12-09-10 harrison v phenix city

8/7/2019 12-09-10 Harrison v Phenix City

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r 'IN THE UNITED STATES DISFEICT COURTFOR THE MIDDLE DISTRICT OF AL4JAMA

EASTERNIVLIOv4PATRICK HARRINGTON,Plaintiff,

CITY OF PHENIX CITY,OFFICER RACHAEL H AUSER, in herofficial and individual ca pacities,DEPUTY K IRBY DOLLA R, in hisofficial and individual ca pacities,DEPUTY TIM W ATFORD, in hisofficial an d individual capa cities,Defendants.

*yrTT, CL*U . S . O STC C* hDLE*Civil Case No 370-r y-ip g*JURY TRIAL DEMANDED*****

COMPLAINT

COMES NOW Plaintiff, by arid through his attorneys of record, and would show untothe Court as follows:

JURISDICTION AND VENUE1. Plaintiff files this Com plaint and invokes the jurisdiction of this Court under and by

virtue of the Fourth, Fifth, arid Fourteenth Am endmen ts to the Constitution of the U nitedS ta tes , 42 U .S .C. 1983, 42 U .S .C. 1985, 42 U.S.C. 1986, 42 U.S.C. 1988, 28U .S.C . 1331,28 U .S .C . 1343,28 U .S .C. 2201,28 U .S .C . 2202, a r id the doctr ineof supplemental jurisdiction to obtain declaratory relief arid compensatory and punitivedamag es. Defendants v iolated Plaintiff 's rights as guaranteed by the Constitution of theU nited States, by Federal law, and by the laws and Constitution of 1901 of the State ofAlabama.

2. T he violations of Plaintiff's rights as alleged herein occurred in Lee C ounty, Alabama,

Case 3:10-cv-01048-WKW -TFM Document 1 Filed 12/09/10 Page 1 of 14


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and we re comm itted within the Eastern Division of the Middle District of the S tate ofAlabama.

PARTIES3. Plaintiff Patrick Ha rrington (hereinafter, "Harrington") is over the age of 19 years, and is

and at all times m aterial hereto was a c itizen of the U nited States and the S tate ofAlabama , residing in Russell County, Alabam a.

4. Defenda nt City of P henix City (hereinafter, "City") is a m unicipal corporation located inwhole or in part in Russell County, Alabama.

5. Defendant Officer Rachael Hauser (hereinafter, "Hauser"), a better denomination ofwhom is presently unknow n to Plaintiff, is a natural person believed to be over the age of19 years, is or was at all times material hereto an employee, officer or agent of the Cityand is a person w hose conduct proxim ately and directly harmed Plaintiff.

6. Defenda nt Deputy K irby Dollar (hereinafter, "Dollar"), a better denomination of wh om ispresently unknown to P laintiff, is a natural person believed to be over the a ge of 19 ye ars,is or was at all times ma terial hereto an employee, officer or agent of the S heriff ofRussell County, Alabama, and is a person whose co nduct proximately and directlyharmed Plaintiff.

7. Defendant Deputy Tim Watford (hereinafter, "Watford"), a better denomination of whomis presently unknown to Plaintiff, is a natural person believed to be over the age o f 19years, is or was at all times m aterial hereto an employee, officer or agent of the S heriff ofRussell County, Alabama, and is a person whose co nduct proximately and directlyharmed Plaintiff.



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NATURE OF PROCEEDINGS8. T his is a proceeding for a judgment declaring the relative rights, responsibilities and

liabilities of the parties, each to the other, and for com pensatory and punitive dam ages forPlaintiff's suffering as a c onsequence of the wrongs alleged herein.

FACTS9. Plaintiff expressly adopts a s if fully set forth herein the allegations in the foregoing

paragraphs.

10. O n or about Novem ber 26, 2010, Harrington, who admittedly had warrants out for hisarrest was taken into custody by three (3) bail bondsmen o n Lee C ounty Road 246/M ullinRoad. The bondsmen Tased Harrington, put him in handcuffs, and placed him on theground.

11. Dollar had previously asked the bondsm en to contact him if Harrington was brought intocustody. O ne of the bondsmen did call Dollar, as requested, who was out drinking thatnight with friends.

12. U pon receiving the call, Dollar and the other Defendants got into an unmarked car anddrove outside of their jurisdiction of Ru ssell County to Lee C ounty where the bondsmenhad H arrington in custody on the ground wa iting for them to arrive.

13. O n or about Novemb er 26, 2010, without warrant, probable cause, consent, orjustification of a ny sort, Defendants H auser, Dollar, and W atford, officers, agents, oremployees of defendant C ity and officers, agents, or employees of the S heriff of RussellCounty, believed to be police officers and deputy sheriffs, and acting w ithin the line andscope of their authority and pursuant to the policy of the City and of the S heriffrespectively, assaulted and battered Harrington.



