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TOMLINSON & PRINCE, L.L.P.
Timothy P. Prince, Esq. SBN 151245 255 North D Street, Suite 401 Mailing Address: P.O. Box 66 San Bernardino, CA 92402 (909) 888-1000
(909) 888-6601 - Facsimile tprince@tprincelaw.com
Attorneys for Plaintiff, SAMUEL H. CLAUDER
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EASTERN DIVISION
SAMUEL HERSHEL CLAUDER,
Plaintiff,
vs.
COUNTY OF SAN BERNARDINO,
et al.,
Defendants.
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CASE NO. 5:14-CV-2011 PA (Jcx)
AMENDED COMPLAINT FOR
DAMAGES FOR VIOLATION
OF CONSTITUTIONAL RIGHTS
[42 U.S.C. §1983]
1.
First Amendment– Retaliation
and Conspiracy;
2.
Violation of Fourth and
Fourteenth Amendment Right–
Malicious Prosecution;
3.
Municipal Liability – Monell
[JURY TRIAL DEMANDED]
JURISDICTION AND PARTIES
1.
This is an action for money damages brought by Plaintiff Samuel Hershel
Clauder (“Clauder”) pursuant to 42 U.S.C. §§1983 and 1988, and the First and Fourteenth
Amendments to the United States Constitution. This court has jurisdiction over this case
under its federal question jurisdiction pursuant to 28 U.S.C. §§1331 and 1343.
2.
As the incidents complained of in this action occurred in the County of San
Bernardino, State of California, within the territorial jurisdiction of this court, venue
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properly lies in this court pursuant to 28 U.S.C. §1391(b)(2).
3.
Clauder seeks recovery of damages from the County of San Bernardino
(County), former San Bernardino County Sheriff Gary Penrod, an individual, (“Penrod”),
former Sheriff Deputy Michael Pelkey, an individual, (“Pelkey”), Does 1 through 10,
current or former employees of San Bernardino County, and Does 11 through 20.
4.
Defendants DOES 1 through 20, inclusive, committed some or all of the
wrongful actions (and constitutional violations) complained of in this action, and/or are
otherwise responsible for and liable to plaintiff for the acts complained of in this action,
but their identities are, and remain, unknown to plaintiff, who will amend this Complaint
to add and to show the actual names of said DOE defendants when so ascertained by
plaintiff.
5.
Plaintiff Clauder is a natural person, who, at all times complained of in this
action, resided in the County of San Bernardino, State of California.
FACTS RELEVANT TO ALL CLAIMS
6.
On February 24, 2009, the County filed false charges of felony possession
of child pornography against Samuel Hershel Clauder (San Bernardino Superior Court
Case No. FSB900759).
7.
Clauder spent fifty (50) days in jail relating to said charges.
8.
Three (3) years and seven (7) months later, on September 28, 2012, the
charges were dismissed.
9.
On December 7, 2012, the Court made a finding of factual innocence
pursuant to California Penal Code §851.8. No appeal was taken from the court’s finding
of factual innocence.
10.
The child pornography was found on a laptop computer which was taken
from the home occupied by Clauder’s estranged wife and son.
11.
The County Sheriff seized the computer from Clauder’s estranged wife
months after Clauder permanently left the home due to a restraining order issued as part
of their divorce.
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12.
The computer was used by the Clauder family and had multiple user
identities. The “evidence” was downloaded on the computer under the identity of
Clauder’s son, who was then Administrator of the computer, months after Samuel
Clauder was arrested and taken from the house on April16, 2008, pursuant to the false
domestic violence charges which were later dismissed.
13.
Although Clauder’s estranged wife and son claimed that nobody had used
the computer after Clauder left the house, in fact more than 30,000 system hours had been
logged, including daily use from May to July 2008.
14.
The County performed polygraphs of Clauder's estranged wife and son
which they failed to pass.
15.
At all times the County knew that the only “evidence” supporting their
prosecution hinged on the credibility of Clauder’s estranged wife, who lacked
understanding of computers, and that the couple was involved in a contentious divorce.
16.
Because the nature of the alleged crime carried social opprobrium but not
present danger of violence, coupled with the known propensity for fabrication by those
engaged in bitter divorces, the need to investigate potentially exculpatory evidence before
making an arrest for proceeding with a criminal prosecution should have been evident to
any reasonable peace officer. See Merriman v. Walton, 856 F.2d 1333, 1335 (9th Cir.
1988), cert. denied, 491 U.S. 905, 109 S.Ct. 3188, 105 L.Ed.2d 696 (1989).
