hein v chandler amended complaint

8/16/2019 Hein v Chandler Amended Complaint

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Stephen D. Benedetto (#022349)THE PEOPLE’S LAW FIRM, PLC2111 E. Highland Ave., Suite 145

Phoenix, Arizona 85016Telephone: (602) 456-1901Facsimile: (602) 801-2834

[email protected]

Adam Feldman (#023201)THE FELDMAN LAW FIRM, PLLC1 E. Washington Street, Suite 500Phoenix, Arizona 85004Telephone: (602) [email protected]

Attorneys for Plaintiff Luke Hein

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Luke Hein, a single man,

Plaintiff,

v.

City of Chandler, an Arizona municipal

corporation; Brian Hawkins and Jane DoeHawkins, husband and wife; William Nocella and Jane Doe Nocella, husbandand wife,

Defendants.

Case No. 2:15-cv-01162-DJH

FIRST AMENDED COMPLAINT

(Assigned to the Honorable Diane J.Humetewa)

(JURY TRIAL DEMANDED)

For his Complaint against Defendants City of Chandler, Brian and Jane Doe

Hawkins, and William and Jane Doe Nocella (collectively, “Defendants”), Plaintiff Luke

Hein, through undersigned counsel, hereby alleges as follows:

INTRODUCTION

1.

This is a civil rights complaint brought by Plaintiff Luke Hein under 42

U.S.C. § 1983 against Defendants as a result of their use of excessive force, unlawfu

arrest and detention, malicious prosecution, and other wrongful acts, occurring in and

Case 2:15-cv-01162-DJH Document 6 Filed 07/27/15 Page 1 of 23


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around the City of Chandler, Arizona on May 8, 2014 and thereafter.

2.

Defendants Brian Hawkins and William Nocella are sued both in their

individual and official capacities.

3. Defendant City of Chandler is sued both as a result of the actions

Defendants Hawkins and Nocella took within the course and scope of their authority, as

caused by and/or ratified by the City, and by virtue of its longstanding practices and/or

customs.

JURISDICTION AND VENUE

4.

Plaintiff brings this action against Defendants pursuant to 42 U.S.C. § 1983

for deprivation of civil rights secured by the Fourth and Fourteenth Amendments of the

United States Constitution, the Arizona Constitution, and other claims arising out of the

law of the State of Arizona.

5.

Jurisdiction is founded upon 28 U.S.C. §§ 1331, 1343(a)(3)(4) and 1367(a).

6.

This Court has jurisdiction over Plaintiff’s claims of violation of his civil

rights under 42 U.S.C. § 1983 and pendent jurisdiction over Plaintiff’s state law claims

pursuant to 28 U.S.C. § 1367(a).

7.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391 in that the acts

and omissions that give rise to this action occurred within this District within one year of

the filing of the original Complaint, and this Court otherwise has jurisdiction.

8.

This case presents an actual case in controversy arising under the Fourth and

Fourteenth Amendments to the United States Constitution, and under the provisions of 42

U.S.C. §§ 1983 and 1988.

THE PARTIES

9.

Plaintiff Luke Hein is an unmarried man. He is a citizen and resident of the

United States, domiciled in Maricopa County, Arizona.

10.

Upon information and belief, Defendants Brian and Jane Doe Hawkins are a



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married couple residing in Maricopa County, Arizona. At all times material to the

allegations in this Complaint, Mr. Hawkins was acting in his capacity as a City of

Chandler Police Officer and acting under the color of law. He is sued in his individua

capacity and in his official capacity as a City of Chandler Police Officer.

11.

Upon information and belief Defendants William and Jane Doe Nocella are

a married couple residing in Maricopa County, Arizona. At all times material to the

allegations in this Complaint, Mr. Nocella was acting in his capacity as a City of Chandler

Police Officer and acting under the color of law. He is sued in his individual capacity and

in his official capacity as a City of Chandler Police Officer.

12.

At all relevant times to this Complaint, Defendants Hawkins and Nocella

were acting in furtherance of their respective martial communities.

13.

