Case Document 1 Filed 12/21/09 Page 1 of 13 MISSISSIPPI DISTRICT 0 3? I DEC 2 I 2009 UNITED STATES DISTRICT COURT MOM CLERK FOR THE SOUTHERN DISTRICT OF MISSISSI g/W SOUTHERN DIVISION OTIS ASHFORD and DELL JONES PLAINTIFFS vs. CITY OF MOSS MOSS POINT OFFICER JOHNNY VAUGHN, in his Official and individual capacities; MOSS POINT OFFICER BRANDON ASHLEY, in his official and individual capacities; MOSS POINT OFFICER MICHAEL UPCHURCH, in his official and individual capacities, DEFENDANTS COMPLAINT JURY TRIAL DEMANDED COMES NOW Plaintiffs, Otis Ashford and Dell Jones, and bring this action against the Defendants, City Of Moss Point and its Police Officers, Johnny Vaughn, Brandon Ashley and Michael Upchurch in their individual and Official capacities. This is an action for injunctive relief and to recover damages to vindicate the Civil rights of Otis Ashford and Dell Jones. The actions of the Defendant described herein constitute violations of 42 U.S.C. 1983, and the First and Fourth Amendments to the United States Constitution. PARTIES 1. Plaintiff, Otis Ashford, is an adult resident of Jackson County, MS, residing at 4430 Walter Street, Moss Point, MS 39563. 2. Plaintiff Dell Jones is an adult resident Citizen Of Jackson County, MS, 1 Case Document 1 Filed 12/21/09 Page 2 of 13 residing at 4053 West Pine Street, Moss Point, MS 39563. Defendant, City of Moss Point is a political subdivision of the State of Mississippi and at all relevant times operated under color of state law. Defendant City of Moss Point is responsible for the City of Moss Point Police Department and for the actions of its officers acting under color of state law. The City of Moss Point may be served with process through Mayor Aniece Liddell at 4412 Denny Street, Moss Point, MS 39563. Defendant, Johnny Vaughn was formerly a police officer with the Moss Point Police Department and held such position at all relevant times to the facts of this Complaint and also acted under color of state law. His current residence is unknown to Plaintiffs, but he may be served in his official capacity through the Mayor of Moss Point at 4412 Denny Street, Moss Point, MS 39563 and may be served in his individual capacity at wherever he may be found when such location becomes known to Plaintiffs. Defendant, Brandon Ashley, is an adult resident of Jackson County, MS and at all relevant times was a police officer with the City of Moss Point and also acted under color of state law. He may be served in his official capacity through the Mayor of Moss Point at 4412 Denny Street, Moss Point, MS 39563 and may be served in his individual capacity at City of Moss Point Police Department, 4329 Avenue, Moss Point, MS 39563. Defendant, Michael Upchurch, is an adult resident of Jackson County, MS and at all relevant times was a police officer with the City of Moss Point and also 2 Case Document 1 Filed 12/21/09 Page 3 of 13 acted under color of state law. He may be served in his official capacity through the Mayor of Moss Point at 4412 Denny Street, Moss Point, MS 39563 and may I be served in his individual capacity at City of Moss Point Police Department, 4329 Avenue, Moss Point, MS 39563. JURISDICTION 7. This Court has subject matterjurisdiction over Plaintiffs? claims pursuant to 28 U.S.C. 1331 because this action seeks a remedy under 42 U.S.C. 1983, and the First and Fourth Amendments to the United States Constitution. 8. This Court has jurisdiction to declare the rights of the parties and to award any further necessary and proper relief pursuant to 28 U.S.C. 2201 and 2202. Rule 65 of the Federal Rules of Civil Procedure authorizes injunctive relief. This Court has authority to award costs and attorney?s fees under 42 U.S.C. 1988. 