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Pinedo complaint

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IN THE UNITED STATES DISTRICT COURT . FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION GERARDO PINEDO, SR, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF GERARDO PINEDO, JR Plaintiff, v. THE CITY OF DALLAS, TEXAS, JAMAL ROBINSON, AND MARK MELTABARGER § § § § § § § § § § § Civil Action No. _____ _ JURY TRIAL DEMANDED PLAINTIFF'S ORIGINAL COMPLAINT COMES NOW Plaintiff, GERARDO PINEDO, SR., individually and on behalf of the ESTATE OF GERARDO PINEDO, JR., complaining of Defendants, THE CITY OF DALLAS, TEXAS, more particularly the CITY OF DALLAS, TEXAS POLICE DEPARTMENT, by and through its agents and servants acting jointly and severally in their official capacities and Officers JAMAL ROBINSON, and MARK MELTABARGER, individually and in their official capacities as Dallas Police Officers, and for cause would show the Honorable Court as follows: NATURE OF THE ACTION I. This is an action brought by the Plaintiff against the City of Dallas, Texas, and Officers JAMAL ROBINSON and MARK MELTABARGER for their individual use of deadly force and assault resulting in the wrongful death of GERARDO PINEDO, JR under the color of law in violation of his individual rights under the Fourth and Fourteenth Amendments of the United States Constitution and in violation of his civil rights pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3). Furthermore, Plaintiff is entitled to recover individually and as representative for the ESTATE OF GERARDO PINEDO, JR. to the full extent applicable by law under the Texas PLAINTIFFS' ORIGINAL COMPLAINT - Page 1 of 18 PLED Pitf Ong Complaint Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 1 of 18 PageID 1
Transcript
  • IN THE UNITED STATES DISTRICT COURT . FOR THE NORTHERN DISTRICT OF TEXAS

    DALLAS DIVISION

    GERARDO PINEDO, SR, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF GERARDO PINEDO, JR

    Plaintiff,

    v.

    THE CITY OF DALLAS, TEXAS, JAMAL ROBINSON, AND MARK MELTABARGER

    Civil Action No. _____ _

    JURY TRIAL DEMANDED

    PLAINTIFF'S ORIGINAL COMPLAINT

    COMES NOW Plaintiff, GERARDO PINEDO, SR., individually and on behalf of the

    ESTATE OF GERARDO PINEDO, JR., complaining of Defendants, THE CITY OF DALLAS,

    TEXAS, more particularly the CITY OF DALLAS, TEXAS POLICE DEPARTMENT, by and

    through its agents and servants acting jointly and severally in their official capacities and

    Officers JAMAL ROBINSON, and MARK MELTABARGER, individually and in their official

    capacities as Dallas Police Officers, and for cause would show the Honorable Court as follows:

    NATURE OF THE ACTION

    I. This is an action brought by the Plaintiff against the City of Dallas, Texas, and Officers

    JAMAL ROBINSON and MARK MELTABARGER for their individual use of deadly force and

    assault resulting in the wrongful death of GERARDO PINEDO, JR under the color of law in

    violation of his individual rights under the Fourth and Fourteenth Amendments of the United

    States Constitution and in violation of his civil rights pursuant to 42 U.S.C. 1983 and 42 U.S.C.

    1985(3). Furthermore, Plaintiff is entitled to recover individually and as representative for the

    ESTATE OF GERARDO PINEDO, JR. to the full extent applicable by law under the Texas

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 1 of 18 PLED Pitf Ong Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 1 of 18 PageID 1

  • Wrongful Death Statute, Tex. Civ. Prac. & Rem. Code Ann. 71.001, et seq., the Texas Survival

    Statute, Tex. Civ. Prac. & Rem. Code Ann. 71.021, and all other applicable laws complaining

    of the various acts listed below and for their wrongful death and survival cause of action.

