Belasquez lawsuit

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					 1   Ronald Z. Berki, Esq. SBN: 85355
     Law offices of Ronald Z. Berki
 2   75 E. Santa Clara Street, Suite 1400
     San Jose, CA 95113
 3   Office: (408) 971-1160
     Fax: (408) 971-1312
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     Attorney for Plaintiffs Maria Jesus Balasquez,
 5   Rudy Martinez, and Rudy Balasquez Martinez, Jr.

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                             IN THE UNITED STATES DISTRICT COURT
 7                       FOR THE NORTHERN DISTRICT OF CALIFORNIA
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 9   Maria Jesus Balasquez,                             )
     Rudy Martinez, and                                 )    Case No.: CV 10 05206 PSG
10   Rudy Balasquez Martinez, Jr.                       )
                                                        )    First Amended Complaint for Damages
11   Plaintiff,                                         )    Jury Trial Demanded,
                                                        )
12                     vs.                              )    Violation   of    Constitutional   Rights,
                                                        )    Violation to Civil Rights Pursuant to 42
13   City of Morgan Hill in its official and            )    U.S.C. § 1983, 42 U.S.C. § 1985
     Municipal Capacity, City of Morgan Hill            )    Conspiracy to Violate Civil Rights
14   Police Department in its corporate capacity,       )
     Chief of Police Bruce Cumming in his               )
     official and individual capacity, Officers         )
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     Brookman in his official and individual            )
     capacity, Max Cervantez, in his official and       )
16   individual capacity, Joseph Burdick in his         )
     official and individual capacity, Jerry            )
17   Neumayer in his official and individual            )
     capacity, Jeffrey Brandon in his official and      )
18   individual capacity, Det. Brandon Richards,        )
     in his official and individual capacity and        )
19   Does 1-25 inclusive.                               )
                                                        )
20   Defendants                                         )
     __________________________________
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                             First Amended Complaint for Damages, Jury Trial Demanded
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 1                                             JURISDICTION

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     1. That Jurisdiction is founded upon the existence of a Federal Question.
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     2. That this is an action to redress the deprivation under color of statute, ordinance, regulation,
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     custom or usage of right, privilege, and immunity secured to plaintiff by the First, Fourth, Fifth
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     and Fourteenth Amendments to the Constitution of the United States (42 U.S.C. § 1983 and §
 6   1985) and arising under the law and statutes of the State of California.
 7   3. Jurisdiction is founded upon 28 U.S.C. § 1331 and § 1343(3) and (4), this being an action
 8   authorized by law to redress the deprivation under color of law, statute, ordinance, regulation,

 9   custom and usage of a right, privilege, and immunity secured to a plaintiff by the First and

10   Fourteenth Amendments to the Constitution of the United States.

11   4. The matter in controversy exceeds, exclusive of interest and costs, the sum or value of FIFTY

12   THOUSAND ($50,000.00) DOLLARS.

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                          CIVIL COMPLAINT, DEMAND FOR JURY TRAIL
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     5. NOW COMES, Maria Jesus Balasquez, Rudy Martinez, and Rudy Balasquez Martinez Jr.,
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     citizens and persons within the jurisdiction of the United States, to hereby file their civil
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     complaint and Demand for Jury Trial, for deprivation of rights secured by the Constitution and
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     laws of the United States and by Acts of Congress, and for deprivation of their rights to honest
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     government services by employees or officials.
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                                  BRIEF STATEMENT OF THE CASE
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     6. Morgan Hill Police Officers came to plaintiffs’ house at 645 Calle Buena Vista, Morgan Hill,
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     California on 8/11/09 at approximately 1:30a.m. to do a probation search. Plaintiff Balasquez
23   then responded to officers through the door that no one in the house was on probation, Without
24   consent, the officers forced the door open and entered the plaintiffs’ home without a search
25   warrant even though no one was on probation in the house and no one was resisting arrest. After

