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1 COMPLAINT MICHELLE R. BURROWS Attorney at Law 22586 SW Park St. Sherwood OR 97140 Phone: (503) 241-1955 Fax: (503) 2413127 Michelle.r.burrows@gmail.com Mario F. Riquelme Attorney at Law

Elliott, Anderson, Riquelme & Wilson, LLP 1558 SW Nancy Way #101

Bend, OR. 97702 Phone; (541) 383-3755 Fax: (541) 330-1480

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

Eugene Division MICHAEL F. CASON,

Plaintiff, v.

SHERIFF LARRY BLANTON, CYNDY E. WILLIAMS, JOE HOLLAND, BENJAMIN SMITH, JEFF FOLLOSE, SCOTT

EDWARDS, TANYA GRAHAM, MICHAEL GILL and DESCHUTES COUNTY, by and through the Deschutes County sheriff’s Office, a Political Subdivision of the State of Oregon.

Defendant.

Case No.

COMPLAINT

Civil Rights: 8th/14th Amendment Prisoner Abuse, failure to protect, assault/battery, Intentional

Infliction of Emotional Distress 42 U.S.C. 1983; 42 U.S.C. 10010 Jury Trial Demanded

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff by and through his attorneys, Michelle R. Burrows and Mario F. Riquelme, brings his complaint herein and state and allege as follows:

INTRODUCTORY STATEMENT 1.

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2 COMPLAINT

Plaintiff files this action under 42 U.S.C. §1983 and 42 U.S.C. 10010, for events occurring on or about September 16, 2011 in violation of the 8th and 14th amendments to the United States Constitution for abusive treatment of Plaintiff while awaiting release from the Deschutes County Jail.

2.

This court has jurisdiction over Plaintiff’s claims of violations of federal constitutional rights under 28 U.S.C. § 1331 and 1343.

3.

Venue is proper under 28 U.S.C. §1391(b), in that one or more of the defendants reside in the District of Oregon and Plaintiff’s claims for relief arose in this district.

4.

The court has jurisdiction over Plaintiff’s pendent state law claims under 28 U.S.C § 1367.

PARTIES 5.

Plaintiff Michael F. Cason is a resident of Deschutes County Oregon, who was taken into custody on suspicion of DUII on September, 16, 2011.

6.

Defendant Joe Holland was at all times a corrections deputy with the Deschutes County Sheriff’s Office, and was one of several officers involved in the abuse of Plaintiff. At all times Holland was acting under color of law. He is sued in his individual capacity.

7.

Defendant Benjamin Smith was at all times a corrections deputy with the Deschutes County Sheriff’s Office, and was one of several officers involved in the abuse of Plaintiff. At all times Smith was acting under color of law. He is sued in his individual capacity.

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3 COMPLAINT

Defendant Jeff Follose was at all times a corrections deputy with the Deschutes County Sheriff’s Office, and was one of several officers involved in the abuse of Plaintiff. At all times Follose was acting under color of law. He is sued in his individual capacity.

9.

Defendant Scott Edwards was at all times a corrections deputy with the Deschutes County Sheriff’s Office, and was one of several officers involved in the abuse of Plaintiff. At all times Edwards was acting under color of law. He is sued in his individual capacity.

10.

Defendant Tanya Graham was at all times a corrections deputy with the Deschutes County Sheriff’s Office, and was one of several officers involved in the abuse of Plaintiff. At all times Graham was acting under color of law. She is sued in her individual capacity.

11.

Defendant Cyndy Williams was at all times a corrections deputy with the Deschutes County Sheriff’s Office, and was one of several officers involved in the abuse of Plaintiff. At all times Williams was acting under color of law. She is sued in her individual capacity.

12.

Defendant Michael Gill was at all times a corrections deputy with the Deschutes County Sheriff’s Office, and was the Deputy in charge of reviewing the actions of jail staff to make sure rights of inmates were not violated. At all times Gill was acting under color of law. He is sued in his individual capacity.

13.

Defendant Deschutes County was at all times a political subdivision of the State of Oregon and a person for purposes of the Constitution.

14.

Defendant Larry Blanton is the Sheriff for the County of Deschutes, and at all times material was a policy maker for Deschutes County and supervisor of all of the officers

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4 COMPLAINT

involved in the abuse of Plaintiff. At all times Blanton was acting under color of law. ///

FACTUAL ALLEGATIONS 15.