9. Venue is proper action pursuant to 28 U.S.C. 1391 because the events or omissions giving rise to Plaintiffs? claims occurred within Jackson County Mississippi which is located within the Southern Division. STATEMENT OF FACTS 10. On the evening of April 18, 2008, Plaintiff Otis Ashford was visiting his sister?s, Plaintiff Dell Jones, home at 4053 West Pine Street in Moss Point, MS to check on Plaintiffs? mother who had been to the doctor earlier in the day. 11. While sitting in the living room of the home of Plaintiff Dell Jones, Plaintiffs heard a commotion outside of the home. 3 Case Document 1 Filed 12/21/09 Page 4 of 13 12. Plaintiffs? brother resided in a home directly next door to Plaintiff Jones and their mother resides in home directly behind Plaintiff Jones' home. 13. In response to hearing a commotion outside the home, Plaintiff Ashford stepped out onto Plaintiff Jones? enclosed screened porch area. 14. The enclosed porch, which is part of Plaintiff Jones? residence, is accessible from outside via a storm door with looking latch. The porch leads directly into the living area of Plaintiff Jones? home. 15. As Plaintiff Ashford stood in the enclosed screen porch to investigate the commotion to see if it involved Plaintiffs? brother, Plaintiff Jones also came out onto the porch and remained behind her brother, Plaintiff Ashford. 16. It was dark outside and there was no lighting to enable Plaintiff Ashford to identify the men he saw on ground in front of Plaintiffs? brother?s home. 17. Plaintiff Ashford called out to two men he saw on the ground, one on top of the other, ?Let my brother go.? Plaintiffs both believed that it was their brother involved in the altercation they were observing. 18. One of the individuals on the ground told Plaintiff Ashford to get back inside the interior of the home. The individual did not identify himself. 19. Plaintiff Ashford did not leave the enclosed front porch area, wanting to assure himself that his brother was not in any danger. 20. Thereafter, the two individuals who had been struggling on the ground passed by Plaintiff Jones? porch and Plaintiffs realized for the first time that one of the individuals was a Moss Point police of?cer, Defendant Officer Johnny 4 Case Document 1 Filed 12/21/09 Page 5 of 13 Vaughn, who was escorting the other gentleman to the street in front of Plaintiff Jones? home. 21. Defendant Vaughn told Plaintiff Ashford that he would be back to get him as he walked by the porch area where Plaintiff Ashford and Plaintiff Jones continued to stand. 22. Neither Plaintiff ever left the confines of the enclosed porch. 23. Upon seeing that it was an officer who was involved in the commotion outside, both Plaintiffs turned to enter the living area of Plaintiff Jones? home; Plaintiff Ashford first, followed by Plaintiff Jones. 24. Without warning, the storm door to Plaintiff Jones? enclosed porch was snatched open and Defendant Vaughn rushed into Plaintiff Jones? residence. 25. Defendant Vaughn reached over Plaintiff Jones to grab Plaintiff Ashford from behind, trapping PlaintiffJones in between Defendant Vaughn and Plaintiff Ashford. 26. Defendant Vaughn instructed Plaintiff Jones to get out of the way and pulled Plaintiff Ashford out onto the porch. Defendant Vaughn then threw Plaintiff Ashford onto the porch furniture and ground. 27. Another Moss Point Police Officer, Defendant Michael Upchurch, entered the enclosed porch area and proceeded to spray both Plaintiff Jones and Plaintiff Ashford with pepper or chemical spray. 28. Defendant Vaughn and Defendant Upchurch repeatedly struck Plaintiff Ashford, who was not resisting, with their hands. Defendant Upchurch also 5 Case Document 1 Filed 12/21/09 Page 6 of 13 struck Plaintiff Ashford repeatedly using his radio as a Weapon. - 29. Plaintiff Jones got the telephone in her home and remained in the doorway between her living room and the enclosed porch as she called 911 and reported to them that ?they?re trying to kill my brother." She informed 911 of her address and that there were officers present who were beating her brother, Plaintiff Ashford. 