Jay Smith V. COT, Federal Lawsuit by AmericanJustice

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									                      IN THE UNITED STATES DISTRICT COURT
                     FOR THE NORTHERN DISTRICT OF FLORIDA
                              TALLAHASSEE DIVISION

JAY W. SMITH,                                    CIVIL DIVISION

       Plaintiff,                                CASE NO. ___________________

v.

CITY OF TALLAHASSEE, a Florida
municipality, FREDERICK SAPIERA,
STEVEN HARRIETT, FRANK ARIAS,
and RODNEY FOUNTAIN,

       Defendants.


                               COMPLAINT FOR DAMAGES

     Plaintiff JAY SMITH sues the Defendants, and alleges:

                              INTRODUCTORY STATEMENT

1.   This is a civil action seeking money damages on behalf of Plaintiff Jay Smith

     (“Smith”) for violation of Smith's constitutional rights under the First, Fourth, Fifth,

     and Fourteenth Amendments to the United States Constitution, asserting 42 U.S.C.

     § 1985(2) and (3) conspiracy claims against all Defendants for violations of Plaintiff

     Smith’s rights under the First, Fourth, Fifth, and Fourteenth Amendments to the

     United States Constitution and state law claims against all Defendants that are so

     related to the other counts that they form part of the same case

2.   The Court has original jurisdiction of Plaintiff's federal causes of action that properly

     invoke this Court's subject matter jurisdiction under 28 U.S.C. §§ 1331, 1332, and

     1343, et seq., and 42 U.S.C. §§ 1983 and 1985(3) and 1988 and supplemental

     jurisdiction over Plaintiff's State claims under 28 U.S.C. § 1367(a).
3.   The acts, omissions and practices described hereafter all occurred within the

     jurisdiction of the U.S. District Court in and for the Northern District of Florida.

4.   Plaintiff timely filed a state claim for damages under § 768.28, Florida Statutes,

     which claim was not responded to within the time allowed and was therefore

     denied. All the conditions precedent to the filing of this suit have been performed.

                                           PARTIES

5.   Plaintiff, JAY SMITH, at all times material hereto, was a citizen of Florida who lived

     in Tallahassee, Leon County, Florida.

6.   Defendant CITY OF TALLAHASSEE, at all times material hereto was a municipality

     organized and existing under the laws of the State of Florida and a “person” for

     purposes of this lawsuit. The Tallahassee Police Department is a department of the

     CITY OF TALLAHASSEE.

7.   Defendant FREDERICK SAPIERA , at all times material hereto, was an employee

     of the Tallahassee Police Department and a law enforcement officer, acting in the

     course and scope of his employment, under color of law, and is sued in his

     individual capacity.

8.   Defendant STEVEN HARRIETT, at all times material hereto, was an employee of

     the Tallahassee Police Department and a law enforcement officer, acting in the

     course and scope of his employment, under color of law, and is sued in his

     individual capacity.

9.   Defendant FRANK ARIAS, at all times material hereto, was an employee of the

     Tallahassee Police Department and a law enforcement officer, acting in the course
    and scope of his employment, under color of law, and is sued in his individual

    capacity.

10. Defendant RODNEY FOUNTAIN, at all times material hereto, was an employee of

    the Tallahassee Police Department and a law enforcement officer, acting in the

    course and scope of his employment, under color of law, and is sued in his

    individual capacity. He was the investigator assigned to the investigation that is the

    subject of this complaint.

                                 COMMON ALLEGATIONS

11. On February 11, 2005, at about 3:30 a.m., Tallahassee Police Officers were called

    by burglary alarm to Nezha’s Subs and Wings, 1311 Miccosukee Road in

    Tallahassee. Tallahassee Police Officer Gaston investigated Nezha’s Subs while

    Defendant FREDRICK SAPIERA investigated a smashed front door at the

    Magnolia Barbershop, nearby at 1319-D Miccosukee Road.

12. A few minutes prior to the Nezha’s Subs and Wings alarm, police also received a

    report that a man was seen with a cash register in the middle of the 1800 block of

    Miccosukee Road. Officers J. Azevedo and Defendant STEVEN HARRIETT were

    dispatched to investigate the report. Defendant HARRIETT notified Defendant

    SAPIERA that they found the stolen Royal cash register at that location.

