filed - arkansas times · filed east~ri gssttrict court rict arkansas ... mr. hobbs's...

FILED EAST~Ri gsSTTRICT COURT

RICT ARKANSAS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

JAMES SOLER,

Plaintiff,

v.

LISA WILKINS, Arkansas Department of Corrections, RAY HOBBS, Former Director, Arkansas Department of Corrections, DOES 1-25, past and present employees of the Arkansas Department of Correction

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

No. 4:17-cv-(ji,~~~

COMPLAINT

42 u.s.c. §1983 Fourth and Fourteenth Amendments. Tort of Outrage, Arkansas Civil Rights Violations, False Imprisonment under

) Jury Trial Demanded

) . t-lrhis case assigned to District J!~ u.)r 61'1

_______________ ltnd to Magistrate Judge _be 0 l O.e, 1 .

COMPLAINT

Plaintiff alleges against the Defendants as follows:

I. The Parties

1. Plaintiff is and was at all times mentioned herein a resident of Alpine,

California, in San Diego County.

2. At all times mentioned herein, Defendant Lisa Wilkins worked as an

employee of the Arkansas Department of Correction (ADC) in various capacities,

1

Case 4:17-cv-00018-BRW Document 1 Filed 01/10/17 of 23

including investigative, advisory, legal, and administrative.

3. At all times mentioned herein, Defendant Ray Hobbs was the Director

of the ADC. (He has since retired from the ADC.)

4. At all times mentioned herein, Defendant Does 1-25 were employees of

the State of Arkansas or its agencies, including the ADC, or of political subdivisions

of the State of Arkansas (including counties, cities, or municipalities). Plaintiff is

informed and believes and thus alleges that all of the Doe Defendants are in some

manner responsible for the acts and injuries alleged herein. The true names and

capacities of the Doe Defendants are unknown to Plaintiff, so he sues those Defen

dants by fictitious names. Plaintiff will amend this complaint to allege those Defen

dants' true names and capacities when the same have been ascertained.

5. Defendants are sued individually for their actions as employees of the

ADC and/or the State of Arkansas and its agencies or political subdivisions. In

doing the acts alleged herein, Defendants acted within the course and scope of their

employment, and under the color and pretense of the statutes, ordinances, regula

tions, customs, and usages of the State of Arkansas. The State and the ADC have

Eleventh Amendment immunity and are not sued.

6. Plaintiff is informed and believes and therefore alleges that at all times

mentioned herein each of the Defendants, including the Doe Defendants, acted as

the agent, servant, employee, and/or subordinate of each of the remaining Defen-

2


dants and was, in doing the acts herein alleged, acting within the course and scope

of this agency and/or employment and with the permission, consent, and authority

of his/her co-defendants, and each is responsible in some manner for the occur-

rences hereinafter alleged, and that Plaintiffs injuries were proximately caused by

the actions or inactions of each. (This is not alleging law of agency liability for any

defendant; it alleges personal responsibility for actions and inactions.)

II. Facts

7. The Plaintiff, James Soler, is a 52-year-old man, and at all times

relevant to this case he lived in Alpine, California. In August 2013 he was 48.

8. On or about May 28, 1985, Steven Dishman escaped from the Arkansas

Department of Correction where he was in its custody serving a seven year term for

burglary and theft of property. James Soler and Steven Dishman are not the same

person. Dishman was about 30 at the time of his escape, and in August 2013 he was

56.

9. Some time after Mr. Dishman escaped from custody, but years prior to

August 2013, the ADC posted an internet notice at http://adc.arkansas.gov/escapee/1

regarding Mr. Dishman's escape status that noted, among other things, that he has

scars on his left wrist and on his forehead between his eyes, and that when he

1 http://adc.arkansas.gov/escapee/EscapeDetail.aspx?id=8 (last accessed Jan. 8, 2017).

3


escaped in 1985 he weighed 159 pounds (not that weight 29 years later is relevant).

A similar posting on the ADC' s "Inmate Details" website, also posted years prior to

August 2013, provides additional identifying information for Mr. Dishman, includ-

ing that he has blue eyes. Both notices have a photograph of Mr. Dishman, taken

prior to his escape, that shows that on December 26, 1984, he had his hair parted in

the center and had a full beard on his face.2 The escapee notice shows that Mr.

Dishman has a 1" scar on his left wrist and a scar on his forehead between his eyes.