Plaintiff suffers from severe and debilitating injuries to his neck, back and shoulder. He has suffered from disability pain and lack of mobility as a result of his injuries most of his adult life. Plaintiff had recently had surgery to repair torn ligaments in his left shoulder. Due to financial difficulties, he is unable to pay for medical treatment without government

assistance. He has sought help for his injuries for years. Just prior to this incident, Plaintiff had qualified to receive disability benefits, and with it, much needed medical treatment. Plaintiff additionally suffers from Depression and Post Traumatic Stress Disorder. Plaintiff was honorably discharged from the U.S. Navy because of his mental challenges.

16.

Plaintiff was arrested on suspicion of DUII on September 16, 2013 at approximately 1:30 am. He was taken to the Deschutes County Jail at approximately 1:45. Plaintiff

voluntarily submitted to a breathalyzer examination at 2:20 am, which yielded a result of .07 BAC. Plaintiff then sat on a bench quietly for approximately one hour, before being handed over to Deschutes County Sheriff’s staff for intake. Plaintiff was cooperative with all officers he encountered prior to the incident in question, herein further described.

17.

At approximately 3:10 am, Plaintiff was seated in a booking room at the Deschutes County Jail. In front of him, across a built in desk stood sergeant Cyndy Williams. On his left hand side stood Deputy Holland. Various other deputies were at different times present in the room and/or within sight. Plaintiff had been searched for weapons incident to the arrest, and had no weapons of any kind on his person. Plaintiff told Deputy Holland and sergeant Williams that he had severe health problems with his neck, back and shoulder.

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5 COMPLAINT

18.

Plaintiff was presented with a form entitled: “Medical Permission – Read Carefully” and asked to sign it. The form’s first sentence read: “The medical screening information contained on these pages is accurate to the best of my knowledge”. Plaintiff read over the form very carefully. Plaintiff was fearful that if he did not indicate he was disabled and on disability, he could endanger his disability benefits. Plaintiff began writing-in on the form that he was disabled, and on disability. Deputy Holland told Plaintiff not to write on the form and to simply sign it. Plaintiff, in fear of losing his much needed benefits insisted on writing on the form about his disability, and continued to do so. This upset Deputy Holland, who began raising his voice, and told Plaintiff again to stop writing, and simply sign the paper as it was presented to him. Deputy Holland’s tone apparently raised the interest of Deputy Smith, who came over to where Plaintiff was seated, and stood in front of and to the left of Plaintiff. Plaintiff responded to Deputy Holland’s command by again attempting to detail his condition on the form. This action caused Deputy Holland to say “we’re done here”. Deputy Holland took a hold of Plaintiff’s left arm, and began removing the form from in front of Plaintiff. Plaintiff then said: “fuck it then” and slid the jail pen across the desk. This action upset Deputy Smith, who asked Plaintiff if he meant to strike one of the officers with the pen. Plaintiff replied “no”, and that if he wanted to hit someone with the pen, he would have done so. This upset Deputy Smith even further, causing him to tell Plaintiff to “try doing that again”. At this point, Deputy Holland had a firm grasp on Plaintiff’s left arm. Plaintiff complied with Deputy Smith’s challenge, by slamming the pen down on the counter. This caused Deputy Smith to lunge at Plaintiff, grabbing him by the throat, lifting him off his seat and trip backwards, until slamming Plaintiff head first into the concrete wall behind him.

20.

Deputy Smith then pinned Plaintiff against the concrete wall by the neck, while Deputy Holland held him by the right arm. While pinning him to the wall Deputy Smith yelled

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6 COMPLAINT

at Plaintiff: “don’t throw stuff at my sergeant, you understand that? You assault an officer, you’re going down! Do you understand me?” Plaintiff does not resist, other than his body’s involuntary reaction to the pain in his head, neck and back.

21.

When Deputy Smith finished yelling at him, Deputy Follose grabbed him by the right shoulder, and then all three deputies pulled him away from the wall, turned him around, and then slammed him, again head first into a clearly closed jail cell door. At that time, while restrained by three officers, two other officers arrive to get involved, Deputy Edwards, and Deputy Graham for a total of six deputies in the room.

22.