    2. Plaintiff alleges that the CITY OF DALLAS had a duty, but failed to implement policies,

    practices and procedures that respected GERARDO PINEDO, JR.'s constitutional rights to

    assistance, protection, and equal treatment under the law. Defendant's failure to implement the

    necessary policies and the implementation of unconstitutional policies deprived GERARDO

    PINEDO, JR. of equal protection and due process under the Fourteenth Amendment and caused

    his unwarranted and excruciating physical and mental anguish and death. For these civil rights

    violations, and other causes of action discussed herein, Plaintiff seeks answers and compensation

    for his damages and the death of GERARDO PINEDO, JR ..

    PARTIES

    3. Plaintiff, GERARDO PINEDO, SR. is the father of GERARDO PINEDO, JR., decedent,

    and brings this wrongful death action pursuant to the Texas Survival Statute, Tex. Civ. Prac. &

    Rem. Code 71.021, and as the parent of GERARDO PINEDO, JR. who, at the time of his

    death, was a resident of Dallas County, Texas.

    4. Defendant, the CITY OF DALLAS, is a municipality located in Dallas County, Texas.

    The CITY OF DALLAS operates the Dallas Police Department ("DPD"). The CITY OF

    DALLAS may be served with citation herein by and through its agent for service of process,

    Warren Ernst, City Attorney, Dallas City Hall, 1500 Marilla Street, Dallas, Texas 75201.

    Additional service is being made on Mayor Mike Rawlings, 1500 Marilla Street, Room SEN,

    Dallas, Texas 75201.

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 2 of 18 PLED Pltf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 2 of 18 PageID 2

  • 5. Defendant JAMAL ROBINSON, upon information and belief, is a resident of Dallas

    County, Texas, and at all times material herein was a police officer acting in the course and

    scope of his employment for the CITY OF DALLAS and DPD. Defendant JAMAL ROBINSON

    may be served with citation at the Dallas Police Department, 1400 S. Lamar, Dallas, Texas

    75215 or wherever he may be found.

    6. Defendant MARK. MELTABARGER, upon information and belief, is a resident of

    Dallas County, Texas, and at all times material herein was a police officer acting in the course

    and scope of his employment for the CITY OF DALLAS and DPD. Defendant MARK.

    MELTABARGER may be served with citation at the Dallas Police Department, 1400 S. Lamar,

    Dallas, Texas 75215 or wherever he may be found.

    JURISDICTION AND VENUE

    7. Jurisdiction exists in this Court pursuant to 28 U.S.C. 1331 and 1343 as this action is

    brought under, inter alia, the Fourth and Fourteenth Amendments of the United States

    Constitution and 42 U.S.C. 1983 and 42 U.S.C. 1985(3), to redress the deprivation of rights,

    privileges and immunities guaranteed to decedent, GERARDO PINEDO, JR., by constitutional

    and statutory provisions. Plaintiff further invokes the supplemental jurisdiction of this Court

    pursuant to 28 U.S.C. 1367 to adjudicate pendent claims arising under the laws of the State of

    Texas.

    8. Venue is proper in this Court because events made the basis of Plaintiffs' causes of action

    occurred within the Northern District of Texas, Dallas Division.

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 3 of 18 PLED Pltf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 3 of 18 PageID 3

  • STATE ACTION

    9. To the extent applicable, Defendants were acting under color of state law when they

    subjected GERARDO PINEDO, JR. to the wrongs and injuries hereinafter set forth.

    FACTS

    10. On or about July 17, 2013, GERARDO PINEDO, JR., a 19 year old unarmed Hispanic

    male, upon information and belief, was confronted by Dallas Police Officers identified as

    JAMAL ROBINSON and MARK MELTABARGER for no lawful reason while GERARDO

    PINEDO, JR. was lawfully within a home located at 1639 Conner Dr., Dallas, Texas 75217 (the

    "Home"). GERARDO PINEDO, JR. had been with friends in the area close to the Home earlier

    that evening. After leaving his friends, GERARDO PINEDO, JR. returned to the Home.

    11. At or around 10:00 pm, somebody called 911, and upon the arrival of Defendants

    ROBINSON and MELTABARGER, a neighbor informed Defendants that the neighbor had

    heard noises coming from the Home and believed an intruder was inside.