10. In early 2012, Plaintiff and his wife began having what developed into

ongoing problems with their then-neighbors, Jose Lara and Connie Lara (also

known as Connie Avila). That conflict involved, among other things, the Laras

making several unsubstantiated complaints to the San Diego Sheriff's Department

about Plaintiff. Furthermore, on or about August 2, 2013, Plaintiff was arrested by

San Diego Sheriff's Department deputies on a charge of being drunk in public, an

arrest based on a complaint made by the Laras. As a result of that arrest, the San

2The escaped inmate notice is still posted on the ADC website at http://adc.arkansas.gov/escapee/EscapeDetail.aspx?id=8 (last accessed Jan. 8, 201 7), and it shows that Mr. Dishman is 60 years old. The other ADC website inmate link on Mr. Dishman, which contains additional information, is at http://adc.arkansas.gov/inmate info/search.php?dcnum=083636 (last accessed Jan. 8, 201 7). Both sites display the December 26, 1984 mugshot photograph of Mr. Dishman. On the first cite, below the photograph is the notation, "Photo as of: 21612007." It is not clear what that date is intended to indicate, but the photograph is clearly the same prison intake mugshot as on Mr. Dishman's inmate page, and the date is in the photograph as in traditional older mugshots.

4


Diego Sheriff's Department took Mr. Soler's fingerprints and made a record of

identifying characteristics on his body, including his lack of scars or tattoos and his

brown eye color.

11. Five days later, at approximately 2:00 a.m. CST on August 7, 2013,

Ms. Lara called the ADC and stated to Lt. Smart that she believed her neighbor,

Plaintiff James Soler, was Steven Dishman, the escaped inmate from the ADC. At

approximately 3:00 a.m. CST, Lt. Smart contacted the San Diego Sheriff's Depart

ment and asked the person he spoke with there "to look into the incident." At

approximately 5:00 a.m. CST, San Diego Sheriff's Deputy Knowles spoke with Lt.

Smart and advised that to arrest Mr. Soler the San Diego Sheriff's Department

would need there to be an active arrest warrant, and there was no such warrant at

that time. Lt. Smart asked Deputy Knolwes "ifhe had reason to believe [Mr. Soler]

was the same individual that was listed as an escaped inmate from [the ADC]."

Deputy Knowles said that he "could not verify" that the two men were the same

person.

12. Defendant Ray Hobbs, who was then the Director of the ADC, subse

quently assigned Lisa Wilkins, an employee in the ADC Central Office, to investi

gate whether Mr. Soler was the escapee Steven Dishman, and to pursue appropriate

measures based on what she learned.

13. Early on the morning of August 7, 2013, just a few hours after Lt.

5


Smart spoke with Deputy Knowles, Ms. Wilkins decided to seek Mr. Soler' s arrest

in, and extradition from, California. She made that decision based solely on the

statements that Ms. Lara made to Lt. Smart earlier that day witihout: ( 1) conducting

any follow-up investigation, let alone a reasonable one, including sending Mr. Dish-

man's fingerprints to San Diego by email or overnight express; (2) asking any other

person or entity to conduct any follow-up investigation, including asking whether

Mr. Soler's fingerprints were on file in San Diego or AFIS (Automated Fingerprint

Identification System) which was in wide use by 2013 and in Arkansas since 20003;

or (3) obtaining any additional information to accurately assess whether Mr. Soler

was the escapee Steven Dishman.

14. Over the next several weeks, Ms. Wilkins periodically apprised Mr.

Hobbs of her efforts with respect to the Dishman/Soler matter, and she advised Mr.

Hobbs that ( 1) there was probable cause to believe that Mr. Soler was the escapee

Steven Dishman, and (2) there was probable cause to support Mr. Soler's arrest in,

and extradition from, California. Yet, they completely lacked probable cause.

15. Ms. Wilkins drafted or collected all of the documents necessary to

support the ADC's request that the Governor of Arkansas issue a requisition to the

Governor of California seeking Mr. Soler's arrest in, and extradition from, Califor-

3 Romes v. State, 356 Ark. 26, 34, 144 S.W.3d 750, 755 (2004) (referring to a 2000 AFIS search in Arkansas).

6


nia under the Uniform Criminal Extradition Act. When the appropriate paperwork is

presented to the requesting state's Governor and that Governor sends it on to the

"asylum state,"4 there is a duty to arrest for extradition if probable cause is shown

and the person sought is, indeed, the correct person. Ark. Code Ann.§ 16-94-201 et

seq., Cal. Pen. Code § 1548 et seq., U.S. Const., Art. IV, § 2, cl. 2; 18 U.S.C.

