Plaintiff's Amended Complaint against City of Miami Beach

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No: 12-21024-CIV-MARTINEZ-MCALILEY

DARIO D. VASQUEZ,

Plaintiff,

v.

CITY OF MIAMI BEACH, et al.,

Defendants.

__________________________________/

AMENDED COMPLAINT

Plaintiff, Dario Vasquez (“Vasquez”), by and through undersigned counsel, and files this

Amended Complaint and sues Defendants City of Miami Beach and Phillip Elmore, and alleges

as follows:

JURISDICTIONAL STATEMENT AND PARTIES

1. This is an action for damages arising out of one or more violations of federal and

state law, and is brought pursuant to 42 U.S.C. §§ 1983 and 1988 and the Fourth Amendment to

the United States Constitution.

2. This Court has jurisdiction over this action pursuant to the provisions of 28 U.S.C.

§ 1331 and § 1343 in that this is an action to redress violations of Plaintiff’s federally protected

Constitutional rights. Jurisdiction over the state law claims is founded upon the supplemental

jurisdiction of this Court, 28 U.S.C. § 1367.

3. At all times material hereto, Plaintiff, Vasquez, is and was a permanent legal

resident of the United States, and a resident of Broward County, Florida, and is otherwise sui

juris.

Case 1:12-cv-21024-JEM Document 29 Entered on FLSD Docket 05/31/2012 Page 1 of 30

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4. Defendant, Phillip Elmore (“Elmore”) was at all times relevant acting under color

of state law as an active and duly appointed Miami Beach police officer, and in such capacity, as

the agent, servant, and employee of Defendant, City of Miami Beach.

5. Defendant, City of Miami Beach (“City”), is a political subdivision of the State of

Florida, a Florida municipal corporation, and at all times material hereto, acted through its

agents, employees, and servants, including Defendant Elmore.

6. The acts and practices constituting the violations alleged below have all occurred

within the City of Miami Beach, which is properly within the jurisdiction of the United States

District Court in and for the Southern District of Florida. Venue in the Southern District of

Florida, Miami Division, is proper because the incident which is the subject of this lawsuit

occurred in Miami-Dade County, Florida and Defendant City is located in this venue. See 28

U.S.C. § 1391(b)(1) and § 1391(b)(2).

7. Plaintiff has complied with all conditions precedent to the filing of this lawsuit

pursuant to Section 768.28, Florida Statutes; all applicable notices have been provided to

Defendants.

8. Plaintiff has retained Law Offices of Douglas J. Jeffrey, P.A. and Fuentes &

Berrio, LLP to represent his interests in prosecuting this action, and said law firms are entitled to

their reasonable attorneys’ fees and costs incurred in connection therewith.

STATEMENT OF FACTS

9. At all times material hereto, the subject incident arises out of Defendant Elmore’s

brutal battery and assault of Plaintiff Vasquez resulting in serious personal injuries to said

Plaintiff which occurred in or about the 7300 block of Collins Avenue, Miami Beach, Florida.

10. Specifically, on or about February 4, 2008, at approximately 7:42 p.m., the

Plaintiff was situated at the 7300 block of Collins Avenue in Miami Beach, Florida.


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11. Plaintiff, a 68-year old Hispanic male, was awaiting the arrival of his

transportation which had been pre-arranged, and said individuals had just arrived to pick up the

Plaintiff to take him home for the evening when Defendant Elmore arrived at the scene.

12. At said time and place, Defendant Elmore, an officer of the Defendant City,

approached the Plaintiff alleging that the Plaintiff had engaged in the public consumption of

alcohol. The individuals who had arrived to take the Plaintiff home informed Defendant Elmore

that they were prepared to take him home at that time; Defendant Elmore refused, and instead

proceeded to arrest the Plaintiff for the alleged violation of City Municipal Code Section 70.87.

Plaintiff was informed that he was under arrest for public consumption of alcohol, i.e., a non-

violent offense.

13. The Plaintiff did not resist arrest, and peacefully agreed to submit to the arrest, at

which time Defendant Elmore placed the Plaintiff in handcuffs. Plaintiff entered the police

vehicle, without resistance or any confrontation or commotion, and said Plaintiff was already in

restraints upon entering the vehicle. Defendant Elmore proceeded to drive away from the point

of arrest in the police vehicle, stating that he would be taking the Plaintiff to the police station.

14. At the time the Plaintiff had entered said police vehicle, Plaintiff was not in an

injured state, and did not have any markings about his face or signs of having been in any

confrontation or physical altercation of any kind. The individuals who had come to pick-up the

Plaintiff witnessed the arrest as well as the overall physical appearance of the Plaintiff, and

further, witnessed that the Plaintiff was in restraints and made no effort to resist arrest. Said

individuals also witnessed that the Plaintiff did not exhibit any physical manifestations of having

been injured at the time he entered the police vehicle.