    12. Upon information and belief, a gunshot was heard at or around 10:00 pm. Shortly

    thereafter, GERARDO PINEDO, JR. was seen lying on the ground in the backyard of the Home,

    writhing and moaning in pain, with one of the Defendants standing over GERARDO PINEDO,

    JR. shining a flashlight on him. Further, while GERARDO PINEDO, JR. was writhing and

    moaning in pain on the ground, one of the Defendants proceeded to prod GERARDO PINEDO,

    JR. with a black object. In addition to prodding GERARDO PINEDO, JR. while he was on the

    ground, one of the Defendants was also seen grabbing and dragging GERARDO PINEDO, JR.'s

    body.

    13. There was no indication that GERARDO PINEDO, JR. was armed with a weapon at the

    time of the occurrence of the events made the basis ofthis lawsuit.

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 4 of 18 PLED Pltf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 4 of 18 PageID 4

  • 14. Upon infonnation and belief, it was not until approximately 20 to 30 minutes after the

    gunshot that emergency medical personnel arrived and took GERARDO PINEDO, JR. away.

    15. The Dallas Medical Examiner determined that GERARDO PINEDO, JR. had one

    gunshot wound to his hand, another gunshot wound to his chest, and two punctate abrasions on

    his back consistent with Taser injuries.

    16. As indicated above, Defendants ROBINSON and MELTABARGER attacked

    GERARDO PINEDO, JR., using excessive and deadly force for no lawful reasons. During this

    time, either Defendant ROBINSON or Defendant MELTABARGER tased GERARDO

    PINEDO, JR. in the back, and the other continued the assault upon 19 year old GERARDO

    PINEDO, JR. by delivering at least one fatal gunshot wound to the chest.

    17. There is no evidence that Defendants were in imminent danger. Upon infonnation and

    belief, there were no signs of any visible injuries or bruising to either Defendant ROBINSON or

    Defendant MELTABARGER'S bodies that would indicate that the use of deadly force was

    justified.

    18. Drawing or displaying firearms requires that a threat or reasonable belief that there is a

    threat to life or they have reasonable fear for their own safety and/or the safety of others, exist in

    order to authorize an officer to draw or display herlhis firearm.

    19. A taser is an intennediate weapon, and is only justified for situations when the officer

    believes empty hand control will be ineffective. Empty hand control techniques include joint

    locks, pressure points, Oleoresin Capsicum Spray, hand held aerosols, and pepper ball saturation,

    none of which occurred before the drawing of Defendants' weapons.

    20. Defendants ROBINSON and MELTABERGER's unlawful and unwarranted acts caused

    GERARDO PINEDO, JR.'s wrongful death.

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 5 of 18 PLED PltfOrig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 5 of 18 PageID 5

  • 21. Plaintiff would show that at all times material hereto, Defendants ROBINSON and

    METLABERGER were acting within the scope of their employment as agents, servants, and

    employees of Defendant the CITY OF DALLAS, TEXAS within its executive branch and were

    performing a governmental function.

    22. Plaintiff would further show that Defendants ROBINSON and l\1ELTABERGER's

    actions were the result of, or within the scope of, wrongful and reckless customs, policies,

    practices and/or procedures for which the CITY OF DALLAS, TEXAS knew or should have

    known but never provided the requisite and proper training.

    23. GERARDO PINEDO, JR. was nineteen (19) years old when he was killed by

    Defendants.

    24. Moreover, no reasonably competent official would have concluded that the actions of the

    Defendants described herein would not violate GERARDO PINEDO, JR.'s rights. In other

    words, no reasonably prudent police officer under similar circumstances, could have believed

    that their conduct was justified.

    25. As a direct and proximate result of Defendants' conduct, Plaintiff has sustained

    substantial damages and pecuniary loss.

    EXCESSIVE FORCE COUNT A: 42 U.S.C. 1983

    26. Plaintiff incorporates by reference paragraphs I through 25 as if fully set forth herein.

    Plaintiff would further show that Defendants' actions on the occasion in question were wrongful

    and constituted gross negligence in depriving GERARDO PINEDO, JR. of his constitutional

    rights, as alleged more fully below.

