1 DANIELLE CHARLES (SBN 291237) BANKER’S...

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COMPLAINT FOR DAMAGES - 1

DANIELLE CHARLES (SBN 291237) MAXWELL C. AGHA (SBN 153625) BANKER’S HILL LAW FIRM, APC 160 Thorn St. Suite 200 San Diego, CA 92103 Telephone No: (619) 230-0330 Facsimile No: (619) 230-1726 Attorney for Plaintiff Lawanda Moses

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

LAWANDA MOSES, Individually and on behalf of the Estate of Tommy Yancy Junior, deceased,

Plaintiff, vs.

State Of California; California Highway Patrol; City Of Imperial; Imperial City Police Department; County Of Imperial; Imperial County Sheriff’s Office; And Does 1 Through 25, Inclusive;

Defendants.

Case No.: COMPLAINT FOR DAMAGES FOR: 1. 42 U.S.C. § 1983 CIVIL RIGHTS VIOLATIONS 2. SUBSTANTIVE DUE PROCESS (42 U.S.C. § 1983) 3. 42 U.S.C. § 1983 – SURVIVAL ACTION 4. MUNICIPAL LIABILITY – RATIFICATION (42 U.S.C. § 1983) 5. VIOLATION OF THE RALPH CIVIL RIGHTS ACT CAL. CIV. CODE § 52.7 6. VIOLATION OF BANE ACT - CAL. CIV. CODE § 52.1 7. ASSAULT (WRONGFUL DEATH) 8. BATTERY (WRONGFUL DEATH) 9. NEGLIGENCE (WRONGFUL DEATH) 10. NEGLIGENT HIRING, TRAINING AND RETENTION

'15CV0334 JLBJM

Case 3:15-cv-00334-JM-JLB Document 1 Filed 02/17/15 of 26

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11. PUBLIC ENTITY LIABILITY – FAILURE TO TRAIN (42 U.S.C. § 1983) DEMAND FOR JURY TRIAL

Plaintiff Lawanda Moses, Individually, as a Successor in Interest of Tommy Yancy

Junior, and as the Personal Representative of the Estate of Tommy Yancy Junior,

deceased, hereby alleges and complains against the Defendants State of California;

California Highway Patrol; City of Imperial; Imperial City Police Department;

County of Imperial; Imperial County Sheriff’s Office; DOES 1 through 25, inclusive,

and each of them, (all together, “Defendants”) as follows:

I.

JURISDICTION AND VENUE

1. This is a civil rights wrongful death/survival action brought for the

redress of alleged deprivations of constitutional rights as protected by 42 U.S.C. §§

1983, 1985, 1986, 1988, and the Fourth, Fifth, and Fourteenth Amendments of the

United States Constitution. Jurisdiction is founded on 28 U.S.C. §§ 1331, 1343, and

1367.

2. Venue is properly within this District under 28 U.S.C. §1391(b)

because all of the events and transactions giving rise to this action took place in

Imperial County, California.

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II.

NATURE OF THE ACTION

3. This wrongful death, civil rights, and survival action seeks

compensatory and punitive damages from the State of California; California

Highway Patrol; City of Imperial; County of Imperial; Imperial City Police

Department; Imperial County Sheriff’s Office; and DOES 1 through 25 violation of

various rights under the United States Constitution and state law in connection with

the police killing of 32-year-old veteran Tommy Yancy Junior, on Mother’s Day,

May 11, 2014.

4. The killing of Tommy Yancy Junior was seen and recorded by multiple

witnesses, and afterwards was featured prominently on national and international

news. Video footage broadcast by KECY-TV FOX 9 and ABC 5 depicts Tommy

Yancy Junior, who is clearly unarmed, being attacked by a K-9 dog, beaten, forced

onto the ground, and shot with one or more tasers amidst a swarm of police officers.

Sadly, Tommy’s mother Lawanda Moses, who had a very close relationship with

her son, witnessed the fatal attack of her son on television, and had to contend with

his death on Mother’s Day.