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                             First Amended Complaint for Damages, Jury Trial Demanded
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 1   illegally entering, the officers pushed and shoved each of the plaintiff’s in their home and when

 2   questioned by plaintiff’s as to why the officers forced their way into the house they told plaintiffs

 3   to “shut the fuck up”. Morgan Hill Officers then stated they were looking for one Gabriel

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     Mendoza and that he was wanted by the police. Officers, after searching without consent, found

     Gabriel Mendoza in plaintiff’s house. Plaintiffs were unaware of Mendoza’s presence or that he
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     was wanted by the police. It was later learned that Jessica Balasquez, a daughter of Plaintiffs, let
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     Mendoza into the house because she has a son with him and he is her boyfriend. Plaintiffs were
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     then taken to the police station in Morgan Hill for questioning and charged with violating
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     California Penal Code 32 being an accessory to a felony, by Officers Neumayer and Dini and
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     then transferred to the Santa Clara County Jail in San Jose, California.    Plaintiff Maria Jesus
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     Balasquez and Plaintiff Rudy Balasquez were in jail for approximately sixteen hours and then
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     released. Plaintiff Rudy Martinez was in jail for approximately two hours and then released.
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     Plaintiffs are informed and believe and allege thereon that Defendant Morgan Hill police officers
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     fabricated charges against Gabriel Mendoza which were later dismissed by the Court at trial.
14   Subsequently, on December 20, 2009 charges were also dismissed against each of the Plaintiff’s
15   for harboring a fugitive and being an accessory to a felony.
16   7. Defendants committed each and all of the acts mentioned herein under the color and pretense
17   of the statues, ordinances, regulations, customs and usages of the City of Morgan Hill, under the

18   purported authority of their office as employees of the City of Morgan Hill Police Department.

19   8. The matter in controversy exceeds FIFTY THOUSAND DOLLARS ($50,000.00).

20                                                PARTIES

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     9. Plaintiff Maria Jesus Balasquez is a Citizen of the United States and is domiciled at 645 Calle

     Buena Visa, Morgan Hill, CA 95037.
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     10. Plaintiff Rudy Martinez is a Citizen of the United States and is domiciled at 645 Calle Buena
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     Visa, Morgan Hill, CA 95037.
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     11. Plaintiff Rudy Balasquez Martinez, Jr. is a Citizen of the United States and is domiciled at
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     645 Calle Buena Visa, Morgan Hill, CA 95037.
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                            First Amended Complaint for Damages, Jury Trial Demanded
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 1   12. Defendant City of Morgan Hill is hereby sued in its official and municipal capacity doing

 2   business from 17555 Peak Ave., Morgan Hill, CA 95037.

 3   13. Defendant City of Morgan Hill Police Department (CMHPD) is sued in its municipal and

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     corporate capacity doing business from 16200 Vineyard Boulevard, Morgan Hill, CA 95037.

     CMHPD was and still is a municipal corporation duly organized and existing under and by virtue
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     of the law of State of California, and whose agents, servants, employees operated, maintained
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     and controlled the Police Department of City of Morgan Hill.
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     14. Defendant Morgan Hill Chief of Police and acting Captain Bruce Cumming is hereby sued
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     in his municipal and individual capacity doing business from 16200 Vineyard Boulevard,
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     Morgan Hill, CA 95037.
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     15. Defendant Morgan Hill Police Officer Brookman is hereby sued in his municipal and
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     individual capacity doing business from 16200 Vineyard Boulevard, Morgan Hill, CA 95037.
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     16. Defendant Morgan Hill Police Officer Jerry Neumayer is hereby sued in his municipal and
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     individual capacity doing business from 16200 Vineyard Boulevard, Morgan Hill, CA 95037.
14   17. Defendant Morgan Hill Police Officer Max Cervantez is hereby sued in his municipal and
15   individual capacity doing business from 16200 Vineyard Boulevard, Morgan Hill, CA 95037.
16   18. Defendant Morgan Hill Police Officer Joseph Burdick is hereby sued in his municipal and
17   individual capacity doing business from 16200 Vineyard Boulevard, Morgan Hill, CA 95037.

