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8/20/2019 Kent Lasnik Lawsuit
1/22
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02662
KENT LASNIK, an Individual
Plaintiff,
v.
OFFICER MARK MAGNESS, in his individual capacity;OFFICER DAVID ROMERO, in his individual capacity; and
CHIEF KARL WILMES, in his official capacity,
Defendants.
______________________________________________________________________
COMPLAINT AND JURY DEMAND
______________________________________________________________________
Plaintiff Kent Lasnik (“Plaintiff” or “Mr. Lasnik”), by and through his attorneys Qusair
Mohamedbhai, Siddhartha H. Rathod, and Matthew J. Cron, of R ATHOD ǀ MOHAMEDBHAI LLC.,
brings the following Complaint and Jury Demand, and in support alleges as follows:
I. INTRODUCTION
On December 6, 2014, Senior Patrol Officer David Romero of the Federal Heights Police
Department (“FHPD”) witnessed the assault and torture of Kent Lasnik, then a 48-year old man
in his custody. Officer Romero watched as fellow FHPD officer Corporal Mark Magness
dragged Mr. Lasnik from a police car head-first onto the concrete floor, shoved his face into the
corner of a refrigerator, beat him mercilessly in a holding cell, hurled him into a restraint chair,
and tortured him with painful pressure point holds for the sole purpose of causing pain and
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otherwise inflicting unlawful abuse. All the while, Cpl. Magness screamed profanities and
threats, putting Mr. Lasnik in fear for his life.
But Officer Romero took absolutely no steps to protect Mr. Lasnik from Corporal
Magness’s abuse. Instead, as Mr. Lasnik was being tortured in the restraint chair, Officer
Romero called him, inter alia, a “stupid fucking idiot,” a “piece of shit,” and a “dumbass drunk.”
Officer Romero told Mr. Lasnik that he was getting what he deserved, and that the officers
would “tack on” additional criminal charges. After Corporal Magness’s enraged assault and
torture finally ended, Officer Romero attempted to hide Corporal Magness’s crimes by writing a
false police report that exposed Mr. Lasnik (but not Corporal Magness) to serious criminal
charges.
What Corporal Magness did to Mr. Lasnik on December 6, 2014 was sadistic and
inhumane. But the blame for Corporal Magness’s conduct is not his alone. It is shared by the
FHPD, which failed to train, supervise, and discipline its officers, rewarded excessive force, and
tolerated dishonesty. And it is shared by Officer Romero who was in a position to stop Corporal
Magness but chose instead to approve and encourage the abuse and torture of Mr. Lasnik.
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II. JURISDICTION, VENUE, AND PARTIES
1. This action arises under the Constitution and laws of the United States and is
brought pursuant to 42 U.S.C. § 1983. Jurisdiction is conferred on this Court pursuant to 28
U.S.C. § 1331. Jurisdiction supporting Plaintiff ’s claim for attorneys’ fees and costs is conferred
by 42 U.S.C. § 1988.
2. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All
of the events and omissions alleged herein occurred within the state of Colorado. At the time of
the events and omissions giving rise to this litigation, all of the parties resided in Colorado.
3. At all pertinent times, Mr. Lasnik was a citizen of the United States and a resident
of the State of Colorado.
4. At all times relevant to the subject matter of this litigation, Defendant Corporal
Mark Magness was a citizen of the United States and a resident of Colorado and was acting
under color of state law in his capacity as a law enforcement officer employed by the FHPD.
5. At all times relevant to the subject matter of this litigation, Defendant Senior
Patrol Officer David Romero was a citizen of the United States and a resident of Colorado and
was acting under color of state law in his capacity as a law enforcement officer employed by the
FHPD.
6. Defendant Karl Wilmes is the current Chief of Police for the FHPD and a
representative and final policymaker for the City of Federal Heights. Defendant Wilmes is a
citizen of the United States and a resident of Colorado.
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III. FACTUAL ALLEGATIONS
Defendant Magness Assaults and Tortures Kent Lasnik
7. Defendant Magness’s assault of Mr. Lasnik was captured by body cameras. The
videos include sound. Additionally, other cameras from the FHPD holding facility provide
alternative views of the assault.
8. On December 6, 2014, Mr. Lasnik was arrested in the City of Federal Heights,
County of Adams, State of Colorado. Defendant Magness and Defendant Romero participated in
the arrest.