17.
Although both subjects failed to pass polygraph exams, Sheriff Deputy
Pelkey continued to refer to Clauder’s estranged wife and son as supporting "witnesses"
while hiding the fact that no evidence supported the charges.
18.
This, and many other facts were revealed in the audiotaped confession of
Clauder's son of September 20, 2012, a copy of which was not provided to Clauder until
late December 2012.
19.
The County did not question or interview Clauder's son nor any other
supporting witness after the failed polygraph examination until his son’s confession three
and one-half (3-1/2) years after filing the reckless and falsified charges.
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20.
The false charges were instigated by Deputy Pelkey of the Twin Peaks
Sheriff Station at the direction of, and with the approval of, Penrod. Pelkey and Penrod
harbored personal animosity towards Clauder because of Clauder's investigative
journalistic reporting, political consultancy and his reports of official misconduct made to
the Sheriff’s Department against Pelkey's colleagues assigned to the Twin Peaks Sheriff
Station.
21.
In 2006 and 2007, as a member of the media, Clauder uncovered falsified
evidence made by the Sheriff’s Department sergeant in charge of investigating the Aaron
Plante rape case to cover up the location of the crime. When the charges were dismissed,
Clauder wrote reports and criticized the Sheriff's mishandling of the case to local, state
and federal authorities, resulting in an investigation into the Sheriff's Department and
extensive negative publicity.
22.
Clauder’s actions as an investigative journalist angered Penrod and deputies
assigned to the Twin Peaks Sheriff’s Station, who considered Clauder an enemy of the
Sheriff.
23.
Clauder subsequently lodged a complaint alleging official misconduct with
the Sheriff’s Department against the sergeant.
24.
The Sheriff’s Department ultimately sustained Clauder’s complaint and
imposed administrative punishment against the Sergeant which included demotion in rank
and transfer to another assignment.
25.
The false charges were also instigated and perpetuated by Penrod and the
other defendants because of their personal animosity and desire to discredit Clauder as a
result of Clauder's reports of official misconduct and corruption made to the Federal
Bureau of Investigation five days before the felony charges were filed.
26.
FBI policy precludes investigating or pursuing complaints made by persons
with pending felony charges.
27.
Clauder reported allegations that Sergeant Randy Beavers’ County
computer was seized and found to have child pornography, that Beavers seduced a
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fifteen-year-old girl and that Penrod knew of these allegations and failed to act on them
because Penrod was having an affair with Randy Beavers’ wife. Randy Beavers’ wife,
Cindy Beavers, served under Penrod as the Sheriff’s Public Information Officer. Clauder
also reported the retaliation by Penrod and County for Clauder’s internal affairs
complaints as set forth above. Clauder also reported Penrod and County’s pattern of
retaliation against those who expressed dissent.
28.
Unbeknownst to Clauder, the FBI had an established relationship of
cooperation and information sharing with Penrod and County, particularly with regard to
political investigations. Five days after Clauder’s report, Penrod, Pelkey and County
caused the false charges to be filed against Clauder, who was active politically and was a
congressional staff member.
29.
The first Deputy District Attorney assigned to prosecute Clauder told
Clauder's defense attorney it was a "poor case which shouldn't have been filed."
30.
However, the case was filed and prosecuted for three years and seven
months under the supervision and at the direction of District Attorney Michael Ramos.
31.
Ramos directed his subordinates to file charges and pursue the case without
any supporting evidence because of a political vendetta involving his campaign manager.
32.
David Ellis, the campaign manager for Ramos' re-election campaign, and
Clauder were on opposite sides of a long-term, major political battle to determine the use
of the El Toro Marine Base in Orange County. Ellis and Clauder had several extremely
contentious personal conflicts during the ten years of this campaign, involving statements
to the press and to the voters. When the voters decided the base should be a park instead
of an airport, Ellis lost the opportunity to reap as much as $200 million in profit as a
contractor.
33.
"We finally have Clauder where we want him," Ellis stated to more than
one person in 2010.
34.
The fraudulent charges were pursued, filed and prosecuted in flagrant
violation of Clauder's civil rights by politically and personally motivated law enforcement
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officers, Penrod and Pelkey, and by County prosecutors to make Clauder a national
scandal, placing his life in danger during the 50 days he spent in jail, in general
circulation, facing the constant threat of death if the prisoners found out he was accused
of child pornography, and costing him the best job of his career, ruining his name and
reputation and intentionally causing him extreme and severe mental and emotional
distress.