After slamming Plaintiff, face first into the wall, the three deputies pin him against the concrete wall. Deputy Edwards noticed that Plaintiff was not resisting nor striking out with his left arm. With mystifying logic, Deputy Edwards grabbed Plaintiff’’s left arm, and twisted it behind Plaintiff’s back, and lifted it up in a hammer-lock (a compliance hold meant to cause pain to the shoulder joint). Deputy Edwards twisted Plaintiff’s arm behind his back with so much force, that Plaintiff was lifted off the ground. When Deputy Williams opened the jail cell door, the five deputies tool him inside the jail cell and with force took him to his knees.

23.

Plaintiff was released from custody the following day. After his release Plaintiff filed a complaint with the Deschutes County Sheriff’s Office regarding the excessive force. The report was reviewed by Lieutenant Gill. Lieutenant Gill, after review of the video noted:

I. That Plaintiff threw a pen at Sergeant Williams, despite this not being observable in the video,

II. Omitted from his report that Plaintiff was lifted off his seat by being grabbed by

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7 COMPLAINT

III. Omitted from his report that Plaintiff slammed against the concrete wall multiple times;

IV. Omitted Plaintiff being pinned against the concrete wall, by at times four officers;

V. Omitted Deputy Edwards placing a compliant and non-resisting Plaintiff in a

hammer lock with sufficient force to lift him off the floor;

VI. Indicates that the video is “not clear” as to whether Plaintiff was verbally abusive, despite the fact that the video is clear enough to hear the only yelling which happened, was by Deputy Holland directed at Plaintiff;

VII. Lieutenant Michael Gill concludes “I did not find that jail policies or procedures were violated. I do not find evidence of staff misconduct.”

24.

The incident described occurred in front of video cameras. Despite review of the videos of the incident after formal complaint by Plaintiff, the Deschutes County Sheriff’s Office took no action to discipline staff, or compensate Plaintiff.

25.

As a result of the above referenced abuse, Plaintiff suffered aggravation of his

disability causing conditions, to wit: left shoulder rotator cuff tear, spondylosis, C4-C5, C5-C6 disc bulging, foraminal narrowing, depression and post-traumatic stress disorder.

Additionally he suffered from abrasions, contusions and a concussion. 26.

As a result of the above referenced abuse, Plaintiff suffers from nightmares, lack of focus on thoughts, chronic pain in his neck, back and left shoulder, as well as panic attacks when he sees police officers.

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8 COMPLAINT

As a result of the physical injuries suffered, it is estimated Plaintiff will require approximately $50,000.00 in future medical expenses. Plaintiff requests non-economic damages as determined by a jury, but not to exceed $750,000.00

FIRST CLAIM FOR RELIEF:

Unreasonable/Excessive use of force: 14TH Amendment (pre-trial detainee) (Defendants, Williams, Holland, Smith, Follose, Edwards and Graham)

29.

Plaintiff realleges all previous paragraphs as if more fully set forth. 30.

As a prisoner and pre-trial detainee, Plaintiff had the right to be free from

unreasonable force, and is entitled to safe conditions of confinement, which include the right to be free from assaultive behavior from corrections officials. If Plaintiff was a prisoner the contours of the 8th Amendment apply. If Plaintiff was not a prisoner but was a pre-trial detainee then the contours of the 14th Amendment apply to this claim.

31.

The assault which took place on September 16, 2011, violated the 8th and 14th Amendments to the United States Constitution prohibition against cruel and unusual punishment and were intentional acts of violence and abuse on Plaintiff with no legitimate government purpose or design. The acts of violence in these incidents were performed by each of the named defendants either because they engaged in the violence or were present and failed to act when the violence was performed.

32.

The actions of each of the Defendants in their failure to protect Plaintiff or actively injuring him were a substantial departure from accepted professional judgment, practice or standards and were objectively unreasonable. The acts of each Defendant were deliberately indifferent to the rights held by Plaintiff.

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9 COMPLAINT

As a result of the actions or inactions by the named Defendants in the identified

incidents, Plaintiff was seriously injured, requiring medical treatment, and will require ongoing medical and mental health treatment.

SECOND CLAIM FOR RELIEF: Failure to train;

Deschutes County 34.

Plaintiff realleges all previous paragraphs as if more fully set forth. 35.

As a result of the unofficial policy, custom or practice of Deschutes County and the Deschutes County Sheriff’s Office in failing to adequately train deputies and officers in the proper use of force and in the detention procedures for disabled detainees;

36.