13. Officer Gaston spoke to Stephen Medley, a witness who, together with Chris

    Walston, saw the man with the cash register early that morning. Gaston reported

    Medley said he was black, 17 to 24, slim, and 5’8” to 6’0” and 140 to 160 lbs., but

    could not describe his hair, his complexion or general appearance. Medley told

    Gaston he could not see the suspect’s face because it was obscured by a hood.
14. The owner of the Magnolia Barber Shop was called to the scene and Defendant

    SAPIERA interviewed her. She told SAPIERA she had closed out her cash register

    and secured her business at about 9:00 p.m., about six hours earlier and that she

    had not left any money in the cash register. Ms. Thomas has stated that there was

    no money in the register and she never told any police officer that there was any

    money left in the cash register, including pennies, at the time it was stolen.

15. Defendant HARRIETT crossed the street from the median where the cash register

    was found and saw pennies scattered in the parking lot which seemed to him to

    lead to the door to Apartment 2, next to the mailboxes. By doing a utility check on

    Apartment 2 and a tag check of cars in the parking lot, HARRIETT learned the

    occupant was Jay W. Smith, an African-American student at Florida A&M

    University. He formulated a theory based on the pennies that linked the cash

    register to SMITH. He communicated the theory to SAPIERA and FOUNTAIN.

16. By 06:47 a.m. Defendant HARRIETT had written a report stating the cash register

    he found in the median of the four-lane Miccosukee Road had “several pennies in

    and around the register” and that a trail of four pennies in the parking lot across the

    street led to 1825 Miccosukee Road, Apt. 2, with a fifth penny “on the door step.”

    The statement that there were pennies in the register was false, as noted above.

    On information and belief, HARRIETT falsely reported there were pennies in and

    around the cash register to fabricate a stronger link to JAY SMITH.

17. By 07:08 a.m., Defendant SAPIERA wrote an incident report in which he stated

    “Ms. Thomas advised that the cash register contained about $0.50 worth of

    pennies.” That was a false statement, as noted above. On information and belief,
     SAPIERA added the false statement that the cash register contained pennies to

     buttress the false statement by HARRIETT that linked the cash register to the “trail

     of pennies” to SMITH. Had SAPIERA reported accurately that there was no money

     in the cash register, the falsity of HARRIET’s statement would have been obvious.

18. Forensic technician Kornegay was called to the burglary scene to check for prints.

     The assigned investigator RODNEY FOUNTAIN also asked him to go to 1825

     Miccosukee Road and photograph the “trail of pennies” HARRIETT reported.

     Kornegay’s photographs show four pennies roughly perpendicular to the apartment

     building and a fifth penny on the doorstep of apartment 2. Kornegay later reported

     there were no prints of value at the burglary scene or on the cash register.

19. Police Department property receipts show Officer Azevedo logged the cash

     register and a screw driver as evidence, Defendant HARRIETT on a separate form

     logged in “five pennies.” There was no supervisor’s signature on the form. If the

     five pennies photographed by forensic technician Kornegay constituted the “trail” of

     pennies, there could not have also been “several pennies in and around the

     register,” as HARRIETT claimed, since the cash register was in the median, across

     two traffic lanes from the parking lot where the five penny “trail” was photographed.

20. On February 15, 2005 Defendant FOUNTAIN, with Investigator Mark Lewis, went

     to SMITH’s home and asked to conduct a search. SMITH declined and FOUNTAIN

     became angry. Defendant FRANK ARIAS arrived and FOUNTAIN and LEWIS left,

     instructing ARIAS to guard SMITH outside his home while they got a search

     warrant. FOUNTAIN, a 16-year police veteran, could not have reasonably believed

     the pennies in the parking lot constituted probable cause for a search warrant.
21. When Defendant FOUNTAIN left, he took SMITH’s driver’s license with him.

     Defendant ARIAS confiscated SMITH’s keys and guarded SMITH and said if he

     tried to leave ARIAS would arrest him. After about a half-hour, ARIAS got a call

     and told SMITH they found the second cash register so they wouldn’t need to

     search his apartment. ARIAS then left, telling SMITH he still needed to come down

     to the police station and get prints taken.

22. Although Defendant ARIAS deprived SMITH of his keys and employed threats of

     force to detain and imprison Plaintiff SMITH for a significant period of time, he

     failed to write a report regarding these actions as a law enforcement officer for

     review by his supervising officers. ARIAS was an 18-year police veteran and could

     not have reasonably believed that he had a lawful basis to detain SMITH based on

     facts then known to the officers or even on the fabricated evidence.

23. After ARIAS left, SMITH and his girlfriend, Claudia Ebyl, went to the Tallahassee

     Police Department to retrieve his driver’s license from FOUNTAIN and LEWIS.

     SMITH was told the officers “were out.” Shortly after they returned home,

     Defendant FOUNTAIN drove up and returned the driver’s license to SMITH.