9. After Mr. Lasnik ’s arrest, Defendant Magness and Defendant Romero transport
him to the FHPD station in a police car. Mr. Lasnik was on his stomach in the backseat with his
arms handcuffed behind his back. He was not seat-belted, nor were any other measures taken to
ensure his safety.
10. At the police station, Defendant Romero orders Mr. Lasnik out of the police
vehicle. Because he was lying on his seatbelt with his arms handcuffed behind him, Mr. Lasnik
states that he cannot move.
11. Defendant Magness opens the rear door of the police car, grabs Mr. Lasnik by the
right forearm just below the elbow, and drags Mr. Lasnik from the vehicle head-first onto the
concrete floor.
12.
When Mr. Lasnik asks Defendant Magness why he pulled him onto the floor,
Defendant Magness replies “You’re out of the car, aren’t you?”
13. Defendant Magness then screams at Mr. Lasnik to get up from the floor, yanks
him by the elbow, and marches him toward the booking room door. Near the door, Defendant
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Magness spins Mr. Lasnik around and slams Mr. Lasnik’s face first into the corner of a
refrigerator placed next to the door.
14. Mr. Lasnik begins bleeding from his chin as a result of being slammed into the
corner of the refrigerator.
15. Neither Defendant Magness nor Defendant Romero request medical treatment or
otherwise provide treatment for Mr. Lasnik’s visible injuries.
16. Inside the police station, while being moved into the holding cell, Mr. Lasnik
curses at Defendant Romero. Defendant Romero grabs Mr. Lasnik by the neck, pushes him into
the cell, and screams at him to “sit the fuck down.”
17. Inside the cell, Mr. Lasnik looks in the general direction of Defendant Magness,
who was outside the cell, and states, “That guy’s a dick.”
18. Defendant Magness enters the cell and engages in a confrontation with Mr.
Lasnik regarding this comment.
19. Defendant Romero later told investigating officers that Defendant Magness “got
up in [Mr. Lasnik’s] face.”
20. Defendant Magness’s decision to enter the cell and tower over Mr. Lasnik in an
aggressive posture causes Mr. Lasnik to react and push his right open hand towards Defendant
Magness. Defendant Magness responds to this defensive gesture by delivering approximately
six closed fist strikes to Mr. Lasnik’s head and torso.
21. Mr. Lasnik offers no physical resistance as Defendant Magness pummels him,
only covering his head and face to protect himself from the strikes. Despite the non-resistance,
Defendant Magness continues to beat Mr. Lasnik.
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22. Defendant Magness then takes Mr. Lasnik to the floor, and delivers
approximately six more closed fist strikes to Mr. Lasnik’s torso while Mr. Lasnik futilely
attempts to protect himself.
23. As Defendant Magness delivers his closed fist strikes to Mr. Lasnik’s head and
torso, Defendant Magness repeatedly shouts “stop resisting.” Mr. Lasnik is curled into a ball,
attempting to cover his head and face from Defendant Magness’s blows. Mr. Lasnik was in no
way resisting Defendant Magness’s violence.
24.
After Defendant Magness tires of beating Mr. Lasnik, Mr. Lasnik is left lying on
his stomach on the floor. Defendant Magness holds Mr. Lasnik’s arms behind him as Defendant
Romero applies handcuffs. Defendant Romero calls Mr. Lasnik a “stupid mother -fucker.”
25. Defendants Magness and Romero leave the cell, leaving Mr. Lasnik bleeding and
bruised on the concrete floor with his arms cuffed behind his back.
26. Defendant Magness grabs a restraint chair and hurls it across the police station.
27. Defendants Romero and Magness re-enter the cell, force Mr. Lasnik to his feet,
and Defendant Magness throws him into the restraint chair, all the while Mr. Lasnik is
handcuffed and unable to protect himself.
28. Defendant Magness grabs Mr. Lasnik by the throat and screams at him to “sit up.”
His face is inches from Mr. Lasnik’s.
29.
Once in the restraint chair, Mr. Lasnik continues to offer no resistance.
Nevertheless, Defendant Magness berates him with profanity and challenges. Attempting to
blunt Defendant Magness’s rage, Mr. Lasnik repeatedly tells the officers that he is sorry and will
not do anything.
