in the united states district court western district … · western district of missouri . central...

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION P. M., a minor, by his mother and next ) friend, BRITTANY WHITWORTH, ) ) and ) ) BRITTANY WHITWHORTH, ) ) and ) ) JONATHAN WHITWORTH, ) ) Plaintiffs, ) ) v. ) Case No. ) (1)LANCE BOLINGER, ) JURY TRIAL DEMANDED ) and ) ) (2) MICHAEL CAVENER, ) ) and ) ) (3) CRYSTAL CLEMENTS, ) ) and ) ) (4) CATHY DODD, ) ) and ) ) (5) ROBERT FOX, ) ) and ) ) (6) SCOTT HENDRICK, ) ) and ) ) (7) RICHARD HORRELL, )

1

Case 2:10-cv-04208-NKL Document 1 Filed 09/20/10 of 36

) and ) ) (8) KYLE LUCAS, ) ) and ) ) (9) THOMAS QUINTANA, ) ) and ) ) (10) MICHAEL PARSONS, ) ) and ) ) (11) JEFFRY RUKSTAD, ) ) and ) ) (12) ROGER SCHLUDE, ) ) and ) ) (13) CITY OF COLUMBIA, MISSOURI ) ) and ) ) (14) UNKNOWN POLICE OFFICER(S) ) ) Defendants. )

COMPLAINT

INTRODUCTORY STATEMENT

1. A Boone County search warrant was executed by the Columbia Poli

Department at about 8:00 p.m. on February 11, 2010, at 1501 Kinloch

Court, Columbia, Missouri.

ce

2


2. The residential home was occupied by Jonathan Whitworth, his wife

Brittany Whitworth (f/k/a Brittany Montgomery), and their seven year ol

minor child, P

d

.M.

es

house.

is

xt,

3. Initially, the police officers banged on the front door with loud voic

demanding immediate entry.

4. One of the two family dogs ran to the front door, attracted by the noise.

5. A police officer opened the door and immediately fired a shot from his

assault weapon into the

6. When the first shot was fired into the home, P. M. was in his bed with h

mother, Brittany Whitworth, who was reading him to sleep. P. M.’s step-

father, Jonathan Whitworth, immediately ran toward the family living room

as the second shot was fired into the home. P. M. and his mom were in P.

M.’s bedroom when he heard the next series of shots fired into the kitchen

which killed P.M.’s pet dog, Nala. The police chased and pursued the dog

from the front door into the kitchen firing their assault weapons at the dog

until it was dead. The police also wounded a second dog (Bruno) which was

hit and wounded by several projectiles. In all, seven shots were fired into

Whitworth home.

7. P.M. and his mother were ordered to step over Jonathan Whitworth who

was ordered face-down in the hallway, and toward the bloody kitchen. Ne

P.M. and Brittany were required to sit, at gun point, in the front entry way

of their home. Directly in P.M.’s line of sight was his just-killed pet dog,

3


Nala. Next, Jonathan Whitworth, who was still prone and on the ground,

was kicked by a police officer. The masked, armed police officers who fired

their assault weapons into the Whitworth’s home at least seven times were

all Columbia, Missouri, police officers.

8. Defendants had no reason to use deadly force or any other force upon

entering the Whitworth home. Defendants were all armed with assault

weapons and side arms and other weapons. Jonathan Whitworth, Brittany

Whitworth, and P. M. were not armed, were not violent, were not resisting

and were no threat to Defendants or anyone else. The two pet dogs were

threat to anyone and there was no reason to use assault weapons on th

two animals. Defendants, under color of law, deprived each Plaintiff of

rights secured under the Constitution and laws of the United States.

Defendants conspired to deprive each Plaintiff of rights secured under the

Constitution and laws of the United States. Defendants refused or failed to

prevent the deprivation of Plaintiffs’ rights secured under the Constitution

and laws of the Unit

no

ose

ed States.

rth and

9. This is a civil rights action brought pursuant to 42 U.S.C §1983 (as

amended) to redress the violations concerning Jonathan Whitworth,

Brittany Whitworth and the minor child P. M.’s rights under the Fou

Fourteenth Amendments of the United States Constitution. Each Plaintiff

also brings claims for False Arrest, False Imprisonment, Intentional

4


Infliction of Emotional Distress, Assault and Battery and Properly Damage

against all De

fendants.

JURISDICTION AND VENUE

10. This Court has jurisdiction pursuant to 28 U.S.C. §1343 and 28 U.S.C.

§1331. Each Plaintiff’s claims for relief are cognizable under 42 U.S.C.

§§1983 and 1988, and under Missouri state law. Each Plaintiff respectfully

invoke the supplemental jurisdiction of the Court to hear and decide th

claims arising under Missouri stat

eir

e law.

al district.