The City of Chandler (the “City”) is a municipal corporation created under

the laws of the State of Arizona. The City operates and maintains a law enforcemen

agency known as the City of Chandler Police Department.

14.

The City is under a duty to run its policing activities in a lawful manner so

as to preserve the peace of the City of Chandler and to preserve for its citizens the rights

privileges, and immunities guaranteed and secured to them by the Constitutions and laws

of the United States and the State of Arizona.

15.

The City has established or delegated to the City of Chandler Police

Department the responsibility for establishing and implementing policies, practices

procedures and/or customs used by law enforcement officers employed by the City o

Chandler, including Defendants Brian Hawkins and William Nocella (collectively, the

“Defendant Officers”), regarding the investigation, detention, arrest, and use of force

during law enforcement operations.

16. Every act and omission of the Defendants detailed in this Complaint was

performed under the color and pretense of the Constitutions, statutes, ordinances



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regulations, customs and uses of the United States of America, the State of Arizona, and

the City of Chandler, by virtue of their authority as law enforcement officers, and within

the course and scope of their employment with the City of Chandler Police Department.

FACTUAL BACKGROUND

17.

On May 8, 2015, City of Chandler police officers Brian Hawkins and

Jeremy Logan responded to the Stone Oaks Apartment complex (the “Complex”) at 2450

W. Pecos Road, Mesa, AZ 85202 to conduct an investigation into a single-vehicle

collision in the Complex’s parking lot.

18.

Upon arrival the officers observed a Jeep Grand Cherokee that appeared to

have collided with a tree in the complex’s parking lot.

19. The officers contacted the driver, Zoe Beth Shunick, and requested that she

exit the vehicle.

20.

Ms. Shunick indicated she did not wish to exit the vehicle, asking the

Officers multiple times whether she was being detained and was under arrest.

21.

Plaintiff, a resident of Stone Oaks Apartments and Ms. Shunick’s boyfriend

heard the commotion and came outside to see what was happening.

22.

Defendant Hawkins explained to Plaintiff that Ms. Shunick had crashed the

car and that they were trying to convince her to exit the vehicle.

23.

Defendant Hawkins then requested that Plaintiff assist him with the

investigation by attempting to convince Ms. Shunick to exit the vehicle.

24.

Plaintiff readily complied with the officer’s request, suggesting to Ms

Shunick that she exit the vehicle. Ms. Shunick then complied.

25.

As Ms. Shunick walked away from her vehicle, Officer Logan stepped

behind her to close the driver’s side door, turning his back on her.

26. When Officer Logan turned around he immediately delivered a two-handed

open-fist strike to Ms. Shunick’s chest, knocking her back and onto the ground.



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27.

Upon seeing Officer Logan assault Ms. Shunick, Plaintiff spontaneously

exclaimed “hey!”

28.

Defendant Hawkins responded by grabbing Plaintiff’s right wrist, jamming

his forearm into Plaintiff’s throat, and slammed Plaintiff against the vehicle, bending him

backwards over the vehicle’s hood.

29.

Plaintiff immediately put his hands up in the air in a “surrender” posture

attempting to comply with Defendant Hawkins’ commands and asking for an explanation

of what Defendant Hawkins was doing to him.

30.

Defendant Hawkins provided no explanation, instead persisting with the

physical force and yelling.

31. Plaintiff continued to protest that he did not do anything, exclaiming, “this is

not fair.”

32.

Defendant Hawkins responded by rhetorically asking Plaintiff “do you wan

to get fucked up?!,” before grabbing Plaintiff by his throat, lifting him off of the vehicle

and slamming him against the car again.

33.

Plaintiff again protested, announcing, “I’m not doing anything” as

Defendant Hawkins controlled both of Plaintiff’s wrists in pressure holds and tackled him

to the ground.

34.

Defendant Hawkins then wrenched Plaintiff’s arms behind his back and

handcuffed him.

35.

Plaintiff, compliant with Defendant Hawkins but having just been assaulted

for no reason, called out for help and requested that somebody record what was happening

to him.

36.

After handcuffing Plaintiff, Defendant Hawkins assisted Officer Logan with

Ms. Shunick.

37.