30. Another Moss Point Police Officer, Defendant Brandon Ashley, arrived on the scene. He entered the enclosed porch and was instructed by Defendant Vaughn to tase Plaintiff Ashford. Defendant Ashley then tased Plaintiff Ashford approximately four times. 31. After being repeatedly struck by the three Defendant Officers, sprayed with chemical spray by Defendant Upchurch, and tased by Defendant Ashley, Plaintiff Ashford lost consciousness. 32. Two of the Defendant Officers drug the unconscious Plaintiff Ashford to the street and laid him down next to a police cruiser, face down. 33. As a result of the spraying, seeing her brother beaten, drug down the street and laid down next to a cruiser, Plaintiff Jones passed out. 34. An ambulance had been called to the scene and it transported Plaintiff Jones to the hospital. 35. Plaintiff Ashford was transported by cruiser to the Moss Point Police Department. Once there, an ambulance was called and Plaintiff Ashford, who remained unconscious, was transferred to the hospital, where he was admitted 6 Case Document 1 Filed 12/21/09 Page 7 of 13 and remained overnight and was released on Sunday. 36. Plaintiff Jones was treated at the hospital and released the same night. 37. Plaintiff Ashford had to post bond to be released from the hospital. 38. Plaintiff Ashford attempted to go to work the next day but due to the pain he was suffering from as a result of the beating and tasing, he left work at approximately 10:00 am. that morning. I 39. Plaintiff Ashford was charged with disorderly conduct and resisting arrest, but these charges were later dismissed. 40. Plaintiff Jones was not charged with any offense. 41. The Defendant Officers did not have probable cause to arrest Plaintiff Ashford in violation of the Fourth Amendment to the United States Constitution. 42. The Defendant Officers had neither consent nor exigent circumstances to justify their entry into Plaintiff Jones' home in violation of the Fourth Amendment to the United States Constitution. 43. The Defendant Officers used more force than was reasonably necessary against both Plaintiff Jones and Plaintiff Ashford in violation of the Fourth Amendment of the United States Constitution. 44. The Defendant Officers entered Plaintiff Jones' residence, used force against both Plaintiffs and arrested Plaintiff Ashford, at least in part, based on Plaintiffs exercising their right to inquire about the commotion that was occurring outside Plaintiff Jones? home in violation of their rights under the First Amendment to the United States Constitution. Case Document 1 Filed 12/21/09 Page 8 of 13 45. Upon information and belief, the City of Moss Point was on notice of a history of abuses of authority on the part of Defendants Vaughn, Upchurch and Ashley, but failed to provide the officers with adequate supervision and training, thus exhibiting deliberate indifference to the likelihood that Defendants Vaughn, U-pchurch and Ashley would commit future abuses. The injuries to Plaintiffs described in this Complaint were a direct result of the failure by Defendant City of Moss Point to provide Defendants Vaughn, Upchurch and Ashley with adequate supervision and training. 46. As a result of this incident, Plaintiff Ashford has suffered and continues to suffer ongoing harm, including, but not limited to, the physical injuries he sustained as a result of the beating, missed work, expenses from medical treatment, emotional distress, and mental anxiety as well as inconvenience in appearing for the criminal charges which were later dismissed. 