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arriving. The bon dsmen said no. D ollar wanted to leave the impression Harrington wasn'tcuffed.

22. The Lee County Sgt. refused to let the bondsmen put a blanket or coat over Harrington asit was cold and Harrington had said he was cold afterwards. The Sgt. did nothing aboutanything that had happened.

23. Dollar and the other Defendants left.24. O ne of the bondsmen rode in the ambulance to the hospital with Harrington. Another

bondsman reported what happened to the Muscogee County Georgia SheriffsDepartment.

25. T he bondsm en have ha d difficulty sleeping, as they see H arrington's face getting beatenover and over.

26. Harrington suffered extensive physical dam age, including but not limited to full bodybruising, stitches for m any of the num erous deep lacerations on his body including hisface, potentially perm anent loss of sight in his right eye, a burst ear drum in his left earwhich requ ires future surgery, loss of use of his left leg, severe dam age/tearing to his leftknee and leg.

27. Defendan ts all had been drinking "celebrating the day." (quote from the Russell CountySheriff Thomas Boswell). Sheriff Boswell also admits there was "ill will" towardHarrington by Dollar. Sheriff Boswell said, "When the drug agent got there, he wentimme diately to him on the ground and be gan to assault him. It was a p retty severeassault."

28.Any gratuitous acts of violence on the part of law enforcem ent officials is never lawfuland should never be tolerated. T hese officers have put on display their own disrespect forCase 3:10-cv-01048-WKW -TFM Document 1 Filed 12/09/10 Page 5 of 14


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the law that they are sworn to enforce.29. After the beating was over, they released Harrington back to the bondsmen. The

bondsmen sought medical care for Harrington by calling for an ambulance.30. Harrington had to be imm ediately taken to the hospital for treatment for his injuries.31. Defenda nts were imm ediately suspended from duties by their employers. All three

Defenda nts have since resigned from their positions as law enforcem ent officers withtheir respective employers.

32. T he incident is currently under investigation by both the F ederal Bureau o f Investigation(FBI) and the Alabama Bureau of Investigation (ABI).

33. Qualified immunity offers com plete protection for governmen t officials sued in theirindividual capac ities if their conduct "does not violate clearly established statutory orconstitutional rights of which a reasonable person wou ld have know n." Harlow v.Fitzgerald, 457 U .S. 800, 818 (1982).

34. Any reasonable law enforceme nt officer knows or should know that repeatedly kickingand beating a ma n who is secured and in handcuffs lying on the ground recovering fromhaving been T ased constitutes unreasonable and ex cessive force in violation of Plaintiff'srights under the Fourth Amendment to the United States Constitution.

35. It is clearly established that "[p]olice use of excessive force is a constitutional violation"under the Fourth Am endment. McKinney v. DeKalb County, 997 F.2d 1440, 1443 (1 1 t hCir. 1993).

36. T he Alabama S upreme Court has noted that Ala. Code 6-5-338(a) "extendsdiscretionary function immunity to municipal police officers.. . unless the officer'sconduct is so egregious as to amo unt to willful or ma licious conduct or condu ct engaged



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in bad faith." Couch v. City of Sheffield, 708 So.2d 144, 153 (Ala. 1998). T he conduct asdescribed above was willful and malicious violent conduct that resulted in seriousphysical damage to H arrington as described above.

37. He w as caused to suffer severe physical damage, apprehension, fear, and anxiety. He hassuffered great and severe emotional distress and mental anguish which continues to thisday.

38. T he use of force by D efendants placed Harrington in imminent fear for his life.39. T he amo unt of force utilized in the invasion was unreasonable and unre lated to any

legitimate governmental purpose.40. T here existed no justification for the use of force by the Defendants.41. Harrington was dam aged in that he suffered physical pain and injury and great and severe

emotional distress and mental angu ish. He also suffered em barrassment, humiliation, andloss of enjoyment of life.

42. Defendants, at all times material hereto, were acting under color of law.CAUSES OF ACTION

43. As to e ach of the counts herein below set forth, Plaintiff expressly adopts as if fully setforth herein the allegations of the foregoing paragraphs.

COUNT I - EXCESSIVE FORCE

44. At all times material hereto, Defendants, or each or all of them, w ere acting as lawenforcem ent officers pursuant to state statute and the ordinances, custom s, and policies ofRussell County and Phenix C ity.

45. Plaintiff had a right to be free from the use of excessive and unreasonable force.46. It is apodictic that the use ofy force against a person who is in handcuffs and secured



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on the ground is wrong and that any such force used is unreasonable and exce ssive.47. T he aforem entioned rights were clearly established at the time of the c onduct giving rise

to the claims herein.48. Any reasonable officer knows or should know that the aforementioned rights were clearly

established at the time of the conduc t giving rise to the claims herein.49. Defenda nts, each or all of them, violated each of the rights set forth above by repeatedly

kicking and beating a m an w ithout any justification who is secured a nd in handcuffs lyingon the ground recovering from having been T ased.