Defendant Hawkins then took some time to compose himself before



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returned to help escort Plaintiff to the curb.

38.

Defendant Hawkins engaged Plaintiff, apologizing for his conduct and

asking if he was injured.

39. When Plaintiff indicated that he did not believe he was injured, Defendan

Hawkins expressed surprise, suggesting that he expected Plaintiff to be more seriously

injured given the amount of force employed.

40.

Defendant Hawkins then explained that he understood why Plaintiff reacted

how he did and that he was “not charging [him] with any crimes.”

41.

After escorting Plaintiff to the curb, Defendant Hawkins stated for a second

time that he was not charging Plaintiff with any crimes, explaining that he only detained

Plaintiff because he believed his relationship with Ms. Shunick – and his likely desire to

protect his girlfriend – could have placed Officer Logan at risk.

42.

Within minutes a number of back-up officers arrived including City o

Chandler Police Sergeant William Nocella.

43.

Upon information and belief, Defendant Nocella is Defendant Hawkins

supervisor and, as such, has the authority, responsibility, and obligation to provide

training and guidance to Defendant Hawkins.

44. Defendant Hawkins sought out Defendant Nocella to brief him on the level

of force he had used with Plaintiff.

45.

Defendant Hawkins explained to Defendant Nocella that he “pile-drived

[Plaintiff], back-first into the top of [the] car.”

46.

Upon hearing the explanation, Defendant Nocella pointed his flashlight at

Plaintiff sitting on the curb and stated, “so he can go ahead and go to jail, right?”

47.

Defendant Hawkins responded by indicating he had no objection to Plaintiff

being released without citation.



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48.

Defendant Nocella then instructed Defendant Hawkins that his proposal to

release Plaintiff without a citation was not an option. Defendant Nocella specifically

instructed Defendant Hawkins as follows:

“Once the handcuffs go on, he goes to jail. So I’ll ask it

again. Do you want to unhandcuff him and get sued

again or do you want to put him in jail for what he

shouldn’t have done. If you date an animal, this kind of

shit happens. So he decides to help an animal and not

act like a law abiding citizen, his sorry ass goes to jail.”

49. Defendant Hawkins sought input from Defendant Nocella about the crimes

for which he could cite Plaintiff.

50.

Defendant Nocella, who arrived after Plaintiff was already handcuffed and

seated on the curb and who had not observed any of the conduct, responded “[h]indering

[prosecution]… not following orders… whatever. You were here.”

51.

Defendant Nocella then instructed Defendant Hawkins to lie, if necessary

in order to find a crime with which to charge Plaintiff, as long as Defendant Hawkins got

him in a police car on his way to jail immediately: “If you can make the stretch, if he

raised his voice above what mine is now, he goes for dis[orderly] con[duct]. But he’

going in a patrol car in the next five [minutes].”

52.

Unwilling to acknowledge that he had acted improperly, Defendan

Hawkins arrested Plaintiff, transported him to jail, and cited him for violating section 11-

11 of the Chandler City Code.

53.

Section 11-11 of the Chandler City Code provides as follows: “Every

person who willfully resists, delays or obstructs any public officer in the discharge or

attempt to discharge any duty or his office or who fails to obey any lawful order of any

public officer is guilty of a misdemeanor.”



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54.

There was no factual basis to support this charge, or probable cause to

justify it, and it was made against Plaintiff solely in an effort to cover-up the Defendants

unconstitutional actions.

55. Defendants Hawkins and Nocella engaged in a course of conduct designed

to cover up their unconstitutional actions in violation of Plaintiff’s constitutional rights by

submitting false reports and charges against him.

56.

Defendants Hawkins and Nocella caused Plaintiff to be arrested, transported

to Chandler City Jail, booked, and held in custody for approximately 14 hours before he

was released.

57.

Plaintiff appeared in Chandler City Court on the date scheduled, and learned

that the City of Chandler Prosecutor’s Office was offering him the opportunity to enter

into a plea agreement before receiving discovery.

58.

Plaintiff rejected the plea agreement, refusing to resolve the case until he

received discovery from the State.

59.