15. Be that as it may, the Defendant Elmore did not take Plaintiff directly to the

police station for Defendant City. Instead, without provocation or legal justification, Defendant


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Elmore took the Plaintiff to a secluded alleyway within Miami Beach (at an unknown address)

next to a dumpster, outside the presence of any known witnesses. Elmore then took the Plaintiff

outside the police vehicle, and while the Plaintiff was still wearing the restraints, Elmore

proceeded to savagely beat the Plaintiff with his bare fists about the Plaintiff’s face, shoulder,

and body, and kicking said Plaintiff, for a time period of an unknown duration believed to be in

excess of ten minutes (Plaintiff is unsure as to the exact amount of time which lapsed, as it

seemed like an eternity to the Plaintiff).

16. Plaintiff was crying and begging Defendant Elmore to stop beating him, to no

avail. Moreover, another MBPD officer and who also is an agent, servant and employee of

Defendant City, whose identity is currently unknown to the Plaintiff, watched the savage beating

and failed to intervene to prevent Defendant Elmore from violating the constitutional rights of

the Plaintiff, notwithstanding that law enforcement officers have an affirmative duty to intervene

when the officer is aware of constitutional violations in said officer’s presence and must take

reasonable steps to protect the victim of another officer’s use of excessive force.

17. Said unidentified MBPD officer failed to prevent excessive force from being

committed against Plaintiff when he had a reasonable opportunity to do so.

18. Following the vicious beating of the Plaintiff, Defendant Elmore brought the

Plaintiff to the Defendant City police station, and Plaintiff showed serious signs of physical

altercation about his face and body, especially his swollen and beaten in face, and Plaintiff was

in an obvious state of constant pain and suffering. He was held in a cell at MBPD until

approximately midnight or 1 a.m. Then Plaintiff was taken to a Miami-Dade County jail. He

was placed in the cell, and then given a medical injection in or about the buttocks area.

19. A female guard was calling out names but Plaintiff could not stand up. The

female guard then said something to the effect that Plaintiff should be taken immediately to an


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emergency room. Male guards then assisted Plaintiff in walking over to Jackson Memorial

Hospital. At that time, an unidentified police officer stated that charges against the Plaintiff were

dropped. However, a doctor viewed Plaintiff and stated that Plaintiff could not go home, at

which time Plaintiff was admitted and stayed admitted at Jackson Memorial Hospital for various

days before he was released.

20. Upon information and belief, Defendant Elmore stated that Plaintiff “had fallen” –

which is not only inconsistent with the fact that Plaintiff was beaten by Elmore, but inconsistent

with the physical appearance of the Plaintiff’s face which looked like it had been used as a

punching bag by a professional fighter, including blackened eye.

21. Plaintiff sought immediate medical attention at Jackson Memorial Hospital, which

revealed not only that his face had been severely beaten, but that he had three fractured ribs, a

ruptured right rotator cuff which required surgery and which was subsequently operated on, and

head and neck injuries – due to the subject incident.

22. As a result of the subject incident, the Plaintiff experienced severe pain and

suffering due to his physical injuries, including mental anguish, mental and emotional suffering,

embarrassment, shame, and humiliation, as well as damages to his constitutional rights due to the

unreasonable seizure of his person and the use of excessive, unreasonable and unjustified force

against him.

Additional Facts Surrounding Liability

23. Miami Beach Police Department (“MBPD”) is an administrative subdivision of

Defendant City. Defendant City, acting through its Mayor, City Commission and City Manager,

is the ultimate policymaking authority for all officially-adopted policies and procedures

implemented by employees of MBPD, including Defendant Elmore. Further, it is the entity


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legally responsible for the hiring, retention, supervision, and training of employees of the

MBPD, as well as administering any discipline to said employees.

24. On information and belief, the City Manager delegated to the Chief of Police of

the MBPD the authority to develop, direct, and implement policies for all sworn law enforcement

officers, compiled in part in the Miami Beach Police Standard Operating Procedures Manual,

which set forth purported “guidelines” controlling the interaction between MBPD law

enforcement officers (including Defendant Elmore) and the general public.

25. Defendant City has been placed on notice that there is a pervasive and systemic

pattern, custom and practice within MBPD to use excessive force by rendering vicious beatings

to members of the general public – even those who do not resist arrest, including innocent

bystanders and those accused of minor criminal infractions -- and to make great efforts to use

such excessive force outside the view of third-party witnesses, and frequently while the person

detained is subdued, restrained, or otherwise still in handcuffs. False police reports are rendered,

and charges are initially pursued against the victims of these unconstitutional beatings but then

later are dropped in an effort to intimidate the victims. Finally, the investigations into such

allegations of excessive force are almost always a virtual whitewash, as MBPD officers are

rarely if ever punished for such conduct even when investigations reveal conduct that requires

immediate action to be undertaken against the officer(s) involved to prevent such occurrences in

the future.

26. Specifically, the notice to the City of the unconstitutional conduct of its officers

and employees has occurred through notices of intent to sue, lawsuits, internal affairs

investigations, and media reports.

27. Thus, Defendant City, and Defendant Elmore, are also on notice of the fact a

systemic and pervasive pattern and practice of excessive force exists within the MBPD and that


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members of the citizenry are the victims of excessive force committed by police officers of the

Defendant City in violation of the Fourth Amendment. Defendant City police officers are

allowed and indeed encouraged to commit excessive force with impunity knowing that no

discipline, much less meaningful discipline, will follow for acts of excessive force. Such illegal

conduct is ratified and condoned by the Defendant City.

