Free Complaint - District Court of California - California

Case 3:08-cv-00493-VRW

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Filed 01/23/2008

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Case 3:08-cv-00493-VRW

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Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

individual capacity for damages and in his individual and official capacity for injunctive relief. 2.4 Defendant the CITY OF HAYWARD is and at all times mentioned herein was a municipal corporation which has, as one of its constituent parts, a department commonly known as the "Hayward Police Department". 2.6 Defendant LEON LIMON, at all times mentioned herein, was and is a person employed by the City of Hayward who works as a sworn police officer in the Hayward Police Department. He is being sued in his individual and official capacity for damages and injunctive relief. 3. JURISDICTION: This Court has jurisdiction over this action pursuant to Title 28 U.S.C. §§1331 and 1343(3) in that the controversy arises under the United States Constitution and under Title 42 U.S.C. §1983 and Title 28 U.S.C. §2201. This Court has authority to award attorneys fees pursuant to Title 42 U.S.C. §1988. Plaintiffs further invoke the supplemental jurisdiction of this Court under 28 U.S.C. §1367(a) to hear and adjudicate state law claims. 4. INTRADISTRICT ASSIGNMENT: Venue is proper in this district and division under 28 U.S.C. §1391(b) because a substantial part of the events giving rise to the claims in this action occurred in this district and division. 5. On or about May 7, 2007, plaintiff went to Chabot College in Hayward, California. Chabot College is a college campus owned and administered by the Chabot-Las Positas Community College District. His intention was to preach the Good News of Jesus Christ and verbally expound upon various biblical texts and truths to the public (herein "free speech activity"). 6. Plaintiff stationed himself at an outdoor location within the campus, namely in or about a large courtyard area open to the public, and engaged in free speech activity. While engaged in this free speech activity, plaintiff was approached

COMPLAINT

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Case 3:08-cv-00493-VRW

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Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

by defendant EARNEST KNOX who demanded that plaintiff leave campus. Plaintiff refused. 7. A little while later, defendant Hayward Police Officer LEON LIMON approached plaintiff and demanded that plaintiff leave campus. Defendant LIMON stated that defendant KNOX had previously asked plaintiff to leave and indicated that plaintiff's refusal and the subsequent call to the police constituted a disturbance. Plaintiff refused Officer LIMON's demand and plaintiff said he would continue to preach. 8. At this point, the following colloquy occurred between defendants LIMON and KNOX: OFFICER LIMON: "How many times have you asked him to leave?" SECURITY OFFICER KNOX: "Uh, minimum three times." OFFICER LIMON: "Minimum three times. Is he not leaving?" SECURITY OFFICER KNOX: "No he has not left." OFFICER LIMON: "Do you want him under arrest for trespassing?" SECURITY OFFICER KNOX: "Yes I do." Defendant KNOX knew and intended that, by virtue of these statements, plaintiff would be physically handcuffed and transported away from the campus. 9. Immediately thereafter, Officer LIMON handcuffed plaintiff, forced him to go to the patrol car, and put plaintiff inside the patrol car. 10. A while later Officer LIMON returned to the patrol car, got in, and began driving. Officer LIMON then dropped plaintiff off at plaintiff's parked vehicle and proceeded to fill out a citation, a true and correct copy of which is attached hereto as Exhibit A (with certain personal information having been redacted). The charge on the citation is Penal Code 602(L). 11. Although the citation indicates that "KNOX 101" was involved in the arrest, plaintiff alleges on information and belief that defendant KNOX did not

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Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

actually write his name on the citation but rather that defendant LIMON filled out the entire citation, including KNOX' name and number, with the exception of plaintiff's signature at the bottom. 12. At all of the above times plaintiff's activity was peaceful, caused no disturbance or disruption in the orderly operation of the campus, and was in no way criminal. 13. No defendant had lawful cause or probable cause to arrest plaintiff, and the arrest of plaintiff was unlawful. The District Attorney declined to prosecute plaintiff and plaintiff has not been convicted of any crime on account of the incident.

FIRST CAUSE OF ACTION (VIOLATION OF 42 U.S.C. § 1983) 14. Plaintiff incorporates paragraphs 1-13 as if fully set forth herein. 15. The acts of defendants deprived plaintiff of his free speech rights under the First and Fourteenth Amendments of the Constitution of the United States and further deprived plaintiff of his right to be secure in his person against unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution. Defendants knew or should have known that their actions were unlawful. 16. All of the acts of defendant KNOX were done under the color and pretense of the statutes, ordinances, regulations, customs, official policies, official procedures, and usages of the Chabot-Las Positas Community College District. All of the acts of defendant LIMON were done under color and pretense of the statutes, ordinances, regulations, customs, official policies, official procedures, and usages of the City of Hayward.

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Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

17. Each defendant participated in the affirmative acts of the other, with the result that plaintiff was arrested as set forth above. 18. On information and belief, plaintiff alleges that The City of Hayward has an inadequate policy of supervising police officers and has not adequately trained its police officers so as to prevent unlawful arrests such as that described above. 19. As a direct and proximate result of defendants' actions, plaintiff suffered humiliation, embarrassment, discomfort, mental anguish, fear, anxiety, loss of reputation, emotional distress, and loss of his liberty and freedom. 20. The conduct of defendants was performed with malice and oppression and a conscious disregard of plaintiff's rights, so as to justify an award of exemplary damages. 21. Unless enjoined by this Court, defendants will continue to infringe plaintiff's constitutionally protected rights and thereby cause irreparable injury, as damages alone cannot fully compensate plaintiff from the ensuing harm. This threat of injury from continuing violations requires injunctive relief.