18   19. Defendant Morgan Hill Police Officer Brandon Richards is hereby sued in his municipal and

19   individual capacity doing business from 16200 Vineyard Boulevard, Morgan Hill, CA 95037.

20   20. Defendant Morgan Hill Police Officer Jerry Brandon is hereby sued in his municipal and

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     individual capacity doing business from 16200 Vineyard Boulevard, Morgan Hill, CA 95037.

     21. Defendant Morgan Hill Police Officer Greg Dini is hereby sued in his municipal and
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     individual capacity doing business from 16200 Vineyard Boulevard, Morgan Hill, CA 95037.
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                           First Amended Complaint for Damages, Jury Trial Demanded
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 1                                     FIRST CAUSE OF ACTION

 2                          VIOLATION OF CONSTITUTIONAL RIGHTS

 3   22. Plaintiff hereby incorporates, reiterates and realleges each and every allegation contained in

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     paragraphs 1st through 21st as if more fully and at length set forth herein.

     23.   Defendant Morgan Hill Police Officers, Brookman, Cervantez, Burdick, Richards,
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     Neumayer, Brandon, Dini, and unknown other officers violated Plaintiffs’ Fourth Amendment
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     constitutional rights against unreasonable search and seizures, deprived them of liberty, equal
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     protection of the law and due process of law. Defendant Officers Neumayer and Dini filed a
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     false unsigned complaint against Plaintiffs Balasquez and Martinez Jr. charging them with
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     harboring a fugitive and treated them as guilty until proven innocent.
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     24. Defendants were not properly trained, supervised, disciplined, or in any other way controlled
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     in their behavior, performance and exercise of their police functions. They exhibited a lack of
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     due care in executing their duties and enforce the law of the State of California, which makes
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     their actions willful, wanton, malicious and done with reckless disregard for their constitutional
14   rights against unreasonable police behavior.
15   25. That by reasons of the aforesaid, the plaintiff’s have been damaged in the sum OF ONE
16   MILLION DOLLARS ($1,000,000.00).
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18                                    SECOND CAUSE OF ACTION

19                         CIVIL RIGHTS ACTION UNDER 42 U.S.C. 1983

20   26.   Plaintiff hereby incorporates, and realleges each and every allegation contained in

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     paragraphs 1st through 24th as if more fully and at length set forth herein.

     27. That on or about the 8/11/09, at approximately 1:30am, plaintiff Maria Balasquez, Rudy
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     Martinez, and Rudy Balasquez Martinez Jr. were lawfully in their home at 645 Calle Buena
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     Vista, Morgan Hill, California at which time and place Defendant Morgan Hill Police
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     Department Officers, Brookman, Dini, Neumayer, Brandon, Cervantez, Burdick, Police
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                            First Amended Complaint for Damages, Jury Trial Demanded
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 1   Dectective Richards and other unknown officers, were acting in their regular and official

 2   capacity as police officers for the Defendant City of Morgan Hill.

 3   28. On that same date and time the, aforementioned Defendant Officers, falsely arrested and

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     imprisoned Plaintiff’s and each of them, assaulted and battered them, handcuffed them, and

     deprived them of their rights and liberties as set forth in the Constitutions of the United States
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     and of the State of California as follows:
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            a) All of the actions of the Defendant Police Officers, their agents, servants and
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            employees, were committed with the intention to cause great bodily and mental injury to
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            the Plaintiff’s, to arrest, restrain and imprison them without their consent. Plaintiff’s, and
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            each of them, were at all times conscious of their arrest, did not consent to it and the false
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            arrest and imprisonment was not otherwise privileged; and,
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            b) The arrest and imprisonment of Plaintiff’s was not justified by legal and probable
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            cause or other legal privilege in that Defendants, their agents, servants and employees,
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            while acting under the color of statute, ordinances, regulations, customs and usages of the
14          City of Morgan Hill, and under the authority of their office, as police officers for said
15          City, falsely charged the plaintiff’s with violating California Penal Code 32 although the
16          Defendants knew that such charges were in fact false; and,
17          c) That the Defendants, their agents, servants and employees acted in an offensive and

