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					                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE NORTHERN DISTRICT OF TEXAS
                                 DALLAS DIVISION

EARL RAY GAY                              §
                                          §
                                          §
                                          §
       Plaintiff                          §
                                          §
                 V.                       §      CIVIL ACTION NO. ________________
                                          §
CITY OF WAXAHACHIE, TEXAS                 §
CITY OF WAXAHACHIE POLICE                 §
DEPARTMENT, and LIEUTENANT                §
DAMON JAMES and GEORGE                    §
PAPPAS                                    §
                                          §
                                          §
       Defendants                         §

                      ORIGINAL COMPLAINT AND JURY DEMAND

TO THE HONORABLE JUDGE OF SAID COURT:

       NOW COMES, EARL RAY GAY, hereinafter called Plaintiff, complaining of and

about CITY OF WAXAHACHIE, WAXAHACHIE POLICE DEPARTMENT, DAMON

JAMES, individually and in his supervisory capacity, GEORGE PAPPAS, individually,

collectively hereinafter called Defendants, and for cause of action shows unto the Court

the following:

                              A. PARTIES AND SERVICE

1.     Plaintiff, EARL RAY GAY, is a citizen of the United States and the State of Texas

and resides in Ellis County, Texas.
2.       Defendant, the CITY OF WAXAHACHIE, may be served with citation by serving

Paul Stevens, the City manager at Waxahachie City Hall, 401 S. Rogers Street, Waxahachie,

TX 75165.

3.       Defendant WAXAHACHIE POLICE DEPARTMENT, may be served at the

WAXAHACHIE POLICE DEPARTMENT by service upon the Chief of Police, Chuck

Edge, at 216 North College, Waxahachie, TX 75165.

4.       Defendant DAMON JAMES is an individual, who can be served at the

WAXAHACHIE POLICE DEPARTMENT AT 216 North College, Waxahachie, TX

75165.

5.       Defendant GEORGE PAPPAS is an individual, who can be served at the

WAXAHACHIE POLICE DEPARTMENT AT 216 North College, Waxahachie, TX

75165.

                            B. JURISDICTION AND VENUE

6.       The action arises under Title 42 U.S.C. §§ 1983 and 1988 in a Civil Action for

Deprivation of Rights, as hereinafter more fully appears, as well as a Declaratory

Judgment that the policies and procedures complained of within the WAXACHACHIE

POLICE DEPARTMENT, as written and as applied, violate the protections afforded all

American Citizens under the Fourth Amendment of the U.S. Constitution against

unreasonable search and seizure, wrongful arrest and excessive force; violate the

protections under the 14th Amendment of the U.S. Constitution against wrongful arrest,

denial of medical treatment, deprivation of due process and failure to follow proper

procedures that a reasonable officer would have followed under same or similar




                                            2
circumstances and which, a reasonable officer would have known to be a violation which

caused the injuries to the Plaintiff.

7.     Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 and 1343. This

Court also has supplemental jurisdiction over state law claims discussed below under 28

U.S.C. §§ 1367 (a), because they arise out of the same case or controversy.

                                   C. NATURE OF CAUSE

8.     This is an action alleging police misconduct, excessive force, and deprivation of

rights, privileges, or immunities secured by the Constitution of the United States of

America and laws under Title 42 U.S. C. section 1983, et. Seq. Current policies and

procedures of the WAXAHACHIE POLICE DEPARTMENT are a threat and danger to the

Civil Rights of the citizens of Waxahachie, Texas, and as such are preempted, are

overbroad, vague and ambiguous and are unconstitutional under the United States

Constitution, as well as certain rules applied by the CITY OF WAXAHACHIE POLICE

DEPARTMENT, and certain actions taken by DAMON JAMES and GEORGE PAPPAS,

officers of the WAXAHACHIE POLICE DEPARTMENT.

9.     Said actions were under the application of customs or polices established and

endorsed by the WAXAHACHIE POLICE DEPARTMENT and the CITY OF

WAXAHACHIE which are unreasonable, arbitrary and capricious, enacted in bad faith,

and said policies were the moving force behind the violation that led to the injuries to the

Plaintiff. These actions were a clear abuse of municipal discretion and unconstitutional

infringements on Plaintiffs’ Due Process guarantee, liberty interests, the protections

afforded all citizens under the Fourth and Fourteenth Amendments to the United States

Constitution and are therefore void.

                                              3
10.    Defendants,    CITY    OF    WAXAHACHIE,          the   WAXAHACHIE         POLICE

DEPARTMENT, DAMON JAMES and GEORGE PAPPAS, have acted in bad faith

pursuant to official polices and customs, which the CITY OF WAXAHACHIE POLCIE

DEPARTMENT has endorsed and the Plaintiff has suffered injury due to the application

of these polices or customs which have applied under color of law at all times.