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30. In spite of Mr. Lasnik’s passivity and compliance, Defendant Magness continues
to behave in a manner that projects extreme anger and a loss of control over parts of the
situation.
31. While Mr. Lasnik is strapped in the restraint chair, Defendant Magness, takes the
right shoulder strap of the restraint chair and places it over Mr. Lasnik’s shoulder by striking
down on his shoulder with significant force, yelling at him, “dumbass.”
32. Defendant Magness then strikes and pushes Mr. Lasnik’s head back with
substantial force, yelling “sit back.” Defendant Magness grabs Mr. Lasnik’s head and holds his
temples using his thumb and fingers, applying substantial pressure. Defendant Magness
maintains this pressure hold on Mr. Lasnik’s temples for approximately three minutes.
33. When Defendant Romero advises that Mr. Lasnik will need medical
attention, Defendant Magness responds “I don’t care—strap him in the chair.”
34. Defendant Magness continues to scream at Mr. Lasnik. When Mr.
Lasnik denies taking a swing at Defendant Magness, Defendant Magness responds by taking the
index finger of his left hand and jabbing it into Mr. Lasnik’s left temple, stating “in that precious
little mind of yours you didn’t take a swing, cool.”
35. When Mr. Lasnik reacts by saying “ouch,” Defendant Magness tells Mr. Lasnik
“this is ouch,” as he takes the thumb of his left hand and presses it into the mandibular angle
using a pressure point control tactic, causing extreme pain.
36. Defendant Magness tells Mr. Lasnik, “you read to relax, relax” while forcibly
pushing Mr . Lasnik’s head away from him.
37. Defendant Magness tells Mr. Lasnik, “You didn’t mean to take a
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swing at me, I didn’t mean to bust your face up either.”
38. When Mr. Lasnik asks Defendant Magness to calm down, Defendant Magness
states, “fuck you, you ain’t in charge. I’ll calm down when I’m damn good and ready.
Dumbass!”
39. The abuse terminates only when other law enforcement officers enter the police
station.
40. By the time that the other law enforcement officers interrupted Defendants
Magness and Romero’s abuse, the floor of the police station was speckled with drops of Mr.
Lasnik’s blood.
Defendant Romero Encourages Defendant Magness and Fails to Intervene
41. At the time of the events giving rise to this lawsuit, Defendant Romero was an
eight-year veteran of the FHPD.
42. Earlier on the night of December 6, 2014, Defendant Romero described his arrest
of Mr. Lasnik thusly:
I get out of the car and I go contact him and he goes ‘I’m just looking forsomebody who lives here.’ And I grabbed ahold of him and I say . . . I just put
him in a temple lock and I say motherfucker you do this and I’m going to fucking
throw you on your fucking face, so then I threw him down on the ground.
43. After Defendant Romero handcuffed Mr. Lasnik and placed him inside of the
police car, Defendant Romero approached the police car window and shouted, “stupid fuck;
stupid mother-fucker; you’re a fucking idiot; you’re lucky I didn’t fucking shoot your ass;
fucking dumb mother-fucker.”
44. As written by Deputy Chief Don Vallero in a memorandum, Defendant Romero’s
comments “reflect a level of frustration and/or inimical attitude . . . [that] eventually spills over
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to how [Officer Romero] and Corporal Magness later respond to [Mr. Lasnik] at the police
department.”
45. As Defendant Magness abused and tortured Mr. Lasnik, Defendant Romero
motioned several times to his body camera to warn Defendant Magness that he was being
recorded.
46. Defendant Romero did not take any action to stop Defendant Magness from
continuing to abuse Mr. Lasnik, nor did he tell Defendant Magness to stop abusing Mr. Lasnik.
47.
Instead, Defendant Romero encouraged Defendant Magness’s abuse. At the
FHPD station, Defendant Romero berated and insulted Mr. Lasnik as follows:
a. “get your ass up,” after Mr. Lasnik is yanked from the police car
head-first onto the concrete floor;
b. “shut the fuck up” as Mr. Lasnik was brought into the police station
after being shoved face-first into the refrigerator;
c. “Sit down! Sit the fuck down!” while shoving Mr. Lasnik by the neck
into the holding cell;
d. “you stupid mother -fucker,” immediately after Mr. Lasnik was
assaulted in the cell and was lying motionless on the cement floor;
e. “you’re an idiot, you’re a class one fucking idiot,” after Mr. Lasnik
was thrown into the restraint chair;
f. “stop resisting, do you understand me, stop fucking doing it,” while
Mr. Lasnik sat compliantly in the restraint chair;
g. “shut up, I told you to shut the fuck up from the beginning” as
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Officer Romero tightened the chair restraints; and
h. “sorry for nothing, you piece of shit,” after Mr. Lasnik apologized.