11. Venue is appropriate in this Court pursuant to 28 U.S.C. §1391(b) because

the Defendants are located, and all incidents giving rise to this suit

occurred, in this judici

PARTIES

12. Plaintiff P. M, is a minor, seven years old, and is the son of Brittany

Whitworth. P. M. appears in this action through his mother and next

friend, Plaintiff Brittany Montgomery Whitworth.

ri.

ne

13. Plaintiff Jonathan Whitworth resides in Columbia, Missou

14. Plaintiff Brittany Whitworth resides in Columbia, Missouri.

15. Defendant City of Columbia, Missouri is a municipal corporation organized

and existing pursuant to Missouri law. The City of Columbia is in Boo

County, Missouri, which is within the Western District of Missouri. The

City acted by and through its policymakers, agents, and employees and

acted under color of law in all respects set forth herein.

5


16. There may also be Defendants that are UNKNOWN POLICE OFFICERS

who were also employed by the City of Columbia who acted under color of

law and those Defendants are also sued in their individual capacity.

ed

city.

ed

city.

of

capacity.

capacity.

ed

city.

17. Defendant Lance Bolinger is a police officer employed by the City of

Columbia who acted under color of law. Defendant Lance Bolinger is su

in his individual capa

18. Defendant Michael Cavener is a police officer employed by the City of

Columbia who acted under color of law. Defendant Michael Cavener is su


19. Defendant Crystal Clements is a police officer employed by the City

Columbia who acted under color of law. Defendant Crystal Clements is

sued in her individual capacity.

20. Defendant Cathy Dodd is a police officer employed by the City of Columbia

who acted under color of law. Defendant Cathy Dodd is sued in her

individual

21. Defendant Robert Fox is a police officer employed by the City of Columbia

who acted under color of law. Defendant Robert Fox is sued in his

individual

22. Defendant Scott Hendrick is a police officer employed by the City of

Columbia who acted under color of law. Defendant Scott Hendrick is su


6


23. Defendant Richard Horrell is a police officer employed by the City of

Columbia who acted under color of law. Defendant Richard Horrell is su


ed

city.

capacity.

of

ed

city.

ed in

ty.

24. Defendant Kyle Lucas is a police officer employed by the City of Columbia

who acted under color of law. Defendant Kyle Lucas is sued in his

individual

25. Defendant Thomas Quintana is a police officer employed by the City

Columbia who acted under color of law. Defendant Thomas Quintana is

sued in his individual capacity.

26. Defendant Michael Parsons is a police officer employed by the City of

Columbia who acted under color of law. Defendant Michael Parsons is su


27. Defendant Roger Schlude is a police officer employed by the City of

Columbia who acted under color of law. Defendant Roger Schlude is su

his individual capaci

FACTS

28. Around 6:00 p.m. on February 11, 2010, at least twelve (12) members of t

Columbia Police Department Special Weapons and Tactics Team (SWAT)

assembled to plan the execution of an eight day-old search warrant at 1501

Kinloch Court in Columbia, Missouri.

he

ome.

29. The Tactical Entry Plan created for the execution of this search warrant

noted a child could be in the h

7


30. At about 8:30 p.m., Mr. Whitworth, Mrs. Whitworth, and P. M. were

lawfully in their home in the City of Columbia.

m

d

ed

me.

e.

5

5

.

31. At that moment, members of the Columbia Police Department SWAT Tea

assembled at the front of the Whitworth home.

32. The police officers and Defendants caused the front door to open an

immediately shot, without any reasonable cause, a family pet dog (Nala)

and the dog immediately started to run away and the police officers entered

and pursued and chased the dog through the residence firing their assault

weapons at said dog until the dog was dead.

33. The police officers and Defendants also wounded a second dog, a corgi mix

(Bruno) by use of their assault weapons and fire arms.

34. Before any SWAT Team member entered the home, Defendant Cavener

fired his nine millimeter submachine gun into the ho

35. The SWAT Team then entered the Whitworth hom

36. Defendant Quintana entered the kitchen and fired one round from his MP

submachine gun.

37. Next, Defendant Fox entered the kitchen and fired two rounds from his MP

submachine gun.

38. At the same time, Defendant Sergent Schlude entered the kitchen and fired

3 rounds from his handgun

39. The police officers and Defendants fired at least seven high powered

projectiles and bullets inside the Whitworth home which caused damage to

8


the interior of the residence. The police officers and Defendants also

damaged the residence during the search causing damage to personal

property and to real estate while conducting their search and during the

occupancy

ir

of the property.

t.

e

d

rs

s.

d

ed

40. The police officers and the Defendants also caused damage to property own

by Plaintiffs outside the residence and attached to i

41. The pet dog who was wounded (Bruno) by the police officers and th

Defendants’ assault weapons was taken the University veterinary hospital

for medical procedures that saved the life of that family pet at a

considerable cost and damage to Plaintiffs.

42. Other Officers confronted Mr. Whitworth in the hallway of the home an

ordered him to the ground. Mr. Whitworth complied.

43. Mrs. Whitworth and P.W. remained in P.W.’s bedroom until SWAT office

ordered, at gun-point, that they step over Mr. Whitworth and sit in the front

entry way of their home.

44. From their ordered position in the front entry way of their home, Mr

Whitworth and P. M. sat staring at their just-executed family pet.

45. Mr. Whitworth was kicked by a SWAT Team member while prone an

compliant in his hallway.

46. Mrs. Whitworth and P. M. were ordered into police custody and deni

repeated requests to be released and were held in police control for

approximately two (2) hours.

