Free Lodged Proposed Document - District Court of Arizona - Arizona

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THE LAW OFFICES OF ROBERT M. COOK

Robert M. Cook (SBN 002628) Kip M. Micuda (SBN 011921) THE LAW OFFICES OF ROBERT M. COOK, PLLC Missouri Commons - Suite 185 1440 E. Missouri Avenue Phoenix, Arizona 85014 Telephone: (602) 285-0288 Facsimile: (602) 285-0388 E-mail: [email protected] Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert A. Cuevas, Plaintiff, SECOND AMENDED COMPLAINT v. John Miranda, et al. Defendants. (Section 1983 Civil Rights) (Jury Demand) Case No:2:04-cv-00476-PGR

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COMES NOW Robert A. Cuevas ("Plaintiff"), by and through his undersigned counsel for his Complaint against Defendants, and each of them, hereby alleges: INTRODUCTION 1 Plaintiff is a Federal employee and brings this action against (i) the City of

San Luis, Arizona and (ii) individuals employed by Defendant City of San Luis, acting under color of state law and being sued herein in their official and individual capacities. On or about July 25, 2002, Plaintiff, while acting in his dual capacity as Senior Customs Inspector for the Department of Homeland Security (DHS) and as a Captain in the United States Army, Military Intelligence, and as a private citizen for the State of Arizona, caused to be arrested (and ultimately convicted) a known "coyote" (transporter of undocumented individuals) Jose Luis Heredia, who was illegally importing four aliens. Remarkably, Plaintiff was thereafter seized, searched, and arrested by City of San Luis Police

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Department. Defendant John Miranda, in concert with Defendant Alex Ruiz, and with the participation of other federal and county officials, conspired to effectuate the criminal prosecution of Plaintiff and his administrative dismissal from his employment as a Border Patrol Agent. Ultimately, Plaintiff was found not guilty of the criminal charges. Upon information and belief, Plaintiff alleges that he was at all times perceived by the Department of Homeland Security as a "spy" on behalf of the United States Army, Military Intelligence, and thus a threat to certain individuals he reported to in the Department of Homeland Security. As a consequence, Plaintiff's charge, arrest, prosecution and removal from employment by the Department of Homeland Security were retaliatiory. JURISDICTION, VENUE AND REQUEST FOR JURY TRIAL 2 Plaintiff brings this action against Defendants to redress the deprivation of

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rights secured him by the United States Constitution and its Amendments (particularly the Fourth, Fifth and Fourteenth Amendments) and 42 U.S.C. §§1981, 1983 and 1988. 3 At all times relevant to this action, Plaintiff and the individual Defendants

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were/are citizens of the United States and were residents of Arizona. Defendant City of San Luis is a municipality located in Yuma County, Arizona. All Defendants, and each of

them, caused the events in controversy to occur within the County of Yuma, Arizona. The matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. 4 This Court has jurisdiction over this matter under 28 U.S.C. §§1331, 1332,

and 1343(a)(3) and subsection (4); 42 U.S.C.§§ 1981 and 1983; and 28 U.S.C. §1367. 5 6 Venue is proper in this District under 28 U.S.C. §1391. Plaintiff requests a trial by jury as a matter of right under the United States

Constitution and its amendments and under Rule 38 of the Federal Rules of Civil Procedure. PARTIES 7 Plaintiff, a Hispanic, was at all times relevant to this action a resident of Yuma

County, Arizona. He is currently a resident of the State of California. Plaintiff is a "person"

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within the meaning of 42 U.S.C. §1983. 8 At all times relevant to this action, Defendant John Miranda was a resident of

Yuma County, Arizona. In addition, at all times relevant to this action, Defendant John Miranda was employed by Defendant City of San Luis as its Chief of Police, heading the Police Department of City of San Luis. Defendant John Miranda is a "person" within the meaning of 42 U.S.C. §1983. 9 At all times relevant to this action, Defendant Alex Ruiz was a resident of

Yuma County, Arizona. In addition, at all times relevant to this action, Defendant Alex Ruiz was employed by Defendant City of San Luis as its City Manager/Administrator. Defendant Alex Ruiz is a "person" within the meaning of 42 U.S.C. §1983. 10 Defendant City of San Luis is a municipality located in Yuma County,

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Arizona, and is a "person" within the meaning of 42 U.S.C. §1983.