    27. Plaintiff would show that at all times material hereto, Defendants ROBINSON and

    MELTABERGER had a duty to avoid infliction of unjustified bodily injury to GERARDO

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 6 of 18 PLED Pltf Qrig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 6 of 18 PageID 6

  • PINEDO, JR., to protect GERARDO PINEDO, JR.'s bodily integrity and to not trample on

    GERARDO PINEDO, JR.'s constitutional rights.

    28. Plaintiff would further show that Defendants ROBINSON and MELTABERGER failed

    to act as reasonable police officers would have acted in the same or similar circumstances. That

    is, DefendantsROBINSON and MELTABERGER, without justification and the need to do so,

    tased, disabled, shot and used excessive and deadly force as described above, and killed

    GERARDO PINEDO, JR. without probable cause.

    29. Plaintiff would further show that Defendants ROBINSON and MELTABERGER tased

    and shot GERARDO PINEDO, JR. in his own backyard causing punctate abrasions to

    GERARDO PINEDO, JR.'s body. Defendants utilized deadly force in attacking GERARDO

    PINEDO, JR. for no lawful reason. GERARDO PINEDO, JR. died as a result of the gunshot

    wound to his chest fired by either Defendant ROBINSON or MELTABERGER. The excessive

    and deadly force used by Defendants ROBINSON and MELTABERGER was not reasonable nor

    was it necessary under the circumstances.

    30. Defendants ROBINSON and MEL TABERGER's actions were not objectively reasonable

    because they failed to follow reasonable procedures and used excessive force and deadly force in

    restraining GERARDO PINEDO, JR. in a non-life threatening situation. GERARDO PINEDO,

    JR. was tased and suffered two gunshot wounds while he was subdued.

    31. Plaintiff would show that Defendants ROBINSON and MELTABERGER denied

    GERARDO PINEDO, JR. his right to be free from cruel, unusual and excessive punishment, and

    to be free from deprivation of his rights without due process of law, in violation of the Fourth

    Amendment to the United States Constitution as incorporated to the states by the Fourteenth

    Amendment. Plaintiff would show that Defendants ROBINSON and MELTABERGER were

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 7 of 18 PLED Pltf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 7 of 18 PageID 7

  • acting within custom, policy, practice and/or procedure of the CITY OF DALLAS, TEXAS at

    the time of the incident. Plaintiff would further show that as a result of these violations of

    GERARDO PINEDO, JR.'s rights, Plaintiff have suffered damages within the jurisdictional

    limits of this Court.

    32. The force used by Defendants ROBINSON and MELTABERGER was unnecessary and

    unreasonable under the circumstances, as GERARDO PINEDO, JR. did not require the use of

    such excessive and deadly force. Defendants ROBINSON and MELTABERGER had no

    probable cause to suspect that a crime was being committed or that their conduct was reasonable

    so as to justify Defendants ROBINSON and MEL TABERGER tasing GERARDO PINEDO, JR.

    in the back, shooting him in the hand and chest, prodding him while he was on the ground

    writhing in pain, and dragging his body while he was on the ground.

    RACIAL PROFILING COUNT B: CIVIL RIGHTS ACTION

    33. Plaintiff incorporates by reference paragraphs 1-32 as iffully set forth herein.

    34. Racial Profiling: Plaintiff would show that Defendants ROBINSON and

    MELTABERGER clearly and wrongfully used race as a factor, a proxy, for reasonable suspicion

    and using excessive force on GERARDO PINEDO, JR .. Additionally, Plaintiff would show that

    it is the policy of the Dallas Police Department to treat Hispanics in a cruel manner regardless of

    the circumstances or the need to. The facts show that there was no probable cause for

    GERARDO PINEDO, JR.'s arrest and that no citations were ever issued. In fact, Plaintiff would

    show that the excessive force used by Defendants ROBINSON and MELTABERGER was not

    reasonable nor was it necessary as GERARDO PINEDO, JR. was lawfully in the Home.