9


CAUSES OF ACTION

COUNT I

UNLAWFUL SEIZURE BY DETENTION OF P. M. BY DEFENDANTS, IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION 42 U.S.C. §1983

For his cause of action against Defendants in Count I, Plaintiff P. M. states:

47. Plaintiff incorporates by this reference the allegations in paragraphs 1

through 46 as though fully set forth herein.

e to do so.

him.

onstitutional rights by their

lt of the acts and omissions of Defendants, P.

48. Defendants, acting individually and acting together and in concert with

each other and other officers, unreasonably seized P. M. by forcefully

entering his home, detaining him and then seizing his person by use of force

when they had no caus


each other and other officers, unreasonably seized P. M. by using excessive

force against

50. Defendants each had the opportunity to intervene, to protect P. M., and to

stop the unlawful conduct of each other and of other officers, but failed to do

so.

51. Defendants caused the violations of P. M.’s c

acts, direct and indirect, and by their omissions.

52. As a direct and proximate resu

M. suffered injury and damages.

10


53. The acts, conduct, omissions, and failures to act by Defendants were

recklessly indifferent to the rights of P. M. Their conduct warrants an

like manner in the future.

54.

jointly and

severally, for compensatory damages, for pu tive damages and for attorneys’ fees and

the costs of litigation, and for other relief as is appropriate under the law.

M. BY DEFENDANTS, IN VIOLATION OF TH

STATES CONSTITUTION

nts in Count II, Plaintiff P. M. states:

asonably searched P. M. and his home by

award of punitive damages to punish them and to deter them and others

from acting in a

If Plaintiff prevails, he is entitled to an award of attorneys’ fees pursuant to

42 U.S.C. §1983.

WHEREFORE, Plaintiff P. M. prays judgment against Defendants,

ni

COUNT II

UNREASONABLE SEARCH OF P.

E FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED

42 U.S.C. §1983

For his cause of action against Defenda




each other and other officers, unre

forcefully entering his home and firing automatic weapons into his home

when they had no cause to do so.

11



each other and other officers, unreasonably searched P. M. and his home by

rvene, to protect P. M., and to

.

indifferent to the rights of P. M. Their conduct warrants an


62.

t to

S.C. §1983.

WHEREFORE, Plaintiff P. M. nt against Defendants, jointly and

several nd

for attorneys’ fees and the costs of l other relief as is appropriate

under the law.

using excessive force against him.

58. Defendants each had the opportunity to inte

stop the unlawful conduct of each other and of other officers, but failed to do

so.

59. Defendants caused the violations of P. M.’s constitutional rights by their

acts, direct and indirect, and by their omissions.

60. As a direct and proximate result of the acts and omissions of Defendants, P.

M. suffered injury and damages


recklessly


from acting in a

The acts of Defendants resulted in actual damages to P. M.’s real and

personal property.

63. If Plaintiff prevails, he is entitled to an award of attorneys’ fees pursuan

42 U.

prays judgme

ly, for actual damages, for compensatory damages, for punitive damages a

itigation, and for

12


COUNT III

LIABILITY O

F THE CITY OF COLUMBIA, MISSOURI FOR THE CONSTITUTIONAL VIOLATIONS AGAINST P. M.

nt City of Columbia in Count III,

e Department come in contact.

of

ively screen, train,

ly

ity of Columbia’s custom and practice and

ges to punish them and to deter them and others from acting

42 U.S.C. §1983

For his cause of action against Defenda

Plaintiff P. M. states:



65. Defendant City of Columbia, Missouri caused the constitutional violations

suffered by P. M. by its deliberate indifference to the rights of the citizenry

with whom the Columbia Polic

66. Defendant City of Columbia, Missouri has and had a custom and practice

unlawfully executing search warrants, detaining citizens, and using force

against citizens in Columbia.

67. Defendant City of Columbia, Missouri has failed to effect

supervise, discipline, and/or control the people it employs as police officers.

68. Defendant City of Columbia, Missouri, executed warrants in an untime

manner making allegations stale and untrustworthy.

69. As a direct result of Defendant C

failures, P. M. suffered damages. Their conduct warrants an award of

punitive dama

in a like manner in the future.

13


70. If Plaintiff prevails, he is entitled to an award of attorneys’ fees pursuant to

42 U.S.C. §1983.

WHEREFORE, Plaintiff P. M. nt against Defendant City of

C

attorneys’ fees and the costs of litigation, and for other relief as is appropriate under

the law.

COUNT IV

FALSE ARREST AND FALSE IMPRISONMENT OF P. M. BY DEFENDANTS

rence the allegations in paragraphs 1

ionally

inst his will.

ere

of his rights.

the rights and well-being of P. M. This conduct warrants an

prays judgme

olumbia, Missouri for compensatory damages, for punitive damages and for

COGNIZABLE UNDER STATE LAW

For his cause of action against Defendants in Count IV, Plaintiff P. M. states:

71. Plaintiff incorporates by this refe


72. Defendants, at such time as previously set forth herein, intent

arrested, detained, and restrained P. M. against his will without probable

cause that P. M. had committed any crime.