On numerous occasions Plaintiff demanded the footage from Defendan

Hawkins’ body camera, which Plaintiff remembered being told was recording that night

(the “Video”).

60. After significant delay, the City of Chandler Prosecutor’s Office finally

provided the Video to Plaintiff.

61.

The Video exonerated Plaintiff, showing that not only did he not interfere

with a police investigation but, to the contrary, had actually assisted the investigation by

at Defendant Hawkins’ request, convincing Ms. Shunick to exit the vehicle.

62.

After observing the Video, the City of Chandler Prosecutor’s office

dismissed the charges against Plaintiff.



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FIRST CLAIM FOR RELIEF

42 U.S.C. § 1983 – Excessive Force in Violation of Fourth and Fourteenth

Amendments(Against Defendant Hawkins Only)

63.

Plaintiff hereby incorporates by reference the allegations contained in

paragraphs 1 through 62 as if they were fully set forth herein.

64.

42 U.S.C section 1983 provides, in relevant part, as follows:

Every person, who under color of any statute, ordinance,regulation, custom or usage of any state or territory of theDistrict of Columbia subjects or causes to be subjected anycitizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privilegesor immunities secured by the constitution and law shall beliable to the party injured in an action at law, suit in equity, orother appropriate proceeding for redress . . .

65.

Plaintiff is a citizen of the United States; Defendant Hawkins is a person for

the purposes of 42 U.S.C. § 1983.

66.

Defendant Hawkins was, at all times relevant hereto, acting under the color

of law in his capacity as a City of Chandler police officer, and his acts and omissions were

conducted within the scope of his official duties or employment.

67.

At the time of the complained-of events, the Fourth and Fourteenth

Amendments to the United States Constitution clearly established Plaintiff’s right to be

secure in his person from unreasonable seizure through excessive force.

68.

At the time of the complained-of events, any reasonable police officer

would have known that the Constitution clearly establishes the right of American citizens

to be secure in their persons from unreasonable seizure through excessive force.

69.

Defendant Hawkins’ actions and use of force, as described herein, were

objectively unreasonable in light of the facts and circumstances confronting him and

violated Plaintiff’s rights.



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70.

Defendant Hawkins’ actions and use of force, as described herein, were also

malicious and/or involved reckless, callous, and deliberate indifference to Plaintiff’s

federally protected rights.

71. Under the circumstance, the force Defendant Hawkins used against Plaintiff

shocks the conscience and violated Plaintiff’s rights.

72.

Defendant Hawkins unlawfully seized Plaintiff by means of objectively

unreasonable, excessive and conscious-shocking physical force, thereby unreasonably

restraining Plaintiff of his freedom.

73.

Defendant Hawkins engaged in the above-described conduct willfully

maliciously, in bad faith, with willful indifference to and in reckless disregard of

Plaintiff’s federally protected constitutional rights, and with conscious awareness that he

would cause Plaintiff severe physical and emotional injuries.

74.

Defendant Hawkins’ acts and/or omissions were moving forces behind

Plaintiff’s injuries, intentionally depriving Plaintiff of his constitutional rights and causing

him other damages.

75.

Defendant Hawkins is not entitled to qualified immunity for the conduc

complained of in this Complaint.

76. At all times relevant to this Complaint Defendant Hawkins was acting

pursuant to municipal custom, policy, decision, ordinance, regulation, widespread habit

usage, or practice in his actions pertaining to Plaintiff.

77.

As a proximate result of Defendant Hawkins’ unlawful conduct, Plaintiff

suffered injuries and other damages and losses as described herein entitling him to

compensatory, economic, consequential and special damages in an amount to be

determine at trial.

78. Plaintiff is further entitled to attorneys’ fees and costs pursuant to 42 U.S.C

§ 1988, pre-judgment interest and costs as allowable by federal law.



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79.

In addition to compensatory, economic, consequential and special damages

Plaintiff is entitled to punitive damages against Defendant Hawkins under 42 U.S.C. §

1983, in that the actions of this Defendant were taken maliciously, willfully, or with a

reckless disregard of Plaintiff’s Constitutional rights.