18          hostile manner, threatened, pushed and assaulted and battered Plaintiff’s without their

19          consent, with the intention of causing harmful and/or offensive bodily contact to the

20          Plaintiff’s, all without warrant, probable cause or any lawful cause whatsoever; and

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            d) That the Defendants, their agents, servants and employees failed to adequately and

            properly hire, train, supervise, discipline or in any other way control the behavior and
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            performance of the Defendant’s agents, servants and employees, in their hiring practices,
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            in the exercise of their police functions and their failure to enforce the faithful
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            performance of their duties and to properly enforce the law of the State of California.
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                            First Amended Complaint for Damages, Jury Trial Demanded
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 1          e) That the said prosecution of Plaintiffs, and each of them, on criminal charges initiated

 2          by the Defendant Morgan Hill Officers were done maliciously and without any

 3          reasonable or probable cause for the same.

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     29. Plaintiff’s did not commit any illegal act, either before or at the time they were falsely

     arrested, imprisoned, assaulted, battered, and deprived of their constitutional rights as set forth in
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     the Constitution of the United States, particularly 42 U.S.C. § 1983.
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     30. As a direct and proximate result of the illegal actions and conduct by the Defendants, their
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     agents, servants and employees, Plaintiff’s were falsely arrested, imprisoned, assaulted and
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     battered, maliciously prosecuted and compelled to be arraigned and appear in The Superior Court
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     of California, County of Santa Clara and to undergo a criminal proceeding and were required to
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     employ attorneys until the charges were subsequently dismissed on December 10, 2009.
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     31. That at all times hereinafter mentioned, the Defendants were employed in their respective
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     capacities by the Defendant City of Morgan Hill Police Department and were acting under the
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     color of their official capacity and their acts were performed under the color of the policies,
14   statute, ordinances, rules, and regulations of the City of Morgan Hill Police Department.
15   32.   That at all times hereinafter mentioned, Defendant Officer(s) Brookman, Brandon,
16   Cervantez, Burdick, Det. Richards and Does were acting pursuant to order directives from
17   Defendant, City of Morgan Hill Police Department.

18   33. That during all times hereinafter mentioned, the Defendant Police Officers, separately, and

19   in concert, conspired and acted under color and pretense of law, to cause injury to Plaintiff’s,

20   Maria Balasquez, Rudy Martinez, and Rudy Balasquez Martinez Jr., and deprived them of the

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     rights, privileges and immunities secured to them by the First, Fourth and Fourteenth

     Amendments to the Constitution of the United States and the laws of the State of California.
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     34. Defendant Police Officers of the Defendant City of Morgan Hill Police Department and its
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     individual members who are agents, servants and employees of defendants, together with persons
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     unknown to plaintiff, acting under color of law, have subjected plaintiff’s and other persons to a
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                            First Amended Complaint for Damages, Jury Trial Demanded
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 1   pattern of conduct consisting of illegal harassment, assault, battery, false imprisonments and

 2   arrests and malicious prosecution.