73. The conduct of Defendants in exercising dominion and control over the

freedom of P. M. was an intentional restraint of P. M. aga

74. As a direct and proximate result of Defendants’ detention of P. M., he

suffered damages to his emotional well-being through the unlawful and

malicious arrest and detention of his person. P. M. has also suffered sev

mental anguish in connection with the deprivation

75. The conduct of Defendants was outrageous because Defendants reckless

indifference to

14


award of punitive damages to punish Defendants and to deter then an

others from acting in a like manner in the future.

76. If Plaintiff prevails, he is entitled to an award of atto

d

rneys’ fees pursuant to

42 U.S.C. §1983.

WH

compensatory damages, for punitive damages and for attorneys’ fees and the costs of

litigation, and for other relief as is appropriate under the law.

COUNT V

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

s reference the allegations in paragraphs 1

. M. was a child

ts

each other and with other officers, in the presence of P. M., repeatedly fired

EREFORE, Plaintiff P. M. prays judgment against Defendants for

UPON P. M. BY DEFENDANTS

For his cause of action against Defendants in Count V, Plaintiff P. M. states:

77. Plaintiff incorporates by thi



each other and with other officers, intentionally or recklessly caused

extreme emotional distress to P. M.

79. Defendants were aware, or should have been aware, that P

and in his home when the Defendants entered. Defendants were aware, or

should have been aware that P. M. was the owner of the both family pe

shot by Columbia police and that he was present and in close proximity

when Defendants engaged in the conduct set forth herein.


15


submachine guns and automatic weapons into his home, assaulted P.

shouted, yelled, and s

M.,

creamed at P. M., and/or failed to prevent other

e Defendants, as previously described, was

reasonable

s to suffer severe emotional distress as a result

of

was outrageous because of their reckless

nish Defendants and to deter then and others from acting in a

officers from doing so. Defendants then ordered P. M., at gunpoint, to sit, on

the floor, in the front entry way of his home while staring at his just-

executed family pet.

81. Each act and omission of th

extreme, outrageous, and shocking to the senses, was deliberately

indifferent to the health and welfare of P. M., and posed an un

risk of causing P. M. severe emotional distress.

82. Defendants knew or should have known that their conduct posed an

unreasonable risk of causing P. M. severe emotional distress.

83. P. M. suffered and continue

of Defendants’ conduct. Such distress is medically diagnosable, is

sufficient severity to be medically significant, and has required P. M. to seek

and receive medical treatment.

84. The conduct of Defendants

indifference to the rights of others so as to warrant an award of punitive

damages to pu


85. If Plaintiff prevails, he is entitled to an award of attorneys’ fees pursuant to

42 U.S.C. §1983.

16


WHERE for

ompensatory damages, for punitive damages and for attorneys’ fees and the costs of

litigation, and for other relief as is appropri te under the law.

COUNT VI

NEGLIGENT SUPERVISION OF SWAT OFFICERS

laintiff P. M. states:

rth herein.

olice force.

ine its SWAT officers.

its

FORE, Plaintiff P. M. prays judgment against Defendants

c

a

BY THE COLUMBIA, MISSOURI POLICE DEPARTMENT

For his cause of action against Defendants in Count VI, P


through 85 as though fully set fo

87. The Columbia, Missouri Police Department has a duty to professionally

hire, train, educate, lead, and supervise its p

88. This duty ensures the safety and constitutional protection of citizens and

visitors of Columbia, Missouri.

89. The Columbia, Missouri Police Department failed to properly train,

supervise, control, and discipl

90. The Columbia, Missouri Police Department’s failure to properly train

SWAT officers resulted in constitutional wrongs against P. M. The

Department’s failure to train its SWAT officers reflects a deliberate

indifference to the constitutional rights of P. M.

91. The Columbia, Missouri Police Department failed to properly discipline,

supervise, and control its SWAT officers. This failure is demonstrated by

the Department’s deliberate indifference and tacit authorization of the

offensive and unconstitutional acts of its SWAT officers against P.M.

17


92. As a direct and proximate result of the Columbia, Missouri Police

Department’s failure to properly train, supervise, control, and discipline its

cipline its SWAT officers warrants an award of punitive

m

rneys’ fees pursuant to

42 U.S.C. §1983.

compensa osts of

litigation, and for other relief as is appropri te under the law.

COUNT VII

UNLAWFUL SEIZURE BY DETENTION OF MRS. WHITWORTH BY

AMENDMENTS TO THE UNITED STATES CONSTITUTION 1983

W

h herein.

, detaining her and then seizing her person by

use of force when they had no cause to do so.

SWAT officers, P. M. suffered. The gross failure to properly train, supervise,

control, and dis

damages to punish the Department and to deter them and others fro

acting in a like manner in the future.