“You’re a drunk . . . a dumbass drunk at that.”
48. Defendant Romero expressly stated his approval of Defendant Magness’s abuse
by telling Mr. Lasnik , as he was being tortured in the restraint chair, ““fight with the cops, this is
was you get.”
49. Defendant Romero also told Mr. Lasnik “we’ll keep tacking them on,”
foreshadowing how he and Defendant Magness would implicate Mr. Lasnik for a crime to cover
up Defendant Magness’s abuse.
Defendant Romero and Defendant Magness Write False Police Reports Designed toImplicate Mr. Lasnik and Hide the Officers’ Unlawful Conduct
50. Both Defendant Magness and Defendant Romero wrote police reports regarding
the December 6, 2014 incident.
51.
Defendant Magness and Defendant Romero’s police reports contained numerous
falsehoods and material omissions.
52. These police reports were part of the Defendants’ attempt to cover-up Defendant
Magness’s crime as the reports omitted all wrongdoing by Defendant Magness.
53. Defendant Romero falsely wrote that “Cpl. Magness and I assisted Mr. Lasnik out
of the patrol vehicle onto his side and then onto his feet.” Defendant Romero omitted that
Defendant Magness dragged Mr. Lasnik out of the car head-first onto the concrete floor while
Mr. Lasnik was handcuffed.
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54. Defendant Magness falsely wrote that “Mr. Lasnik would not step out of the
patrol vehicle,” omitting that Mr. Lasnik had been transported on his stomach with his arms
hand-cuffed behind his back and could not “step out” of the vehicle.
55. Defendant Romero falsely wrote that “Mr. Lasnik’s forward momentum carried
him to a refrigerator . . . .” Defendant Magness falsely wrote that Mr. Lasnik “stumbled into the
refrigerator and wall on the left of the doorway.” Both Defendants omitted that Defendant
Magness forcibly shoved Mr. Lasnik into the corner of the refrigerator, splitting open his chin.
56.
Defendant Romero falsely wrote that Mr. Lasnik “became verbally abusive
towards officers” in the holding cell. Defendant Magness falsely wrote that Mr. Lasnik “became
resistant and verbally abusive” in the holding cell. Both Defendants omitted their own verbal
abuse of Mr. Lasnik.
57. Defendant Romero falsely wrote than “Mr. Lasnik then attempted to assault Cpl.
Magness by throwing a punch in the direction of Cpl. Magness. Officers then attempted to gain
control of Mr. Lasnik when he was actively resisting and we were not able to control him.”
Defendant Magness falsely wrote that “Mr. Lasnik attempted to strike me on the right side of my
face with his right hand in a closed fist” and that “Mr. Lasnik placed his left hand under himself
and kicked backwards toward officers.” Mr. Lasnik did not punch or attempt to punch
Defendant Magness, nor was he actively or passively resisting in any way. Both Defendants
omitted that Defendant Magness delivered 12 punches, not to gain compliance but to punish.
58. Defendant Magness falsely wrote that “Mr. Lasnik was combative in the restraint
chair and attempted to get to his feet.” Mr. Lasnik was not combative and never attempted to
rise to his feet. Defendant Magness also wrote that “[a]t one point Mr. Lasnik stated ‘ow’ and
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tried to lift his head forward while Officer Romero was attempting to secure his feet.”
Defendant Magness omitted that Mr. Lasnik stated “ow” as a result of Defendant Magness
pushing his finger into Mr. Lasnik’s head. Defendant Magness also omitted from his report that
he then said “this is ow” and applied a mandibular angle pressure point technique solely to cause
pain.
59. Defendant Romero’s report does not include any mention of Defendant
Magness’s torture of Mr. Lasnik while he was secured in the restraint chair.
60.