47. As a result of this incident, Plaintiff Jones has suffered and continues to suffer ongoing harm, including, but not limited to, the physical injuries she sustained as a result of the actions of Defendant Officers, inconvenience, expenses from medical treatment, emotional distress, and mental anxiety. COUNT ONE: FOURTH AMENDMENT FALSE ARREST CLAIM 48. Plaintiffs incorporate paragraphs one through forty?seven herein by reference. 49. Defendant City of Moss Point is liable for the unlawful arrest of Plaintiff Ashford pursuant to 42 U.S.C. 1983 and the Fourth Amendment to the United 8 Case Document 1 Filed 12/21/09 Page 9 of 13 States Constitution, as applied to-the states by the Fourteenth Amendment. 50. Defendant Vaughn is liable for the unlawful arrest of Plaintiff Ashford pursuant to 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. 51. Defendant Upchurch is liable for the unlawful arrest of Plaintiff Ashford pursuant to 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. 52. Defendant Ashley is liable for the unlawful arrest of Plaintiff Ashford pursuant to 42 USC. 1983 and the Fourth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. 53. The actions of Defendants City of Moss Point, Vaughn, Upchurch and Ashley were intentional, malicious, willful, wanton, callous, and showed reckless disregard for Plaintiff Ashford's rights under 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution COUNT TWO: FOURTH AMENDMENT EXCESSIVE FORCE CLAIM 54. Plaintiffs incorporate paragraphs 1 through 53 herein by reference. 55. Defendant City of Moss Point is liable for the use of excessive force on Plaintiffs Ashford and Jones pursuant to 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. 56. Defendant Vaughn is liable for the use of excessive force on Plaintiff Ashford pursuant to 42 U.S.C. 1983 and the Fourth Amendment to the United 9 Case Document 1 Filed 12/21/09 Page 10 of 13 States Constitution, as applied to the states by the Fourteenth Amendment. 57. Defendant Upchurch is liable for the use of excessive force on Plaintiffs - Ashford and Jones pursuant to 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. 58. Defendant Ashley is liable for the use of excessive force on Plaintiff Ashford pursuant to 42 IU.S.C. 1983 and the Fourth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. 59. The actions of Defendants City of Moss Point, Vaughn, Upchurch and Ashley were intentional, malicious, willful, wanton, callous, and showed reckless disregard for Plaintiffs? rights under 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution COUNT THREE: FOURTH AMENDMENT UNLAWFUL ENTRY CLAIM 60. Plaintiffs incorporate paragraphs 1 through 59 herein by reference. 61. Defendant City of Moss Point is liable for the unlawful entry into Plaintiff Jones? home pursuant to 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. 62. Defendant Vaughn is liable for the unlawful entry into Plaintiff Jones? home pursuant to 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. 63. Defendant Upchurch is liable for the unlawful entry into Plaintiff Jones? 10 Case Document 1 Filed 12/21/09 Page 11 of 13 home pursuant to 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. 64. Defendant Ashley is liable for the unlawful entry into Plaintiff Jones? home pursuant to 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. 65. The actions of Defendants City of Moss Point, Vaughn, Upchurch and Ashley were intentional, malicious, willful, wanton, callous, and showed reckless disregard for Plaintiff Jones? rights under 42 U.S.C. 1983 and the Fourth Amendment to the United States Constitution. COUNT FOUR: FIRST AMENDMENT FREEDOM OF EXPRESSION 66. Plaintiffs incorporate paragraphs 1 through 65, as if set forth fully herein. 