board with greater access to investigative reports and 20 improved police training. These recommendations were never adopted by Sonoma County.3 21 43. Again, in the wake of raucous protests 6 1/2 years ago after a sheriff’s deputy shot 22 and killed thirteen-year-old Andy Lopez, a Sonoma County task force was formed in order to address 23 the use of excessive force by its police officers. The task force recommended an independent 24 25 26 27 28 2 California Advisory Committee, Community Concerns About Law Enforcement in Sonoma County, U.S. Commission on Civil Rights (May 2000), https://www.usccr.gov/pubs/sac/ca0500/ch5.htm (last visited June 23, 2020). 3 Mary Callahan, ACLU forum airs allegations of brutality, racial profiling, abuse of authority, The Press Democrat (Oct. 28, 2007), https://legacy.pressdemocrat.com/news/2152609-181/acluforum-airs-allegations-of. Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 -9 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 13 of 30 1 watchdog agency to review the Sheriff’s Office investigations of critical incidents, including officer- 2 involved shootings. Sonoma County created the Independent Office of Law Enforcement Review 3 and Outreach (“IOLERO”) to be the watchdog. However, the press reported that relations between 4 the Sheriff’s Office and Jerry Threet, the first director of IOLERO were “decidedly frosty.” 5 IOLERO’s recommendations went nowhere, and county supervisors complained that its efforts to 6 shape law enforcement policy were misplaced. Even worse, Sonoma County set up IOLERO in a 7 manner so that it could not effectively do its job. It lacks independence, had and continues to have 8 insufficient resources, it does not have clear authority and it does not have unfettered access to the 9 information and staff of the Sheriff’s Office, where currently such access depends on the discretion 10 of the Sheriff and his staff.4 11 12 44. More recently, news reports reveal Sonoma County continues to tolerate its police officers using excessive and deadly force and lying about it in court.5 13 45. Plaintiff is informed and believes that evidence will show after discovery, and thereon 14 alleges that members of the Sonoma County and Windsor Police Department, including, but not 15 limited to, the Individual Officer Defendants and/or each of them, have individually and/or while 16 acting in concert with one another, engaged in a repeated pattern and practice of using excessive, 17 arbitrary and/or unreasonable force against individuals, including, but not limited to Plaintiff. 18 19 46. Plaintiff is informed and believes that evidence will show after discovery, and therein alleges that as a matter of official policy – rooted in an entrenched posture of deliberate indifference 20 Nashelly Chavez, Retired Sonoma County Sheriff’s Office watchdog seeks ballot measure to expand former agency, The Press Democrat (Oct. 19, 2019), https://www.pressdemocrat.com/article/news/retired-sonoma-county-sheriffs-office-watchdog-seeksballot-measure-to-exp/; County Sheriff’s watchdog urges Sonoma County supervisors to bolster independence of his office, Argus Courier (Dec. 4, 2018), https://legacy.petaluma360.com/news/9031923-180/county-sheriffs-watchdog-urges-sonoma; Jerry Threet, Evelyn Cheatham Effective IOLERO Ordinance Brief Summary, Sonoma County Gazette (Mar. 16, 2020), https://www.sonomacountygazette.com/sonoma-county-news/evelyn-cheathameffective-iolero-ordinance-brief-summary-by-jerry-threet; The Editorial Board, PD Editorial: The road from demonstrations to police reforms, Press Democrat (June 14, 2020), https://www.pressdemocrat.com/article/opinion/pd-editorial-the-road-from-demonstrations-to-policereforms/. 5 Sukey Lewis, In-Custody Death: Sonoma County Deputy Lied in Court About Past Carotid Hold, KQED (Dec. 5, 2019), https://www.kqed.org/news/11789667/in-custody-death-sonomacounty-deputy-lied-in-court-about-past-carotid-hold. 4 21 22 23 24 25 26 27 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 10 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 14 of 30 1 to the constitutional rights of citizens who live in the Sonoma County and Windsor – Defendant 2 Sonoma County, Windsor and Sheriff Essick have long allowed its citizens, such as Plaintiff, to be 3 abused by its police officers, including by the Individual Officer Defendants and/or each of them, 4 individually and/or while acting in concert with one another. 5 47. Plaintiff is informed and believes that evidence will show after discovery, and therein 6 alleges that Sonoma County and Windsor police officers have a history of using excessive force to 7 carry out corrupt schemes and motives. Sonoma County, Windsor and Sheriff Essick have failed to 8 discipline or retrain any of the officers who used excessive force for corrupt purposes. Sonoma 9 County and Windsor’s failure to discipline or retrain any of the involved officers is evidence of an 10 official policy, entrenched culture and posture of deliberate indifference toward protecting citizen’s 11 rights and the resulting police brutality and injuries is a proximate result of the Sonoma County and 12 Windsor’s failure to properly supervise its police officers. 