5. Plaintiff Lawanda Moses commences this action individually and on

behalf of her son, Decedent Tommy Yancy Junior. Tommy was driving through or

near the intersection of Highway 86 and 15th Street in Imperial, California, when he

was pulled over by officers from the California Highway Patrol (CHP) in what

appeared to be a routine traffic stop. During the stop, the CHP Officers, Imperial

County Sheriff’s Department officers, and City of Imperial Police Department

officers, whose identities have not yet been ascertained, physically attacked Tommy

with a K-9 dog, batons, one or more tasers, and their fists, resulting in his death.

6. This case is in the public interest.


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III.

PARTIES

7. At all relevant times, Tommy Yancy Junior. (“Decedent” or “Mr.

Yancy”) was a 32 year old veteran of the United States Army residing in the County

of Imperial, State of California at the time he was killed on May 11, 2014.

8. Plaintiff, Lawanda Moses, sues both in her individual capacity as the

parent of Decedent, in a representative capacity as Personal Representative of

Decedent’s, her son’s Estate, and as a Successor in Interest for her son, Decedent,

pursuant to California Code of Civil Procedure § 377.60 and § 377.30, and federal

civil rights law. Plaintiff herein brings these claims pursuant to California Code of

Civil Procedure sections 377.20 et seq. and 377.60 et seq., which provide for survival

and wrongful death actions. These claims are also brought individually and on behalf

of Tommy Yancy Junior, deceased, on the basis of 42 U.S.C. §§ 1983 and 1988, the

United States Constitution, and federal and state civil rights law.

9. At all times mentioned in this Complaint, Plaintiff Lawanda Moses has

been residing in the County of Imperial, State of California.

10. Defendant State of California is, and at all times herein mentioned was

a sovereign state of the United States of America.

11. Defendant California Highway Patrol (CHP) is, and at all times herein

mentioned was an agency of and operating under the authority of the State of

California, duly organized and existing under the laws of the State of California.

12. Defendant City of Imperial is a municipality organized and existing

under the laws of the State of California. It is a local government entity and is not an

arm of the State of California for Eleventh Amendment purposes.


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13. Defendant City of Imperial Police Department is a public agency

subject to suit. It is a local government entity and is not an arm of the State of

California for Eleventh Amendment purposes.

14. Defendant County of Imperial is a county operating pursuant to its

Charter. It is a local government entity and is not an arm of the State of California

for Eleventh Amendment purposes.

15. Defendant Imperial County Sheriff’s Office, is a public agency subject

to suit. It is a local government entity and is not an arm of the State of California for

Eleventh Amendment purposes.

16. At all relevant times, each of Defendants Does 1-25, inclusive, was a

police officer and/ or a managerial, supervisorial, and policymaking employee of the

State of California, California Highway Patrol, City of Imperial; City of Imperial

Police Department; County of Imperial, or Imperial County Sheriff’s Office, who

was acting under color of law within the course and scope of his duties as a police

officer and/ or a managerial, supervisorial, and policymaking employee for the State

of California, California Highway Patrol, City of Imperial, City of Imperial Police

Department, County of Imperial, or Imperial County Sheriff’s Office and with the

complete authority and ratification of his or her principal, State of California,

California Highway Patrol, City of Imperial, City of Imperial Police Department,

County of Imperial, or Imperial County Sheriff’s Office. Defendants Does 1-25

caused Decedent’s and Plaintiff’s injuries by attacking and killing the Decedent, by

integrally participating or failing to intervene in the attack, and by engaging in other

acts and/ or omissions around the time of the attack that resulted in Decedent’s death.

17. In doing the acts and failing and omitting to act as hereinafter described,

Does 1-25 were acting on the implied and actual permission and consent of, as well

as pursuant to the actual customs, policies, practices and procedures of, the State of


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California, California Highway Patrol, City of Imperial, City of Imperial Police

Department, County of Imperial, or Imperial County Sheriff’s Office.

18. At all times mentioned herein, each and every Defendant was the agent

servant, employee, partner, joint venturer, co-conspirator, and/or alter ego of each

and every other Defendant and in doing the things herein alleged, was acting within

the course and scope of that relationship.