SECOND CLAIM FOR RELIEF

42 U.S.C. § 1983 – Malicious Prosecution in Violation of Fourth and

Fourteenth Amendments

(Against Defendants Hawkins and Nocella Only)

80.



81.




82.

Plaintiff is a citizen of the United States; both of the Defendant Officers are

persons for the purposes of 42 U.S.C. § 1983.

83.

The Defendant Officers, at all times relevant hereto, were acting under the

color of law in their respective capacities as City of Chandler police officers and their acts

or omissions were conducted within the scope of their official duties or employment.

84.


Amendments to the United States Constitution clearly established Plaintiff’s right to be

free from criminal prosecution without probable cause under the Fourth Amendment.

85.



to be free from criminal prosecution without probable cause.



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86.

The Defendant Officers violated these rights when they conspired and/or

acted in concert to institute, procure, and continue a criminal proceeding against Plaintiff

for violation of Section 11-11 of the Chandler City Code that never occurred.

87. The Defendant Officers engaged in the above-described conduct willfully

maliciously, in bad faith, and in reckless disregard of Plaintiff’s federally protected

constitutional rights.

88.

The procurement of prosecution against Plaintiff, for allegations the

Defendant Officers knew to be false, was malicious, shocking, and objectively

unreasonable in light of the circumstances.

89.

Those criminal proceedings terminated in Plaintiff’s favor when the City o

Chandler Prosecutor’s Office voluntarily dismissed the charges without any compromise

by Plaintiff, reflecting a prosecutorial judgment that there was not even probable cause to

maintain the charges against Plaintiff.

90.

The acts and omissions of the Defendant Officers as described herein

intentionally deprived Plaintiff of his constitutional and statutory rights and caused him

other damages.

91.

The Defendant Officers are not entitled to qualified immunity for the

complained-of conduct.

92.

At all times relevant hereto the Defendant Officers were acting pursuant to

municipal custom, policy, decision, ordinance, regulation, widespread habit, usage, or

practice with respect to their actions pertaining to Plaintiff.

93.

As a proximate result of the Defendant Officers’ unlawful conduct, Plaintiff

has suffered actual injuries, and other damages and losses as described herein entitling

him to damages in amounts to be determined at trial.

94. Plaintiff is further entitled to attorneys’ fees and costs pursuant to 42 U.S.C




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95.

In addition to compensatory, economic, consequential, and special damages

Plaintiff is entitled to punitive damages against the Defendant Officers under 42 U.S.C. §

1983, in that the actions of each of these defendants were taken maliciously, willfully or

with a reckless or wanton disregard of Plaintiff’s constitutional rights.

THIRD CLAIM FOR RELIEF

Violation of 42 U.S.C. § 1983 – Unlawful Arrest and Detention in Violation of Fourth

and Fourteenth Amendments

(Against Defendants Hawkins and Nocella Only)

96.


paragraphs 1-95 as if they were fully set forth herein.

97.




98.

Plaintiff is a citizen of the United States; Defendant Officers are persons for

the purposes of 42 U.S.C. § 1983.

99.

At all times relevant hereto the Defendant Officers were acting under the

color of law in their capacity as City of Chandler police officers and their acts or

omissions were conducted within the scope of their official duties or employment.

100.


Amendments clearly established Plaintiff’s right to be free from arrest and detention

without an officer having probable cause to believe the citizen had committed a crime

(hereinafter “unlawful arrest and detention”).

101.





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to be free from unlawful arrest and detention.

102.

The Defendant Officers violated Plaintiff’s rights when they conspired

and/or acted in concert to secure false charges against him, arrest him, and cause him to be

booked into jail and held in custody for 14 hours despite their knowledge that they lacked

probable cause for doing so.

103.

The Defendant Officers engaged in the conduct described by this Complaint

willfully, maliciously, in bad faith, and in reckless disregard of Plaintiff’s federally

protected constitutional rights.

104.

The arrest and imprisonment of Plaintiff for allegations the Defendan

Officers knew to be false was malicious, shocking, and objectively unreasonable in light

of the circumstances.

105.

The acts and omissions of the Defendant Officers as described herein

intentionally deprived Plaintiff of his constitutional and statutory rights and caused him

other damages.