93. If Plaintiff prevails, he is entitled to an award of atto

WHEREFORE, Plaintiff P. M. prays judgment against Defendants for

tory damages, for punitive damages and for attorneys’ fees and the c

a

DEFENDANTS, IN VIOLATION OF THE FOURTH AND FOURTEENTH

42 U.S.C. §

For her cause of action against Defendants in Count VII, Plaintiff Mrs.

hitworth states:


through 93 as though fully set fort


each other and other officers, unreasonably seized Mrs. Whitworth by

forcefully entering her home

18



each other and other officers, unreasonably seized Mrs. Whitworth by us

excessive force a

ing

gainst her.

her and of other

hitworth’s constitutional rights

ts,

endants were

d of punitive damages to punish them and to deter them

to

, Plaintiff Brittany Whitworth prays judgment against

efendants, jointly and severally, for compensatory damages, for punitive damages

nd for attorneys’ fees and the costs of litigation, and for other relief as is appropriate

under the law.

97. Defendants each had the opportunity to intervene, to protect Mrs.

Whitworth, and to stop the unlawful conduct of each ot

officers, but failed to do so.

98. Defendants caused the violations of Mrs. W

by their acts, direct and indirect, and by their omissions.

99. As a direct and proximate result of the acts and omissions of Defendan

Mrs. Whitworth suffered injury and damages.

100. The acts, conduct, omissions, and failures to act by Def

recklessly indifferent to the rights of Mrs. Whitworth. Their conduct

warrants an awar

and others from acting in a like manner in the future.

101. If Plaintiff prevails, she is entitled to an award of attorneys’ fees pursuant

42 U.S.C. §1983.

WHEREFORE

D

a

19


COUNT VIII

UNREASONABLE SEARCH OF MRS. WHITWORTH BY DEFENDANTS, IN HE FOURTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION

nt VIII, Plaintiff Mrs.

ng together and in concert with

r

with

d

force against her.

and of other

orth’s constitutional rights

ts,

VIOLATION OF T

42 U.S.C. §1983

For her cause of action against Defendants in Cou

Whitworth states:



103. Defendants, acting individually and acti

each other and other officers, unreasonably searched Mrs. Whitworth’s

home by forcefully entering her home and firing automatic weapons into he

home when they had no cause to do so.

104. Defendants, acting individually and acting together and in concert

each other and other officers, unreasonably searched Mrs. Whitworth an

her home by using excessive

105. Defendants each had the opportunity to intervene, to protect Mrs.

Whitworth, and to stop the unlawful conduct of each other


106. Defendants caused the violations of Mrs. Whitw

by their acts, direct and indirect, and by their omissions.

107. As a direct and proximate result of the acts and omissions of Defendan

Mrs. Whitworth suffered injury and damages.

20



recklessly indifferent to the rights of Mrs. Whitworth. Their conduct

cting in a like manner in the future.

109 d

WHEREFORE, Plaintiff Britta h prays judgment against

Defend r

punitive damages and for attorney s of litigation, and for other relief

COUNT IX

CONSTITUTIONAL VIOLATIONS AGAINST MRS. WHITWORTH

Pl

its deliberate indifference to the rights of the

citizenry with whom the Columbia Police Department comes in contact.

warrants an award of punitive damages to punish them and to deter them

and others from a

. The acts of Defendants resulted in actual damages to P. M.’s real an

personal property.

110. If Plaintiff prevails, she is entitled to an award of attorneys’ fees pursuant to

42 U.S.C. §1983.

ny Whitwort

ants, jointly and severally, for actual damages, for compensatory damages, fo

s’ fees and the cost

as is appropriate under the law.

LIABILITY OF THE CITY OF COLUMBIA, MISSOURI FOR THE

42 U.S.C. §1983

For her cause of action against Defendant City of Columbia in Count IX,

aintiff Mrs. Whitworth states:




suffered by Mrs. Whitworth by

21


113. Defendant City of Columbia, Missouri has and had a custom and practice of



114. Defendant City of Columbia, Missouri has failed to effectively screen, tra

supervise, discipline, and/or control the people it employs as police officers

115. As a direct result of Defendant City of Colum

in,

.

bia’s custom and practice and

damages to punish them and to deter them and others

uant to

tiff Brittany Whitworth prays judgment against

Defendant City of Columbia, Missouri atory damages, for punitive

d

appropriate under the law.

COUNT X

FALSE ARREST AND FALSE IMPRISONMENT OF MRS. WHITWORTH BY

t X, Plaintiff Mrs.

failures, Mrs. Whitworth suffered damages. Their conduct warrants an

award of punitive

from acting in a like manner in the future.

116. If Plaintiff prevails, she is entitled to an award of attorneys’ fees purs

42 U.S.C. §1983.

WHEREFORE, Plain

for compens

amages and for attorneys’ fees and the costs of litigation, and for other relief as is

DEFENDANTS COGNIZABLE UNDER STATE LAW

For her cause of action against Defendants in Coun

Whitworth states:



22


118. Defendants, at such time as previously set forth herein, intentionally

arrested, detained, and restrained Mrs. Whitworth against her will without

probable cause that Mrs. Whitworth had committed any crime.

the

e suffered damages to her emotional well-being through the

rth

nts reckless

d of punitive damages to punish Defendants and to deter

o

WHEREFORE, Plaintiff Britta h prays judgment against

Defendant s’ fees

and the costs of litigation, and for other reli f as is appropriate under the law.