19. Plaintiff is further informed and believes, and thereon alleges, that each

of the Defendants herein gave consent, aid, and assistance to each of the remaining

Defendants, and ratified and/or authorized the acts or omissions of each Defendant

as alleged herein, except as may be hereinafter otherwise specifically alleged. At all

material times, each Defendant was jointly engaged in tortious activity, resulting in

the deprivation of Plaintiff’s and Decedent’s constitutional rights and other harm.

20. The true names and capacities of Defendants sued herein as DOES 1

through 25, inclusive are unknown to Plaintiff and Plaintiff therefore sues these

Defendants by such fictitious names. Plaintiff will amend this complaint to allege

their true names and capacities when ascertained. Each of the fictitiously-named

Defendants is responsible in some manner for the conduct and liabilities alleged

herein.

21. Plaintiff is informed and believes and thereon alleges that each of the

Defendants sued herein was negligently, wrongfully, and otherwise responsible in

some manner for the events and happenings as hereinafter described, and

proximately caused injuries and damages to Plaintiff. Further, one or more DOE

Defendants was at all material times responsible for the hiring, training, supervision,

and discipline of other Defendants, including Doe Defendants.

22. Necessary parties to this action include Jayden and Alexis Yancy, the

Decedent’s two minor children.


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23. This complaint may be pled in the alternative pursuant to Federal Rule

of Civil Procedure 8(d)(2).

IV.

EXHAUSTION OF ADMINISTRATIVE REMEDY

24. Plaintiff timely and properly filed tort claims pursuant to California

Government Code section 910 et seq., and this action is timely filed within all

applicable statutes of limitation.

25. On June 19, 2014, Plaintiff filed comprehensive and timely claims for

damages with the State of California and the California Highway Patrol pursuant to

applicable sections of the California Government Code.

26. On September 9, 2014, Plaintiff filed comprehensive and timely claims

for damages with the City of Imperial, and City of Imperial Police Department

pursuant to applicable sections of the California Government Code.

27. On September 8, 2014, Plaintiff filed comprehensive and timely claims

for damages with the County of Imperial, and Imperial County Sheriff’s Office

pursuant to applicable sections of the California Government Code.

28. The State of California and the California Highway Patrol denied

Plaintiff’s claims on August 21, 2014.

29. The City of Imperial and City of Imperial Police Department denied

Plaintiff’s claims on September 30, 2014.

30. The County of Imperial and Imperial County Sheriff’s Office denied

Plaintiff’s claims on September 25, 2014.

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V.

FACTS

31. The foregoing allegations are incorporated as if re-alleged herein.

32. At all relevant times, the Defendants, and each of them, were acting

under color of the laws, statutes, ordinances, and regulations of, and as employees

of either the State of California, California Highway Patrol, City of Imperial, City

of Imperial Police Department, County of Imperial, or Imperial County Sheriff’s

Office.

33. On Sunday, May 11, 2014, at approximately 1-1:30pm, near the

intersection of Highway 86 and 15th Street in Imperial, CA, between one to three

CHP officers, whose identities have not yet been ascertained, pulled over Decedent

Tommy Yancy Junior in what appeared to be a routine traffic stop.

34. Two officers approached Yancy’s vehicle on the driver’s side. One

officer was wearing a blue uniform, and the other was wearing a tan uniform. The

officer in tan had a baton in his right hand. The officer in blue walked towards one

of the patrol cars and brought out a K9 dog and walked back to Yancy’s vehicle

with the dog with his hand on the dog’s collar. The K9 dog appeared ready to

attack.

35. Sometime during this encounter, several other California Highway

Patrol Officers, Imperial County Sheriff’s Department officers, and Imperial Police

Department officers, whose identities have not yet been ascertained, arrived at the

location and assisted the two officers.

36. The officer with the K9 dog stood almost directly in front of Yancy’s

vehicle. The other officer (in tan) was positioned toward the driver’s side back

door close by and was still holding the baton.

37. Shortly afterwards, Mr. Yancy stepped out of his car with his hands


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up and stood next to his car facing the officers.

38. One of the officers yelled, “You’re under arrest” and one or both of

the officers repeated the phrase “get on the ground” about 3 times.