§ 3182.5

16. Amongst the documents that Ms. Wilkins drafted was a sworn affidavit

for Mr. Hobbs's signature, which was necessary to obtain a judicial finding of

probable cause to believe that Mr. Soler was the escapee Steven Dishman. That

finding was necessary to cause Mr. Soler's arrest in, and extradition from, Califor-

nia. To support the conclusion that Mr. Soler was Mr. Dishman, Mr. Hobbs's

affidavit stated, "I have new and reasonably believe it to be accurate information as

to [Mr. Dishman's] current residence at [Mr. Soler's street address], Alpine, Califor-

nia, and is living under the alias of James De Wolfe Soler." That was the entirety of

the information provided in Mr. Hobbs's sworn affidavit (or otherwise) to support a

4 A term of art in extraditions. It means literally "the state where the alleged fugitive is found." See, e.g., Swann v. State, 206 Ark. 184, 186, 174 S.W.2d 557, 558 (1943).

5 See, e.g., California v. Superior Court, 482 U.S. 400, 408 (1987) (asylum state can't inquire into justification for request); Pacileo v. Walker, 449 U.S. 86, 87-88 ( 1980) (per curiam) (the infamous Jam es Dean Walker extradition from California after he was found under an assumed name).

7


finding of probable cause to believe that Mr. Soler was the escapee Steven Dish-

man. It is a bare conclusion unsupported by a factual representation to the judge.

Any reasonable person reading the affidavit should have known that it was bare-

bones and could not be relied upon to support probable cause for an arrest.

1 7. Relying on Ms. Wilkins's representations to him that the Dishman/

Soler identity issue had been adequately investigated, and that there was probable

cause to believe that Mr. Soler was the escapee Steven Dishman, on September 25,

2013 Mr. Hobbs signed the affidavit of probable cause discussed above. Mr. Hobbs

did not conduct any investigation of his own, and instead relied on his agency

employee. Notably, he asked no rudimentary questions, like: "Are we sure this is the

right man? Have the fingerprints been compared? What is Mr. Soler's history in

California? After all it has been 30 years." Apparently Ms. Wilkins didn't ask such

questions either. A cursory examination of the affidavit would have also showed

Mr. Hobbs that the affidavit failed to show minimal probable cause.

18. On September 25, 2013, Ms. Wilkins and Mr. Hobbs presented his

affidavit to Jefferson County Circuit Judge Jodi Raines Dennis.6 Ark. Code Ann.

§ 16-94-203 (requirement of affidavit for extradition). Based on Mr. Hobbs's

affidavit, and specifically based on the language quoted above, Judge Dennis issued

6 The ADC is an agency of the State of Arkansas, and its Central Office is located at Pine Bluff in Jefferson County.

8


an Affidavit [and finding] of Probable Cause, which was also drafted by Ms.

Wilkins and was presented to Judge Dennis by Ms. Wilkins and Mr. Hobbs. That

Affidavit of Probable Cause stated, "I find there is sufficient and probable cause to

support the extradition of Steven Dishman, a/k/a James DeWolfe Soler from the

State of California or wherever he may be located to Arkansas."

19. When Judge Dennis signed the Affidavit of Probable Cause on Septem

ber 23, 2013 at Mr. Hobbs's ADC office Ms. Wilkins and Mr. Hobbs were present,

and Ms. Wilkins assured Judge Dennis that she (Ms. Wilkins) was aware of infor

mation, not specified, that supported the conclusion that there was probable cause to

believe that Mr. Soler was the escapee Steven Dishman.

20. After Judge Dennis signed the Affidavit of Probable Cause, Ms.

Wilkins personally took it, Mr. Hobbs's affidavit, and other materials that she had

prepared to the Office of Arkansas Governor Mike Beebe. In reliance on Mr.

Hobbs's affidavit and the affidavit/finding signed by Judge Dennis, on or about

October 10, 2013, Governor Beebe issued a "requisition" for extradition to Califor

nia Governor Brown. Included with Governor Beebe's requisition for extradition

was Mr. Hobbs's affidavit and Judge Dermis's affidavit/finding that there was

probable cause to believe that James Soler was the escapee Steven Dishman.

21. Relying on Mr. Hobbs's sworn representation that Mr. Soler was the

Arkansas escapee Steven Dishman, the probable cause affidavit/finding to that

9


effect by Judge Dennis, and the request for extradition based thereon, on or about

November 27, 2013 the Office of the Governor of California, through Peter A.