                                        D. FACTS

11.    At all times referred to herein, DAMON JAMES and GEORGE PAPPAS were

police officers employed by the CITY OF WAXAHACHIE, Texas and the Defendant

WAXAHACHIE POLICE DEPARTMENT and were at all times acting under the color

of laws, statutes, ordinances, regulations, polices, customs and usages of the State of

Texas and the City of Waxahachie, Texas within the scope and practice of their

employment.

12.    On or about July 16, 2010, officers responded to a call whereby Mr. Gay was

arrested and transported to WAXAHACHIE POLICE DEPARTMENT for book-in.

13.    While in book-in, Mr. Gay was handcuffed to a bench. Two officers observed

Mr. Gay alleged having something in his mouth. The two officers began to physically

assault Mr. Gay. Thereafter, two more officers joined the assault and Mr. Gay was taken

to the ground with physical force while he was handcuffed to the bench.

14.    At no time was Mr. Gay fighting or resisting arrest in any way, as he had already

been handcuffed to a bench.

15.    Defendant GEORGE PAPPAS entered the room and stood on Mr. Gay’s

abdomen and proceeded to jump up and down, thrusting his foot into Mr. Gay’s

abdomen repeatedly.

                                             4
16.      Defendant DAMON JAMES, the superior officer in charge, entered the book-in

room and proceeded to drive stun Mr. Gay with the Taser. Then again and again

Defendant DAMON JAMES drive stuns Mr. Gay with the Taser.

17.      After three drive stuns by Defendant DAMON JAMES, GEORGE PAPPAS

administers a fourth drive stun on Mr. Gay.

18.      At no time during the assault was Mr. Gay resisting arrest or fighting, and

during this time Mr. Gay was surrounded and controlled by five officers prior to

Defendant DAMON JAMES’ arrival.

19.      After an hour and thirteen minutes Mr. Gay was uncuffed and assisted to the

bench.

20.      At no time during or after this seventy six minute assault was Mr. Gay’s medical

condition assessed. At no time during this incident was any medical personal called or

alerted.

21.      Mr. Gay was then transported to Ellis County Detention Center. Upon Mr. Gay’s

arrival at the Ellis County Detention Center he was unable to be admitted due to the

severity of his injuries that resulted from the assault. Mr. Gay was then transported to

Baylor-Waxahachie where he was admitted to the ICU.

22.      Defendant DAMON JAMES and GEORGE PAPPAS, both officers with the

WAXAHACHIE POLICE DEPARTMENT filed false reports and reports that were

incomplete, omitting key details of the events, specifically within the required Use of

Force Report.

23.      At all times during the events described above, the individual Defendants were

engaged in a joint venture with other Waxahachie police officers in performing the

                                             5
various actions described and these persons lent their physical presence and/or support

and the authority of their office to each other during said events.

24.     The WAXAHACHIE POLICE DEPARTMENT on previous incidents has

conducted internal investigations in which they determined that their officers had not

acted   within     the    policies   and   procedures   of   the   WAXAHACHIE      POLICE

DEPARTMENT regarding the use of less than lethal force, and yet their policies and

procedures were not changed.

25.     The    WAXAHACHIE            POLICE   DEPARTMENT,          thereby,   WAXAHACHIE

POLICE DEPARTMENT by their lack of action therefore was adopting and approving

the actions of the officers in using their Tasers on Mr. Gay.

                      COUNT 1: UNLAWFUL SEACH AND SEIZURE


26.     Defendants, CITY OF WAXAHACHIE, WAXAHACHIE POLICE DEPARTMENT,

DAMON JAMES and GEORGE PAPPAS did willfully detain Plaintiff.


27.     Defendant DAMON JAMES and GEORGE PAPPAS, of the WAXAHACHIE

POLICE DEPARTMENT, then used Taser weapons on Mr. Gay, in violation of his 14th

Amendment protections against wrongful arrests, denial of due process and denial of

medical treatment all of which a reasonable officer would have known to be violations of

the Plaintiff’s rights.


28.     Plaintiff suffered damages for which Plaintiff herein sues.

                                COUNT 2: EXCESSIVE FORCE


29.     Officers of the WAXAHACHIE POLICE DEPARTMENT used excessive force in

violation of the protections afforded against wrongful arrest, excessive force and denial of
                                                6
due process under the 4th and 14th Amendments to the U.S. Constitution by detaining

EARL RAY GAY by using less than lethal force of electrical shock from a weapon

commonly referred to and sold as a “Taser”.


30.       Said weapon is capable of subjecting, and did subject Mr. Gay to an electrical shock

of around 50000 volts.


31.       Officers of the WAXAHACHIE POLICE DEPARTMENT had no legitimate reason

or justification for using these weapons on Mr. Gay and a reasonable officer would have

known that the excessive force was a violation of Plaintiff’s constitutionally protected

rights.