13 48. Plaintiff is informed and believes that believes that evidence will show after discovery 14 and therein alleges that Sonoma County, Windsor and Sheriff Essick are acutely aware of racism 15 within the Sonoma County Sheriff’s office, but knowingly turn a blind eye towards that racism, and 16 in fact, aid and conspire to cover up that racism and the subsequent violation of the civil rights of 17 residents of Sonoma County and those passing through. 18 49. Plaintiff is further informed and believes that evidence will show after discovery, and 19 therein alleges that Sonoma County and Windsor knew, had reason to know by way of actual or 20 constructive notice of the aforementioned policy, culture, pattern and/or practice and the complained 21 of conduct and resultant injuries/violations. 22 23 24 25 VI. 50. DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF As a direct and proximate result of the acts of Defendants, Plaintiff suffered the following injuries and damages, and/or is entitled to declaratory and/or injunctive relief: a. Violation of his civil rights and Due Process of Law under 42 U.S.C. § 1983 26 and the Fourteenth Amendment to the United States Constitution to be free from an 27 unreasonable search and seizure of their person and property; 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 11 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 15 of 30 1 2 b. be free from an unreasonable search and seizure; 3 4 Violation of his California Constitutional rights under Article 1, Section 13 to c. Violation of his California Constitution rights under Article 1, Section 7 to due process; 5 d. Violation of the Tom Bane Civil Rights Act Cal. Civ. Code § 52.1; 6 e. Violation of the Ralph Civil Rights Act of 1976 Cal. Civ. Code § 51.7; 7 f. Physical pain and suffering; 8 g. Emotional trauma and suffering, including fear, embarrassment, humiliation, 9 emotional distress, frustration, extreme inconvenience, anxiety; 10 h. Loss of liberty; and 11 i. Punitive and Statutory Damages. 12 13 14 51. The conduct of the Individual Officer Defendants was malicious, wanton and oppressive. Plaintiff is therefore entitled to an award of punitive damages against these Defendants. 52. Plaintiff found it necessary to engage the services of private counsel to vindicate his 15 rights under the law. Plaintiff is therefore entitled to an award of attorneys’ fees and/or costs 16 pursuant to statute(s) in the event that they are the prevailing parties in this action under 42 U.S.C. §§ 17 1983, 1985-86 and 1988. FIRST CAUSE OF ACTION (Violation of Plaintiff’s Civil Rights, 42 U.S.C. § 1983 Against Individual Officer Defendants and Does 1-50) 18 19 20 21 22 53. Plaintiff restates and incorporates by reference the foregoing paragraphs of this complaint as if set forth in full at this point. 54. This Count is alleged against the Individual Officer Defendants and Does 1-50 and 23 brought to redress the deprivation, under color of statute, ordinance, regulation, policy, custom, 24 practice or usage of a right, privilege and immunity secured to the Individual Officer Defendants, by 25 the Fourth and Fourteenth Amendments to the United States Constitution. The Count is based on 26 unreasonable use of deadly force, unreasonable search and seizure, unlawful and false arrest, and 27 unconstitutional detention. 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 12 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 16 of 30 1 55. During all times mentioned herein, the Public Entity Defendants employed the 2 Individual Officer Defendants herein. Said Public Entity Defendants provided the Individual Officer 3 Defendants and other of their agents with official badges and identification cards which designated 4 and described the bearers as employees of the Public Entity Defendants. 5 56. During all times mentioned herein, the Individual Officer Defendants, and each of 6 them, separately and in concert, acted under color and pretense of law under color of the statutes, 7 ordinances, regulations, polices, practices, customs and usages of the County of Sonoma. 8 57. Each of the Individual Officer Defendants here, separately and in concert, have 9 deprived Plaintiff of his civil, constitutional and statutory rights, privileges and immunities secured 10 to him by the Fourth and Fourteenth Amendments to the United States Constitution and by the laws 11 of the United States and are liable to Plaintiff under 42 U.S.C. § 1983. 