As a result of these misleading police reports, Mr. Lasnik was detained on a
charge of Attempted Assault in the Second Degree on a Peace Officer, a class four felony.
Facts Relating to Defendant Magness’s History of Using Excessive Force
61. On July 5, 2009, Defendant Magness assaulted Dennis Discua. Mr. Discua
suffered a dislocated elbow as a result of the assault. The incident was investigated by both
FHPD Internal Affairs and the Adams County District Attorney.
62. Mr. Discua provided a written statement that he was attacked from behind by
Defendant Magness who injured his arm. Mr. Discua wrote that Defendant Magness then left
the scene, and Mr. Discua called 911. Defendant Magness then responded to the 911 call,
returned to the scene, and pretended not to have been there earlier.
63. Three eye-witnesses verified that Defendant Magness had assaulted Mr. Discua.
64.
In his police report, Defendant Magness claimed that Mr. Discua had injured
himself by rolling down a hill.
65. For his assault on Mr. Discua, Defendant Magness was prosecuted by the Adams
County District Attorney’s Office and ultimately convicted of reckless endangerment.
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66. On September 5, 2010, Defendant Magness arrested Maria Orrantia. During the
arrest, Defendant Magness grabbed her and threw her to the ground before shoving her into the
police car. When her legs were sticking out of the police car, Defendant Magness struck her
knees with his baton.
67. On March 5, 2011, Defendant Magness was part of a group of officers that
detained Greg Benavides, Katie Benavides, Raul Medina, and Andrea Roybal outside of a bar.
Defendant Magness tackled Ms. Roybal, who suffered significant scrapes and bruises.
68.
On August 27, 2011, Defendant Magness assaulted Edgar Gutierrez-Rodriguez
outside of his home.
69. In his police reports, Defendant Magness wrote that Mr. Gutierrez-Rodriguez was
“non compliant” and “became actively aggressively toward this officer.”
70. Three neighbors provided written statements contradicting Defendant Magness’s
version of events.
71. For example, neighbor Michael A. Berry wrote “I do not know what [Mr.
Gutierrez-Rodridguez] could have done differently. He was not aggressive, confrontive [ sic], or
loud . . . It was obvious to me that the Officer who was applying the most (excessive) force,
Officer Maguss [ sic] did not need to do so to control the man or the situation. Officer Maguss
[ sic] did not need to stomp on the owners back or grind him into the pavement as he did.”
72.
Another neighbor, Gerardo A. Garcia, wrote that “[m]y neighbor was just
screaming because of the pain he was going through. I was so surprised by the officer reaction.
Kept[ ] punching my neighbor . . . . Now I will think twice before calling the cops.”
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73. Mr. Gutierrez-Rodriguez suffered significant injuries as a result of Defendant
Magness’s use of excessive force.
74. On June 7, 2013, Defendant Magness confronted Preston James outside his
girlfriend’s apartment, grabbed him by the throat, threw him to the ground and tasered him.
75. On May, 23, 2013, Defendant Magness entered a residence, woke up Matthew
Lister who was in bed, punched him, slammed his face into the floor, and kicked him in the
stomach.
76.
Defendant Magness’ aggression, proclivity towards violence, and temper, which
were on full display during his abuse of Mr. Lasnik, were well-known to the FHPD.
77. During an interview with an Adams County District Attorney investigator,
Defendant Romero acknowledged that Defendant Magness “had a history of . . . being very
aggressive with suspects” and that “he gets very angry and he gets in people’s faces.” Defendant
Romero continued that “a lot of times [Defendant Magness] just sees red and that’s unfortunate.”
78. Defendant Romero explained that there have been times when other officers have
had to physically pull Defendant Magness away from suspects because of his aggression.
Facts Relating to FHPD’s Failure to Discipline, Failure to Train, and Tolerance of
Dishonesty
79. Despite his history of using excessive force, Defendant Magness received
minimal discipline from the FHPD and was promoted to the position of corporal.
80. With regard to his assault on Mr. Discua, which resulted in a criminal conviction,
the FHPD suspended Defendant Magness for only four days.
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81. Although Defendant Magness was convicted of a criminal offense, then-Chief of
Police Les Acker wrote in a Letter of Suspension that Defendant Magness was “negligent in this
matter.”