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GENERAL ALLEGATIONS 11 On or about July 25, 2002, Plaintiff was going home from the San Luis Port

of Entry where he had just finished a midnight shift. He was driving through the City of San Luis, Arizona. 12 Plaintiff observed a vehicle facing eastbound on the side of the road. Plaintiff

noticed two vehicles veering very quickly to the left of the vehicle to avoid hitting the rear of the vehicle as it made a fast stop. Plaintiff noticed the vehicle was stopped for only a few moments as, what appeared to be, four Latin undocumented alien males jumped out from behind some desert brush next to the road and jumped into the awaiting vehicle driven by an individual named Jose Luis Heredia. 13 As Plaintiff approached the Heredia vehicle, the vehicle began to move by

spinning the front tires and kicking up rocks on to the roadway. Plaintiff was forced to the left onto oncoming traffic. Plaintiff hit his brakes, placing him behind Heredia. Heredia

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continued to drive down the center of the road eastbound splitting cars down the center of the road, increasing his speed. 14 Plaintiff began to follow Heredia at a safe distance and wrote down the

vehicle license plate number (AZ 376 JBY) to report this situation to proper authorities at his first opportunity. 15 Eventually, Heredia noticed Plaintiff was behind him and started to drive

faster. Heredia drove through a stop sign. 16 Heredia sped to about 80-95 mph, passing several cars. Plaintiff continued

to observe Heredia at a distance as Heredia passed a vehicle on the right-hand side of the road, forcing several vehicles onto the center divider and onto oncoming traffic. 17 Plaintiff noticed Heredia make a sudden stop on the side of the road and the The four Latin

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four Latin undocumented alien males jumped out of the vehicle.

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undocumented alien males ran into a field and Heredia made a U-turn in front of a transit van. Plaintiff followed. 18 Heredia sped away at well over 80 mph, passing cars quickly with no regard

to oncoming traffic and failing to observe a stop sign. 19 20 Plaintiff continued to follow Heredia about a half mile behind. Heredia eventually abandoned his vehicle in the middle of a road and ran to

the backyard of a home. 21 Plaintiff gave chase to Heredia and yelled to a bystander who was in front of

his home to call police for assistance. Plaintiff hit a garage door of a home with his vehicle. The Police Department of San Luis responded to Plaintiff's request for help, and set up a perimeter around the block in which the foot chase occurred. 22 After officers of the Police Department of San Luis arrived, Plaintiff

described the entire incident to them, informing the officers of the location of the four Hispanic males and gave a description of Heredia. In doing so, Plaintiff followed the

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Customs Directive No. 5290-007A §6, Procedures 6.1.1: Inspectors must remain aware of the risk potential in law enforcement situations, particularly those involving limited or no backup and multiple suspects. Inspectors must keep in mind their range of options and their training when determining whether to intervene in any manner permitted by this directive. The inspection, in these situations, should concentrate on effectively witnessing the events while making prompt referrals, as to other law enforcement agencies who are staffed, trained, and equipped to handle such situations. Section 6.9.4 provides that inspectors will follow established procedures regarding vehicular and pedestrian port runner notifications to other federal, state, and local law enforcement agencies. Section 6.10.2 provides that inspectors will not conduct foot pursuits if they are working alone. Section 6.10.3 provides that inspectors will not conduct foot pursuits beyond the perimeter of the area. And section 6.10.5 provides that officers will not conduct foot pursuits if they believe that the necessity for immediate apprehension is outweighed by the danger to themselves, other pursuing officer, or the public. 23 Shortly thereafter, it was discovered that Heredia was the owner of one of the