12 58. The foregoing claim for relief arose when, as described above, Defendant Deputy 13 Sheriff Perkins, on July 9, 2019, assaulted, battered and seriously injured Plaintiff by throwing a 14 cooperative, confused and fearful Plaintiff to the ground, headfirst, with one hand held behind his 15 back, and then unlawfully arrested Plaintiff, filed a false police report and falsely imprisoned 16 Plaintiff, with the assistance and cooperation and/or supervision of Defendants Deputy Clegg and 17 Admin. Sgt. Kidder. Each and every Individual Officer Defendant failed to intervene in each other’s 18 obviously illegal actions. This alleged conduct constituted excessive, unjustifiable, and unreasonable 19 force in violation of and with deliberate indifference to Plaintiff’s constitutional right to be free from 20 unreasonable searches and seizures. By causing the alleged injuries to Mr. McDonald, these actions 21 additionally violated Plaintiff’s Fourteenth Amendment rights to substantive due process, privacy 22 and his right to be free from arbitrary and unreasonable government intrusions, as Defendants and 23 each of them intruded upon with deliberate indifference to the maintenance, training and control of 24 the Windsor Police Department, and the injuries and constitutional violations set forth herein were 25 proximately caused by the customs, practices, policies and decisions of the Defendant Sonoma 26 County and the Sheriff’s Department, including but not limited to, inadequately training and 27 supervising police officers, including Deputy Sheriff Perkins, with respect to the reasonable and 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 13 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 17 of 30 1 proper use of deadly force against civilians generally, and specifically, persons operating motor 2 vehicles and persons present in vehicles. 3 59. Individual Officer Defendants’ conduct deprived Plaintiff of his right to be free of 4 searches and seizures, pursuant to the Fourth and Fourteenth Amendments to the United States 5 Constitution. Individual Officer Defendants’ conduct also deprived plaintiffs of his right to due 6 process of law, pursuant to the Fourteenth Amendment of the United States Constitution. 7 60. Individual Officer Defendants acted under color of law by unreasonably using 8 excessive force, subjecting Plaintiff to infringement of certain constitutionally protected rights as are 9 substantively guaranteed by the Fourth and Fourteenth Amendments to the United States 10 11 Constitution. 61. SECOND CAUSE OF ACTION (Violation of Plaintiff’s Civil Rights, 42 U.S.C. § 1983 — Monell Action Against the Public Entity Defendants and Admin. Sgt. Kidder) 12 13 14 15 16 Plaintiff has been damaged as a result of Defendants’ wrongful acts. 62. Plaintiff realleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 63. This Count is alleged against Defendants Sonoma County, Windsor, the Sheriff’s 17 Department, Sheriff Essick and Admin. Sgt. Kidder. These claims are based on unconstitutional 18 policy, practice or custom. 19 64. Defendants Sonoma County, Windsor, the Sheriff’s Department, Sheriff Essick, and 20 Admin. Sgt. Kidder, and/or each of them, individually and/or in their capacities as official policy- 21 maker(s) for Sonoma County, maintained a custom, policy or practice, within the meaning of Monell, 22 of using excessive force, falsely arresting, making false reports, providing false and/or misleading 23 information in causing detentions, arrests, imprisonments and/or malicious prosecutions based on 24 fabricated and/or misleading statements and/or engaging in similar acts of misconduct on a repeated 25 basis and failure to institute and enforce a consistent disciplinary policy and/or early warning system. 26 Plaintiff further alleges that the acts and/or omissions alleged in the Complaint herein are indicative 27 and representative of a repeated course of conduct by members of Defendant Sonoma County, 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 14 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 18 of 30 1 Windsor, the Sheriff’s Department, Sheriff Essick and Admin. Sgt. Kidder, tantamount to a custom, 2 policy or repeated practice of condoning and tacitly encouraging the abuse of police authority, and 3 disregard for the constitutional rights of citizens, such as Plaintiff’s. 4 65. Plaintiff is informed and believes and thereon alleges that the acts and/or omissions 5 alleged herein are the legal, proximate, foreseeable and actual result of a custom, policy, pattern or 6 practice of deliberate indifference by Defendants Sonoma County, Windsor, the Sheriff’s 7 Department, Sheriff Essick, and Admin. Sgt. Kidder, and/or each of them, to the repeated violations 8 of the constitutional rights of citizens by Sonoma County and Windsor, which have included, but are 9 not limited to, repeated acts of: making false reports, providing false and/or misleading information 10 in causing detentions, arrests, imprisonments and/or malicious prosecutions based on fabricated 11 and/or misleading statements and/or engaging in similar acts of misconduct on a repeated basis and 12 failure to institute and enforce a consistent disciplinary policy and/or early warning system. 