39. The (blue uniformed) officer with the K9 dog inched forward, with his

hand on the dog’s collar, as if to threaten Mr. Yancy with the K9 dog. The

officer(s) continued to yell at Mr. Yancy to get on the ground.

40. The (blue uniformed) officer unnecessarily released the K9 dog’s

leash and the dog launched itself toward Mr. Yancy. The dog jumped on or

towards Mr. Yancy’s face and torso. Mr. Yancy was standing next to his car so he

had nowhere to go. Mr. Yancy put his hands up to protect himself and started

yelling in pain.

41. Seconds later, the officers (at this point at least four officers were

present) quickly came towards the dog and Mr. Yancy. The officers began striking,

hitting, and kicking Mr. Yancy. Soon after, the officers had Mr. Yancy on the

ground, face down, and were putting, or attempting to put, Mr. Yancy in handcuffs.

The dog was still attacking/biting Mr. Yancy. Mr. Yancy was still yelling in pain

and the K9 dog was moving around from Mr. Yancy’s back to his front.

42. While Mr. Yancy was on the ground he did not appear to be resisting,

but rather was trying to stop the dog from biting him. Mr. Yancy was squirming

around, but was not swinging or kicking at the officers.

43. Throughout this time, one of the officers was commanding the K9 dog

and encouraging the dog with phrases like “good boy”. Then, the officer in blue

appeared to have one knee on Mr. Yancy while trying to get the K9 off of Mr.

Yancy.

44. At this time, Mr. Yancy was yelling out to the officers that he had

PTSD.


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45. One officer then fired a taser shot at Mr. Yancy and Mr. Yancy yelled

as if he was in pain again. The officer in blue and the K9 dog either jumped off or

fell away from Mr. Yancy as if they had been thrown off him.

46. The officers continued to shout at Mr. Yancy and/or each other, and

the K9 dog continued to bark. A few seconds later the K9 dog had been placed in

one of the patrol cars.

47. While Mr. Yancy was still face down on the ground and being struck

by the officers, the officers turned Mr. Yancy around and saw that Mr. Yancy had

lost consciousness. The officers began performing cardio-pulmonary resuscitation

(CPR) on Mr. Yancy but he did not respond.

48. An ambulance was called onto the scene. When the ambulance

arrived, the officers once again tried to perform CPR on Mr. Yancy before his

body was loaded into the ambulance.

49. Overall, despite the fact that Mr. Yancy was clearly unarmed, was

outnumbered by the officers, and was not posing any true threat to the officers, the

Defendants inexplicably attacked him.

50. Mr. Yancy was attacked by a K-9 dog, repeatedly struck, choked,

restrained with a carotid neck restraint, and repeatedly shot with a taser, and died.

51. At all relevant times, Mr. Yancy was unarmed and in mental health

distress. Mr. Yancy was a veteran suffering from Post-Traumatic Stress Disorder

(“PTSD”).

52. At all relevant times, Mr. Yancy did not have a weapon or anything

that looked like a weapon.

53. The attack and shooting of Mr. Yancy was captured and broadcasted

on television.


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VI.

FIRST CAUSE OF ACTION

42 U.S.C. § 1983 CIVIL RIGHTS VIOLATIONS:

Fourth Amendment – Excessive Force; Wrongful Death

(By PLAINTIFF against All Defendants)

54. Plaintiff incorporates by reference herein all allegations set forth

above.

55. Defendants’ physical assault and battery of Decedent by intentional

grabbing, choking, tasering, throwing Decedent to the ground, and otherwise

brutalizing him was done with the intent to injure Decedent and Plaintiff.

56. Defendants used deadly force, including, but not limited to a carotid

neck restraint against the Decedent.

57. Defendants knew that Decedent was unarmed, and was not a threat to

anyone including the officers themselves. Defendants used excess and deadly

force against Plaintiff without legal justification or excuse.

58. Defendants were acting under color of law and were acting or

purporting to act in the performance of their official duties.