COUNT XI

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS UPON MRS. WHITWORTH BY DEFENDANTS

119. The conduct of Defendants in exercising dominion and control over

freedom of Mrs. Whitworth was an intentional restraint of Mrs. Whitworth

against her will.

120. As a direct and proximate result of Defendants’ detention of Mrs.

Whitworth, sh

unlawful and malicious arrest and detention of her person. Mrs. Whitwo

has also suffered severe mental anguish in connection with the deprivation

of her rights.

121. The conduct of Defendants was outrageous because Defenda

indifference to the rights and well-being of Mrs. Whitworth. This conduct

warrants an awar

then and others from acting in a like manner in the future.

122. If Plaintiff prevails, she is entitled to an award of attorneys’ fees pursuant t

42 U.S.C. §1983.

ny Whitwort

s for compensatory damages, for punitive damages and for attorney

e

23


For her cause of action against Defendants in Count XI, Plaintiff Mrs.

Whitworth states:




each other and with other officers, intentionally or recklessly caused

extreme emotional distress to Mrs. Whitworth.

125. Defendants were aware, or should have been aware, that Mrs. Whitworth

was the wife of Mr. Whitworth, the mother of P. M., and the owner of both

family pets shot by Columbia police and that she was present and in close

proximity when Defendants engaged in the conduct set forth herein.


each other and with other officers, in the presence of Mrs. Whitworth,

repeatedly fired submachine guns and automatic weapons into her home,

assaulted Mr. Whitworth, shouted, yelled, and screamed at Mrs. Whitworth,

and/or failed to prevent other officers from doing so. Defendants then

ordered Mrs. Whitworth, at gunpoint, to sit, on the floor, in the front entry

way of her home while staring at her just-executed family pet.

127. Each act and omission of the Defendants, as previously described, was

extreme, outrageous, and shocking to the senses, was deliberately

indifferent to the health and welfare of Mrs. Whitworth, and posed an

unreasonable risk of causing Mrs. Whitworth severe emotional distress.

24


128. Defendants knew or should have known that their conduct posed an

unreasonable risk of causing Mrs. Whitworth severe emotional distress.

129. Mrs. Whitworth suffered and continues to suffer severe emotional distress

as a result of Defendants’ conduct. Such distress is

medically diagnosable,

rs.

others so as to warrant an award of punitive

e future.

131 rsuant to

Defendants for compensatory damag damages and for attorneys’ fees

and the costs o law.

COUNT XII

LIGENT SUPERVISION OF SWAT OFFICERS BY THE COLUMBIA, MISSO RI POLICE DEPARTMENT

For her cause of action against Defendants in Count XII, Plaintiff Mrs. W

is of sufficient severity to be medically significant, and has required M

Whitworth to seek and receive medical treatment.

130. The conduct of Defendants was outrageous because of their reckless

indifference to the rights of

damages to punish Defendants and to deter then and others from acting in a

like manner in th

. If Plaintiff prevails, she is entitled to an award of attorneys’ fees pu

42 U.S.C. §1983.

WHEREFORE, Plaintiff Brittany Whitworth prays judgment against

es, for punitive

f litigation, and for other relief as is appropriate under the

NEG

U

hitworth states:



25



hire, train, educate, lead, and supervise its police force.

and

. Whitworth.

,

by

ent’s deliberate indifference and tacit authorization of the

s.

e its

fficers warrants an

in a like manner in the future.

134. This duty ensures the safety and constitutional protection of citizens



supervise, control, and discipline its SWAT officers.

136. The Columbia, Missouri Police Department’s failure to properly train its

SWAT officers resulted in constitutional wrongs against Mrs

The Department’s failure to train its SWAT officers reflects a deliberate

indifference to the constitutional rights of Mrs. Whitworth.

137. The Columbia, Missouri Police Department failed to properly discipline

supervise, and control its SWAT officers. This failure is demonstrated

the Departm

offensive and unconstitutional acts of its SWAT officers against Mr

Whitworth.


Department’s failure to properly train, supervise, control, and disciplin

SWAT officers, Mrs. Whitworth suffered. The gross failure to properly

train, supervise, control, and discipline its SWAT o

award of punitive damages to punish the Department and to deter them and

others from acting

26


139 rsuant to

Defendants for compensatory damag damages and for attorneys’ fees

an

UNREASONABLE SEARCH OF MR. WHITWORTH BY DEFENDANTS, IN IOLA O THE

UNITED STATES CONSTITUTION 42 U.S.C. §1983

W

bly searched Mr. Whitworth and his

d acting together and in concert with

portunity to intervene, to protect Mr.

. If Plaintiff prevails, she is entitled to an award of attorneys’ fees pu

42 U.S.C. §1983.

WHEREFORE, Plaintiff Brittany Whitworth prays judgment against

es, for punitive

d the costs of litigation, and for other relief as is appropriate under the law.

COUNT XIII

V TION OF THE FOURTH AND FOURTEENTH AMENDMENTS T

For his cause of action against Defendants in Count XIII, Plaintiff Mr.

hitworth states:




each other and other officers, unreasona

home by forcefully entering his home, firing automatic weapons into his

home when they had no cause to do so.