     FOUNTAIN had taken the license to have a copy made so he could use the

     photograph for a photo line-up for witnesses Walston and Medley.

24. Before leaving again, the investigators told Smith to come back to the police

     station and have his fingerprints taken “to rule him out” as a suspect. SMITH again

     declined to do so. Later that day, he retained criminal attorney Matt Willard and

     Willard advised police he would not provide prints.

25. On February 16, a witness, Stephen Medley, provided a written statement detailing
    the information he had given to Officer Gaston on the date of the burglary, that he

    had been riding north on Miccosukee Road with Chris Walson, when he saw a

    man with a cash register in the median. He said Walston made a u-turn and drove

    back past the person who was then walking north on Miccosukee Road. He did not

    describe the man’s features because he had not seen his face.

26. On February 24, 2005, Defendant FOUNTAIN called Medley in to look at a photo

    lineup of six photographs, including one from Plaintiff SMITH’s driver’s license.

    Medley explained to FOUNTAIN that he never saw the suspect’s face because it

    was covered by a hooded sweatshirt. Medley looked through the photographs and

    could not identify any of them. FOUNTAIN directed Medley to “just pick one” and

    Medley indicated no. 5, which was JAY SMITH. Medley’s choice of SMITH was

    random since Medley had not seen his face, but it permitted FOUNTAIN to seek a

    warrant with the fabrication that SMITH had been “positively identified.”

27. On February 28, 2005, Defendant FOUNTAIN called the other witness,

    Christopher Walston, the driver of the car Medley had been riding in. Walston had

    driven past the suspect with the cash register and made a u-turn to look again. He

    asked Walston to look at the same photo lineup of six photographs, including one

    from Plaintiff SMITH’s driver’s license. Walston was not able to identify any of the

    photographs in the photo line-up as the person with the cash register.

28. On March 1, 2005, Defendant FOUNTAIN provided the court a sworn probable

    cause affidavit charging SMITH with (a) Burglary of a Structure; (b) Possession of

    Burglary Tools (both felonies); (c) Criminal Mischief; and (d) Petit Theft. In his

    sworn probable cause affidavit, FOUNTAIN made the following sworn allegations:
          a. That the cash register that was stolen contained change (mostly pennies)

              and specifically that it contained approximately fifty cents in pennies.

          b. That Smith “did knowingly obtain or use, or did endeavor to obtain or use,

              Royal Cash Register (Model 425), change (mostly pennies) valued at over

              $100, the property of Magnolia Barber Shop . . .”

          c. That on February 24, 2005, witness Stephen Medley positively identified

              SMITH as the individual he observed on Miccosukee Road on February

              11, 2005, with the cash register.

29. FOUNTAIN did not mention in his affidavit that Stephen Medley told FOUNTAIN

     that he never saw SMITH’s face and could not identify him, or that FOUNTAIN had

     directed Medley to “just pick one.” Neither did FOUNTAIN mention that there was a

     second witness who did not identify SMITH as the person with the cash register.

30. The allegations of the warrant application were false as to the presence of pennies

     in the cash register and as to the identification. At least in the question of

     identification by witness Stephen Medley, FOUNTAIN personally knew they were

     false. FOUNTAIN swore to false and partial or misleading information to

     deliberately fabricate evidence of probable cause to obtain a warrant.

31. On information and belief, FOUNTAIN fabricated the “positive identification” to

     bolster the “trail of pennies” theory and secure “probable cause” to arrest SMITH

     and he sought to arrest SMITH because SMITH had asserted his rights. All the

     officer-defendants herein targeted SMITH in order to get credit for “solving a crime”

     and because SMITH, as a young African American, would be easy to frame, based

     on the custom and practice of the City of Tallahassee’s police department, which
    rarely closely reviewed criminal investigations of young black men. Defendants

    thereby injured SMITH and deprived him of equal protection under the law.

32. Based on the false, partial, and misleading information in the Probable Cause

    Affidavit sworn to by Defendant RODNEY FOUNTAIN, a warrant was issued by

    Leon County Judge James Shelfer for the arrest of JAY SMITH.

33. On March 3, 2005, Defendant FOUNTAIN arrested Plaintiff SMITH on the warrants

    he had secured and SMITH was booked into the Leon County Jail on bond totaling

    $2,500, which SMITH was only able to post by payment of $250.00 to a bail

    bondsman, which sum would not be returned to him.

34. On April 8, 2005, SMITH was charged by Assistant State Attorney Owen McCaul

    with one count of Burglary of a Structure, a Third Degree Felony, punishable by up

    to five years in state prison. The Information charged Mr. Smith had unlawfully

    entered or remained in a structure at 1319 Miccosukee Road, the property of

    Magnolia Barber Shop, with the intent to commit the offense of theft. Plaintiff

    SMITH was forced to hire an attorney for his defense against the criminal charges.