82. Chief Acker’s disciplinary letter was dated December 21, 2009, more than five
months after Defendant Magness’s assault on Mr. Discua, further diluting any punitive effect of
the suspension.
83. With regard to Mr. Gutierrez-Rodriguez, an undated two-paragraph internal
affairs report concluded that “Officer Magness was justified in his contact with Mr. Gutierrez but
should have used better judgment in regard to his approach to him . . . The level of force,
although appropriately and a response to the actions of Mr. Gutierrez, where [ sic] as much a
result of Officer Magness’ aggressive approach as that of Mr. Gutierrez’[s] desire to leave.”
84. The FHPD did not impose any discipline against Defendant Magness for the force
he employed against Mr. Gutierrez-Rodriguez, despite the written statements of three
eyewitnesses demonstrating that Corporal Magness had used excessive force.
85. The FHPD did not investigate, let alone discipline, Defendant Magness for his use
of force against Ms. Orrantia, Mr. Benavides, Ms. Benavides, Mr. Medina, Ms. Roybal, Mr.
Lister, or Mr. James.
86. For writing a blatantly false and misleading police report, which both covered up
Defendant Magness’s assault of a defenseless victim and exposed Mr. Lasnik to unjustified
felony charges, Defendant Romero received nothing more than a “written reprimand.”
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VI. STATEMENT OF CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
42 U.S.C. § 1983 – Fourth & Fourteenth Amendments – Excessive Force(Against Defendant Magness)
87. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set
forth herein.
88. At all times relevant to this claim, Defendant Magness was acting under color of
state law in his capacity as a Federal Heights law enforcement officer.
89.
Plaintiff had a clearly established constitutional right under the Fourth and
Fourteenth Amendments to the United States Constitution to be secure in his person against
unreasonable seizures through excessive force.
90. Any reasonable law enforcement knew or should have known of this clearly
established right.
91. Defendant Magness engaged in the use of force that was objectively unreasonable
in light of the facts and circumstances confronting him, including, but not limited to the
following actions:
a. Dragging Plaintiff from the police car face-first onto the concrete
floor, and kicking him on the floor;
b. Slamming Plaintiff face-first into the corner of a refrigerator;
c.
Punching Plaintiff approximately twelve times;
d. Throwing Plaintiff into the restraint chair while he was hand-cuffed
and unable to protect himself;
e. Pushing Plaintiff’s head back against the restraint chair by the
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temple;
f. Applying pressure to Plaintiff’s temples for approximately three
minutes;
g. Applying pressure point control tactics on Plaintiff solely to cause
pain.
92. Defendant Magness’s actions, as described herein, were undertaken intentionally,
maliciously, willfully, wantonly, and/or in reckless disregard of Plaintiff’s federally protected
rights.
93. The acts and omissions of Defendant Magness were engaged in pursuant to the
custom, policy, and practice of the FHPD, which encourages, condones, tolerates, and ratifies the
use of excessive force and the deprivation of constitutionally protected interests by its law
enforcement officers.
94. Defendant Magness’ conduct violated clearly established rights belonging to
Plaintiff of which reasonable law enforcement knew or should have known.
95. The acts or omissions of Defendant Magness were the legal and proximate cause
of Plaintiff’s damages.
96. As a direct result of Defendant Magness’ unlawful action as described above,
Plaintiff suffered actual physical, emotional, and economic injuries in an amount to be proven at
trial.
97. Plaintiff has been and continues to be damaged by Defendant Magness’ use of
excessive force.
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98. Defendant Magness is not entitled to qualified immunity for the complained of
conduct.
SECOND CLAIM FOR RELIEF
42 U.S.C. § 1983 – Fourth & Fourteenth Amendment – Excessive Force/Failure
to Intervene (Against Defendant Romero)
99. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set
forth herein.
100. At all times relevant to this claim, Defendant Romero was acting under color of
state law in his capacity as a Federal Heights law enforcement officer.
101. Plaintiff had a clearly established constitutional right under the Fourth and
Fourteenth Amendments to the United States Constitution to be secure in his person against
unreasonable seizures through excessive force.
102. Defendant Romero was present and witnessed the objectively unreasonable force
used by Defendant Magness. However, Defendant Romero failed to take reasonable steps to
protect Plaintiff from the objectively unreasonable force employed by Defendant Magness.
103. Defendant Romero could have prevented or stopped the assault on Plaintiff but
failed to do so.