    Defendants ROBINSON and MELTABERGER treated GERARDO PINEDO, JR. in the manner

    they did because he was Hispanic. Plaintiff would show that Defendants ROBINSON and

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 8 of 18 PLED Pltf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 8 of 18 PageID 8

  • MELTABERGER's actions were in violation of TEX. CODE CRIM PROC. ANN. Art. 2.131-

    137 (Vernon Supp. 2004) and are therefore strictly liable to Plaintiff.

    35. Plaintiff would further show that Defendants ROBINSON and MELTABERGER denied

    GERARDO PINEDO, JR. his rights to be free from cruel, unusual and excessive punishment,

    right 01 equal protection, and deprived him of due process of law, in violation of the Fourth

    Amendment to the United States Constitution as incorporated to the states by the Fourteenth

    Amendment. Defendants ROBINSON and MEL TABERGER, under the color of law, deprived

    GERARDO PINEDO, JR. of his civil rights, privileges or immunities secured by the

    Constitution and laws pursuant to 42 U.S.C. 1983 and 42 U.S.C. 1985 (3).

    36. Plaintiff would show that Defendants ROBINSON and MELTABERGER were acting

    within established wrongful and reckless customs, policies, practices and/or procedures of the

    CITY OF DALLAS, TEXAS at the time of the incident, and further that the Defendant the CITY

    OF DALLAS, TEXAS knew or should have known of said malicious customs, policies, practices

    and/or procedures for which the CITY OF DALLAS, TEXAS knew or should have known but

    never provided the requisite and proper training.

    37. Plaintiff would further show that as a result of these violations of GERARDO PINEDO,

    JR.' s rights, Plaintiff has suffered damages within the jurisdictional limits of this Court.

    FAILURE TO TRAIN COUNT C: 42 U.S.C. 1983

    38. Plaintiff incorporates by reference paragraphs 1-37 as if fully set forth herein.

    39. Defendant the CITY OF DALLAS, TEXAS developed and maintained a policy of

    deficient training of its police force in the use of force, including the use of deadly force in the

    apprehension of individuals. The CITY OF DALLAS' failure to provide adequate training to its

    police officers regarding the use of deadly force reflects deliberate indifference and reckless and

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 9 of 18 PLED PltfOrig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 9 of 18 PageID 9

  • conscious disregard for the obvious risk that officers would use excessive or deadly force on

    citizens and made the violations of GERARDO PINEDO, JR.'s constitutional rights, including

    his death, a reasonable probability.

    40. Plaintiff would show that Defendants ROBINSON and MELTABERGER's actions were

    the result of, or within the scope of, wrongful and reckless customs, policies, practices and/or

    procedures for which the CITY OF DALLAS knew or should have known but never provided

    the requisite and proper training.

    FALSE ARREST COUNT D: 42 U.S.C. 1983

    41. Plaintiff incorporates by reference paragraphs 1-40 as if fully set forth herein.

    42. Additionally, and in the alternative, Plaintiff would show that Defendants ROBINSON

    and MELTABERGER's actions were objectively uureasonable and done in bad faith in that

    Defendants ROBINSON and MELTABERGER attempted to arrest GERARDO PINEDO, JR.

    without probable cause. GERARDO PINEDO, JR. did not commit a crime by being in the

    Home.

    43. Plaintiff would further show that they have suffered damages within the jurisdictional

    limits of this Court as a result of the wrongful arrest and that such arrest was done under color of

    law.

    44. Plaintiff would show that Defendants ROBINSON and MELTABERGER were acting

    within the custom, policy, practice and/or procedure of the CITY OF DALLAS at the time of the

    incident.

    45. Plaintiff would additionally show that such wrongful arrest was done in violation of

    GERARDO PINEDO, JR.'s rights under the Fourth Amendment of the United States

    Constitution, as incorporated to the states by the Fourteenth Amendment, and that Plaintiff has

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 10 of 18 PLED Pltf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 10 of 18 PageID 10

  • suffered damages within the jurisdictional limits of this Court as a result of the violations of

    GERARDO PINEDO, JR.'s rights.