Krause, Interstate Rendition Officer, and Debra Bowen, Secretary of State, issued a

governor's warrant of rendition as they had a duty to do. That document com-

manded the arrest of "Steven Lee Dishman aka James De Wolfe Soler ... and [that he

be] delivered ... into the custody of the designated agent(s), to be returned to the

State of Arkansas .... " When the paperwork is in order, the "asylum state" (Califor-

nia) has a duty to issue a Governor's Extradition Warrant to return the subject to the

"requsting state" (Arkansas). Ark. Code Ann. § 16-94-202 & Cal. Penal Code

§ 1587.1 are identical under the Uniform Act. 7

22. Mr. Hobbs's affidavit discussed above, and the Affidavit of Probable

Cause signed by Judge Dennis, were essential to the subsequent issuance of Gover-

nor Beebe's requisition for Mr. Soler's extradition, and Californa Governor

Brown's issuance of the warrant for Mr. Soler's arrest and extradition. That is,

without Mr. Hobbs's affidavit having been presented to her, Judge Dennis would

not have signed the Affidavit of Probable Cause, in which case Arkansas Governor

7

Subject to the provisions of this chapter, the Constitution of the United States, and the laws of the United States, it is the duty of the Governor of this State to have arrested and delivered up to the executive authority of any other State any person charged in that State with treason, felony, or other crime, who has fled from justice and is found in this State.

10


Beebe would not have issued the requisition for extradition and Governor Brown

would not have issued a warrant commanding Mr. Soler's arrest and extradition.

Indeed, Ms. Wilkins and Mr. Hobbs knew that once a Governor's warrant from

Arkansas was received in California, plaintiff would be arrested as a matter of

course. That's how extradition works.

23. The only information submitted to support Judge Dennis's finding that

Mr. Soler was the escapee Steven Dishman was what is quoted above from Mr.

Hobbs's affidavit. Any reasonable law enforcement officer would have known that:

( 1) the bare bones Hobbs affidavit did not establish probable cause to believe that

Mr. Soler was the escapee Steven Dishman, and thus did not establish probable

cause for the arrest of Mr. Soler; and (2) the totality of the information known to

Defendants Hobbs and Wilkins did not support a finding of probable cause to

believe that Mr. Soler was the escapee Steven Dishman, and thus did not establish

probable cause for the arrest of Mr. Soler.

24. In submitting Mr. Hobbs's affidavit to Judge Dennis and then to

Governor Beebe to cause Mr. Soler' s arrest and extradition, Defendants Hobbs and

Wilkins intentionally or recklessly misrepresented, or knowingly failed to mention,

the following material facts: (1) that the only thing that Defendants Wilkins and

Hobbs relied on to conclude that Mr. Soler was the escapee Steven Dishman was the

unconfirmed allegation of Mr. Soler's neighbor, Connie Lara, made to Lt. Smart of

11


the ADC on August 7, 2013; (2) that Ms. Lara had also told Lt. Smart that she and

her husband, Jose Lara, were involved in an ongoing dispute with Mr. Soler, and

that Ms. Lara and her husband had caused Mr. Soler to be arrested by San Diego

Sheriffs Department deputies on August 2, 2013 8; (3) that on August 7, 2013, San

Diego Sheriffs Department Deputy Knowles told Lt. Smart that he could not verify

that Mr. Soler was the escapee Steven Dishman; (4) that Mr. Dishman's and Mr.

Soler' s fingerprints had not been compared, or had been compared and did not

match; (5) that Mr. Soler's eyes are brown and Mr. Dishman's are blue; (6) that Mr.

Soler does not have any scars, whereas Mr. Dishman has scars on his forehead,

wrist, and arm; (7) that Mr. Dishman has never been known to use the name James

Soler, and vice versa; (8) that Mr. Dishman's and Mr. Soler's birth dates are

different, Mr. Dishman being nine years older than Mr. Soler; (9) that photographs

of Mr. Dishman and Mr. Soler from the mid-1980s show that they did not even

remotely look alike; (10) that records showed that in the mid-1980s, Mr. Dishman

weighed 159 pounds, whereas Mr. Soler weighed approximately 125 pounds; and

(11) that records showed that in 1985, when Mr. Dishman was imprisoned in

Arkansas, Mr. Soler lived in Jamul, California, where he had lived for many years.

25. In seeking and causing Plaintiffs unreasonable and unlawful arrest,

8 Thus, they had to know that plaintiffs fingerprints were already in the San Diego County Sheriffs Office AFIS system.

12


Defendant Wilkins acted in an investigatory capacity, and also advised Defendant

Hobbs that there was probable cause (1) to believe that Mr. Soler was the escapee

Steven Dishman, and (2) to support the arrest and extradition of Mr. Soler.

26. On January 13, 2014, Plaintiff was arrested by two San Diego County

Sheriffs Deputies while he was in the driveway of his home in Alpine, California.

He was arrested based on the Governor's warrant that the Defendants had caused to

be issued.