35. More than five months later, on September 14, 2005, after numerous depositions

    and vigorous investigation by SMITH’s attorney, Matthew Willard, Assistant State

    Attorney Georgia Cappleman, filed a Nolle Prosequi, stating as follows:

          The evidence linking the Defendant to the Burglary consisted of an

          eyewitness identification from a photo lineup; and a trail of approximately 5

          pennies leading from Defendant’s door to the stolen cash register located in

          the street. At deposition, the eyewitness testified that he cannot identify

          Defendant and could not at the time of the lineup. He says he "randomly"
           identified Defendant because he felt personally compelled to pick someone.

           The owner of the cash register testified that there were no pennies in her

           register at the time it was stolen so if there were pennies found near the

           register, they did not belong to her. Thus, while there was probable cause to

           make an arrest, further investigation has revealed that there is insufficient

           evidence linking Defendant to this crime.

36. As a direct and foreseeable result of said acts and omissions of the Defendants

     herein, the Plaintiff was arrested and taken to the Leon County Jail. Plaintiff was

     forced to bond out of jail and hire a criminal attorney to defend himself in the

     criminal case brought on the basis of Defendants’ false statements.

37. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,

     and will continue to suffer such damages in the future.

                                        COUNT I:

                   False Imprisonment under 42 U.S.C. § 1983
               (Against Defendants Arias and Fountain, individually)

38. Plaintiff SMITH re-alleges the Common Allegations as if fully and set forth herein.

39. Plaintiff is entitled to relief against Defendants ARIAS and FOUNTAIN because

     they intentionally and unlawfully caused Plaintiff to be imprisoned against his will

     so Plaintiff was deprived of his liberty without lawful authority; and maintained such

     complete restraint and deprivation.

40. This unlawful restraint of the Plaintiff’s liberty was also accomplished by the acts of
     Defendants in confining the Plaintiff to an area where Plaintiff did not wish to be

     confined, and by compelling Plaintiff to go where Plaintiff did not wish to go.

41. Plaintiff was further restrained, in that Defendants used words to the effect that

     Plaintiff was under arrest or was not free to move freely which implied threats of

     force, as well as actual force, and immediate means of coercion against the

     Plaintiff, so that the Plaintiff were restrained and deprived of liberty at all times as

     effectively as if behind prison bars.

42. Defendants misused their power, possessed by virtue of state law and made

     possible only because Defendants were clothed with the authority of state law. The

     violation of Plaintiff’s rights, as described above, occurred under color of state law

     and are actionable under 42 U.S.C. Section 1983.

43. The foregoing actions of all Defendants were in deliberate disregard of Plaintiff’s

     rights under the Constitution of the United States.

44. Defendant FOUNTAIN, acted with actual and legal malice as is set out herein,

     Plaintiff is entitled to a substantial award of punitive damages as to him.

45. Plaintiff has been forced to retain counsel to represent him to vindicate his rights.

     Pursuant to the provisions of 42 U.S.C. Section 1988, Plaintiff is entitled to an

     award of reasonable attorney’s fees and costs.

46. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,

     and will continue to suffer such damages in the future.
     WHEREFORE, Plaintiff prays for judgment as set forth below.

                                        COUNT II:

                    Malicious Prosecution under 42 U.S.C. § 1983
                     (Against Defendant Fountain individually)

47. Plaintiff SMITH re-alleges the General Allegations as if fully and set forth herein.

48. Defendant was directly and actively involved in the initiation of criminal

     proceedings against Plaintiff SMITH.

49. Defendant FOUNTAIN lacked probable cause to initiate criminal proceedings

     against Plaintiff SMITH.

50. Defendant FOUNTAIN acted with actual and legal malice in securing warrants to

     initiate criminal proceedings against Plaintiff SMITH.

51. Notwithstanding the misconduct of Defendant FOUNTAIN, criminal proceedings

     were terminated in SMITH’s favor on September 23, 2005, when all criminal

     charges against him were pronounced Nolle Prosequi by the State Attorney.

52. Defendant FOUNTAIN, acted with actual and legal malice as is set out herein,

     Plaintiff is entitled to a substantial award of punitive damages as to him.

53. Plaintiff has been forced to retain counsel to represent him to vindicate his rights.

     Pursuant to the provisions of 42 U.S.C. Section 1988, Plaintiff is entitled to an

     award of reasonable attorney’s fees and costs.

54. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,

     and will continue to suffer such damages in the future.
     WHEREFORE, Plaintiff prays for judgment as set forth below.

                                       COUNT III:

                      Abuse of Process under 42 U.S.C. § 1983
                      (Against Defendant Fountain, individually)

55. Plaintiff SMITH re-alleges the General Allegations as if fully and set forth herein.

56. On February 15, 2005, Defendant FOUNTAIN went to the home of Plaintiff SMITH

     and asked to be allowed to search his home. Defendant FOUNTAIN also asked

     that SMITH provide his fingerprints to “clear him” of a burglary. When SMITH

     refused to permit a search or provide his fingerprints, FOUNTAIN became angry

     and threatened to have SMITH arrested if he did not do as he was asked.

57. At the time he made those threats, FOUNTAIN knew that there was no property

     missing from the burglary and that there were no prints of value connected with the

     burglary with which SMITH’s prints could be compared. Rather, it was his purpose

     to use a search and fingerprinting to intimidate SMITH and extort a confession.

     SMITH refused to yield to FOUNTAIN’s intimidating tactics.

58. On March 1, 2005, Defendant FOUNTAIN used a “positive identification” of SMITH

     which he had fabricated, and other false statements to secure arrest warrants for

     SMITH. On March 3, 2005, Defendant FOUNTAIN arrested Plaintiff SMITH.

59. Smith’s prosecution was initiated by FOUNTAIN without probable cause as the

     facts known to FOUNTAIN prior to effecting the arrest of the Plaintiff would not

     have warranted a reasonable person to believe the Plaintiff had committed a crime.

     However, irrespective of the existence of probable cause, the prosecution was

     instituted for an improper purpose, a purpose for which it was not designed.

60. Defendant FOUNTAIN, acted with actual and legal malice as is set out herein,
     Plaintiff is entitled to a substantial award of punitive damages as to him.

61. Plaintiff has been forced to retain counsel to represent him to vindicate his rights.

     Pursuant to the provisions of 42 U.S.C. Section 1988, Plaintiff is entitled to an

     award of reasonable attorney’s fees and costs.

62. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,

     and will continue to suffer such damages in the future.

     WHEREFORE, Plaintiff prays for judgment as set forth below.

                                        COUNT IV:

     Retaliation for Assertion of Constitutional Rights under 42 U.S.C. § 1983
                     (Against Defendant Fountain, individually)

63. Plaintiff SMITH re-alleges the General Allegations as if fully and set forth herein.

64. On February 15, 2005, Defendant FOUNTAIN demanded the right to enter and

     search Plaintiff SMITH’s home and ordered SMITH to submit for fingerprinting.

     This he did for the sole purpose of intimidating Plaintiff SMITH because on that

     date FOUNTAIN knew that all property stolen from the Magnolia Barber Shop had

     been recovered and that SMITH could not have carried off, on foot, the cash

     registers for both break-ins and that no prints of value were found at the scene or

     on any property recovered. Plaintiff SMITH energetically asserted his rights and

     Defendant FOUNTAIN was greatly angered by Plaintiff’s assertion of rights.

65. Defendant FOUNTAIN left Plaintiff SMITH under guard outside his own home,

     making threats that SMITH would be arrested if he didn’t cooperate. On that same
     date he unlawfully deprived SMITH of his driver’s license for the purpose of making

     a photo line-up. On February 24, 2005, he coerced a witness to “just pick

     someone” from the photo line-up. On or about March 1, 2005, Defendant

     FOUNTAIN made a false affidavit to the court seeking arrest warrants against

     SMITH. On March 3, 2005, Defendant FOUNTAIN arrested Plaintiff SMITH.

66. Defendant FOUNTAIN acted with reckless disregard for the rights of the Plaintiff

     under the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution

     and in retaliation for Plaintiff’s assertion of those rights by in arresting him without

     probable cause or with fabricated probable cause.

67. Defendant FOUNTAIN, acted with actual and legal malice as is set out herein,

     Plaintiff is entitled to a substantial award of punitive damages as to him.

68. Plaintiff has been forced to retain counsel to represent him to vindicate his rights.

     Pursuant to the provisions of 42 U.S.C. Section 1988, Plaintiff is entitled to an

     award of reasonable attorney’s fees and costs.

69. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,

     and will continue to suffer such damages in the future.

     WHEREFORE, Plaintiff prays for judgment as set forth below.