142. Defendants, acting individually an

each other and other officers, unreasonably searched Mr. Whitworth by

using excessive force against him.

143. Defendants each had the op

Whitworth, and to stop the unlawful conduct of each other and of other


27


144. Defendants caused the violations of Mr. Whitworth’s constitutional rights

their acts, direct and indirect, and by their om

by

issions.

nts,

heir conduct

n a like manner in the future.

erty.

148 uant to

, for actual damages, for compensatory damages, for

punitive damages and for attorneys’ sts of litigation, and for other relief

as is ap

CONSTITUTIONAL VIOLATIONS AGAINST MR. WHITWORTH 42 U.S.C. §1983

Pl

145. As a direct and proximate result of the acts and omissions of Defenda

Mr. Whitworth suffered injury and damages.


recklessly indifferent to the rights of Mr. Whitworth. T

warrants an award of punitive damages to punish them and to deter them

and others from acting i

147. The acts of Defendants resulted in actual damages to Mr. Whitworth’s real

and personal prop

. If Plaintiff prevails, he is entitled to an award of attorneys’ fees purs

42 U.S.C. §1983.

WHEREFORE, Plaintiff Jonathan Whitworth prays judgment against

Defendants, jointly and severally

fees and the co

propriate under the law.

COUNT XIV

LIABILITY OF THE CITY OF COLUMBIA, MISSOURI FOR THE

For his cause of action against Defendant City of Columbia in Count XIV,

aintiff Mr. Whitworth states:

28





issouri has and had a custom and practice of

rs.

Their conduct warrants an

ke manner in the future.

154 uant to

, Missouri for compensatory damages, for punitive

amages and for attorneys’ fees and the costs of litigation, and for other relief as is

ppropriate under the law.

suffered by Mr. Whitworth by its deliberate indifference to the rights of the

citizenry with whom the Columbia Police Department comes in contact.

151. Defendant City of Columbia, M



152. Defendant City of Columbia, Missouri has failed to effectively screen, train,

supervise, discipline, and/or control the people it employs as police office

153. As a direct result of Defendant City of Columbia’s custom and practice and

failures, Mr. Whitworth suffered damages.


from acting in a li


42 U.S.C. §1983.


Defendant City of Columbia

d

a

29


COUNT XV

ASSAULT AND BATTERY OF MR. WHITWORTH BY DEFENDANT JOHN DOE COGNIZABLE UNDER STATE LAW

W

1

th the

arm, apprehension

rth.

t, as

rutal. This conduct warrants an

nner in the future.

159 uant to

ed Defendant for compensatory damages, for punitive damages and for

For his cause of action against Defendants in Count XV, Plaintiff Mr.

hitworth states:

155. Plaintiff incorporates by this reference the allegations in paragraphs


156. The acts of unidentified Defendant kicking Mr. Whitworth, as afore

described, were committed without just cause or provocation, and wi

intent to cause Mr. Whitworth offensive contact, bodily h

of offensive contact, and apprehension of bodily harm, constitute an

intentional assault and battery against Mr. Whitwo

157. As a direct and proximate result of the acts of unidentified Defendan

afore described, Mr. Whitworth suffered damages.

158. The acts of unidentified Defendant as afore described were wanton,

malicious, oppressive, excessive, and b

award of punitive damages to punish him and to deter him and others from

acting in a like ma


42 U.S.C. §1983.


unidentifi

30


attorneys’ fees and the costs of litiga her relief as is appropriate under

the law.

LIGENT SUPERVISION OF SWAT OFFICERS

BY THE COLUMBIA, MISSOURI POLICE DEPARTMENT

For his cause of action against Defendants in Count XVI, Plaintiff Mr.

Whitworth states:


through159 as though fully set forth herein.


hire, train, educate, lead, and supervise its police force.

162. This duty ensures the safety and constitutional protection of citizens and



supervise, control, and discipline its SWAT officers.

164. The Columbia, Missouri Police Department’s failure to properly train its

SWAT officers resulted in constitutional wrongs against Mr. Whitworth.

The Department’s failure to train its SWAT officers reflects a deliberate

indifference to the constitutional rights of Mr. Whitworth.

165. The Columbia, Missouri Police Department failed to properly discipline,

supervise, and control its SWAT officers. This failure is demonstrated by

the Department’s deliberate indifference and tacit authorization of the

tion, and for ot

COUNT XVI

NEG

31


offensive and unconstitutional acts of its SWAT officers against Mr

Whitworth.


Department’s failure to properly train, supervise, control, and discipline it

SWAT officers, Mr. Whitworth suffered. The gross failure to properly train

supervise, control, and discipline its SWAT

.

s

,

officers warrants an award of

ke manner in the future.

167 uant to

Defendants for compensatory dama damages and for attorneys’ fees

an

IFFS AGAINST DEFENDANTS

than

Whitw

ach other and

al property and

real estate (marital home) of Plaintiffs by the following acts:

punitive damages to punish the Department and to deter them and others

from acting in a li


42 U.S.C. §1983.


ges, for punitive

d the costs of litigation, and for other relief as is appropriate under the law.