    46. Defendants ROBINSON and MELTABERGER were acting under the color oflaw when

    they deprived GERARDO PINEDO, JR. of his constitutional right to be free from false arrest.

    47. Additionally and in the alternative, Plaintiff would show that Defendants ROBINSON

    and MELTABERGER's actions were objectively unreasonable and done in bad faith because

    Defendants ROBINSON and MELTABERGER were without probable cause to think that

    GERARDO PINEDO, JR. was unlawfully in the Home.

    48. Plaintiff would further show that they have suffered damages within the jurisdictional

    limits of this Court from the wrongful shooting of GERARDO PINEDO, JR., and said shooting

    was under the color of law.

    49. Plaintiff would show that Defendants ROBINSON and MELTABERGER were acting

    within the custom, policy, practice and/or procedure of the CITY OF DALLAS, TEXAS at the

    time of the incident.

    50. Plaintiff would additionally show that such wrongful shooting was done in violation of

    GERARDO PINEDO, JR.'s rights under the Fourth Amendment of the United States

    Constitution, as incorporated to the states by the Fourteenth Amendment, and that Plaintiffs have

    suffered damages within the jurisdictional limits of this Court as a result of these violations.

    ASSAULT AND BATTERY COUNTE

    51. Plaintiff incorporates by reference paragraphs 1-50 as iffully set forth herein.

    52. Defendants ROBINSON and MELT ABERGER intentionally and without consent placed

    GERARDO PINEDO, JR. in apprehension of imminent harmful contact and caused harful bodily

    contact to GERARDO PINEDO, JR..

    PLAINTIFFS' ORIGINAL COMPLAINT - Poge 11 of 18 PLED Pltf Drig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 11 of 18 PageID 11

  • 53. As a proximate result of the foregoing, GERARDO PINEDO, JR. suffered grievous

    bodily harm, substantial physical and emotional pain, and loss of his life.

    NEGLIGENT FAILURE TO TRAIN AND DISCIPLINE COUNTF

    54. Plaintiff incorporates by reference paragraphs 1-53 as if fully set forth herein.

    55. Additionally and in the alternative, Plaintiff would show that at all times material hereto,

    Defendant the CITY OF DALLAS's Police Department lacked guidelines both to restrict the use

    of force, including the use of tasers, and to monitor the use of tasers, or, if such guidelines

    existed, they were grossly inadequate to ensure the proper and restrained use of force including

    tasers by police personnel.

    56. Plaintiff would show that Defendant the CITY OF DALLAS endorsed the unfettered use

    of deadly force, including a taser, even in situations where no crime was committed. Plaintiff

    would show that Defendant the CITY OF DALLAS' failure to properly train, supervise, test,

    regulate, discipline or otherwise control its employees and the failure to promulgate proper

    guidelines for the use of force including fire arms and tasers constitutes a custom, policy,

    practice andlor procedure of condoning unjustified use of deadly force in violation of the

    constitutional rights of GERARDO PINEDO, JR..

    57. As a result of this failure to train and discipline, Plaintiff has suffered damages within the

    jurisdictional limits of this Court. As described above, Defendants ROBINSON and

    MELTABERGER shot GERARDO PINEDO, JR. with a taser in the back and used deadly force

    when it was unnecessary.

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 12 of 18 PLED Pltf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 12 of 18 PageID 12

  • INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

    COUNTG

    58. Plaintiff incorporates by reference paragraphs 1-57 as if fully set forth herein.

    59. Plaintiff would further show that if Defendants ROBINSON and MELTABERGER were

    acting in their individual capacity, the they committed the following intentional torts against

    GERARDO PINEDO, JR.:

    a. Assault and Battery; and

    b. False Imprisonment.

    60. As a direct and proximate result of the actions of Defendants ROBINSON and

    MELT ABERGER, Plaintiff suffered pain and suffering, mental anguish, and severe emotional

    distress, loss of support and companionship damages within the jurisdictional limits of this

    Court.