13 66. Plaintiff is further informed and believes and thereon alleges that the acts and/or 14 omissions alleged herein are the proximate result of a custom, policy, pattern or practice of deliberate 15 indifference by Defendants Sonoma County, Windsor, the Sheriff’s Department, Sheriff Essick, and 16 Admin. Sgt. Kidder, and/or each of them, to the repeated violations of the constitutional rights of 17 citizens by Sonoma County and Windsor, which have included, but are not limited to, using 18 excessive and/or deadly force on a repeated basis. 19 67. The County, Windsor and the Sheriff’s Department are liable for the damages 20 suffered by Plaintiff as a result of the conduct of their employees, agents, and servants, in that, after 21 learning of their employees’ violation of Plaintiff’s constitutional rights, they failed to remedy the 22 wrong; they have created a policy or custom under which unconstitutional practices occurred and 23 allowed such policies or customs to continue, and they have been grossly negligent in managing 24 subordinates who caused the unlawful condition or event. 25 68. The County, Windsor and the Sheriff’s Department have been alerted to the regular 26 use of excessive force and false arrests by its police officers, but have nevertheless exhibited 27 deliberate indifference to such excessive force and false arrests; that deliberate indifference legally, 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 15 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 19 of 30 1 proximately, foreseeably and actually caused the violation of Plaintiff’s constitutional rights in this 2 case. 3 69. The County, Windsor and the Sheriff’s Department have purposefully hid their 4 misconduct by failing to reveal body camera footage and reporting the use of force causing great 5 bodily injury to the Department of Justice as required by statute. 6 70. The aforesaid event was not an isolated incident. Upon information and belief the 7 County has been aware that their police officers use excessive force, unlawfully search and seize 8 citizens, bring charges against citizens with no legal basis, perjure themselves in charging 9 instruments and testimony, and fail to intervene in and report the obviously illegal actions of their 10 fellow officers. Nevertheless, the County has allowed policies and practices that allow the 11 aforementioned to persist. 12 71. The County, Windsor and the Sheriff’s Department have no procedure to notify 13 individual officers or their supervisors of unfavorable judicial review of their conduct. Without this 14 notification, improper search and seizure practices and inaccurate testimony go uncorrected. The 15 County, Windsor and the Sheriff’s Department have procedurally and policy-wise isolated their law 16 department from the discipline of police officers, so that civil suits against police officers for actions 17 taken in their capacity as police officers have no impact on the officers’ careers, regardless of the 18 outcome of the civil actions. The process to file complaints with Sonoma County or Windsor is not 19 provided to those who are detained or arrested. 20 21 22 72. The County, Windsor and the Sheriff’s Department have also purposefully created a fictitious audit function of police behavior to isolate itself from liability or the rage of its citizens. 73. The County, Windsor and the Sheriff’s Department are aware that all of the 23 aforementioned has resulted in violations of citizens’ constitutional rights. Despite such notice, the 24 County has failed to take corrective action. This failure and these policies caused the officers in the 25 present case to violate Plaintiff’s civil rights, without fear of reprisal. 26 27 74. Plaintiff has been damaged as a result of the deliberate indifference of the County to the constitutional rights of the County’s inhabitants. 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 16 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 20 of 30 1 75. The County, Windsor and the Sheriff’s Department are liable for the damages 2 suffered by Plaintiff as a result of the conduct of their employees, agents, and servants, in that, after 3 learning of their employees’ violation of Plaintiff’s constitutional rights, they failed to remedy the 4 wrong; they have created a policy or custom under which unconstitutional practices occurred and 5 allowed such policies or customs to continue, and they have been grossly negligent in managing 6 subordinates who caused the unlawful condition or event. The County, Windsor and the Sheriff’s 7 Department have been alerted to the regular use of excessive force and false arrests by its police 8 officers, but has nevertheless exhibited deliberate indifference to such excessive force and false 9 arrests; that deliberate indifference caused the violation of Plaintiff’s constitutional rights in this 10 11 case. 76. The Court should enter an order awarding damages, declaring the Sonoma County’s, 12 Windsor’s, the Sheriff’s Department’s, Sheriff Essick’s and Admin. Sgt. Kidder’s conducts to be 13 illegal and enter injunctive relief to be determined to remedy such illegality going forward. 