59. Defendants deprived Decedent and Plaintiff of rights, privileges and

immunities secured to them by the Fourth Amendment of the United States

Constitution in subjecting Decedent to excessive and unreasonable force. Said

wrongful, illegal, and unconstitutional conduct by Defendants is a proximate cause

of the losses and damages sustained by Plaintiff, as hereinafter alleged, in that they

knowingly and willfully used deadly force against a driver who had not committed

any crime, was unarmed, and not a danger to anyone, without provocation,

necessity, or justification.

60. The attack and shooting of Decedent was excessive and unreasonable,


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especially because Decedent was unarmed, the Decedent was vastly outnumbered

by the Defendants, and the Decedent did not pose an imminent threat of death or

serious bodily injury to the Defendants or to anyone else.

61. As a result of the conduct of the Defendants, Decedent died.

62. The Defendants’ use of a K-9 dog, a taser, and a carotid neck restraint

against the Decedent violated their training.

63. The conduct of the Defendants was willful, wanton, malicious, and

done with reckless disregard for the rights and safety of Decedent and therefore

warrants the imposition of exemplary and punitive damages as to each of them.

64. Each of the Defendants integrally participated in, or failed to

intervene in, the conduct described above.

65. Defendants’ use of excessive force caused or was a substantial factor

in causing Plaintiff’s and Decedent’s harm.

66. As a direct and proximate result of Defendants’ actions described

above, Plaintiff sustained injuries and damages as set forth in the Damages section

of this complaint.

VII.

SECOND CAUSE OF ACTION

Substantive Due Process (42 U.S.C. § 1983)


67. The foregoing allegations are incorporated as if re-alleged herein.

68. Plaintiff had cognizable interests under the Due Process Clause of the

Fourteenth Amendment of the United States Constitution to be free from state

actions that deprive her of life, liberty, or property in such a manner as to shock the


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conscience, including but not limited to, unwarranted state interference in her

familial relationship with her son, Decedent.

69. Decedent had a cognizable interest under the Due Process Clause of the

Fourteenth Amendment of the United States Constitution to be free from state

actions that deprive him of his right to life, liberty, or property in such a manner as

to shock the conscience.

70. The aforementioned actions of the Defendants, along with other

undiscovered conduct, shock the conscience, in that they acted with deliberate

indifference to the constitutional rights of Decedent and Plaintiff, and with purpose

to harm unrelated to any legitimate law enforcement objective.

71. The conduct of the Defendants that shocks the conscience includes, but

is not limited to: the decision to stop and seize the Decedent; the manner in which

the stop was conducted; using deadly force against an unarmed person; using deadly

force against a non-dangerous person; using deadly force against a veteran; using

deadly force against a person when that person did not pose a threat; shooting a taser

at that person multiple times; continuing to shoot a taser at that person while he is

on the ground; applying a carotid neck restraint; beating a person when that person

did not pose a threat; the negligent performance of cardio-pulmonary resuscitation

(CPR); conduct contrary to generally accepted reasonable police procedures and

tactics; integrally participating in or failing to intervene in the above misconduct;

and all of the above acts together.

72. The Defendants acted under color of state law.

73. The Defendants violated the substantive due process rights of Plaintiff

to be free from unwarranted interference with her familial relationship with

Decedent.

74. The conduct of the Defendants was the cause of Decedent’s death.


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75. As a direct and proximate result of Defendants’ actions described above,

Plaintiff sustained injuries and damages as set forth in the Damages section of this

complaint.

VIII.

THIRD CAUSE OF ACTION

(42 U.S.C. § 1983 – SURVIVAL ACTION;)



above, and by this reference incorporates the same herein and makes each a part

hereof as though fully set forth.

77. Plaintiff Lawanda Moses is the Successor in Interest and Personal

Representative of the Estate of Tommy Yancy Junior.

78. As a result of the deliberate indifference, reckless indifference and/or

negligence of Defendants as more fully described above, the Estate of Tommy

Yancy Jr. has suffered and continues to suffer injuries and damages as set forth in

the Damages section of this complaint.

IX.

FOURTH CAUSE OF ACTION

(Municipal Liability – Ratification (42 U.S.C. § 1983))







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81. The acts of the Defendants deprived the Decedent and Plaintiff of

their particular rights under the United States Constitution.