FIRST CLAIM FOR RELIEF
42 U.S.C. SECTION 1983
[Against All Defendants]
FIRST AMENDMENT – RETALIATION AND CONSPIRACY
35.
Plaintiff realleges and incorporates by reference herein paragraphs 1-30 of
this Complaint.
36.
Defendants retaliated against Clauder for filing and publishing reports
criticizing the Sheriff's mishandling of the Aaron Plante case.
37.
Defendants and Michael Ramos conspired with and were improperly
influenced by Ramos’ campaign manager David Ellis to retaliate against Clauder for his
political advocacy and consultancy relating to the El Toro Marine Base.
38.
Defendants Pelkey, Penrod and Does 1-10 retaliated against Clauder as a
result of his investigative journalistic reporting, political consultancy and his complaints
of official misconduct made to the Sheriff’s Department pursuant to Penal Code §832.5.
39.
The retaliation took the form of pursuing for four years obviously false and
fraudulent charges and prosecution against Clauder of felony child pornography, one of
the most hated and vilified crimes.
40.
The above named Defendants conspired with one another and with District
Attorney Ramos to do the above listed acts knowing that Clauder, as any citizen, had the
clearly established right under the First Amendment of the United States Constitution to
criticize as well as the statutory right under California Penal Code §832.5 to report
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official misconduct by public employees of the Sheriff's Department and to participate in
the political process.
41.
Defendants’ actions violated Clauder’s First Amendment right to freedom
of speech regarding matters of public concern. Clauder would not have been subjected to
Defendants’ actions over the course of four years but for reporting, filing and publishing
his criticism and political advocacy
42.
As a proximate result of Defendants’ actions, Clauder suffered special
damages in the form of lost income, loss of employee benefits, including a paid medical
plan in an amount to be proven at trial.
43.
As a proximate result of Defendants’ actions, Clauder suffered general
damages including loss of reputation and emotional distress, the value of which will be
proven at trial.
44.
The acts and omissions of each Defendant set forth in this complaint
(except Defendant San Bernardino County) were done by each Defendant knowingly,
intentionally and maliciously and for the purpose of harassment, oppression and infliction
of injury upon Plaintiff, and in reckless, wanton and callous disregard of Plaintiff’s safety,
security and civil rights; and by reason thereof, Plaintiff claims exemplary and punitive
damages from each Defendant (except San Bernardino County) in a sum to be determined
at the time of trial.
SECOND CLAIM FOR RELIEF
42 U.S.C. SECTION 1983
[Against All Defendants]
VIOLATION OF FOURTH AND FOURTEENTH AMENDMENT RIGHT
-MALICIOUS PROSECUTION
45.
Plaintiff realleges and incorporates by reference herein paragraphs 1-35 of
this Complaint.
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46.
As shown above, Defendants falsely, fraudulently and without any
evidence prosecuted Clauder on a felony charge of violation of child pornography.
47.
At the preliminary hearing, Defendants presented false evidence about the
existence of a password and whether others could access Clauder’s profile on the
computer. They knew of the falsity or acted in reckless disregard of the truth by
presenting testimony that Clauder’s identity was password protected and that he could
have downloaded the child pornography.
48.
The lack of a password on Clauder’s profile, the accessibility and history of
the computer indicating it had been used extensively after Clauder left the house and the
fact that Clauder himself was the only one who lacked access to the computer were
readily available and obvious facts that were known to Defendants and concealed or
recklessly ignored.
49.
Also as shown above, Defendants knew that Clauder could not have
committed a violation of Cal. Penal Code §311.11, and, nonetheless, authored fraudulent
and baseless police reports about the charges, falsely and maliciously accusing plaintiff of
various acts.
50.
Said police reports authored, directed and/or approved by Pelkey, Penrod
and DOES 1 through 6, inclusive, also contained material misrepresentations of facts and
material omission of facts upon which the San Bernardino County District Attorney's
Office relied, in large part, in deciding to file and to maintain the criminal prosecution of
the plaintiff.
51.
Moreover, the San Bernardino County District Attorney's Office also filed
and prosecuted the above-referenced criminal action against the plaintiff because of
political pressure exerted by Defendants Penrod and Pelkey and by David Ellis upon the
San Bernardino County District Attorney's Office, including those Deputy District
Attorneys who participated in filing and prosecuting said above-referenced criminal
action against the plaintiffs, and pursuant to the policies of said District Attorney's Office,
created by San Bernardino County District Attorney Michael Ramos and his
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predecessors, to file and pursue, guilty or not, criminal action against his political
adversaries.
52.