14 15 16 17 18 THIRD CAUSE OF ACTION (Violation of Plaintiff’s Civil Rights, 42 U.S.C. § 1983, Substantive Due Process Against All Defendants) 77. Plaintiff realleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 78. This Count is alleged against all Defendants. Defendants, acting under the color of 19 law, violated Plaintiff’s procedural due process rights by detaining him, falsely arresting him and 20 failing to inform him of the reason he was being detained. Even after the District Attorney 21 determined that they refused to prosecute the action, Plaintiff was not informed and Plaintiff was still 22 required to attend a Court hearing to learn that the charges had been dismissed at the cost of time and 23 expense to Plaintiff. 24 79. Based on information and belief, it is the custom or policy of Defendants to not 25 inform detainees or those who are arrested of the reasons they have been detained or arrested until 26 such time as they appear in court, even if they are required to post bail. 27 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 17 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 21 of 30 1 2 3 80. The aforementioned conduct is ongoing and poses and immediate irreparable threat to the civil rights of every citizen who travels in or through Sonoma County. 81. The Individual Officer Defendants’ conduct deprived Plaintiff of his right to 4 substantive due process, and were in violation of the Fourth and Fourteenth Amendments to the 5 United States Constitution. 6 7 82. be illegal and enter injunctive relief to be determined to remedy such illegality. FOURTH CAUSE OF ACTION (Violation of Plaintiff’s Civil Rights under California Constitution Against All Defendants) 8 9 10 11 12 The Court should enter an order awarding damages, declaring Defendants’ conduct to 83. Plaintiff realleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 84. This Count is alleged against all Defendants. These claims are based on unreasonable 13 and/or unnecessary use of deadly force, unreasonable search and seizure, unlawful and false arrest, 14 and unconstitutional detention, as well as failure to inform of charges. 15 85. Defendants, acting under color of law, violated Plaintiff’s rights pursuant to § 7 (the 16 right not be deprived of life, liberty, or property without due process of law or denied equal 17 protection of the laws) and § 13 (the right to be secure against unreasonable seizures and searches) of 18 the California State Constitution. 19 86. The detention of Plaintiff and requirement that Plaintiff post bail without being 20 notified of the charges against Plaintiff, and the month-long delay in being brought before a 21 magistrate or judge, is unconstitutional and violates Penal Code Section 849. The process is also a 22 denial of equal protection as it impacts the poor and minorities disproportionately. 23 87. The unconstitutional conduct alleged herein violated Plaintiff’s rights has legally, 24 proximately, foreseeably and actually caused Plaintiff to suffer damages according to proof at the 25 time of trial. 26 27 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 18 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 22 of 30 1 88. An award of damages, declaratory and injunctive remedy here is necessary to 2 effectuate the purposes of § 7 and § 13 of the California State Constitution, and appropriate to ensure 3 full realization of Plaintiff’s rights under those sections. FIFTH CAUSE OF ACTION (Negligent Hiring & Retention Against Public Entity Defendants) 4 5 6 7 8 9 10 11 89. Plaintiff realleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 90. This count is alleged against Defendants Sonoma County, Windsor and the Sheriff’s Department. Defendants Sonoma County, Windsor and the Sheriff’s Department owed a duty of care to Plaintiff to prevent the loss of liberty and mental abuse sustained by Plaintiff. 91. Defendant Sonoma County, Windsor and the Sheriff’s Department owed a duty of 12 care to Plaintiff because under the same or similar circumstances a reasonable, prudent and careful 13 person should have anticipated an injury to Plaintiff or those in a position similar to Plaintiff’s as a 14 result of this conduct. 15 16 17 92. Upon information and belief, Individual Officer Defendants were incompetent and unfit for their positions. 93. Upon information and belief, Defendants County, Windsor and the Sheriff’s 18 Department knew or should have known through exercise of reasonable diligence that the Individual 19 Officer Defendants were potentially dangerous and had previously falsely arrested civilians without 20 probable cause. 