82. Upon information and belief, a final policymaker, acting under color

of law, who had final policymaking authority concerning the acts of Defendants,

ratified (or will ratify) the Defendants’ acts and the bases for them. Upon

information and belief, the final policymaker knew of and specifically approved of

(or will specifically approve of) the Defendants’ acts.

83. Upon information and belief, a final policymaker has determined (or

will determine) that the acts of the Defendants were “within policy.”

84. By reason of the aforementioned acts and omissions, Plaintiff has

suffered and continues to suffer, and/or will suffer injuries and damages as set

forth in the Damages section of this complaint.

X.

FIFTH CAUSE OF ACTION

(Violation of the Ralph Civil Rights Act)





86. On or about the above stated dates, Defendants, and each of them,

violated Decedent’s and Plaintiff’s civil rights, guaranteed by the United States

Constitution, federal law, the California Constitution and the laws of the State of

California thereby violating California Civil Code Section 51.7.

87. Defendants threatened and committed violent acts against Decedent,

an African-American male.


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88. A motivating reason for Defendants’ conduct was their perception of

Decedent’s race, color, age, and/or disability.

89. Both Decedent and Plaintiff were harmed by the above actions.

90. Defendants’ conduct caused or was a substantial factor in causing

Decedent’s and Plaintiff’s harm.

91. Defendants, and each of them, aided, incited, or conspired to deny

Decedent and Plaintiff their rights protected under Civil Code section 51.7.


suffered and continues to suffer injuries and damages as set forth in the Damages

section of this complaint.

XI.

SIXTH CAUSE OF ACTION

(Violation of the Bane Civil Rights Act)





94. On or about the above stated dates, Defendants and each of them

violated Decedent’s and Plaintiff’s civil rights, guaranteed by the United States

Constitution, federal law, the California Constitution and the laws of the State of

California thereby violating California Civil Code Sections 52, 52.1(a) and 52.1(b).

95. Defendants intentionally interfered with the Decedent’s and Plaintiff’s

civil rights by committing intentional and repeated violent acts upon the

Decedent.

96. Defendants interfered with or attempted to interfere with Plaintiff’s


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and Decedent’s right to be free from state actions that deprive them of life, liberty,

or property by threatening or committing violent acts.

97. Defendants interfered with or attempted to interfere with Plaintiff’s

right to be free from unwarranted interference with her familial relationship with

Decedent by threatening or committing violent acts.

98. Defendants injured Plaintiff and Decedent to prevent them from

exercising the above-mentioned rights or retaliate against them for having

exercised the above-mentioned rights.

99. Plaintiff and Decedent were harmed.


Plaintiff’s and Decedent’s harm.




XII.

SEVENTH CAUSE OF ACTION

(Assault (Cal. Govt. Code § 820 and California Common Law))

(Wrongful Death)





103. Defendants acted, intending to cause and did cause Decedent to suffer

apprehension of an immediate harmful contact.

104. Decedent reasonably believed that he was about to be touched in a


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harmful or an offensive manner.

105. Defendants threatened to touch Decedent in a harmful or an offensive

manner.

106. It reasonably appeared to Decedent that Defendants were about to

carry out the threat.

107. Decedent did not consent to Defendants’ conduct.

108. Decedent and Plaintiff were harmed.


Decedent’s and Plaintiff’s harm.

110. The intentional and reckless acts of Defendants in committing an

assault upon Decedent were willful, malicious, oppressive, and in conscious

disregard of Plaintiff’s rights.

111. As a proximate cause of the unlawful assault by Defendants, Decedent

was severely injured and killed, thereby causing Plaintiff and Decedent to sustain

the losses and damages as alleged in this complaint.




XIII.

EIGHTH CAUSE OF ACTION

(Battery (Cal. Govt. Code § 820 and California Common Law))

(Wrongful Death)





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114. The Defendants, while working as police officers for the City

Sheriff’s Department, and acting within the course and scope of their duties,

intentionally attacked and brutalized Decedent repeatedly with department-issued

weapons.

115. Defendants intentionally, willfully and recklessly committed a battery

on the person of the Decedent, deliberately intending to cause severe injury to the

person of Decedent.