    61. Defendants ROBINSON and MELTABERGER's conduct was of a willful, malicious,

    reckless and outrageous nature, and was intended to cause, and did in fact cause GERARDO

    PINEDO, JR. to suffer extreme and severe mental and emotional distress, agony and anxiety.

    Defendants ROBINSON and MELTABERGER's conduct offends the generally accepted

    standards of decency and morality.

    GROSS NEGLIGENCE COUNTH

    62. Plaintiff incorporates by reference paragraphs 1-61 as if fully set forth herein.

    63. Defendants ROBINSON and MELTABERGER had a duty to employ only reasonable

    measures in the treatment of the decedent.

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 13 of 18 PLED PUf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 13 of 18 PageID 13

  • 64. Notwithstanding said duties, Defendants ROBINSON and MELTABERGER acted in a

    wanton and willful manner, exhibiting such carelessness and recklessness as to evidence a

    conscious disregard for the life and safety of GERARDO PINEDO, JR..

    65. Defendants ROBINSON and MELT ABERGER were aware that they were not facing any

    imminent or serious threat of bodily harm, and they knew or should have known that they had no

    right to use any force whatsoever with respect to GERARDO PINEDO, JR., who was merely

    lawfully present inside the Home owned by his father. Defendants ROBINSON and

    MELTABERGER nonetheless illegally apprehended GERARDO PINEDO, JR. through the use

    of deadly force by shooting him in the chest and tasing him in the back.

    66. Defendants ROBINSON and MELTABERGER knew or should have known that their

    course of action of drawing a lethal weapon and firing it at GERARDO PINEDO, JR. would

    place GERARDO PINEDO, JR. in grave danger of serious injury.

    67. As a direct and proximate cause of the gross negligence of Defendants ROBINSON and

    MELTABERGER, Plaintiff has suffered damages.

    TEXAS SURVIVAL ACTION COUNT I

    68. Plaintiff incorporates by reference paragraphs 1-67 as if fully set forth herein.

    69. Pursuant to Tex. Civ. Prac. & Rem. Code Ann. 71.021, the decedent's right of action

    for wrongful and negligent conduct against Defendants survives in favor of his heirs, legal

    representatives, and the estate of the deceased.

    70. Defendants are liable to Plaintiff for the loss of GERARDO PINEDO, JR. 's life, pain and

    suffering, and the violation of his civil rights.

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 14 of 18 PLED PUf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 14 of 18 PageID 14

  • TEXAS WRONGFUL DEATH ACT COUNTJ

    71. Plaintiff incorporates by reference paragraphs 1-70 as if fully set forth herein.

    72. Plaintiff GERARDO PINEDO, SR. is the legal administrator for the estate of GERARDO

    PINEDO, JR.

    73. GERARDO PINEDO, JR. died as a result of Defendants' wrongful conduct.

    74. GERARDO PINEDO, JR. would have been entitle to bring this action against Defendants

    if he had lived.

    75. By reason of Defendants' wrongful conduct of shooting to death an unarmed individual

    without the imminent threat of serious bodily harm, Defendants are liable for damages.

    76. Defendants' conduct that caused GERARDO PINEDO, JR.'s death was a producing

    cause of injury to GERARDO PINEDO, JR., which resulted in damages including loss of a

    family relationship, love, support, services, emotional pain and suffering, and for Defendants'

    intentional and reckless acts and infliction of emotional distress caused by the wrongful killing of

    GERARDO PINEDO, JR.

    77. Plaintiff seeks unliquidated damages within the jurisdictional limits of this Court.

    78. GERARDO PINEDO, JR.'s death resulted from Defendants' willful act or omission, or

    from Defendants' gross negligence, which entitles GERARDO PINEDO, JR.'s heirs to

    exemplary damages under the Texas Constitution article 16, section 26.