27. At the time of the arrest, the lead deputy involved, Robert Germain,

was immediately concerned that Plaintiff was not the wanted escapee Steven Dish

man. Because of that, Deputy Germain took Plaintiff to a nearby Sheriffs substation

in Alpine to investigate the matter, rather than immediately taking Plaintiff to the

downtown San Diego jail 45 minutes away, which he normally would do after

making such an arrest. Deputy Germain's concern was piqued by, among other

things, the fact that Plaintiff does not have scars that are indicated as identifying

information for Mr. Dishman.

28. At the Sheriffs substation, Deputy Germain relatively swiftly became

convinced that he had arrested the wrong person. Deputy Germain telephoned

Defendant Wilkins at the ADC and told her that he intended to release Plaintiff. Ms.

Wilkins responded by insisting that she was "positive" that Plaintiff was the escapee

Steven Dishman, and she convinced Deputy Germain to continue to detain Plaintiff

13


even longer. Rather than be more cautious about her assertions, she become more

resolute even though she was acting with reckless disregard for the true facts.

29. The following morning, on January 14, 2014, Ms. Wilkins and Deputy

Germain communicated further and Ms. Wilkins continued to assert, without factual

support, to Deputy Germain in San Diego County that Plaintiff was the escapee

Steven Dishman.

30. In the time period during which Ms. Wilkins made her efforts to

convince Deputy Germain to continue to detain Plaintiff, Ms. Wilkins was in regular

contact with Mr. Hobbs and she and Mr. Hobbs acted collusively and cooperatively

in their effort to prevent Plaintiffs release. Mr. Hobbs, too, recklessly failed to

investigate further when confronted with the San Diego County deputy's assertion

and concern that Mr. Soler was the wrong man.

31. As a result of Ms. Wilkins's and Mr. Hobbs's efforts, Plaintiff contin

ued to be held in custody at the San Diego Central Jail, where, as an alleged es

capee, he was kept in solitary confinement until approximately 10:00 p.m. on

January 21, 2014, when he was released from custody.

32. On January 22, 2014, San Diego County Deputy District Attorney

Richard Madruga appeared in San Diego Superior Court and said, "Your Honor, last

night we did receive a fingerprint comparison on this case showing that James

Soler, the defendant in custody, is not the wanted individual from Arkansas. I called

14


the Sheriffs Department and they released Mr. Soler."

33. As a proximate result of the acts alleged above, Plaintiff was injured in

mind and body, including physical pain, emotional distress, fear, anxiety, humilia

tion, and constitutionally wrongful confinement without probable cause.

34. Plaintiff also incurred foreseeable expenses, including attorneys fees,

as a result of the events discussed above.

III. Jurisdiction and Venue

35. Plaintiffs claims arise under 42 U.S.C. § 1983 and the Fourth and

Fourteenth Amendments to the United States Constitution. Thus jurisdiction is

conferred upon this Court by 28 U.S.C. §§ 1331 & 1343. There are also state law

claims, over which the Court has supplemental jurisdiction under 28 U.S.C. § 1367.

36. Plaintiffs claims against these defendants arise out of acts of the

Defendants that occurred in the Eastern District of Arkansas, thus venue is·appropri

ate in this Court.

37. Plaintiff previously named Lisa Wilkins and Ray Hobbs as defendants

in a related civil action filed in the United States District Court for the Southern

District of California, Soler v. County of San Diego, et al., S.D. Cal. No. 14-cv-

2470-MMA. Ms. Wilkins and Mr. Hobbs filed a motion to dismiss based on a lack

of personal jurisdiction over them in that venue. That motion was granted on August

23, 2016. Hence, this action brought in Arkansas.

15


38. As for the most convenient forum, Defendants Wilkins and Hobbs have

previously filed a motion in this Court to quash subpoenas for their depositions,

subpoenas that were issued as part of the Southern District of California case. See

Lisa Wilkins and Ray Hobbs v. James Soler, E.D. Ark. Case No. 4: 16-mc-0006-

KGB. Thus, Ms. Wilkins and Mr. Hobbs have shown a preference for the Little

Rock forum by filing that action here rather than Pine Bluff. Plaintiff further is

informed that Ms. Wilkins resides in Little Rock, she hand delivered the extradition

paperwork at issue in this case to the Governor's Office in Little Rock, and potential

witnesses in the Governor's Office are in Little Rock. Furthermore, for reasons of

judicial efficiency it may thus be advisable for this case to be assigned to District

Judge Baker. In addition, counsel for all parties are in Little Rock, including the

Attorney General's Office for Defendants, except for one of Mr. Soler's attorneys,

who resides in San Diego and thus favors this division due to its proximity to the

Little Rock airport. Finally, many of the anticipated trial witnesses will come from

the San Diego area, which also makes this Division more convenient due to its

proximity to the Little Rock airport.