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homes in the immediate vicinity. 24 The Police Department of San Luis asked for consent to search the Heredia's

home. Heredia eventually appeared from the house, having cut his hair and changed his clothing. Plaintiff was still able to identify Heredia. 25 After officers of the Police Department of San Luis apprehended Heredia, they

detained Plaintiff, without probable cause; he was not free to leave until some time later. 26 The next day, Plaintiff provided the Police Department of San Luis with a

written report describing the entire incident. Plaintiff also prepared a written report to his employer. 27 Heredia was arrested, prosecuted, and convicted. The four Latin

undocumented alien males were deported back to Mexico. 28 Plaintiff, as a Senior Customs Inspector, was sworn to uphold the laws of the

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United States and defend the Constitution. 29 As a federal officer, Plaintiff had the authority to enforce federal laws.

Plaintiff observed five individuals commit a crime in his presence. The enforcement authority of a Customs Officer, according to 19 U.S.C. §1589a (2002) states that an officer of the Customs may: (1) carry a firearm; (2) execute and serve any order, warrant, subpoena, summons or other process issued under the authority of the United States; (3) make an arrest without a warrant for any offense against the United States committed in the officer's presence or for a felony, cognizable under the laws of the United States committed outside the officer's presence if the officer has reasonable grounds to believe that the person to be arrested has committed or is committing a felony; and (4) perform any other law enforcement duty that the Secretary of the Treasury may designate. 30 On or about July 25, 2002, Plaintiff observed an offense committed in his

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presence and he followed the suspects until the local authorities arrived. Plaintiff had the requisite authority to arrest the individuals. 31 On or about July 25, 2002, Plaintiff, a Senior Customs Inspector, had the

authority to request assistance in making an arrest under 19 U.S.C. §507, which states every customs officer shall: (1) upon being questioned at the time of executing any powers conferred upon him, make known his character as an officer of the Federal Government; and (2) have the authority to demand the assistance of any person in making any arrest, search, or seizure authorized by any law enforced or administered by customs officers, as such assistance may be necessary. 32 On or about September 6, 2002, Plaintiff received a letter from his employer

informing him that he will be suspended from duty and pay effective September 26, 2002, until such time as the criminal proceedings ended. 33 Plaintiff is informed and believes that his supervisor, acting Port Director of

San Luis Port, Department of Homeland Security, John Schwamm, had contacts with

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Defendants Miranda and Ruiz for the purpose of enlisting their assistance in removing Plaintiff from his employment with DHS and having Plaintiff criminally prosecuted. 34 Plaintiff is informed and believes that Schwamm and Defendants Miranda

and Ruiz agreed to press for charges, the detention and the prosecution of Plaintiff, knowing that there was no probable cause for such charges, detention or prosecution. 35 Plaintiff is informed and believes that the conspiracy between Schwamm and

Defendants Miranda and Ruiz to press for charges, the detention and the prosecution of Plaintiff, without probable cause, was in retaliation against Plaintiff for his position and work with the United States Army, for his criticism of Schwamm's lack of ability as a manager, for Miranda being admonished for waiving a traffic ticket given against Plaintiff, and for Plaintiff's efforts to arrest Heredia and the four Latin undocumented alien males; that is, for doing a job that other customs inspectors and officers of the Police Department of San Luis failed to do. In other words, Schwamm and Defendants Miranda and Ruiz resented that Plaintiff excelled as a law enforcement officer and manager. 36 On or about September 17, 2002, Plaintiff was seized, searched, arrested and