SECOND CAUSE OF ACTION (FALSE ARREST/IMPRISONMENT) 22. Plaintiff incorporates paragraphs 1-21 as if fully set forth herein. 23. Plaintiff was falsely arrested. 24. Defendants acted without reasonable cause and without due care in causing the arrest of plaintiff. As a direct and proximate result of defendants' actions, plaintiff suffered humiliation, embarrassment, discomfort, mental anguish, fear, anxiety, loss of reputation and emotional distress. 25. On or about May 21, 2007, plaintiff presented a claim to the CITY OF HAYWARD concerning the actions of Officer LIMON as described above.

COMPLAINT

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Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

Plaintiff's counsel received by mail a letter from the CITY OF HAYWARD dated July 26, 2007 stating that each claim was denied. 26. In or about June or July of 2007, plaintiff presented a claim to the Chabot-Las Positas Community College District concerning the actions of Security Officer KNOX as described above. Plaintiff's counsel received by mail a letter from Keenan and Associates, who purport to be the claims administrators for the District. The letter stated that the claim was "rejected by operation of law on July 25, 2007."

THIRD CAUSE OF ACTION (VIOLATION OF CALIFORNIA CIVIL CODE § 52.1) 27. Plaintiff incorporates paragraphs 1-26 as if fully set forth herein. 28. Defendants, because of plaintiffs' religious beliefs and political beliefs and the peaceful expression of those beliefs, intentionally intimidated plaintiff and interfered with his exercise of the right to free speech and to assembly guaranteed by the First Amendment of the United States Constitution and Article I, §2 of the California Constitution, and to his right to be free from unlawful search and seizure guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, §13 of the California Constitution. This conduct was a violation of California Civil Code §52.1. 29. Unless enjoined by this Court, defendant will continue to infringe plaintiffs' constitutionally protected rights and thereby cause irreparable injury, as damages alone cannot fully compensate plaintiffs for the ensuing harm. This threat of injury from continuing violations requires injunctive relief.

FOURTH CAUSE OF ACTION (VIOLATION OF CALIFORNIA CIVIL CODE § 51.7) 30. Plaintiff incorporate paragraphs 1-29 as if fully set forth herein.

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Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

31. By the actions alleged herein, defendant violated plaintiff's right under California Civil Code §51.7 to be free from violence or intimidation by threat of violence because of their religious and political beliefs. 32. Unless enjoined by this Court, defendant will continue to infringe plaintiff's constitutionally protected rights and thereby cause irreparable injury, as damages alone cannot fully compensate plaintiff for the ensuing harm. This threat of injury from continuing violations requires injunctive relief.

WHEREFORE, PLAINTIFF PRAYS FOR JUDGMENT AGAINST DEFENDANTS AS FOLLOWS: ON THE FIRST CAUSE OF ACTION: 1. General damages in the amount of $50,000; 2. Special damages and exemplary damages according to proof; 3. Enter preliminary and permanent injunctions enjoining defendants and those persons in active concert with them from interfering with plaintiff's lawful speech or arresting him under similar circumstances; 4. Costs, interest and attorneys' fees pursuant to plaintiffs to 42 U.S.C. §1988 and other pertinent federal law; and 5. Such other and further relief as the court deems just and proper.

ON THE SECOND CAUSE OF ACTION: 1. General damages in the amount of $50,000; 2. Special damages and exemplary damages according to proof; 3. Enter preliminary and permanent injunctions enjoining defendants and those persons in active concert with them from interfering with plaintiff's lawful speech or arresting him under similar circumstances; 4. Costs; and

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Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

5. Grant such other and further relief as the court deems just and proper.

ON THE THIRD CAUSE OF ACTION: 1. General damages in the amount of $50,000; 2. Special damages and exemplary damages according to proof; 3. Award statutory penalties to each plaintiff pursuant to California Civil Code §52, et seq. 4. Enter preliminary and permanent injunctions enjoining defendants and those persons in active concert with them from interfering with plaintiff's lawful speech or arresting him under similar circumstances; 5. Costs, interest and attorneys' fees to plaintiffs pursuant to California Civil Code §52, §52.1 and other pertinent California law; and 6. Such other and further relief as the court deems just and proper.

ON THE FOURTH CAUSE OF ACTION: 1. General damages in the amount of $50,000; 2. Special damages and exemplary damages according to proof; 3. Award statutory penalties to each plaintiff pursuant to California Civil Code §52, et seq. 4. Enter preliminary and permanent injunctions enjoining defendants and those persons in active concert with them from interfering with plaintiff's lawful speech or arresting him under similar circumstances; 5. Costs, interest and attorneys' fees to plaintiffs pursuant to California Civil Code §52, §52.1 and other pertinent California law; and 6. Such other and further relief as the court deems just and proper.

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Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

Dated: January 23, 2008 MICHAEL MILLEN, ESQ. ATTORNEY FOR PLAINTIFF

JURY DEMAND Plaintiffs hereby requests a jury trial in this matter.

Dated: January 23, 2008 MICHAEL MILLEN, ESQ. ATTORNEY FOR PLAINTIFF

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