67. Defendants City of Moss Point, Vaughn, Upchurch and Ashley are liable for violating Plaintiffs rights of freedom of expression under to 42 U.S.C. 1983 and the First Amendment to the United States Constitution, as applied to the States by the Fourteenth Amendment. 68. The actions of Defendants City of Moss Point, Vaughn, Upchurch and Ashley were intentional, malicious, willful, wanton, callous, and showed reckless disregard for Plaintiffs? rights under 42 U.S.C. 1983 and the First Amendment to the United States Constitution. COUNT FIVE: RETALIATION UNDER FEDERAL LAW 69. Plaintiffs incorporate paragraphs 1 through 68, as if set forth fully herein. 70. Defendants City of Moss Point, Vaughn. Upchurch and Ashley are liable to 11 Case Document 1 Filed 12/21/09 Page 12 of 13 71. Plaintiffs under to 42 U.S.C. 1983 and the First Amendment to the United States Constitution for retaliation for the exercise of their rights to freedom of expression in questioning the police about their activities. The fact that it was only moments after Plaintiffs inquired about the commotion outside Plaintiff Jones? home that Defendant Officers unlawfully entered Plaintiff Jones? home, used force against both Plaintiffs and unlawfully arrested Plaintiff Ashford shows that their protected First Amendment expression was a substantial or motivating factor in the retaliation against Plaintiffs. The actions of Defendants City of Moss Point, Vaughn, Upchurch and Ashley were intentional, malicious, willful, wanton, callous, and showed reckless disregard for Plaintiffs? rights under 42 U.S.C. 1983 and the First Amendment to the United States Constitution. PRAYER FOR RELIEF WHEREFORE the Plaintiffs respectfully pray for the following relief: 1. A finding that Defendants violated Plaintiffs? rights; 2. Compensatory damages, to be determined by ajury, against all Defendants; 3. Punitive damages against the individual Defendants in their individual capacities; 4. Expungement of all law enforcement records related to this incident; 5. Such injunctive relief as the Court deems necessary and prOper; 6. Reasonable attorneys? fees and costs under 42 U.S.C. 1988, including 12 Case Document 1 Filed 12/21/09 Page 13 of 13 the fees and costs of experts that are incurred in prosecuting this action' and 7. Any other relief to which Plaintiffs may be entitled. This the ?I8th day of December, 2009. Respectfully Submitted, Otis Ashford and Dell Jones, Plaintiffs more aw Kristy Benn tt Miss. Bar . 99525 AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI PO. Box 2242 Jackson, MS 39225-2242 753 N. Congress St. Jackson, MS 39202 Tel: (601) 354-3408 Fax: (601) 355-6465 13 Case Document 1-2 Filed 12/21/09 Page lofl PIS 44 (Re-12?0? CIVIL COVER SHEET [gag {1le The 44 civil cover sheet and the information contained herein neither re etplace nor supplement the ?ling and service of pleadln?s or OIhI?Itii ers uir pt v1 ed use 0 by local rules of court This form, approved by the Judicial Conference 0 the United tates in September 1974, is required for Clerk of ourt for the purpose of IPnitiating the civil docket sheet (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM) lg) PLAINTIFFS DEFENDANTS Otis shford and Dell Jones CITY OF MOSS POINT, et 31. County of Residence of First Listed Plaintiff Jackson County of Residence of First Listed Defendant J30k50n (EXCEPT IN U.S. PLAINTIFF CASES) (IN US. PLAINTIFF CASES ONLY) NOTE: INLAND CONDE Bessemer LAND INVOLVED. EMU Att FirmN Add 1 bet) Attorneys (IfKnown) Kristi! l. ??33 a" ?m DEC 2 1 2009 American Civil Liberties Union of Mississippi I P.O. Box 2242. Jackson. MS 39202-2242 11. BASIS OF JURISDICTION (one an One Box Only) CITIZENSHIP 0F harm ForPlal?n?ff i (For Diversity Cases Only) Iant) i 1 US. Government 3 Federal Question PTF DEF PT DEF Plaintiff (US. Government Not a Party) Citizen of This State Cl 1 1 