50. Defendants, each or all of them, used excessive and unreasonable force against Plaintiffas described above.

51. Plaintiff's rights under the Fourth A mendm ent were thus impermissibly abridged andviolated.

52. Plaintiff was a ssaulted and battered, suffered serious physical damage as described above,and suffered great a nd severe emotional distress and m ental anguish.

COUNT II FAILUR E TO PREVENT VIOLATION OF RIGHTS53. At all times material hereto, Defendants, or each or all of them, w ere acting as law

enforceme nt officers pursuant to state statute and the ordinances, customs, and policies ofRussell County and Phenix C ity.

54. Plaintiff had a right to be free from the use of excessive and unreasonable force.55. T he Eleventh C ircuit has stated that "[ut is not necessary that a police officer actually

participate in the use of excessive force in order to be held liable under section 1983.Rather, an officer who is present at the scene and w ho fails to take reasonable steps toprotect the victim of an other officer's use o f excessive force, can be held liable for his



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nonfeasance." Fundiller v. City of Cooper City, 777 F. 2d 1436, 144 1-42 (1 1 t h Cir.1985).56. Each and e very law enforcem ent officer at incident at the time a nd on the date in question

had know ledge that Plaintiff's civil rights were being violated and had the pow er toprevent or aid in preventing the wrongful acts m ade the subject of the violations.

57. T he individual Defendants w ho knew of the Defendants' wrongftil conduct but failed orrefused to prevent it or a id in preventing it are liable to the Plaintiff for the dam ages hesuffered.

58. Plaintiff was dam aged as otherwise described herein.COUNT III - CONSPIRACY TO V IOLATE CIVIL RIGHTS

59. Pursuant to 42 U .S .C. 1985(3), it is unlawful to enter into a conspiracy to deprive anyperson of the rights and privileges of a citizen.

60. T he Fourth Am endmen t to the Constitution secures to Plaintiff and all citizens - the

right to be free from the use of exce ssive and unreasonable force.61. T he aforem entioned right was clearly established at the time of the conduct herein

complained of.62. Defenda nts, officer and depu ties, acting in concert with each other, and eac h and all of

them, knew or should have known that the aforem entioned rights were c learlyestablished.

63. Defenda nts, officer and depu ties, acting in concert with each other, and eac h and all ofthem, confedera ted and co nspired to deprive Plaintiff of the rights set forth above, inviolation of 42 U .S .C. 1985(3) .

64. Plaintiff has been dam aged thereby as herein recited.COUNT IV - ASSAULT AND BATTERY



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65.O n the date and at the time of the conduct ma de the subject of this action, Defenda nts,each ac ting in concert with the other, touched Plaintiff in rudeness, in anger, or in ahostile m anner, by touching his person.

66. Defendan ts assaulted and battered Plaintiff by violently and repeatedly kicking andbeating Plaintiff who was secured and in handcuffs lying on the ground.

67. Defenda nts, Dollar and W atford, or each or all of them, knew that Plaintiff was not athreat, had been under arrest by the bondsmen for quite some time, and that the forceapplied was excessive under the circumstances.

68. Defenda nt Hauser participated in the assault by standing guard for the D eputies to preventanyone one from interfering with their attack on Plaintiff.

69. T he force w as applied maliciously or in bad faith.70. Plaintiff suffered dama ges as otherwise herein described as a direct and proximate result

of the assault and battery by De fendants.COUNT V - INTENTIONAL INFLICTION OF EM OTIONAL DISTRESS

71. Defendan ts, and each and all of them, either intended to inflict emotional distress onPlaintiff, or they should have known that emotional distress was the likely result of theirconduct.

72. The course of conduct by which Defendants used excessive force on Plaintiff was sooutrageous in character and ex treme in degree as to go beyond all possible bounds ofdecency an d to be regarded as atrocious and utterly intolerable in a civilized comm unity.

73. T he intentional infliction of em otional distress was ca rried out maliciously or in bad faith.74. T he actions of Defendants, each or all of them, were the cause of the em otional distress

suffered by Plaintiff.



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75. T he em otional distress suffered by P laintiff was severe.COUNT VI NEGLECTFULNESS. UNSKILLFULNESS ORCARELESSNESS - OFFICER

76. T he agent, employee, or officer of the City, name d above as defendants in this suit,carried out her duties on the date and at the time in the conduct giving rise to this actionin a neglectful, unskillful, or careless manner.