116. Defendants touched Decedent with the intent to harm or offend him

by needlessly grabbing, choking and throwing Decedent to the ground to handcuff

him.

117. Decedent never consented to have the Defendants touch or attack him

as described above.

118. Decedent was harmed by Defendants’ conduct.

119. The actions of the Defendants caused the Decedent severe pain and

suffering and loss of enjoyment of life, and he ultimately died from his injuries.

The Defendants did not have legal justification for using deadly force against the

Decedent, and said use of deadly force against Decedent was objectively

unreasonable.

120. A reasonable person in Decedent’s situation would have been

offended by the touching and offended by the unnecessary attack.

121. As a direct and proximate result of Defendants’ conduct as alleged

above, Plaintiff has suffered and continues to suffer injuries and damages as set

forth in the Damages section of this complaint.

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XIV.

NINTH CAUSE OF ACTION

(Negligence (Cal. Govt. Code § 820 and California Common Law))

(Wrongful Death)





123. The actions and inactions of the Defendants were negligent and

reckless, including but not limited to:

(a) the failure to properly and adequately assess the need to detain, arrest, and

use force or deadly force against Decedent;

(b) the negligent tactics and handling of the situation with Decedent, including

pre-shooting negligence;

(c) the negligent detention, arrest, and use of force, including deadly force,

against Decedent;

(d) the failure to ensure that adequate numbers of employees with appropriate

education and training were available to meet the needs of and protect the

rights of Decedent;

124. As a result of Defendants’ negligence as alleged above, and other

undiscovered negligent conduct, Decedent lost his life.

125. Defendants’ negligence as alleged above, and other undiscovered

negligent conduct, caused or was a substantial factor in causing Plaintiff’s and

Decedent’s harm.

126. Defendants are vicariously liable for the wrongful acts of the

Defendants pursuant to section 815.2(a) of the California Government Code, which


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provides that a public entity is liable for the injuries caused by its employees

within the scope of the employment if the employee’s act would subject him or her

to liability.




XV.

TENTH CAUSE OF ACTION

(Negligent Hiring, Training and Retention)





129. Defendants possessed the power and authority to hire and fire

Defendants.

130. Defendants negligently hired and trained the Defendants.

131. Defendants were unfit or incompetent to perform the work for which

they were hired.

132. By virtue of the foregoing, Defendants negligently and carelessly

engaged in the following acts and omissions, among other things:

(a) Failing to adequately train its officers in the use of force, as well as

constitutional limitations in the use of force;

(b) Failing to adequately train its officers in identifying a person that presents

a threat of force or violence, as opposed to one that does not;


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(c) Failing to adequately investigate background, training and experience as a

security officer and his propensity for violence;

(d) Failing to provide adequate supervisory control over the actions of its

officers in regard to adequate training, supervision, equipment, planning,

oversight, and administration;

(e) Failing to control the conduct of its officers who have a known propensity

for violence and in failing to discipline its officers;

(f) Failing to investigate in good faith, allegations of excessive and

unreasonable use of force by its officers;

(g) Failing to discipline its officers who use excessive and unreasonable force;

and;

(h) Sanctioning, condoning and approving a custom and practice of a code of

silence, cover-up and dishonesty.

133. Defendants knew or should have known that Defendants were unfit or

incompetent and that this unfitness or incompetence created a particular risk to

others.

134. Defendants’ unfitness or incompetence harmed Plaintiff and

Decedent.

135. Defendants’ negligence in hiring, supervising, and/or retaining

Defendants caused or was a substantial factor in causing Plaintiff’s and Decedent’s

harm.

136. By reason of the aforementioned acts and omissions of Defendants

and DOES 1 through 25, inclusive, Plaintiff has suffered and continues to suffer

injuries and damages as set forth in the Damages section of this complaint.

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XVI.

ELEVENTH CAUSE OF ACTION

(Public Entity Liability – Failure to Train (42 U.S.C. § 1983))






139. The acts of the Defendants deprived the Decedent and Plaintiff of

their civil rights under the United States Constitution as a result of Defendants’

failure to train Defendants.