                                         COUNT V:

            Deliberate Fabrication of Evidence under 42 U.S.C. § 1983
         (Against Defendants Sapiera, Harriett, and Fountain, individually)

70. Plaintiff SMITH re-alleges the General Allegations as if fully and set forth herein.
71. Defendants SAPIERA, HARRIETT, and FOUNTAIN, had statutory and

     constitutional duties to conduct honest investigations without depriving an innocent

     citizen, such as Plaintiff SMITH, of his liberty. Defendants falsified reports and

     affidavits to initiate and buttress the arrest and prosecution of SMITH. Although the

     defendants knew their testimony was false, they failed to correct it and allowed it to

     become the basis for the prosecution of SMITH. Such false testimony was a

     substantial factor in the wrongful imprisonment and prosecution of plaintiff.

72. Among the constitutionally impermissible tactics used by SAPIERA was to falsely

     report the information given by the victim of the burglary to make it seem as though

     there had been pennies in the cash register, in order to validate the “trail of

     pennies” theory to “solve” the burglary by linking SMITH to the crime.

73. Among the constitutionally impermissible tactics used by HARRIETT, was to

     falsely report that he found pennies in and around the cash register and that there

     was a trail of pennies leading from the parking lot to the front door of SMITH’s

     apartment in order to “solve” the burglary by linking SMITH to the crime.

74. Among the constitutionally impermissible tactics used by FOUNTAIN, was to seek

     a warrant by falsely swearing that there had been pennies cash register, that a trail

     of pennies led to SMITH’s apartment and that a witness had positively identified

     SMITH in order to “solve” the burglary by linking SMITH to the crime.

75. The combined effect of the fabrication of evidence by SAPIERA, HARRIETT, and

     FOUNTAIN, and of their suppression of material exculpatory evidence, was to

     frame SMITH for crimes he did not commit, in violation of his constitutional rights.

76. Defendants acted with actual and legal malice as is set out herein, Plaintiff is
     entitled to a substantial award of punitive damages as to him.

77. Plaintiff has been forced to retain counsel to represent him to vindicate his rights.

     Pursuant to the provisions of 42 U.S.C. Section 1988, Plaintiff is entitled to an

     award of reasonable attorney’s fees and costs.

78. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,

     and will continue to suffer such damages in the future.

     WHEREFORE, Plaintiff prays for judgment as set forth below.

                                        COUNT VI:

         Failure to Disclose Exculpatory Evidence under 42 U.S.C. § 1983
         (Against Defendants Sapiera, Harriett, and Fountain, individually)

79. Plaintiff SMITH re-alleges the General Allegations as if fully and set forth herein.

80. Defendants SAPIERA, HARRIETT, and FOUNTAIN, had a constitutional and

     statutory duty to collect and present to the constituted authorities material evidence

     relating to the crime investigated, whether inculpatory or exculpatory. Defendants

     failed to provide the prosecutor with material evidence in their possession which

     was exculpatory as to SMITH. Such evidence included the fact that there were no

     pennies in the cash register and that there was no positive identification of Plaintiff

     SMITH as the person seen with the stolen cash register.

81. The combined effect of the fabrication of evidence by SAPIERA, HARRIETT, and

     FOUNTAIN, and of their suppression of material exculpatory evidence, was to

     frame SMITH for crimes he did not commit, in violation of his constitutional rights.
82. Defendants acted with actual and legal malice as is set out herein, Plaintiff is

     entitled to a substantial award of punitive damages as to him.

83. Plaintiff has been forced to retain counsel to represent him to vindicate his rights.

     Pursuant to the provisions of 42 U.S.C. Section 1988, Plaintiff is entitled to an

     award of reasonable attorney’s fees and costs.

84. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,

     and will continue to suffer such damages in the future.

     WHEREFORE, Plaintiff prays for judgment as set forth below.

                                       COUNT VII:

       Conspiracy to Violate Constitutional Rights under 42 U.S.C. § 1985
     (Against Defendants Arias, Sapiera, Harriett, and Fountain, individually)

85. Plaintiff SMITH re-alleges the General Allegations as if fully and set forth herein.

86. In the course of the foregoing, certain defendants, and two or more of them,

     entered into a conspiracy for the purpose of depriving Plaintiff of liberty without due

     process of law and of other constitutional rights, and for the purpose of preventing

     and hindering the constituted authorities from providing Plaintiff due process and

     equal protection of the law based on SMITH’s status as a young African-American

     male. Plaintiff is informed and believes and thereon alleges that ARIAS, SAPIERA,