                    COUNT 3: RACE AND COLOR DISCRIMINATION


32.       Defendants CITY OF WAXAHACHIE, WAXAHACHIE POLICE DEPARTMENT,

DAMON JAMES and GEORGE PAPPAS, intentionally engaged in unlawful

discriminatory practices involving the use of force against the Plaintiff because of his race

and color due to a persistent and widespread custom of policy promulgated within the

Police Department with deliberate indifference and which encourages disparate treatment

against minorities with the CITY OF WAXAHACHIE.


33.       The unlawful practice of Defendants, CITY OF WAXAHACHIE, WAXAHACHIE

POLICE DEPARTMENT, DAMON JAMES and GEORGE PAPPAS specifically the level

and type of force used against the Plaintiff was endorsed by the CITY OF WAXAHACHIE

POLICE DEPARTMENT as evidenced by the findings from the police department.




                                               7
34.    These actions by Defendants had an adverse impact on not only the Plaintiff

because of his race and color, but other members of the African American community in

Waxahachie, Texas; and was the moving force behind the violations of the Plaintiff’s rights

that led to his injuries.


35.    Defendants, CITY OF WAXAHACHIE, WAXAHACHIE POLICE DEPARTMENT,

DAMON JAMES, and GEORGE PAPPAS, have discriminated against the Plaintiff in

connection with the treatment he received and alleges that defendants discriminated

against Plaintiff on the basis of race and color with malice or with reckless indifference to

the state and federally protected rights of Plaintiff.

        COUNT 4: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS


36.    Defendants, CITY OF WAXAHACHIE, WAXAHACHIE POLICE, DAMON

JAMES and GEORGE PAPPAS intentionally used a Taser weapon on Plaintiff while he

was handcuffed to the bench.


37.    Defendant’s conduct was extreme and outrageous and proximately caused Plaintiff

severed emotional distress.


38.    Plaintiff suffered damages for which Plaintiff herein sues.

          COUNT 5:          NEGLIGENCE-INADEQUATE TRAINING OR HIRING


39.    Defendants, CITY OF WAXAHACHIE, and the WAXAHACHIE POLICE

DEPARTMENT are also liable under 42 U.S.C. 1983 because (1) the training or hiring

procedures of the policymaker were inadequate, (2) the policymaker was deliberately

indifferent in adopting the hiring or training policies, (3) the inadequate hiring or training


                                                8
policy directly caused injury to EARL RAY GAY, and will most likely cause future injury

to other citizens suffering from similar medical conditions as Mr. Gay. These allegations

are likely to have further evidentiary support after a reasonable opportunity for further

investigation and discovery.

                                          DAMAGES


40.   Plaintiff sustained the following damages as a result of the actions and/or

omissions of Defendant described hereinabove:


          a. All reasonable and necessary Attorney’s Fees incurred by or on behalf of the

               Plaintiff.


          b. All reasonable and necessary costs incurred in pursuit of this suit;


          c. Emotional pain;


          d. Expert fees as the Court deems appropriate;


          e. Inconvenience;


          f. Loss of enjoyment of life;


          g. Mental anguish in the past;


          h. Mental anguish in the future;


          i. Reasonable medical care and expenses in the past;


          j.   Reasonable and necessary medical care and expenses which will in all

               reasonable probability be incurred in the future;
                                              9
             k. Humiliation;


             l. Physical Discomfort;


             m. Physical Injury;


             n. Physical pain and suffering in the past; and


             o. Physical pain and suffering in the future

                                   EXEMPLARY DAMAGES

41.     Plaintiff would further show that the acts and omissions of Defendants complained

herein were committed with malice or reckless indifference to the protected rights of the

Plaintiff.

42.     A reasonable officer would have known that the treatment of the Plaintiff would be

a violation of his constitutionally protected rights. As such, exemplary damages are

applicable. In order to punish said Defendants for engaging in further unlawful acts in

violation of a Constitutional protected right of the Plaintiff and other citizens of the City of

Waxahachie and to deter such actions and/or omissions in the future.

                                       SPECIFIC RELIEF

43.     Plaintiff seeks the following specific relief which arises out of the actions and/or

omissions of Defendants described hereinabove:

        a.      Prohibit by injunction the Defendants from engaging in the future unlawful

        use of force against citizens with Taser weapons until such time that additional

        training and education for the officers can be completed.




                                               10
       WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be

duly cited in terms of law to appear and answer herein and that upon final hearing hereof,

Plaintiffs recover judgment against the Defendants for Plaintiffs damages as herein above

set out with pre-judgment and post-judgment interest at the legal rate; costs of Court and

for such other and further relief to which Plaintiff may be entitled under equity and in

law.

                                         Respectfully submitted,



                                         _/s/Hunt E. Bonneau
                                         Hunt Bonneau
                                         State Bar Number: 00795257
                                         1038 Elm Street
                                         Carrollton, TX 75006
                                         Telephone: (972) 242.6500
                                         Facsimile: (972) 245.0200
                                         hbonneau@aol.com

                                        ATTORNEYS FOR PLAINTIFF




                  PLAINTIFF HEREBY DEMANDS TRIAL BY JURY




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