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ordered to appear at the Somerton Justice Court Second Precinct, Case Number J1402FE2002-00255, for a Preliminary Hearing scheduled for September 26, 2002 at 2:00 p.m., on felony charges of Criminal Damage, Endangerment, and Reckless Driving, a Misdemeanor. 37 Again, Plaintiff is informed and believes that Schwamm and Defendants, and

each of them, called for and caused the detention, charging, prosecution and termination of Plaintiff, in part, in retaliation for him engaging in his duties as a Senior Customs Inspector on July 25, 2002, as describer above. 38 Plaintiff is informed and believes that other individuals similarly situated as

he on July 25, 2002 were not detained, charged, or prosecuted by Defendants as was Plaintiff; that is, other federal officers who engaged in their duties, similar to how Plaintiff

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was engaged in his duties described above, were treated much different than Plaintiff. 39 Defendants' conduct in calling for and causing the detention, charging,

prosecution and termination of Plaintiff was malicious, bad faith, arbitrary and outrageous. 40 In actual furtherance of their conspiracy of retaliation against Plaintiff,

Schwamm and Defendants Miranda and Ruiz had multiple contacts with the Yuma County Attorney's Office, handling Plaintiff's criminal case, mandating that the prosecution of Plaintiff go forward, despite opinions of those with that office who wished to dismiss the charges, knowing them to be without probable cause. 41 Upon information and belief, each Defendant above understood that Plaintiff

was being detained, charged, prosecuted and terminated, in substantial part if not entirely, because Plaintiff worked with the United States Army, for his criticism of Schwamm's lack of ability as a manager, for Miranda being admonished for waiving a traffic ticket given against Plaintiff, and for Plaintiff's efforts to arrest Heredia and the four Latin undocumented alien males. 42 Upon information and belief, each Defendant knew or should have known that

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detaining, charging, prosecuting and terminating Plaintiff because he worked with the United States Army, for his criticism of Schwamm's lack of ability as a manager, for Miranda being admonished for waiving a traffic ticket given against Plaintiff, and for Plaintiff's efforts to arrest Heredia and the four Latin undocumented alien males , was wrongful under federal law and violated Plaintiffs' federal civil rights. 43 Defendant City's role in the detention, charging, prosecution and termination

of Plaintiff was because of a long-standing practice and custom of Defendant City to allow those embraced with its power and authority, like Defendants Miranda and Ruiz, to utilize their status, power and authority as city managers to retaliate against anyone they choose for whatever reason, such as repaying a friend like Schwamm. 44 By their role in retaliating against and the detention, charging, prosecution and

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termination of Plaintiff because he worked with the United States Army, for his criticism of Schwamm's lack of ability as a manager, for Miranda being admonished for waiving a traffic ticket given against Plaintiff, and for Plaintiff's efforts to arrest Heredia and the four Latin undocumented alien males , Defendants Miranda and Ruiz, the final policy-making authorities representing official policy of the City, knew that they violated Plaintiff's federal civil rights, for which Defendant City is liable. 45 To the extent that Defendant Ruiz, a final policy-making authority

representing official policy of the City, either delegated his authority to Defendant Miranda to act as described above, or ratified the decisions made above, Defendant Ruiz knew the detention, charging, prosecution and termination of Plaintiff violated Plaintiffs' federal civil rights, for which Defendant City is liable. 46 On or about October 3, 2002, Richard J. Edgar, of Bowman & Smith, P.C.,

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entered his Notice of Appearance in the criminal case on behalf of Plaintiff. 47 wrote a letter to United States Senator John McCain regarding Plaintiff being charged with a crime that was a miscarriage of justice. 48 On or about October 28, 2002, Plaintiff's attorney Richard J. Edgar filed a On or about October 16, 2002, Plaintiff's attorney William Michael Smith

Notice of Defenses, under Rule 15.2 of the Arizona Rules of Criminal Procedure, noting the following defenses: Insufficiency of Evidence, Claim of Right, Good Character, No Criminal Intent, Mere Presence, Accident, Lack of mens rea, Mistaken Identity, and Other, under A.R.S. §13-3884. 49 At that time, the prosecution had not disclosed the witnesses it intended to call

at trial, as required by Rule 15.1(a)(1) of the Arizona Rules of Criminal Procedure. 50 On or about November 21, 2002, the prosecution certified that it disclosed

materials required by Rule 15.1 of the Arizona Rules of Criminal Procedure.