104. Defendant Romero is therefore liable for the damages resulting from the
objectively unreasonable force used by Defendant Magness. Defendant Romero is also liable for
any damages resulting from his failure to intervene.
105. The acts and omissions of Defendant Romero were engaged in pursuant to the
custom, policy, and practice of the FHPD, which encourages, condones, tolerates, and ratifies the
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use of excessive force and the deprivation of constitutionally protected interests by its law
enforcement officers.
106. Defendant Romero’s conduct violated clearly established rights belonging to
Plaintiff of which reasonable law enforcement knew or should have known.
107. The acts or omissions of Defendant Romero were the legal and proximate cause
of Plaintiff’s damages.
108. As a direct result of Defendant Romero’s unlawful action as described above, and
as an indirect result of Defendant Magness’s unlawful action as described above, Plaintiff has
suffered actual physical, emotional, and economic injuries in an amount to be proven at trial.
109. Plaintiff has been and continues to be damaged by Defendant Romero and
Defendant Magness’ use of excessive force.
110. Defendant Romero is not entitled to qualified immunity for the complained of
conduct.
THIRD CLAIM FOR RELIEF
42 U.S.C. § 1983 – Fourth Amendment – Failure to Train and Supervise
(Against Defendant Wilmes in his official capacity)
111. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set
forth herein.
112. The FHPD failed to properly train, supervise, and discipline its employees with
respect to the use of excessive force.
113. The FHPD’s failure to, in its supervisory duties, adequately train, supervise, and
discipline its officers with respect to the use of excessive force is a custom, policy, or practice of
the FHPD and a driving force behind the constitutional violations described herein.
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114. The FHPD has a culture of tolerating and condoning excessive force by its law
enforcement officers. The FHPD failed to discipline, train, and supervise Defendant Magness
and Defendant Romero concerning the Fourth Amendment and the use of excessive force against
persons in their custody.
115. Despite FHPD being put on notice of Defendant Magness’ brutality towards
citizens, Defendant Magness remained an active member of the FHPD and was even promoted to
corporal.
116.
The decision to retain Defendant Magness’s employment was made by former
FHPD Chief of Police and final policymaker Les Acker.
117. The physical abuse of Plaintiff was a foreseeable consequence of the FHPD’s
actions and inactions.
118. The FHPD was deliberately indifferent to the constitutional rights of its arrestees
by failing to properly train, monitor, supervise, and discipline its employees with respect to the
use of excessive force. The FHPD could have and should have pursued reasonable methods of
training, monitoring, supervising, and disciplining its employees.
119. The unconstitutional policies, procedures, customs and/or practices of the FHPD
were the legal and proximate cause of Plaintiff’s damages.
120. The acts or omissions of the FHPD caused Plaintiff damages in that he suffered
extreme physical and mental pain during the assault and torture.
121. The actions or omissions of the FHPD as described herein deprived Plaintiff of
the rights, privileges, liberties, and immunities secured by the Constitution of the United States
of America, and caused him other damages.
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WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in his favor
and against each of the Defendants, and award then all relief allowed by law, including but not
limited to the following:
(a) All appropriate relief at law and equity;
(b) Declaratory relief and other appropriate equitable relief;
(c) Economic losses on all claims as allowed by law;
(d) Compensatory and consequential damages, including damages for emotional
distress, humiliation, loss of enjoyment of life, and other pain and suffering on all claims allowed
by law in an amount to be determined at trial;
(e) Punitive damages on all claims allowed by law and in an amount to be determined
at trial;
(f) Attorneys’ fees and the costs associated with this action, including expert witness
fees, on all claims allowed by law;
(g) Pre- and post-judgment interest at the appropriate lawful rate; and
(h) Any further relief that this Court deems just and proper, and any other relief as
allowed by law.
PLAINTIFF HEREBY DEMANDS A JURY TRIAL ON ALL ISSUES SO TRIABLE.
Respectfully submitted this 9th day of December 2015.
R ATHOD | MOHAMEDBHAI LLC
s/ Matthew J. Cron Matthew J. Cron
Qusair Mohamedbhai
Siddhartha H. Rathod2701 Lawrence Street, #100
Denver, Colorado 80205
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(303) 578-4400 (p)(303) 578-4401 (f)
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