IV. Causes of Action

Countl

Fourth Amendment and Unlawful Arrest

39. Through their actions in Arkansas, Defendants Wilkins and Hobbs

16


caused Plaintiffs wrongful arrest on January 13, 2014 in San Diego County,

California. They submitted to Judge Dennis and Governor Beebe the barebones

affidavit of Mr. Hobbs claiming that Plaintiff was the escapee Steven Dishman. Any

reasonable law enforcement officer would have known that: (1) Mr. Hobbs's

affidavit did not support a finding of probable cause for an arrest, or that Plaintiff

was the escapee Steven Dishman; and (2) the totality of the information that

Defendants Hobbs and Wilkins relied on did not support a finding of probable cause

to believe that Plaintiff was the escapee Steven Dishman.

40. Furthermore: (1) in making their assertion of probable cause in Mr.

Robb's affidavit, and during their September 23, 2013 meeting with Judge Dennis,

Defendants Hobbs and Wilkins deliberately or recklessly misstated facts, and/or

knowingly failed to mention material facts;9 and (2) had those false statements not

been made, and had those facts not been omitted, Judge Dennis would not have

signed the Affidavit of Probable Cause/finding, the Governor's warrant would not

have been issued, and Plaintiff would not have been arrested.

41. Doe Defendants 1-25 acted in concert with Defendants Wilkins and

Hobbs in causing Plaintiffs wrongful arrest, and with knowledge or with reckless

9 Compare Franks v. Delaware, 438 U.S. 154 (1978), which applies to arrest warrants as well: Odom v. Kaizer, 638 Fed. Appx. 553, 554 (8th Cir. 2016); Murray v. Lene, 595 F.3d 868, 872 (8th Cir. 2010); Bagbyv. Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996).

17


disregard that there was not probable cause to believe that Plaintiff was the 1985

escapee Steven Dishman.

42. As a result of the Defendants' actions, Plaintiff was unlawfully seized,

arrested, and incarcerated in violation of his constitutional rights, as guaranteed by

the Fourth Amendment to the U.S. Constitution as applicable to the states by the

Fourteenth Amendment. Thus, Plaintiff is entitled to general and compensatory

damages under 42 U.S.C. § 1983 in an amount to be proven at trial.

43. In committing the acts alleged above, Defendants acted maliciously

and/or were guilty of a wanton and reckless disregard for the rights, feelings, and

safety of Plaintiff, and by reason thereof Plaintiff is entitled to exemplary and

punitive damages in an amount to be proven at trial.

Count2

Fourth and Fourteenth Amendments and Unlawful Detention

44. Aside from plaintiffs initial arrest without probable cause, Defendants

caused Plaintiffs unlawful and unreasonably prolonged detention, without even

arguable probable cause to believe that he was the escapee Steven Dishman, in

violation of his constitutional rights as guaranteed by the Fourth and Fourteenth

Amendments to the U.S. Constitution. When presented with doubts from California

that Mr. Soler was Mr. Dishman, defendants pressed on without reckless disregard

for the truth.

18


45. Doe Defendants 1-25 acted in concert with Defendants Wilkins and

Hobbs in causing Plaintiffs unlawful and unreasonably prolonged detention, with

knowledge that there was not probable cause to believe that Plaintiff was the

escapee Steven Dishman.

46. As a result, Plaintiff is entitled to general and compensatory damages

under 42 U.S.C. § 1983 in an amount to be proven at trial.

4 7. In committing the acts alleged above, Defendants acted maliciously




Count3

Conduct Shocking the Conscience-Due Process

48. Defendants' conduct discussed above "shocks the conscience" and

violates due process under the Fourteenth Amendment to the U.S. Constitution, 10

and thus Plaintiff is entitled to general and compensatory damages under 42 U.S.C.

§ 1983 in an amount to be proven at trial.



10 Rochin v. California, 342 U.S. 165, 172 ( 1952); County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998); Caperton v. A. T Massey Coal Co., 556 U.S. 868, 887 (2009). See also McDonald v. City of Chicago, 561 U.S. 742, 793 (2010).

19




Count4

Tort of Outrage

50. As required by AMI 401, Defendants willfully and wantonly engaged

in extreme and outrageous conduct as defined in AMI 401, 11 which proximately

caused damage to Plaintiff in the nature of emotional distress and bodily harm, and

thus Plaintiff is entitled to general and compensatory damages in an amount to be

proven at trial. The Defendants knew or should have known in the light of surround-

ing circumstances that their would will naturally and probably result in emotional

distress and potential bodily harm and continued such conduct in reckless disregard

of the consequences.





11 AMI 401:

By extreme and outrageous conduct, I mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.