This unofficial policy, custom or practice in failing to train the defendants in the proper method of detention and use of force was a moving factor in the deprivations suffered by Plaintiff herein. The actions in failing to adequately train its deputies in proper force and custodial detention techniques is deliberately indifferent to the rights held by detainees.

THIRD CLAIM FOR RELIEF: Failure to supervise; Defendants Blanton and Gill

37.

Plaintiff realleges all previous paragraphs as if more fully set forth. 38.

Defendant Blanton and Gill were supervisors throughout the incident alleged herein and had their own duty to properly supervise and manage the other officers particularly in de-escalating the show of force, stopping the assault, removing the officers who no longer had

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10 COMPLAINT

control of their emotions or who were acting outside the proper use of force protocols. 39.

Defendant Gill and Blanton failed to properly supervise their subordinate officers resulting in the abuse and mis-use of force alleged herein. Defendant Gill and Blanton by failing to stop the assault violated the rights held by Plaintiff herein and were a moving factor in the resulting injuries suffered by Plaintiff.

40.

Defendants Blanton and Gill, in failing to supervise and discipline the individual defendants, permitted a culture of unconstitutional treatment of prisoners, particularly

Plaintiff. The individual officers were allowed to abuse, mistreat, assault and cause harm to Plaintiff without discipline or repercussions. This failure to supervise by Blanton and Gill was a moving cause of the unconstitutional treatment and abuse of Plaintiff.

FOURTH CLAIM FOR RELIEF: Unreasonable/Excessive use of force;

8th Amendment; 42 U.S.C. § 1983

Defendants, Williams, Holland, Smith, Follose, Edwards and Graham; 41.

Plaintiff realleges all previous paragraphs as if more fully set forth. 42.

The actions by each of the named Defendants in using excessive and unreasonable force violate the prohibitions against unreasonable force as set out by the 8th Amendment. Plaintiff has the right to be free from unreasonable force while in custody and such

unreasonable force was an imposition of cruel and unusual punishment on the conditions of confinement.

43.

Each Defendant participated in, failed to stop or allowed the following violations of the force prohibition against Plaintiff:

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11 COMPLAINT

1. Lifting Plaintiff from his seat by the neck and slamming him into the concrete wall; 2. Pinning him against the wall by holding him by the neck and right arm, while yelling

at him;

3. Slamming him head first into the cell door;

4. Pinning him face first into the cell door while being held by four deputies;

5. Twisting his left arm, behind his back and applying upwards pressure sufficient to lift him off the ground in an effort to cause him pain.

44.

Not only are the deputies who directly used the unreasonable force on Plaintiff responsible for the constitutional violations, but also are the deputies who stood by and allowed it to occur. Action and inaction can be the basis for the claim. If the officers had stopped each other, no violations would have occurred and Plaintiff would not have his present injuries.

FIFTH CLAIM FOR RELIEF

Monell Claims: Informal Culture and Custom; Deschutes County

45.

Plaintiff realleges all matters previously raised herein as if more fully set forth. 46.

The actions by Defendants Williams, Holland, Smith, Follose, Edwards and Graham are part of the official policy custom or practice of Deschutes County to abuse prisoners and to create exigency justifying the use of force. The ability of the officers to behave in the manner they did, without any repercussions, despite their actions being video taped and a formal complaint filed, indicates a culture and philosophy where cruel, violent and criminal treatment of citizens is permitted, if not condoned and rewarded.

47.

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12 COMPLAINT

atmosphere in Deschutes County, and is a direct causation of the injuries sustained by Plaintiff. The evidence of this culture is the videotape itself where officers in uniform abuse a man who poses no threat, and offers no resistance. The fact that these actions were

reviewed by supervisors at the Sheriff’s office and no action was taken, solidifies the belief within the officers that they are above the law.

SUPPLEMENTAL STATE CLAIMS SIXTH CLAIM FOR RELIEF

Assault/Battery

Defendants, Williams, Holland, Smith, Follose, Edwards and Graham, Blanton, Gill, County of Deschutes

48.

Plaintiff realleges the matters previously raised as if more fully set forth herein. 49.

The actions by the Deschutes County deputies on September 16, 2011 involve an unwanted and nonconsensual physical contact and threat of contact against Plaintiff, which caused Plaintiff physical injury, tremendous pain and suffering. Plaintiff claims damages both economic and non-economic in an amount to be proven at trial, but not to exceed $750,000.00.