     HARRIETT, and FOUNTAIN, acting in their individual capacities and under color of

     state law, did and caused to be done an act or acts in furtherance of the object of a

     conspiracy and acted in concert to undertake a course of conduct violative of
     plaintiff’s constitutional rights by:

          a. falsely representing that the stolen cash register contained pennies when

              it was stolen in the burglary;

          b. falsely representing that the stolen cash register had pennies inside and

              around it when it was found and that a trail of pennies led from the vicinity

              of the cash register to the front door of Plaintiff’s home;

          c. falsely representing that a witness had “positively identified” Plaintiff when,

              in fact, the witness had told officers twice that he didn’t see the suspect’s

              face and could not identify him and simply chose “number 5” because he

              was directed to “just pick somebody.”

          d. depriving Plaintiff of his driver’s license without consent or lawful authority;

          e. guarding and imprisoning Plaintiff outside his home while Defendant

              FOUNTAIN took his driver’s license to have a copy made for a line-up.

87. Defendants SAPIERA, HARRIETT and FOUNTAIN acted with actual and legal

     malice as is set out herein, Plaintiff is entitled to a substantial award of punitive

     damages as to him.

88. Plaintiff has been forced to retain counsel to represent him to vindicate his rights.

     Pursuant to the provisions of 42 U.S.C. Section 1988, Plaintiff is entitled to an

     award of reasonable attorney’s fees and costs.

89. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,
     and will continue to suffer such damages in the future.

     WHEREFORE, plaintiff prays for judgment as set forth below.

                                        COUNT VIII:

 Failure to Train, Supervise, or Discipline Officers and Wrongful Promulgation or
      Ratification of Policies, Customs and Practices under 42 U.S.C. § 1983
                       (Against Defendant City of Tallahassee)

90. Plaintiff SMITH re-alleges the General Allegations as if fully and set forth herein.

91. At all times material hereto, Defendant CITY OF TALLAHASSEE, through its

     officers and agents, was charged with the constitutional duty of responsibly hiring,

     screening, training, supervising, disciplining and controlling officers of the City of

     Tallahassee Police Department.

92. Defendant CITY OF TALLAHASSEE was deliberately indifferent to serious risks

     of harm to the Plaintiff in that it promulgated and employed customs and practices

     that condoned wrongdoing by police officers in their employ and failed to monitor

     the actions of the their employees to prevent such abuses.

93. At all times material hereto, Defendant CITY OF TALLAHASSEE, through its

     superior officers, was deliberately indifferent in that it either expressly or impliedly

     acknowledged and assented to the failure to train and/or supervise and/or control

     employees of its Police Department including, but not limited to, the individual

     defendants herein, for dangerous propensities, lack of training or skill or other

     characteristics making said officers unfit to perform their duties.

94. Specifically, the CITY OF TALLAHASSEE over-valued the “solving” of crimes,

     understood as a reported crime resulting in an arrest. However there was no

     corresponding review of the internal process. There was no audit of investigation
     paperwork to determine if reports were factually inconsistent. And there was no

     internal review of cases where charges were dropped because information

     provided to the constituted authorities turned out to be false.

95. CITY OF TALLAHASSEE either knowingly or with deliberate or reckless

     indifference, facilitated or acquiesced in or condoned or ratified the aforesaid

     misconduct engaged in by the individual defendants herein, and others under their

     direction or control. The aforesaid conduct was part of an official policy, custom,

     practice or pattern of conduct of the CITY, directly causing the deprivation of

     plaintiff’s federal constitutional rights, very substantially injuring plaintiff.

96. Plaintiff SMITH was a victim of said abuses of lawful authority, and said illegal acts

     were the foreseeable result of the previously described acts, omissions, policies or

     customs of Defendant CITY OF TALLAHASSEE.

97. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     financial loss, pain, shock, humiliation, emotional distress, embarrassment, loss of

     liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was prevented

     and continues to be prevented from obtaining the full enjoyment of life, and will

     continue to suffer such damages in the future.

      WHEREFORE, plaintiff prays for judgment as set forth below.

                                          COUNT IX:

                      Wrongful Intentional Torts under State Law
                           (Against Defendant Fountain)

98. Plaintiff SMITH realleges the Common Allegations as if fully and set forth herein.

99. Plaintiff SMITH is entitled to Judgment against Defendant FOUNTAIN because:

          a. He maliciously instituted judicial process against SMITH knowing there
              was no probable cause and prosecution was terminated in SMITH’s favor.

          b. He maliciously instituted judicial process against SMITH for in improper

              and abusive purpose irrespective of whether there was probable cause for

              prosecution and such prosecution was terminated in SMITH’s favor.

          c. He acted intentionally or recklessly; his conduct was extreme and

              outrageous and was the cause of the Plaintiff's distress, and the emotional

              distress sustained by the plaintiff was severe.