    DAMAGES ALL DEFENDANTS

    79. Plaintiff incorporates by reference paragraphs 1-78 as if fully set forth herein.

    80. Plaintiff would further show that Defendants' acts and/or omissions were a proximate

    cause of the following injuries suffered by Plaintiff and decedent:

    a. Actual damages;

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 15 of 18 PLED Pltf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 15 of 18 PageID 15

  • b. Loss of affection, consortium, comfort, financial assistance, protection, affection

    and care;

    c. Pain and suffering and mental anguish suffered by GERARDO PINEDO, JR., JR.

    prior to his death;

    d. Mental anguish and emotional distress suffered by Plaintiff;

    e. Loss of quality oflife;

    f. Funeral and burial expenses;

    g. Loss of service;

    h. Loss of earnings and contributions to Plaintiff;

    i. Exemplary and punitive damages; J. Reasonable attorneys' fees and costs of court;

    k. Pursuant to 42 U.S.C. 1988, and other applicable laws, Plaintiff should be awarded reasonable attorney's fees for the preparation and trial of this cause of

    action, and for its appeal, if required;

    1. Pre-judgment interest; and m. Post-judgment interest.

    81. Plaintiff seeks unliquidated damages in an amount that is within the jurisdictional limits

    of this Court.

    PUNITIVEIEXEMPLARY DAMAGES

    82. Plaintiff incorporates by reference paragraphs 1-81 as iffully set forth herein.

    83. Additionally and in the alternative, the conduct of Defendants ROBINSON and

    MELT ABERGER was done with malice. As such, Plaintiff requests punitive and exemplary

    damages to deter this type of conduct in the future.

    84. In the alternative, such heedless and reckless disregard of GERARDO PINEDO, JR.'s

    rights, safety, and welfare is more than momentary thoughtlessness, inadvertence, or

    misjudgment. Such unconscionable conduct goes beyond ordinary negligence, and as such,

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 16 of 18 PLED Pltf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 16 of 18 PageID 16

  • Plaintiff requests punitive and exemplary damages be awarded against Defendants ROBINSON

    and MELTABERGER in a sum which is within the jurisdictional limits of this Court.

    COSTS AND ATTORNEY FEES

    85. Plaintiff incorporates by reference paragraphs 1-84 as if fully set forth herein.

    86. Plaintiff is entitled to an award of attorney fees and costs under 42 U.S.C. 1 988(b).

    87. As such, Plaintiff requests that the Court award Plaintiff his costs and attorney fees

    incurred in Plaintiff's prosecution ofthis matter.

    JOINT AND SEVERAL LIABILITY

    88. Plaintiff incorporates by reference paragraphs 1-87 as if fully set forth herein.

    89. Plaintiff would show that Defendants were jointly and severally liable for the negligence

    and gross negligence, which was the proximate cause of Plaintiff s injuries.

    CONDITIONS PRECEDENT

    90. Plaintiff reserves his right to plead and prove the damages to which they are entitled to at

    the time of trial. All conditions to Plaintiff s recovery have been performed or have occurred.

    JURY DEMAND

    91. Plaintiff demands a trial by jury.

    PRAYER

    WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be cited to

    appear and answer herein, and that upon final trial hereof Plaintiff have and recover judgment

    from Defendants for:

    a. Actual damages;

    b. Exemplary and punitive damages;

    c. Pre-judgment interest; d. Post-judgment interest;

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 17 of 18 PLED PHf Orig Complaint

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  • e. Interest on said Judgment; and

    f. Reasonable attorney's fees and costs of court.

    Additionally, Plaintiff prays that the Court grant Plaintiff any other and further relief to which he

    may be entitled, both at law and in equity.

    Respectfully submitted, c:-;>

    EVAN LANE (VAN) SHAW Bar Card No. 18140500 COLLEN R. MEYER Bar Card No. 24074709 LAW OFFICES OF V AN SHAW 2723 Fairmount Dallas, Texas 75201 (214) 754-7110 FAX NO. (214) 754-7115 [email protected] [email protected]

    ATTORNEYS FOR PLAINTIFF

    PLAINTIFFS' ORIGINAL COMPLAINT - Page 18 of 18 PLED Pitf Orig Complaint

    Case 3:14-cv-00958-L Document 1 Filed 03/17/14 Page 18 of 18 PageID 18


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