50.

Each offensive and non consensual physical contact causing injury or fear of injury is a separate assault or battery, thus each named defendant is responsible for no less than six separate assaults and/or batteries.

SEVENTH CLAIM FOR RELIEF Intentional Infliction of Emotional Distress

Defendants, Williams, Holland, Smith, Follose, Edwards and Graham, Blanton, Gill, County of Deschutes

51..

Plaintiff realleges the matters previously raised as if more fully set forth herein. ///

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13 COMPLAINT

52.

All of the aforementioned defendants’ actions including yelling, threatening, touching, assaulting were intentional harmful and offensive contacts, including assault, battery, etc., have caused Plaintiff to suffer damages in the form of the physical violations of the Plaintiff’s body, and the serious and emotional distress he has suffered. Each of the alleged actions was intended by each individual defendant to cause serious emotional distress and fear by Plaintiff.

53.

As a result of Defendants’ intentional harmful and offensive contacts, Plaintiff has suffered and continues to suffer mental, and emotional injury, including pain and suffering, physical and emotional trauma, all to his non-economic damages in an amount to be proven at trial, but no less than $250,000.00 against each defendant.

WHEREFORE Plaintiff prays for judgment as follows:

1. On all claims, that Plaintiff’s protected rights were violated to his detriment. 2. On the tort claims, Plaintiff prays for judgment against the municipality of

Deschutes County; $50,000 for economic and 750,000 non-economic damages. 3. On the force and 8th Amendment claims against Deschutes County, Plaintiff prays

for judgment against Deschutes County for $800,000 for economic and non-economic damages;

4. On the Intentional Infliction of Emotional Distress claim against each Defendant, Plaintiff prays for the judgment $250,000 against each Defendant;

5. On the federal and state claims, Plaintiff prays for his attorney fees, costs and disbursements.

6. Plaintiff prays for punitive damages against each individual defendant DATED this 25th day of July 2013.

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14 COMPLAINT

/s/Michelle R. Burrows

Michelle R. Burrows, Bar No. 86160 Attorney at Law 618 NW Glisan, Suite 203 Portland, OR. 97309 Telephone: (503) 241-1955 Fax: (503) 241-3127 /s/Mario R. Fiquelme

Mario F. Riquelme, Bar No. 024409

Elliott, Anderson, Riquelme & Wilson, LLP 1558 SW Nancy Way, #101

Bend, OR. 97702

Telephone: (541) 383-3755 Fax: (541) 330-1480

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15 COMPLAINT

CERTIFICATE OF SERVICE

I hereby certify that I served a true copy of the foregoing ______________________on: ___________________

Attorney for:

by mailing to said person(s) a copy thereof by first-class mail addressed to said person(s) last known address and deposited in the U.S. mail at Bend, Oregon on the date set forth below;

by causing a copy thereof to be hand-delivered to said person(s) at each person(s) last-known office address on the date set forth below;

by sending a copy thereof via overnight courier in a sealed, prepaid

envelope, addressed to each person(s) last-known address on the date set forth below; or

by faxing a copy thereof to each person(s) at his last-known facsimile number on the date set forth below.

Dated this day of __________, 2004.

By:__________________________________ Mario F. Riquelme, OSB #02440

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16 COMPLAINT

DECLARATION OF SERVICE

I, Mario F. Riquelme, am a citizen of the United States and am employed in the City of Bend, Oregon and County of Deschutes, am over the age of eighteen years, and am not a party to the above-entitled case. My business address is 42 NW Greeley Avenue, Bend, OR 97701.

On , I served the foregoing , on the party/parties in said action, by: by mailing to said person(s) a copy thereof by first-class mail addressed to said person(s) last known address and deposited in the U.S. mail at Bend, Oregon, enclosed in a sealed envelope, with postage thereon fully prepaid, on the date set forth below;

by causing a copy thereof to be hand-delivered to said person(s) at each person(s) last-known office address on the date set forth below;

by sending a copy thereof via overnight courier in a sealed, prepaid

envelope, addressed to each person(s) last-known address on the date set forth below; or

by faxing a copy thereof to each person(s) at his last-known facsimile number on the date set forth below.

And, addressed as follows:

I declare under penalty of perjury under the laws of the State of Oregon that the foregoing is true and correct. Executed on , at Bend, Oregon.

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