106.

The Defendant Officers are not entitled to qualified immunity for the

complained-of conduct.

107.

At all times relevant hereto the Defendant Officers were acting pursuant to

municipal custom, policy, decision, ordinance, regulation, widespread habit, usage, or

practice with respect to their actions pertaining to Plaintiff.

108.

As a proximate result of the Defendant Officers’ unlawful conduct, Plaintiff

has suffered actual injuries, and other damages and losses as described herein entitling

him to damages in amounts to be determined at trial.

109.

Plaintiff is further entitled to attorneys’ fees and costs pursuant to 42 U.S.C


110. In addition to compensatory, economic, consequential, and special damages

Plaintiff is entitled to punitive damages against the Defendant Officers under 42 U.S.C. §



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1983, in that the actions of each of these defendants were taken maliciously, willfully or

with a reckless or wanton disregard of Plaintiff’s constitutional rights.

FOURTH CLAIM FOR RELIEF

Violation of 42 U.S.C. § 1983 – Deliberately Indifferent Policies, Practices, Customs,

Training, and Supervision in violation of the Fourth and Fourteenth Amendments

(Against Defendant Nocella and City of Chandler Only)

111.



112. 42 U.S.C section 1983 provides, in relevant part, as follows:



113.

Plaintiff is a citizen of the United States; Defendants to this claim are

persons for the purposes of 42 U.S.C. § 1983.

114.


Amendments to the United States Constitution guaranteed Plaintiff the right to be free

from unlawful arrest, unlawful detention, and malicious prosecution under the Fourth and

Fourteenth Amendments.

115. At the time of the complained-of events, Defendants Nocella and City of

Chandler knew or should have known of these rights.

116.

The acts or omissions of Defendants Nocella and City of Chandler, as

described herein, deprived Plaintiff of his constitutional and statutory rights and caused

him other damages.

117.

The acts or omissions of Defendants Nocella and City of Chandler as

described herein intentionally deprived Plaintiff of his constitutional and statutory rights



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and caused him other damages.

118.

Defendants Nocella and City of Chandler are not entitled to qualified

immunity for the complained-of conduct.

119. Defendants Nocella and City of Chandler were, at all times relevant hereto

policymakers for the City of Chandler Police Department and, in that capacity, established

policies, procedures, customs, and/or practices for the same.

120.

As a supervisor responsible for directing Defendant Hawkins with respect to

the arrest, detention, and criminal citation of Plaintiff, Defendant Nocella acted as a

policymaker for the City of Chandler Police Department.

121.

Defendant City of Chandler has developed and maintained policies

procedures, customs, and/or practices exhibiting deliberate indifference to the

constitutional rights of citizens, which were moving forces behind and proximately caused

the violations of Plaintiff’s constitutional and federal rights as set forth herein and in the

other claims, resulted from a conscious or deliberate choice to follow a course of action

among various available alternatives.

122.

Defendant City of Chandler has created and tolerated an atmosphere of

lawlessness, having developed and maintained long-standing, department-wide customs

law enforcement-related policies, procedures, customs, practices, and/or failed to properly

train and/or supervise its officers in a manner amounting to deliberate indifference to the

constitutional rights of Plaintiff and of the public.

123.

More specifically, Defendant City of Chandler has developed and

maintained, permitted to propagate and grow, and has a department-wide custom of

arresting, detaining, and ultimately charging citizens with crimes in an effort to insulate

itself from claims of excessive force, even if doing so requires fabrication of factua

evidence.



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124.

The improper training and supervision provided by Defendant Nocella and

deliberate indifference of the City of Chandler both resulted from a conscious or

deliberate choice to follow a course of action from among various alternatives.

125. As a direct result of Defendants Nocella and City of Chandler’s unlawfu

conduct, Plaintiff has suffered injuries, and other damages and losses as described herein

entitling him to compensatory and special damages, in amounts to be determined at trial.

126.

Plaintiff is further entitled to attorneys’ fees and costs pursuant to 42 U.S.C


FIFTH CLAIM FOR RELIEF

Assault and Battery under Arizona law

(Against Defendants Hawkins and City of Chandler Only)

127.