Moreover, said criminal action against Clauder was terminated in his favor,
in a manner inconsistent with guilt; by the dismissal of said case and subsequent finding
of factual innocence.
53.
Moreover, as shown above, none of said defendant officers had probable
cause to believe that Clauder committed a crime.
54.
Moreover, said criminal action was procured by said defendants with
malice.
55.
Moreover, as California does not provide for any remedy for an aggrieved
malicious prosecution victim to sue a public employee for the filing and/or procurement
of a baseless criminal action, pursuant to Parratt v. Taylor, 451 U.S. 527 (1981), the
actions of said defendants constituted a violation of the Fourth, Ninth and Fourteenth
Amendments to the United States Constitution.
56.
As a direct and proximate result of the actions of defendants, as complained
of herein, Plaintiff: 1) was substantially physically, mentally and emotionally injured, 2)
incurred medical and psychological costs, bills and expenses, 3) suffered loss of earnings
and earning capacity, 4) incurred other special and general damages and expenses,
including attorney's fees and associated costs; all in an amount to be proven at trial.
57.
The actions of defendants as complained of herein, were committed
maliciously, oppressively and/or in reckless disregard of plaintiff's constitutional rights,
sufficient for an award of punitive / exemplary damages against all defendants, save for
defendant County, in an amount to be proven at trial.
//
//
//
//
//
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THIRD CLAIM FOR RELIEF
42 U.S.C. SECTION 1983
[Against Defendant County of San Bernardino]
MUNICIPAL LIABILITY – MONELL
58.
Plaintiff realleges and incorporates by reference herein paragraphs 1-53 of
this Complaint.
59.
At all times relevant to this lawsuit, Penrod, District Attorney Ramos
and/or Does 5-10 were the policymaking officials of the County of San Bernardino, as
that term applies to municipal liability under 42 U.S.C. §1983.
60.
Prior to September 28, 2012, County developed and maintained policies or
customs exhibiting deliberate indifference to the constitutional rights of persons in San
Bernardino County which caused the violations of Plaintiff’s rights.
61.
It was the policy and/or custom of San Bernardino County Sheriff
Department to inadequately and improperly screen potential employees, to promote
employees who had demonstrated disregard for the rights of those policed by the San
Bernardino County Sheriff Department and who were disinclined to properly and
thoroughly investigate complaints of police misconduct. As a result, acts of misconduct
by San Bernardino County Sheriff Department personnel were tolerated by San
Bernardino County Sheriff officials.
62.
It was the policy and/or custom of San Bernardino County to inadequately
supervise and train its police officers, including the Defendant officers, thereby failing to
adequately discourage further constitutional violations on the part of its Sheriff officers.
63.
Defendants failed to provide adequate training and supervision with respect
to the effect of contemplated or active divorce proceedings and estrangement on
intra-family accusations, motivation of witnesses to lie, the need to corroborate evidence, and
the handling and evaluation of computer evidence and child pornography cases.
64.
As a result of the above described policies and customs, San Bernardino
County Sheriff officers, including the Defendant officers, believed that their actions
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would not be properly monitored by those senior to them and that misconduct would not
be properly investigated or sanctioned, but would be tolerated.
65.
A code of silence was fostered and encouraged to exist within the San
Bernardino County Sheriff Department which served to insulate officers from
accountability for their actions.
66.
The above described policies and customs demonstrated a deliberate
indifference on the part of policymakers of the County of San Bernardino to the
constitutional rights of persons within San Bernardino County, and was the cause of the
violations of Plaintiff’s rights alleged herein.
67.
It was the policy and/or custom of San Bernardino County to inadequately
supervise and train its deputy district attorneys, thereby failing to adequately discourage
further constitutional violations on the part of its prosecutors.
68.
Said prosecutors lacked training on the need to scrutinize reports from
witnesses engaged in divorce proceedings, assure that witnesses have been interviewed
promptly and thoroughly, promptly verify the foundation of electronic evidence of child
pornography and who had possession and access to the computer and to the identity on
the computer under which it was downloaded.
69.
County’s district attorneys also lacked training on prosecution of crimes
carrying social opprobrium, and the irreversible damage that is caused by filing charges
prior to a careful review of the evidence and investigation of potentially exculpatory
evidence.
70.
County’s district attorneys also lacked training and supervision on the
handling of cases with complaining witnesses engaged in bitter divorces with known
propensity for fabrication.
71.
As a proximate result of Defendants’ actions, Clauder suffered special
damages in the form of lost income, loss of earning capacity, loss of employee benefits,
including a paid medical plan in an amount to be proven at trial.
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