Incorporated or Principal Place 4 El 4 . of Business In This State C1 2 US. Government 13 4 Diversity Citizen of Another State El 2 CI 2 Incorporated and Principal Place 5 Cl 5 Defendant (Indicate Citizenship of Parties in Item ?mums? 1" Am? Citizen or Subject of a El 3 3 Foreign Nation CI 6 Cl 6 Foreig Country Cl 110 Insurance PERSONAL INJURY PERSONAL INJURY Cl 610 Agriculture Cl 422 Appeal 28 USC 153 CI 400 State Reapportionment C1 lzc?Man'ne CI 310 Airplane CI 362 Personal Injury - CI 620 Other Food Drug CI 423 Withdrawal 410 Antitrust CI 130 Miller Act CI 35 Airplane Product Med. Malpractice CI 625 Drug Related Seizure 28 USC 157 430 Banks and Banking 140 Negotiable Instrument Liability 365 Personal Injury of Property 21 USC 881 CI 450 Commerce El [50 Recovery of Overpayment 1:1 320 Assault, Libel Product Liability 630 Liquor Laws El 460 Deportation &:Enforcement of Judgment Slander El 368 Asbestos Personal El 640 RR. El 820 Copyrights 470 Racketeer In?uenced and El 151 Medicare Act - Cl 330 Federal Ernployers? Injury Product El 650 Airline Regs. 1:1 830 Patent I Corrupt Organizations 152 Recovery of Defaulted Liability Liability CI 660 Occupational El 840 Trademark E1 480 Consumer Credit Student Loans C1 340 Marine PERSONAL PROPERTY Safety/Health E1 490 Cable/Sat TV (Excl. Veterans) C1 345 Marine Product 370 Other Fraud 690 Other 810 Selective Service E1 153 Recovery of Overpayment Liability Cl 371 Truthin Lending - ?27212: . I -, Cl 850 Seenritiestormnodities/ of Veteran?s Bene?ts Cl 350 Motor Vehicle 1:1 380 Other Personal ?I7l0 Fair Labor Standards CI 861 HIIAI Exchange El 160 Stockholders? Suits [3 355 Motor Vehicle Property Damage Act 862 Black Lung (923) 1:1 875 Customer Challenge 13 190 Other Contract Product Liability CI 335 Property Damage 1: 720 Relations :1 863 DIWCJDIWW (405(g)) 12 USC 3410 CI 195 Contract Product Liability Cl 360 Other Personal Product Liability 1:1 730 13 864 SSID Title XVI El 890 Other Statutory Actions 13 196 Franchise I 82: Disclosure Act 1:1 865 RSI (405(2)) CI 891 Agricultural Acts i .. . :iI I CI 740 Railway Labor Act ?1 I CI 892 Economic Stabilization Act 210 Land Condemnation El 441 Voting - Cl ISI 10 Motions to Vacate Cl 790 Other Labor Litigation CI 870 Taxes (U. Plaintiff Cl 893 Environmental Matters I 220 Foreclosure El 442 Employment Sentence Cl 791 Empl. Ret. Inc. or Defendant) E1 894 Energy Allocation Act E1 230 Rent Lease Ejectrnent CI 443 Housing/ Haheas Corpus: Security Act CI 87} IRSiThird Party CI 895 Freedom of Information 1 240 Torts to Land Accommodations CI 530 General 26 USC 7609 Act 245 Tort Product Liability [1 444 Welfare El 535 Death Penalty Cl 900Appea1 of Fee Detemrinaticco C1 290 All Other Real Property 1:1 445 Amer. Vii/Disabilities 1:1 540 Mandamus Other Cl 462 Naturalization App on on Under Equal Access Employment [1 550 Civil Rights Cl 463 Habeas Corpus - to Justice El 446 Amer. w/Disabilities El 555 Prison Condition Alien Detainee El 950 Constitutionality of Other Cl 465 Other {Immigration State Statutes a 440 Other Civil Rights Actions V. ORIGIN (Place an in One Box Only) al to District Cl 1 Original CI 2 Removed from El 3 Remanded from 4 Reinstated or Cl 5 Transferred from 6 Multidistrict El 7 511ng from Proceeding State Court Appellate Court Reopened pnother (?met Litigation Magistrate speedy) udgnent Cite the US. Civil Statute under which you are ?ling (Do not cite jurisdictional statutes unless diversity): 28 U.S.C. 1?31 and 42 .S.C. 5 1983 CAUSE OF ACTION Brief description of cause:I yiolation of First and Fourth Amendments VII. REQUESTED IN CHECK IF THIS IS A ACTION DEMAND 5 CHECK YES only if demanded in complaint: COMPLAINT: UNDER F.RC.P. 23 JURY DEMAND: Yes No RELATED IF ANY (sec DOCKET NUMBER m? I ?f?m FOR OFF USE ONLY F4 RECEIPT I EI i! i 1 10 APPL JUDGE . MAG. JUDGE