20


Count 5

State Civil Rights Violations, Ark. Code Ann.§ 16-123-105

52. Defendants, while acting under color of law (including statutes,

ordinances, regulations, customs, and/or usages of Arkansas) caused Plaintiff to be

subjected to deprivation of rights, privileges, and/or immunities secured by the

Arkansas Constitution to due process of law and against unreasonable seizure, 12

which proximately caused injury to Plaintiff and thus Plaintiff is entitled to general

and compensatory damages in an amount to be proven at trial.





Count6

False Imprisonment

54. Defendants are liable for the false imprisonment of Plaintiff, thereby

entitling Plaintiff to recover compensatory damages against those Defendants.

55. In committing the acts alleged herein, Defendants acted with malice,

oppression, and fraud. Accordingly, Plaintiff is entitled to obtain punitive damages

12 Due process is Ark. Const., art. 2, § 8 ("nor shall any person ... be deprived of life, liberty or property, without due process of law .... "). The state search and seizure provision is Ark. Const., art. 2, § 15, and it reads the same as the Fourth Amendment. It is subject to broader construction, but in areas not relevant here.

21


against Defendants in an amount sufficient to punish and deter such conduct,

according to proof at the time of trial.

56. False imprisonment has a one year statute oflimitations, but it is tolled

by the pendency of the action in the Southern District of California.

V. Prayer for Relief

Plaintiff prays for judgment against Defendants and each of them as follows:

57. For general and compensatory damages against Defendants in an

amount to be proven to a jury at trial;

58. For exemplary and punitive damages against Defendants in an amount

to be proven to a jury at trial;

59. For costs of suit herein, including reasonable attorneys fees, under 42

U.S.C. § 1988 for the federal claims and Ark. Code Ann.§ 16-123-105 for the state

claims.

60. For such other relief and damages to which Plaintiff is entitled pursuant

to federal or state law.

VI. Demand for Jury Trial

61. Plaintiff hereby demands a jury trial in this action.

22


Respectfully Submitted,

Ark. Bar No. 73047 1202 Main Street, Suite 210 Little Rock, Arkansas 72202 (501) 371-9131 I fax (501) 378-0888 Email: [email protected]

TODD W. BURNS 13

Cal. Bar No. 194937 Bums & Cohan, Attorneys at law 1350 Columbia Street, Suite 600 San Diego, California 92101 (619) 236-0244 I fax (619) 768-0333 Email: [email protected]

Attorneys for Plaintiff

AFFIDAVIT

I, John Wesley Hall, swear that I have been unable to identify all possible tortfeasors in this case without discovery; therefore their identities are still unknown. Ark. Code Ann.§ 16-56-125. This is sworn under penalty of perjury. 28 u.s.c. § 1746.

January 9, 2017

13 Mr. Bums represents Plaintiff in a related civil case pending in the Southern District of California, Soler v. County of San Diego, et al., S.D. Cal. Case No. 14-cv-2470-MMA (RBB), and he will be moving to be admitted to this Court pro hac vice for the purposes of this case, under Local Rule 83.5(d).

23


JS44 (Rev.08/16) CIVIL COVER SHEET L\ ~,I i- c v\ i The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is reqmred for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM)

I. (a) PLAINTIFFS James Soler

(b) County of Residence ofFirst Listed Plaintiff San Diego, California (EXCHPTIN U.S. PLAINT/H' CASES)

( C) Attorneys (Firm Name, Address, and Telephone Number) John Wesley Hall 1202 Main Street, Suite 210 Little Rock, Arkansas 72202 (501) 371-9131

DEFENDANTS Lisa Wilkins, Arkansas Department of Corrections; Ray Hobbs, Former Warden, Arkansas Department of Corrections; Does 1-25.

County of Residence of First Listed Defendant Pulaski, Arkansas (IN U.S. PLAINTlrF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

C. Joseph Cordi, Jr. Arkansas Office of the Attorney General

II. BASIS OF JURISDICTION (Placean "X"inOneBoxOnlyJ III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff

I

I

0 I U.S. Government

Plaintiff

0 2 U.S. Government Defendant

~ 3 Federal Question

(US. Government Not a Party)

0 4 Diversity (Indicate Citizenship of Parties in Item III)

IV NATURE OF SUIT (Place an "X" in One Box Only) £0,.•w•• TORTS

0 II 0 Insurance PERSONAL INJURY PERSONAL INJURY 0 120 Marine 0 310 Airplane 0 365 Personal Injury -0 130 Miller Act 0 315 Airplane Product Product Liability 0 140 Negotiable Instrument Liability 0 36 7 Health Care/ O 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical

& Enforcement of Judgment Slander Personal Injury 0 I 51 Medicare Act O 330 Federal Employers' Product Liability 0 152 Recovery of Defaulted Liability 0 368 Asbestos Personal