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51

On or about January 29, 2003, Richard Edgar, counsel for Plaintiff, submitted

a Memorandum on Defendant's Authority as a Federal Officer to enforce federal laws as a law enforcement officer of the United States. 52 On or about May 27, 2003, the trial court signed an order dismissing the case

against Plaintiff. 53 As a result of being detained and eventually charged and prosecuted by

Defendants, Plaintiff was suspended from his duties as a Senior Customs Inspector for about eighteen (18) months. Plaintiff lost significant wages as a consequence. 54 As a direct and proximate result of the conduct of Defendants, Plaintiff was

compelled to retain defense counsel for his defense, at a cost of nearly $50,000.00. 55 As a direct and proximate result of the conduct of Defendants, Plaintiff lost

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compensation, which caused related losses, all totaling an amount of not less than $100,000. 56 As a further direct and proximate result of the conduct of Defendants, Plaintiff

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suffered injury, including but not limited to, economic loss, emotional distress, mental anguish, humiliation, indignation, embarrassment, loss of enjoyment of life and deprivation of his federal property rights and liberty interests. 57 Defendants John Miranda and Alex Ruiz are sued both individually and in

their official capacities. 58 At all times material herein, Defendants and each of them acted under color

of state law. To the extent Defendants Miranda and Ruiz may be found not to have acted within the scope of their capacity and authority as members of Defendant City's government, each is sued in his private capacity. As such, Defendants Miranda and Ruiz acted, at times, as private persons in concert with Defendant City and Schwamm, to retaliate against and detain, charge, prosecute and terminate Plaintiff in violation of his federal civil rights; that is, the actions of Defendants Miranda and Ruiz, as private actors, should be treated as that of Defendant City and as actions under color of state law.

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59

Defendants violated clearly established statutory and constitutional rights of

which a reasonable person would have known.

COUNT I RETALIATION (42 U.S.C. §§1981 and 1983) (non-governmental and by color of state law) 60 Plaintiff hereby incorporates the allegations against Defendants, and each of

them, in Paragraphs 1-59 as though fully set forth herein. 61 Defendants' retaliation against, conduct in calling for and causing the

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detention, charging and prosecution (and termination) of Plaintiff, and malicious prosecution of Plaintiff, all without probably case, constitute violations of Plaintiff's statutory right to be free from retaliation as provided in 42 U.S.C. §1981 under §1983. 62 Because Defendants formed and operated a conspiracy to deprive Plaintiff of

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his federal civil rights, and they wrongfully acted in furtherance of the conspiracy, for which Plaintiff suffered damages, Defendants are jointly liable for the violations of Plaintiffs' statutory right to be free from retaliation as provided in 42 U.S.C. §1981 under §1983. 63 As a direct and proximate result of the conduct of Defendants, and each of

them, Plaintiff suffered injury, including but not limited to, economic loss, emotional distress, mental anguish, humiliation, indignation, embarrassment, loss of enjoyment of life and deprivation of his federal civil rights.

COUNT II UNCONSTITUTIONAL DENIAL OF PROPERTY INTERESTS (42 U.S.C. §1983) 64 Plaintiff hereby incorporates the allegations against Defendants, and each of