21 22 23 94. Defendant Sonoma County’s, Windsor’s, and the Sheriff’s Department’s negligence in hiring and retaining the Individual Officer Defendants proximately caused Plaintiff’s injuries. 95. Because of the Defendant Sonoma County’s, Windsor’s, and the Sheriff’s 24 Department’s negligent hiring and retention of Individual Officer Defendants, Plaintiff incurred 25 damages described above. 26 27 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 19 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 23 of 30 SIXTH CAUSE OF ACTION (Negligence Against Defendants Deputy Sheriff Perkins and Deputy Clegg) 1 2 3 4 96. Plaintiff realleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 5 97. This Count is alleged against Defendants Deputy Sheriff Perkins and Deputy Clegg. 6 Defendant Deputy Sheriff Perkins and Deputy Clegg owed Plaintiff a duty of care in carrying out 7 their officer responsibilities in a reasonable manner. 8 98. Defendants Deputy Sheriff Perkins and Deputy Clegg breached the duty of care 9 required of law enforcement officers when performing wellness checks on persons who are sleeping, 10 potentially intoxicated and confused, including Plaintiff, by detaining Plaintiff without regard for his 11 health and safety. This is especially true as the ambulance and paramedics were literally seconds 12 away. 13 14 99. As a direct and proximate result of Defendants’ actions and orders, Plaintiff suffered the injuries described herein. 15 SEVENTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress Against Defendants Deputy Sheriff Perkins and Does 1-50) 16 17 18 19 20 21 22 23 24 25 26 100. Plaintiff re-alleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 101. This Count is alleged against Defendant Deputy Sheriff Perkins. It is also alleged against all other Defendants to the extent to which is a known custom, practice or policy, as it is well known that the results of the above actions causes emotional harm. 102. Defendants’ above-described conduct was illegal, extreme, unreasonable or outrageous. Plaintiff did not consent to the conduct. 103. In engaging in the above-described conduct, Defendants intentionally ignored or recklessly disregarded the probable or foreseeable risk that Plaintiff would suffer extreme emotional distress as a result. 27 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 20 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 24 of 30 1 2 104. As a direct and proximate result of the above described conduct, Plaintiff suffered severe emotional distress and was harmed. EIGHTH CAUSE OF ACTION (Battery Against Defendant Deputy Sheriff Perkins) 3 4 5 6 7 105. Plaintiff re-alleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 106. This Count is alleged against Defendant Deputy Sheriff Perkins. Defendant Deputy 8 Sheriff Perkins touched Plaintiff, as described above with the intent to harm or offend Plaintiff. 9 Alternatively, Defendant Deputy Sheriff Perkins used unreasonable force in touching Plaintiff. 10 107. Plaintiff did not consent to the alleged touching. 11 108. Plaintiff was harmed or offended by Defendant Deputy Sheriff Perkins’s conduct. 12 109. The above-described conduct and/or the unreasonable force was a substantial factor in 13 14 15 causing Plaintiff’s harm. 110. As a direct and proximate result of Defendant Deputy Sheriff Perkins’s actions, Plaintiff suffered damages in the amount to be proven at trial. 16 NINTH CAUSE OF ACTION (False Arrest and Imprisonment Against the Individual Officer Defendants) 17 18 19 20 21 22 23 24 25 26 27 111. Plaintiff re-alleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 112. This Count is alleged against the Individual Officer Defendants. These claims are based on unlawful and false arrest, and unconstitutional detention. 113. Plaintiff was falsely and/or fraudulently arrested by Defendants, without a warrant and probable cause. Alternatively, Deputy Sheriff Perkins intentionally deprived Plaintiff of his freedom of movement by use of force. 114. The arrest and/or confinement described above compelled Plaintiff to stay and go at Defendants’ direction for some appreciable time. 115. Plaintiff was actually harmed by the arrest and/or confinement described above. 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 21 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 25 of 30 1 2 3 4 116. Individual Officer Defendants’ conduct was a substantial factor in causing Plaintiff’s 117. As a direct and proximate result of Individual Officer Defendants’ actions, Plaintiff harm. suffered damages in the amount to be proven at trial. TENTH CAUSE OF ACTION (Unreasonable Seizure Against Defendant Deputy Sheriff Perkins and Does 1-50) 5 6 7 8 9 10 11 118. Plaintiff re-alleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 119. This Count is alleged against Defendant Deputy Sheriff Perkins and Does 1-50. These claims are based on the unreasonable search and seizure of Plaintiff’s automobile and possessions. 