Student Loans 0 340 Marine Injury Product (Excludes Veterans) 0 345 Marine Product Liability

0 153 Recovery of Overpayment Liability PERSONAL PROPERTY of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud

0 160 Stockholders' Suits 0 355 Motor Vehicle 0 371 Truth in Lending 0 I 90 Other Contract Product Liability O 380 Other Personal 0 195 Contract Product Liability 0 360 Other Personal Property Damage 0 l 96 Franchise Injury 0 385 Property Damage

0 362 Personal Injury - Product Liability Medical Maloractice

REAL PROPER:JY CIVIL RIGHTS PRf"nNER PETITIONS

0 210 Land Condemnation ~ 440 Other Civil Rights Habeas Corpus: 0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee 0 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate 0 240 Torts to Land 0 443 Housing/ Sentence 0 245 Tort Product Liability Accommodations 0 530 General 0 290 All Other Real Property 0 445 Amer. w/Disabilities - 0 535 Death Penalty

Employment Other: 0 446 Amer. w!Disabilities - O 540 Mandamus & Other

Other 0 550 Civil Rights 0 448 Education 0 555 Prison Condition

0 560 Civil Detainee -Conditions of Confinement

V. ORIG IN (Place an "X" in One Box Only)

(For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF

Citizen of This State 0 0 I Incorporated or Principal Place 0 4 0 4

Citizen of Another State

Citizen or Subject of a Foreil!D Countrv

FO ":JY

0 625 Drug Related Seizure of Property 21 USC 881

0 690 Other

I .a ........

0 710 Fair Labor Standards Act

0 720 Labor/Management Relations

0 740 Railway Labor Act 0 751 Family and Medical

Leave Act 0 790 Other Labor Litigation O 791 Employee Retirement

Income Security Act

IMMIGRATION

of Business In This State

0 2 0 2 Incorporated and Principal Place of Business In Another State

0 05

0 0 3 Foreign Nation 0 6 0 6

Click here for· Nature of Suit Code Descriotions ,~;I DTHEKSTATUTES

0 422 Appeal 28 USC ! 58 0 375 False Claims Act 0 423 Withdrawal 0 376 Qui Tam (31 USC

28 use 157 3729(a)) O 400 State Reapportionment • -··..!~-. .,.. 0 410 Antitrust

O 820 Copyrights O 430 Banks and Banking O 830 Patent O 450 Commerce 0 840 Trademark O 460 Deportation

0 4 70 Racketeer Influenced and -M <& . Corrupt Organizations

0 861 HIA (1395ft) 0 480 Consumer Credit O 862 Black Lung (923) O 490 Cable/Sat TV 0 863 DIWC/DIWW (405(g)) 0 850Securitie~Commodities/ 0 864 SSID Title XVI Exchange 0 865 RSI (405(g)) 0 890 Other Statutory Actions

0 891 Agricultural Acts 0 893 Environmental Matters 0 895 Freedom of Information

FEDVD.U TJ\X!illllTlii\ Act

0 870 Taxes (U.S. Plaintiff 0 896 Arbitration or Defendant) O 899 Administrative Procedure

0 871 IRS-Third Party Act/Review or Appeal of 26 use 7609 Agency Decision

0 950 Constitutionality of State Statutes

0 462 Naturalization Application 0 465 Other Immigration

Actions

~ 1 Original D 2 Removed from D 3 Remanded from Appellate Court

D 4 Reinstated or D 5 Transferred from D 6 Multidistrict D 8 Multidistrict Litigation -Direct File

Proceeding State Court Reopened Another District Litigation -(s eci ~ Transfer

I

Cite the U.S. Civil Statute under which you are filing (Do not cite }•risdlctlonal stalllles .nless diversity): 42 USC 1983

VI. CAUSE OF ACTION '"s-n-.e-f-de_s_cn-.p-ti-on-of_c_a-us_e_: -----------------------------------

Causes of action for unlawful arrest and detention, and related state causes under supplemental jurisdiction. VII. REQUESTED IN

COMPLAINT: 0 CHECK IF TIIIS IS A CLASS ACTION DEMAND S CHECK YES only if demanded in complaint:

VIII. RELATED CASE(S) IF ANY

DATE

01/09/2017 FOR OFFICE USE ONLY

RECEIPT# AMOUNT

UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ;I!( Yes D No

(See instructions): JUDGE Hon. Kristine G. Baker DOCKET NUMBER 4: 16-mc-0006-KGB

APPL YING IFP JUDGE MAG.WOGE

Case 4:17-cv-00018-BRW Document 1-1 Filed 01/10/17 Page 1 of 1

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