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them, in Paragraphs 1-63 as though fully set forth herein. 65 Defendants' retaliation against, conduct in calling for and causing the

detention, charging and prosecution (and termination) of Plaintiff, and malicious prosecution of Plaintiff, all without probably cause, constitute violations of Plaintiff's property interests as provided by the Fifth and Fourteenth Amendments to the United States Constitution under 42 U.S.C. §1983. 66 Because Defendants formed and operated a conspiracy to deprive Plaintiff of

his federal civil rights, and they wrongfully acted in furtherance of the conspiracy, for which Plaintiff suffered damages, Defendants are jointly liable for the violations of Plaintiff's property interests as provided by the Fifth and Fourteenth Amendments to the United States Constitution under 42 U.S.C. §1983. 67 As a direct and proximate result of the conduct of Defendants, and each of

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them, Plaintiff suffered injury, including but not limited to, economic loss, emotional distress, mental anguish, humiliation, indignation, embarrassment, loss of enjoyment of life and deprivation of his federal civil rights.

COUNT III UNCONSTITUTIONAL DENIAL OF LIBERTY INTEREST (42 U.S.C. §1983) 68 Plaintiff hereby incorporates the allegations against Defendants in Paragraphs

1-67 as though fully set forth herein. 69 Defendants' retaliation against, conduct in calling for and causing the

detention, charging and prosecution of Plaintiff, and malicious prosecution of Plaintiff, all without probably cause, constitute violations of Plaintiff's liberty interests as provided by the Fourth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §1983.

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70

Because Defendants formed and operated a conspiracy to deprive Plaintiff of

his federal civil rights, and they wrongfully acted in furtherance of the conspiracy, for which Plaintiff suffered damages, Defendants are jointly liable for the violations of Plaintiff's liberty interests as provided by the Fourth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §1983. 71 As a direct and proximate result of the conduct of Defendants, Plaintiff

suffered injury, including but not limited to, economic loss, emotional distress, mental anguish, humiliation, indignation, embarrassment, loss of enjoyment of life and deprivation of his federal property rights and liberty interests.

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COUNT VI UNCONSTITUTIONAL MALICIOUS PROSECUTION (42 U.S.C. §1983) 72 Plaintiff hereby incorporates the allegations against Defendants in Paragraphs

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1-71 as though fully set forth herein. 73 Defendants' retaliation against, conduct in calling for and causing the

detention, charging and prosecution of Plaintiff, and malicious prosecution of Plaintiff, all without probably cause, constitute violations of Plaintiff's right to be free of a prosecution brought with malice and without probable cause as provided by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §1983. 74 Because Defendants formed and operated a conspiracy to deprive Plaintiff of

his federal civil rights, and they wrongfully acted in furtherance of the conspiracy, for which Plaintiff suffered damages, Defendants are jointly liable for the violations of Plaintiff's right to be free of a prosecution brought with malice and without probable cause as provided by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §1983. 75 As a direct and proximate result of the conduct of Defendants, Plaintiff

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suffered injury, including but not limited to, economic loss, emotional distress, mental anguish, humiliation, indignation, embarrassment, loss of enjoyment of life and deprivation of his federal property rights and liberty interests.

PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendants and each of them as follows: A. B. C. That actual damages be awarded to Plaintiff and against Defendants; That compensatory damages be awarded to Plaintiff and against Defendants; That punitive damages be awarded to Plaintiff and against the individual Defendants; D. E. F. Reasonable Attorney's fees and costs, as allowed by law; Costs of this action; and Whatever other relief to which Plaintiff may be entitled.

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RESPECTFULLY SUBMITTED this 22nd day of May, 2008. THE LAW OFFICES OF ROBERT M. COOK, PLLC

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By /s/
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Robert McConnell Cook, Sr. Robert McConnell Cook, Sr. Attorney for Plaintiff

I certify that on this 22nd day of May, 2008, I filed the foregoing document via CM/ ECF, with: The United States District Court District of Arizona COPY of the foregoing sent via U.S. Mail this 22nd day of May, 2008, to:

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Daniel R. Malinski, Esq. BURCH & CRACCHIOLO, PA PO Box 16882 Phoenix, Arizona 85011-6882

By: /s/ Vicki L. Morgan Vicki L. Morgan

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