128.

As set forth herein, during his contact with Plaintiff, Defendant Hawkins

caused harmful or offensive contact with Plaintiff.

129.

As set forth herein, Defendant Hawkins acted outside the scope of his

authority to use lawful force, and therefore had no legal right to cause the harmful or

offensive contact with Plaintiff.

130.

As a direct and proximate cause of Defendant Hawkins’ harmful and

offensive contact, Plaintiff was injured and suffered other damages in an amount to be

proven at trial.

131.

As set forth herein, Defendant Hawkins was acting within the course andscope of his employment as a police officer for the City of Chandler when he made

contact with Plaintiff: Defendant Hawkins was performing an act he was authorized to

perform; he was on-duty working in his regular job capacity; and his actions were

motivated at least in part by a purpose to serve the City of Chandler.



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132.

Because Defendant Hawkins was acting within the course and scope of his

employment for the City of Chandler, Defendant City of Chandler is vicariously liable for

the damages caused by his tortious conduct.

SIXTH CLAIM FOR RELIEF

Abuse of Process under Arizona law

(Against All Defendants)

133.



134.

The criminal justice system is designed for the purpose of prosecuting

individuals that the State has probable cause to believe committed a criminal offense.

135.

As set forth herein, the Defendant Officers willfully used the crimina

justice system to accomplish an ulterior purpose for which the process or procedure was

not designed – namely, causing him to be charged with a criminal offense in an effort to

discourage, dissuade, or procedurally preclude Plaintiff from filing suit against Officer

Hawkins and/or the City of Chandler for excessive force.

136.

The improper purpose set forth in the forgoing paragraph was, in fact, the

Defendant Officers’ primary purpose in citing Plaintiff for a criminal offense.

137.

As a direct and proximate result of Defendants’ misuse of the legal process

or procedure Plaintiff was injured and suffered other damages in an amount to be proven

at trial.

138.

As set forth herein, the Defendant Officers were acting within the course

and scope of their employment as police officers for the City of Chandler when decided to

charge Plaintiff with a criminal offense: The Defendant Officers were performing acts

they were authorized to perform; were on-duty, working in their regular job capacity; and

their actions were motivated at least in part by a purpose to serve the City of Chandler.



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139.

Because the Defendant Officers were acting within the course and scope of

their employment for the City of Chandler, Defendant City of Chandler is vicariously

liable for the damages caused by their tortious conduct.

140. In addition to compensatory, economic, consequential, and special damages

Plaintiff is entitled to punitive damages against the Defendant Officers under Arizona law

because both of these defendants took deliberate, intentional, and malicious action agains

him.

SEVENTH CLAIM FOR RELIEFMalicious Prosecution under Arizona law


141.



142.

As set forth herein, the Defendant Officers initiated and/or took active part

in the criminal prosecution against Plaintiff.

143.

As set forth herein, the criminal prosecution against Plaintiff was terminated

in Plaintiff’s favor when the City of Chandler voluntarily dismissed the criminal

complaint against him without compromise or plea agreement of any kind.

144.

As set forth herein, the Defendant Officers acted with malice, causing him

to be charged with a criminal offense in an effort to discourage, dissuade, or procedurally

preclude Plaintiff from filing suit against Officer Hawkins and/or the City of Chandler for

excessive force.

145.

As a direct and proximate result of the Defendant’ Officers malicious

conduct, Plaintiff was injured and suffered damages in an amount to be proven at trial.

146. As set forth herein, the Defendant Officers were acting within the course

and scope of their employment as police officers for the City of Chandler when decided to

charge Plaintiff with a criminal offense: The Defendant Officers were performing acts



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they were authorized to perform; were on-duty, working in their regular job capacity; and

their actions were motivated at least in part by a purpose to serve the City of Chandler.

147.

Because the Defendant Officers were acting within the course and scope of

their employment for the City of Chandler, Defendant City of Chandler is vicariously

liable for the damages caused by their tortious conduct.

148.

In addition to compensatory, economic, consequential, and special damages

Plaintiff is entitled to punitive damages against the Defendant Officers under Arizona law

because both of these defendants took deliberate, intentional, and malicious action agains

him.