 3   35. Although Defendants knew or should have known of the facts, that this pattern of conduct

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     was carried out by its agents, servants and employees, the Defendant Morgan Hill Police

     Department has failed to take any action or make any efforts to halt this course of conduct, to
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     make redress to the plaintiff’s or other citizens injured thereby, or to take any disciplinary action
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     whatever against any of its employees or agents.
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     36. The unlawful and illegal conduct of the defendants, their agents, servants and employees and
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     each of them, deprived plaintiff of the following rights, privileges and immunities secured to him
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     by the Constitution for the United Sates and of the State of California:
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            a.      The right of Plaintiff’s to be secure in his person and effects against unreasonable
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                    search and seizure under the Fourth and Fourteenth Amendments to the
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                    Constitution of the United States;
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     37. That by reason of the aforesaid violations, false arrest and false imprisonment, assault and
14   battery and malicious prosecution caused by the defendants, their agents, servants and employees
15   who conspired together to enter into a scheme to wrongfully deprive each of the Plaintiff’s and
16   compel them to abandon their rights and privileges as provided in the Constitution of the United
17   States of America, and the Constitution of the State of California. The Defendant Officers, in this

18   case violated 42 U.S.C. § 1983, in that they acted as persons who under color of any statute,

19   ordinance, regulation, custom or usage of the City of Morgan Hill Police Department, subjected

20   or caused to be subjected, citizens of the United States, more particularly the Plaintiff’s herein,

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     Maria Balasquez, Rudy Martinez, and Rudy Balasquez Martinez Jr., to be deprived of their

     rights, privileges or immunities granted by the Constitution and Laws of the United States of
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     America and of the State of California; each Plaintiff was subjected to great indignities and
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     humiliation, pain, distress of mind and body, scorn, ridicule, injured their character and
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     reputation, and each was prevented from attending to their usual business.
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                            First Amended Complaint for Damages, Jury Trial Demanded
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 1   38.     This intentional assault and battery, the false arrest and false imprisonment, malicious

 2   persecution and deprivation of Plaintiff’s rights and liberties by the Defendants Officers acting

 3   within the scope of their authority, and without any probable or reasonable cause, cause Plaintiffs

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     emotional stress, monetary losses, and loss of freedom.

     39. That by the reasons of the aforesaid, the Plaintiff have been damaged in the sum of TEN
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     MILLION DOLLARS ($10,000,000.00).
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                                       THIRD CAUSE OF ACTION
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              CONSPIRACY TO VIOLATE CIVIL RIGHTS- TITLE 42 U.S.C. §1985 (3)
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     40.   Plaintiffs hereby incorporate and realleges each and every allegation contained in
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     paragraphs marked 1st though 38th as if more fully set forth herein.
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     41.   Plaintiffs Balasquez, Martinez, and Martinez Jr. allege upon information and belief that,
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     Defendant Officers Brookman, Cervantez, Burdick, Neumayer, Brandon, Det. Richards and
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     other unknown officers conspired on August 11, 2009 to violate their Statutory Civil Rights
14   pursuant to 42 U.S.C. §1985 (3) by agreeing to harass, assault, batter, falsely imprison, arrest and
15   maliciously prosecute Plaintiffs and each of them in order to obtain a conviction against each of
16   them.
17   42.   That by reason of the aforesaid, the Plaintiffs have been damaged in the sum of ONE

18   MILLION DOLLARS ($1,000,000.00).

19                                        PRAYER FOR RELIEF

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              Wherefore, Plaintiffs pray for judgment against Defendants, and each of them as follows:

     1. FIRST CAUSE OF ACTION
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        General and Compensating damages in the amount of $1,000,000.00.
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                             First Amended Complaint for Damages, Jury Trial Demanded
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 1   2. SECOND CAUSE OF ACTION

 2      General and compensating damages in the amount of $10,000,000.00.

 3   3. THIRD CAUSE OF ACTION

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        General and compensating damages in the amount of $1,000,000.00.

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     Dated:___________________
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                                                          ____________________________
 7                                                        Ronald Z. Berki, Esq.
                                                          Attorney for Plaintiffs
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                         First Amended Complaint for Damages, Jury Trial Demanded
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Description: This complaint filed by Maria Belasquez and other residents alleges that police illegally searched their home to arrest a suspect on probation.