77. T he neglectfulness, unskillfulness, or carelessness of the agen t, employee, or officer ofthe City directly and proximately dam aged Plaintiff in the m anner and to the degree ashereinabove recited.

78. The officer is individually liable to Plaintiff for her neglectfulness, unskillfulness, orcarelessness as agents, employees, or officers of the City for the resulting damages toPlaintiff.

COUNT VII -NEGLECTFULNESS. UNSKILLFUL NESS OR CARELESSNESS -CITY79. T he agent, employee, or officer of the City carried out her duties on the date and at the

time in the conduct giving rise to this action in a neglectful, unskillful, or carelessmanner.

80. T he neglectfulness, unskillfulness, or carelessness of the agen ts, employees, or officers ofthe City directly and proximately dam aged Plaintiff in the m anner and to the degree ashereinabove recited.

81. Ala. Co de 11-47-190 states, "No city or town sha ll be liable for dama ges for injurydone to or wrong suffered by any person or corporation, unless such injury or wrong wasdone or suffered through the ne glect, carelessness or unskillfulness of some age nt, officeror emp loyee of the m unicipality engaged in work therefor and w hile acting in the line of



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his or her duty . . . and whenev er the city or town shall be made liable for damages byreason of the unauthorized or w rongful acts or negligence, carelessness or unskillfulnessof any pe rson or corporation, then such pe rson or corporation shall be liable to an actionon the same a ccount by the party so injured."

82. Neglect, carelessness and unskillfulness have been legislatively removed from the gen eraltort protections of Ala.C ode (1975) 6-5-338.

83. W hen a plaintiff alleges a factual pattern that dem onstrates neglect, carelessness, orunskillfulness of an age nt of the city, the plaintiff has stated a cause of a ction against amunicipality. Hawkins v. City of Greenville, 101 F. S upp. 2d 1356 (M.D. Ala.2000).

84. T he C ity is liable over to Plaintiff for the neglectfulness, unskillfulness, or carelessness ofthe agents, employees, or officers of the City.

COUNT VIII -NEGL IGENT TRAINING/SUPER VISION/SELECTION -CITY85. Defenda nt City of P henix City had the ultimate responsibility for selecting and/or

approving and training police officers and other officials for the Phenix C ity PoliceDepartment.

86. Defendant City negligently selected and failed to adequately train O fficer Hauser.87. Ala.Code 1975, 6-11-27(a), provides:

(a) A principal, employer or other master shall not be liable for punitive dam agesfor intentional wrongful conduct or c onduct involving malice based upon acts oromissions of an agent, employee or servant of said principal, employer or m asterunless the principal, employer or m aster either: (i) knew or should have knownof the unfitness of the agent, employee or ser vant, and employed him orcontinued to employ him, or used his services without pr oper instr uctionwith a disregar d of the rights or safety of others; or (ii) authorized thewrongful condu ct; or (iii) ratified the w rongful conduct; or unless the ac ts of theagent, servant or employee were calculated to or did benefit the principal,employer or o ther master, except w here the plaintiff knowingly participated withthe agent, servant or employee to comm it fraud or wrongful conduct with full



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knowledge of the im port of his act.(Emphasis added).88. As in Count VII, Ala.Code 1975, 6-11-27(a), is a specific statute which has bee n

legislatively removed from the general tort protections of Ala.C ode (1975) 6-5-338.89. T he C ity is liable over to P laintiff for its own negligent selection and inadequate training

of the agents, em ployees, or officers of the C ity, specifically the selection and training ofOfficer Hauser.

PRAYER FOR RELIEFWH EREFORE, THE PREMISES CONSIDERED, Plaintiff prays for relief as

follows:a) Enter a declaratory judgme nt that the policies and practices com plained of herein

are unlawful and violative of the Fourth Amendment to the United States

Constitution, as addressed by and through 42 U S C.A 1983, 1985, and 1986,and the comm on and statutory law of Alabama;

b) Grant Com pensatory dama ges in favor of Plaintiff as against each D efendant of$1,000,000;

c) Grant Punitive damages to Plaintiff against each Defen dant in the amount of$1,000,000;

d) Grant P laintiff the cost of this action including reasonable attorneys' fees;e) Grant as to Plaintiff such other, further and different relief as this Co urt may deem

just and proper, including all equitable relief, the aw arding of w hich is within thejurisdiction of the C ourt.

RESPECTFULLY SUBMITTED on this the 9th day of Decem ber, 2010.



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Peyt Faulk (FAUO13)Anthony B. Bush (BUS O 28)Bush & Faulk, PLLCP.O . Box 5059Montgomery, Alabama 36104334-263-7733 (voice)334-832-4390 (fax)Pfau1kj [email protected] for Plaintiff

PLAINTIFF DEMANDS TRIAL BY JURY


12-09-10 harrison v phenix city

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