EIGHTH CLAIM FOR RELIEF

Negligence


149.



150.

The Defendants owed Plaintiff a duty of reasonable care, namely, the duty

to act as reasonable police officers under the circumstances.

151. Defendant Hawkins breached his duty of reasonable care to Plaintiff when

among other things, he: placed Plaintiff into a potentially dangerous situation, namely, a

pending investigation, when he requested Plaintiff’s assistance in removing Ms. Shunick

from her vehicle; used unreasonable and unnecessary force against Plaintiff; caused

Plaintiff to be detained in handcuffs on the sidewalk; caused Plaintiff to be arrested and

transported to jail; caused Plaintiff to be booked into jail and detained for 14 hours; and

caused Plaintiff to be cited and prosecuted for a criminal violation without probable cause

152. A reasonable officer in Defendant Hawkins’ position would not have taken

these actions.



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153.

Defendant Nocella breached his duty of reasonable care to Plaintiff when

among other things, he: instructed Defendant Hawkins to charge Plaintiff with a crimina

offense even if though there was no probable cause to maintain such a charge; caused

Plaintiff to be arrested and transported; caused Plaintiff to be booked into jail and detained

for 14 hours; and caused Plaintiff to be cited and prosecuted for a criminal violation

without probable cause.

154.

A reasonable officer in Defendant Nocella’s position would not have taken

these actions.

155.

Defendant City of Chandler breached its duty of reasonable care to Plaintif

when, among other things, it: permitted Defendant Hawkins to be in a position to injure

Plaintiff despite prior issues, including at least one prior lawsuit for excessive force

permitted Defendant Nocella to be in a supervisory position where he could give

unconstitutional orders; and failed to provide adequate and reasonable training and

supervision to these officers about proper methodologies in using force, conducting arrests

and detentions, and asserting criminal charges against citizens.

156.

A reasonable city or municipality in the City of Chandler’s position would

not have undertaken these acts and omissions.

157. As a direct and proximate result of the Defendant Officers’ acts and

omissions, Plaintiff was injured and suffered damages in an amount to be proven at trial.

158.

As set forth herein, the Defendant Officers were acting within the course

and scope of their employment as police officers for the City of Chandler during the sum

of their involvement in this matter: The Defendant Officers were performing acts they

were authorized to perform; were on-duty, working in their regular job capacity; and their

actions were motivated at least in part by a purpose to serve the City of Chandler.

159. In addition to its independent and direct liability for negligence, because the

Defendant Officers were acting within the course and scope of his employment for the



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City of Chandler, Defendant City of Chandler is vicariously liable for the damages caused

by the Defendant Officers’ tortious conduct.

WHEREFORE, Plaintiff Luke Hein hereby requests that the Court enter judgment

against Defendants as follows:

a.

For damages in an amount to compensate Plaintiff fairly and fully for the

numerous violations of his Constitutional Rights;

b.

For general, consequential, special, and compensatory damages, including

but not limited to his pain and suffering, mental anguish, lost wages, and

lost future income;

c.

For nominal damages as provided for by law;

d. For prejudgment interest on all liquidated sums;

e.

For attorneys’ fees under 42 U.S.C. §§ 1983 and 1988, and as provided for

by Arizona law;

f.

For Plaintiff’s costs and other expenses incurred in this action; and

g.

Such other and further relief as the Court deems just.

DATED this 27th day of July, 2015.

THE PEOPLE’S LAW FIRM

By: /s/ Stephen D. BenedettoStephen D. Benedetto



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CERTIFICATE OF SERVICE

I hereby certify that on the 27th

day of July, 2015, the foregoing was

electronically filed with the Clerk of the Court utilizing the CM/ECF filing system,

and that on said date I sent via electronic mail and U.S. Mail a copy of the foregoing

to:

Thomas A. Lloyd, Esq.Assistant City AttorneyChandler City Attorney’s OfficeMS602

PO Box 4008Chandler, AZ 85244-4008

/s/ Stephen D. BenedettoStephen D. Benedetto


hein v chandler amended complaint

Documents