140. The training policies and programs of the Defendants State of

California, Imperial County, City of Imperial, California Highway Patrol, Imperial

City Police Department, and Imperial County Sheriff’s Office were not adequate to

train its officers to properly handle the usual and recurring situations with which

they must deal.

141. The Defendants were deliberately indifferent to the need to train

officers adequately.

142. The failure of the Defendants to provide adequate and proper training

caused the deprivation of the Decedent’s and Plaintiff’s rights.

143. Decedent and Plaintiff were harmed by the aforementioned acts and

omissions.

144. The Defendants’ failure to adequately train caused or was a

substantial factor in causing the Decedent’s and Plaintiff’s harm.

145. The Defendants’ failure to adequately train is so closely related to the

deprivation of the Decedent’s and Plaintiff’s rights as to be the moving force that


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caused the ultimate injury.


suffered, continues to suffer, and/or will suffer injuries and damages as set forth in

the Damages section of this complaint.

XVII.

DAMAGES




148. Plaintiff brings this claim individually and as Successor in Interest to

Decedent, and as Personal Representative of Decedent’s, Tommy Yancy Junior’s

Estate, and seeks both survival and wrongful death damages for the violation of

Decedent’s rights.

149. As a direct and proximate result of each Defendants’ acts and/or

omissions as set forth above, Plaintiff has been deprived of the life-long love,

companionship, comfort, support, society, care and sustenance of Decedent, and

will continue to be so deprived for the remainder of her natural life.

150. As a further proximate result of the above described acts and

omissions of Defendants, and each of them, Plaintiff has been deprived of the

financial support of Decedent, who died unmarried. Plaintiff was financially

dependent upon Decedent for the necessaries of life and as such, Plaintiff will

continue to incur the lifelong loss of Decedent’s financial support in the future and

for the remainder of her natural life, in an amount according to proof, and all to her

financial detriment.

151. In addition, Plaintiff sustained the following injuries and damages,


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past and future, including:

a. Wrongful death of Tommy Yancy Junior;

b. Conscious extreme pain, suffering, fear of impending death, cruelty,

humiliation, degradation, misery, and loss of personal safety;

c. Hospital, paramedics, and other medical expenses;

d. Coroner’s fees, funeral and burial expenses;

e. Loss of familial relationships, including loss of love, companionship,

comfort, affection, society, services, solace, and moral support;

f. Loss of financial support;

g. Violation of constitutional rights;

h. All damages, attorneys’ fees, and penalties recoverable under 42 U.S.C.

§§ 1983 and 1988, and as otherwise allowed under California and United

States statutes, codes, and common law;

i. Tommy Yancy Junior’s loss of life, pursuant to federal civil rights law;

and

j. Tommy Yancy Junior’s conscious pain and suffering, pursuant to federal

civil rights law.

XVIII.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff requests entry of judgment in her favor and against

all Defendants, jointly and severally, as follows:

1. For compensatory and exemplary damages in an amount according to

proof and which is fair, just and reasonable;

2. For funeral and burial expenses, and loss of financial support;

3. For general damages according to proof at the time of trial;


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4. For medical and related expenses according to proof at the time of trial;

5. For punitive damages under 42 U.S.C. § 1983 and California law in an

amount according to proof and which is fair, just, and reasonable,

against all Defendants in their individual capacity;

6. For all other damages, penalties, costs, interest, and attorney fees as

allowed by 42 U.S.C. §§ 1983 and 1988; California Code of Civil

Procedure sections 377.20 et seq., 377.60 et seq., and 1021.5; California

Civil Code sections 52 et seq. and 52.1, and as otherwise may be

allowed by California and/or federal law;

7. For reasonable costs of this suit and attorneys’ fees;

8. For injunctive relief as the Court may deem just, proper, and

appropriate; and

9. For such further other relief as the Court may deem just, proper, and

appropriate.

XIX.

DEMAND FOR JURY TRIAL

Plaintiffs demand a trial by jury pursuant to Federal Rule of Civil Procedure

38. Respectfully submitted,

BANKER’S HILL LAW FIRM, APC

Dated: February 17, 2015.

DANIELLE CHARLES

Attorney for Plaintiff

s/ Danielle Charles


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