100. Defendant FOUNTAIN acted with actual and legal malice as is set out herein,

     Plaintiff is entitled to a substantial award of punitive damages as to him.

101. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,

     and will continue to suffer such damages in the future.

       WHEREFORE, plaintiff prays for judgment as set forth below.

                                        COUNT X:

                     Wrongful Intentional Torts under State Law
                      (Against Defendant City of Tallahassee)

102. Plaintiff SMITH realleges the General Allegations as if fully and set forth herein.

103. Alternatively, Plaintiff SMITH is entitled to Judgment against Defendant CITY OF

     TALLAHASSEE because:

          a. He was falsely imprisoned by Defendant’s officer, ARIAS, acting within the

              course and scope of his employment but without malice or disregard.

          b. He was falsely arrested by Defendant’s officer, FOUNTAIN, acting within
              the course and scope of his employment but without malice or disregard.

          c. He was unlawfully deprived of property by Defendant’s officer acting within

              the course and scope of his employment but without malice or disregard.

          d. Evidence was fabricated against him by Defendant’s officers acting within

              the course and scope of their employment but without malice or disregard.

104. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,

     and will continue to suffer such damages in the future.

       WHEREFORE, plaintiff prays for judgment as set forth below.

                                        COUNT XI:

                             Negligence under State Law
                        (Against Defendant City of Tallahassee)

105. Plaintiff SMITH re-alleges the General Allegations as if fully and set forth herein.

106. At all times material hereto, Defendant CITY OF TALLAHASSEE, through its

     officers and agents, had a duty of reasonable care to responsibly screen, train,

     supervise, discipline, and control officers of the Tallahassee Police Department.

107. Defendant CITY OF TALLAHASSEE breached its duty of care in that it

     promulgated and employed customs and practices that encouraged wrongdoing by

     police officers in their employ and specifically, failed to monitor the actions of the

     their employees to prevent such abuses.

108. At all times material hereto, Defendant CITY OF TALLAHASSEE, through its

     superior officers, breached its duty of care in that it either expressly or impliedly
     acknowledged and assented to the failure to train and/or supervise and/or control

     employees of the TALLAHASSEE Police Department including, but not limited to,

     the individual defendants herein, for dangerous propensities, lack of training and/or

     skill or other characteristics making said officers unfit to perform their duties.

109. Specifically, the CITY OF TALLAHASSEE over-valued the “solving” of crimes,

     understood as a reported crime resulting in an arrest. However there was no

     corresponding review of the internal process, especially in cases involving young

     black males, no audit of investigation paperwork to determine if reports were

     factually inconsistent, and no internal review of cases where charges were

     dropped because information provided to prosecutors turned out to be false.

110. CITY OF TALLAHASSEE either knowingly or negligently, facilitated or acquiesced

     in or condoned or ratified the aforesaid misconduct engaged in by the individual

     defendants herein, and others under their direction or control. The aforesaid

     conduct was part of an official policy, custom, practice or pattern of conduct of the

     CITY, directly causing Plaintiff’s injuries.

111. Plaintiff SMITH has been a victim of said abuses of lawful authority, and said illegal

     acts were the foreseeable result of the previously described acts, omissions,

     policies or customs of the Defendant CITY OF TALLAHASSEE.

112. As a direct and proximate cause of the acts described above, Plaintiff has suffered

     pecuniary loss, pain, shock, humiliation, emotional distress, embarrassment, loss

     of liberty, loss of self-esteem, disgrace, and loss of enjoyment of life, was

     prevented and continues to be prevented from obtaining the full enjoyment of life,

     and will continue to suffer such damages in the future.
    WHEREFORE, plaintiff prays for judgment as set forth below.

                                      Prayer for Relief

WHEREFORE, the Plaintiff JAY SMITH seeks judgment as follows:

   A. Compensatory damages against each of the defendants herein;

   B. Punitive damages against defendants sued individually; excepting ARIAS;

   C. Pre-judgment interest on all economic losses;

   D. Attorney’s fees pursuant to 42 U.S.C. § 1988 and costs of litigation;

   E. A trial by jury on all issues so triable;

   F. Such further relief as the Court deems just and proper.

                                                  Respectfully Submitted,


Dated February 9, 2009.                           /s/James V. Cook____________________
                                                  JAMES V. COOK
                                                  Florida Bar Number 0966843
                                                  Law Office of James Cook
                                                  314 West Jefferson Street
                                                  Tallahassee, Florida 32301
                                                  (850) 222-8080; 561-0836 fax
                                                  cookjv@nettally.com

                                                  Attorney for Plaintiff

								
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