120. Deputy Sheriff Perkins and other unnamed officers of the Sonoma County Sheriff’s 12 Office searched Plaintiff’s automobile without a warrant or probable cause. Even if Defendants did 13 have probable cause, they found no contraband or illegal substance. Subsequent to this finding, 14 Defendant directed and were responsible for Plaintiff’s vehicle being towed and put into storage. 15 121. Plaintiff requested the return of the car, but was denied being informed that Plaintiff 16 had to pay more than the car was worth. Plaintiff’s car remains in Defendants’ possession and 17 therefore Plaintiff was harmed by the seizure. 18 19 122. As a direct and proximate result of Defendants’ actions, Plaintiff suffered damages in the amount to be proven at trial. 20 ELEVENTH CAUSE OF ACTION (Violation of Cal. Civ. Code § 52.1, Bane Civil Rights Act Claim Against Defendant Deputy Sheriff Perkins) 21 22 23 24 25 26 123. Plaintiff re-alleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 124. This Count is alleged against Defendant Deputy Sheriff Perkins. These claims are based on Defendant Deputy Sheriff Perkins’s interference with Plaintiff’s legal rights by threats, intimidation and/or coercion of Plaintiff. 27 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 22 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 26 of 30 1 125. Defendant Deputy Sheriff Perkins interfered with Plaintiff’s legal rights when he 2 forcefully attempted to handcuff Plaintiff, threatened violence against Plaintiff when he yelled, 3 “Don’t F*****g do that again,” pulled on Plaintiff’s arm, and threw Plaintiff face first into the 4 ground, holding one hand behind his back. 5 126. Defendant Deputy Sheriff Perkins acted violently against Plaintiff. Alternatively, 6 Defendant Deputy Sheriff Perkins had no probable cause to arrest Plaintiff. Plaintiff also had no legal 7 obligation to allow himself to be handcuffed. 8 9 127. Defendant Deputy Sheriff Perkins’s threats caused Plaintiff to reasonably believe that if he exercised his right defend himself against such violence, Defendant Deputy Sheriff Perkins 10 would commit violence against him and his property and that Defendant Deputy Sheriff Perkins had 11 the ability to carry out the threat. 12 128. Defendant Deputy Sheriff Perkins did commit the above-mentioned act to prevent 13 Plaintiff from protecting himself and/or to retaliate against Plaintiff for having exercised his right to 14 defend himself from Defendant Deputy Sheriff Perkins. 15 16 17 18 129. Defendant Deputy Sheriff Perkins conduct directly and proximately caused the above- mentioned harm to Plaintiff. 130. As a direct and proximate result of Defendant Deputy Sheriff Perkins’s actions, Plaintiff suffered damages in the amount to be proven at trial. TWELFTH CAUSE OF ACTION (Violation of Cal. Civ. Code § 52.1, Bane Civil Rights Act Claim Against the Public Entity Defendants and Sheriff Essick) 19 20 21 22 23 24 25 131. Plaintiff re-alleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 132. This Count is alleged against Defendants Sonoma County, Windsor and, the Sheriff’s Department, and Sheriff Essick. 133. Defendants Sonoma County, Windsor, the Sheriff’s Department, and Sheriff Essick 26 aided, incited and conspired Defendant Deputy Sheriff Perkins to use violence, intimidation or 27 coercion against residents of the County of Sonoma or persons passing through, even where no 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 23 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 27 of 30 1 probable cause for arrest exists. Alternatively, Sonoma County, Windsor, the Sheriff’s Department, 2 and Sheriff Essick condone through policy, practice or custom, the use of threats, intimidation, or 3 coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment 4 by any individual or individuals of rights secured by the Constitution or laws of the United States, or 5 of the rights secured by the Constitution or laws of this state. 6 7 8 9 134. practice of conduct that continues. 135. THIRTEENTH CAUSE OF ACTION (Violation of Cal. Civ. Code § 51.7, 52(b), Ralph Civil Rights Act Claim Against Defendant Deputy Sheriff Perkins) 11 13 14 As a direct and proximate result of Defendants’ actions, Plaintiff suffered damages in the amount to be proven at trial. 10 12 Defendants’ conduct caused the above pled harm to Plaintiff, and is a pattern or 136. Plaintiff re-alleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 137. This Count is alleged against Defendant Deputy Sheriff Perkins. These claims are 15 based on Defendant Deputy Sheriff Perkins’s acts of threats of violence and violence against Plaintiff 16 because of race. 17 138. Defendant Deputy Sheriff Perkins threatened violence and committed a violent act 18 against Plaintiff when he forcefully attempted to handcuff Plaintiff, yelled, “Don’t F*****g do that 19 again,” pulled on Plaintiff’s arm, and threw Plaintiff face first into the ground, holding one hand 20 behind his back. Defendant Deputy Sheriff Perkins then unlawfully restrained and imprisoned 21 Plaintiff. 