COUNT XVII

PROPERTY DAMAGE CLAIM OF PLAINT

For their cause of action against Defendants in Count XVII, Plaintiffs Jona

orth, Brittany Whitworth and P.M. state,

168. Plaintiffs incorporate by this reference the allegations in paragraphs 1


169. Defendants acting individually, together and in concert with e

other officers ,willfully and intentionally damaged person

32


a. Defendants shot and killed Plaintiffs’ pet dog (Nala);

b. Defendants used assault weapons which wounded and caused serious

physical injuries to the second pet dog, a corgi mix, (Bruno) which caused

damaged by bullet impacts and ricochets from

o

ct, Plaintiffs

they are entitled to an award of attorneys’ fees pursuant

ng the

ard

Plaintiffs to incur damages for veterinary treatment;

c. The marital residence was

impacts inside the house;

d. The Defendants caused damage to other areas inside the house and t

the outside of the residence during their occupancy of the premises;

e. As a direct and proximate result of the Defendants’ condu

suffered damage to personal property and to real estate.

170. If Plaintiffs prevail,

to 42 U.S.C. §1983.

171. The actions of the Defendants were outrageous due to the Defendants’ evil

motive and/or reckless indifference to the rights of Plaintiffs entitli

Plaintiffs to an award of punitive damages under applicable law.

WHEREFORE, Plaintiffs demand judgment against each Defendant for

medical and veterinary bills for the surviving dog, general damages for the value of

the dog that was shot and killed, damages for construction and injury of Plaintiffs’

real estate and personal property inside the residence and outside the residence all

with interest as permitted by law. If Plaintiffs prevail, they are entitled to an aw

of attorneys fees pursuant to 42 U.S.C, for compensatory damages, for punitive

33


damages and for attorneys’ fees and ation, and for other relief as is

ap

INST DEFENDANTS

Jo te,

cert with each other and

al estate

caused serious

for veterinary treatment;

m

premises;

to personal property and to real estate.

the costs of litig

propriate under the law.

COUNT XVIII

PROPERTY DAMAGE CLAIM OF PLAINTIFFS AGA

For their cause of action against Defendants in Count XVIII, Plaintiffs

nathan Whitworth, Brittany Whitworth and P.M. sta

172. Plaintiffs incorporate by this reference the allegations in paragraphs 1


173. Defendants acting individually, together and in con

other officers ,negligently damaged personal property and re

(marital home) of Plaintiffs by the following acts:

a. Defendants shot and killed Plaintiffs’ pet dog (Nala);

b. Defendants used assault weapons which wounded and

physical injuries to the second pet dog, a corgi mix, (Bruno) which caused

Plaintiffs to incur damages

c. The marital residence was damaged by bullet impacts and ricochets fro

impacts inside the house;

d. The Defendants caused damage to other areas inside the house and to

the outside of the residence during their occupancy of the

e. As a direct and proximate result of the Defendants’ conduct, Plaintiffs

suffered damage

34


174. If Plaintiffs prevail, they are entitled to an award of attorneys’ fees pursuan

to 42 U.S.C. §1983.

175. The actions of the Defendants were outrageous due to the Defenda

t

nts’ evil

all

42 U.S.C, for compensatory damages, for punitive

damages and for attorneys’ fees and the cos igation, and for other relief as is

The undinstrume arties o

motive and/or reckless indifference to the rights of Plaintiffs entitling the

Plaintiffs to an award of punitive damages under applicable law.

WHEREFORE, Plaintiffs demand judgment against each Defendant for

medical and veterinary bills for the surviving dog, general damages for the value of

the dog that was shot and killed, damages for construction and injury of Plaintiffs’

real estate and personal property inside the residence and outside the residence

with interest as permitted by law. If Plaintiffs prevail, they are entitled to an award

of attorneys fees pursuant to

ts of lit

appropriate under the law.

CERTIFICATE OF SERVICE

ersigned certifies that a copy of the foregoingnt was served upon the attorneys or p f

reco the above action: By enclosing same in envelopes ad

rd in( ) dressed to

nvelopes in a U.S. Postouri

) By leaving same at the business office with a

) By transmitting the same by facsimile to him orher at _____ _.m. to facsimile number

By handing same to him or her On this ______ day of ____________________, 20____.

each at the address as disclosed in the pleadingsof record herein, with first class postage prepaidand by depositing said eOffice mailbox in Columbia, Miss

( clerk, secretary, or another attorney

(

___________________ ( )

____________________________________________________

d, Respectfully Submitte ____________________________________Milt Harper, #21538 Harper, Evans, Wade & Netemeyer

01 olumbia, MO 65201

73) 874-8961 - fax [email protected]

401 Locust Street, Ste. 4C(573) 442-1660 (5m Attorney for Plaintiffs

35


36

____________________________________Jeff Hilbrenner, #57727

& Netemeyer

olumbia, MO 65201

73) 874-8961 - fax

Harper, Evans, Wade401 Locust Street, Ste. 401 C(573) 442-1660 ([email protected] Attorneys for Plaintiffs


in the united states district court western district … · western district of missouri . central...

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