22 139. Defendant Deputy Sheriff Perkins acted violently against Plaintiff. Alternatively, 23 Defendant Deputy Sheriff Perkins had no probable cause to arrest Plaintiff. Plaintiff also had no legal 24 obligation to allow himself to be handcuffed. 25 26 140. A substantially motivating reason for Defendant Deputy Sheriff Perkins conduct was his perception of Plaintiff’s race. 27 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 24 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 28 of 30 1 2 3 4 141. A reasonable person in Plaintiff’s position would have believed that Defendant Deputy Sheriff Perkins would carry out his threat. 142. A reasonable person in Plaintiff’s position would have been intimidated by Defendant Deputy Sheriff Perkins conduct. 5 143. Plaintiff was harmed. 6 144. Defendant Deputy Sheriff Perkins conduct was a substantial factor in causing the 7 above-mentioned harm to Plaintiff. FOURTEENTH CAUSE OF ACTION (Violation of Cal. Civ. Code § 51.7, 52(b), Ralph Civil Rights Act Claim Against the Public Entity Defendants and Sheriff Essick) 8 9 10 11 12 13 14 145. Plaintiff re-alleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 146. This Count is alleged against Defendants Sonoma County, Windsor and, the Sheriff’s Department, and Sheriff Essick. 147. Defendants Sonoma County, Windsor, the Sheriff’s Department, and Sheriff Essick 15 aided, incited and conspired Defendant Deputy Sheriff Perkins to use violence, intimidation or 16 coercion against African-American and other minority residents of the County of Sonoma or persons 17 passing through, and Plaintiff in particular. 18 19 20 21 148. Defendants’ conduct caused the above pled harm to Plaintiff, and is a pattern or practice of conduct that continues. 149. As a direct and proximate result of Defendants’ actions, Plaintiff suffered damages in the amount to be proven at trial. 22 FIFTEENTH CAUSE OF ACTION (Respondeat Superior State Law Claims Against Public Entity Defendants) 23 24 25 26 27 150. Plaintiff re-alleges all prior paragraphs of this complaint and incorporates the same herein by this reference as if those paragraphs were set forth in full herein. 151. This Count is alleged against Defendants Sonoma County, Windsor and the Sheriff’s Department. 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 25 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 29 of 30 1 152. Defendants’ intentional tortious acts were undertaken within the scope of their 2 employment by Defendant Sonoma County, Windsor and the Sheriff’s Department, and in 3 furtherance of the Defendant County of Sonoma’s interest. 4 153. As a result of Defendants’ tortious conduct in the course of their employment and in 5 furtherance of the business of Defendant Sonoma County, Windsor and the Sheriff’s Department, 6 Plaintiff suffered damages in the amount to be proven at trial. 7 8 9 VII. PRAYER FOR RELIEF WHEREFORE, Plaintiff demands judgment against the Defendants, jointly and severally, as follows: 10 A. General damages in a sum to be determined by proof; 11 B. Special damages, including but not limited to, past, present and/or future wage loss, 12 income and support, medical expenses, physical pain and mental suffering and other special 13 damages in a sum to be determined according to proof; 14 C. 15 proof. 16 D. 17 to 42 U.S.C. § 1988; 18 E. 19 and 52.1; 20 F. 21 agents and/or officers, $25,000.00 for each offense and reasonable attorney’s fees, for violation of 22 Cal. Civ. Code § 52(b); 23 G. Cost of suit herein incurred; 24 H. Prejudgment interest; 25 I. Declaratory and injunctive relief; and 26 J. Such other and further relief as the Court deems just and proper. Punitive damages and exemplary damages in amounts to be determined according to Reasonable attorneys’ fees, costs and disbursements of this action, including pursuant Statutory damages and reasonable attorney’s fees for violation of Cal. Civ. Code §§ 52 Punitive damages up to three times actual damages ($4,000 minimum) against Defendant 27 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 26 Case 3:20-cv-04183 Document 1 Filed 06/25/20 Page 30 of 30 1 2 JURY DEMAND Plaintiff demands a trial by jury. 3 4 DATED: June 25, 2020 5 Respectfully submitted, HAGENS BERMAN SOBOL SHAPIRO LLP 6 By /s/ Reed. R. Kathrein Reed R. Kathrein (139304) 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 reed@hbsslaw.com 7 8 9 10 Steve W. Berman HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 steve@hbsslaw.com 11 12 13 14 15 Counsel for Plaintiff La’Marcus McDonald 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint for the Violation of Civil Rights Case No.: 010930-11/1317796 V1 - 27 Case 3:20-cv-04183 Document 1-1 Filed 06/25/20 Page 1 of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