28. Defendant Elmore is comfortable in the knowledge that any acts of excessive

force that he commits will not result in discipline by the Defendant City even when the act of

excessive force occurs within MBPD. Thus, the lack of discipline for excessive force allowed

Defendant Elmore to commit excessive force against the Plaintiff because Defendant Elmore

knew that there would be no official reprisals for his actions against Plaintiff.

29. In fact, this is not Defendant Elmore’s first time being accused of constitutional

violations for having used excessive force on a member of the general public while serving as a

MBPD police officer for Defendant City, and where an internal affairs “whitewash” resulted in

no discipline to Defendant Elmore:

a. IA 2008-028; Mr. Johnny Weeks (“Weeks”) was with a friend who was

involved in an altercation at Fat Tuesday’s nightclub. Weeks escorted his

friend out of the bar to avoid an escalation of the incident. Officers Elmore

and Dominguez approached them. One of the males said something that

infuriated the officers. Officer Elmore began bouncing like a bouncer and

punched a citizen named Johnny Hudson (“Hudson”) in the face who fell

to the ground. While on the ground Officer Elmore kicked Hudson.

Weeks pulled out his cell phone and took a picture of the incident. The

bouncers from Fat Tuesday’s then told Officer Elmore that Weeks had a

photo. Officer Elmore then punched Weeks. Officer Elmore then kicked

Weeks. Both Weeks and Hudson were handcuffed and seated on the

ground. The manager Fat Tuesday’s subsequently arrived on the scene and

informed the officers that neither Weeks nor Hudson caused a problem in the

club. Weeks and Hudson were then released. Two witnesses saw the beating

of Weeks and Hudson and a certain Lissette Luna (“Luna”) videoed the

incident with her camera. Officer Elmore discovered Luna was videoing

and took her camera. The camera was never returned to her. Luna and


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her boyfriend testified about the beating of Weeks and Hudson, and the

theft of Luna’s camera. Nonetheless, no officer was disciplined for the

beating of Weeks or Hudson; and

b. IA 2009-008; Serrano was on City bus and wanted to pay the fare with

pennies. The bus driver called the police and officer Elmore of MBPD

responded. Officer Elmore confronted Serrano, pulled him by his shirt,

kicked him in the stomach area, threw him onto the floor of the bus and

sprayed him with a chemical agent. Serrano was allowed to leave and later

stumbled into a store where he was assisted by management with

decontamination. Later, Officer Elmore lied to fellow officers indicating he

did not know who sprayed Serrano. Despite physical evidence of excessive

force, witnesses and fabrications to fellow officers, Officer Elmore was

not disciplined for excessive force.

30. Upon information and belief, the discovery phase of this litigation will further

reveal other instances where Defendant Elmore has engaged in excessive force only to receive no

discipline for his actions.

31. In addition to the above-described acts, the Defendant City is on notice through

the clear actions of excessive force committed against the Plaintiff in this action. Further, the

Defendant City is on notice of excessive force being committed against the citizenry by the

MBPD through some of the following specific acts:

a. IA 2007-032; Juan Da Pena was attending a concert. While at the concert Da

Pena had a heated verbal exchange with MBPD officer Mercado. A witness to the event saw

the punch and the punch was not denied by the officer. Yet Internal Affairs cleared the

officer and he was not disciplined.

b. IA 2007-045; Michael Bruce was walking with a friend and was stopped

unlawfully by Officer Moraga of MBPD. They were ordered to sit on the curb. Officer Mitat

of MBPD arrived and ordered Bruce to stand up. Bruce was having difficulty standing due to

the handcuffs and the position of his feet. Bruce stumbled backwards as he was rising and


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Officer Mitat immediately took him to the ground. Officer Moraga ran over and began

punching him repeatedly on his face and head. Though the abuse was witnessed, no officer

involved was disciplined.

c. IA 2008-008; Milton Rodriguez was walking with his family when he was

approached by a man and asked if he wanted to buy marijuana. Rodriguez declined and

continued walking with his family. Undercover MBPD officers later approached the

Rodriguez family and drew their weapons on Rodriguez. Rodriguez asked the reason for the

stop and he was tased by Det. Reina of MBPD. Rodriguez was tased twice and hit his head

on the pavement. He was taken to the MBPD station where he was hit in the face with a

police radio by Det. Reina. Though he had injuries consistent with his statement and his

family testified that he had injuries that were not the result of what occurred at the scene, no

officers involved were disciplined.

d. IA 2005-004; While being transported to jail, Damian Osorio was tased by Officer

Armatrading of MBPD. The investigation by Internal Affairs found that Officer Armatrading

used the taser on Osorio four times as an intimidation technique. Though the investigation

found that Officer Armatrading violated policy by not providing appropriate aid after the

tasing took place; there was no discipline for the tasing itself.

e. IA 2005-007; Daniel Oppenheim was ejected from a club and called MBPD for

assistance. Sergeant Rojo arrived and threatened Oppenheim into not making a complaint.

Oppenheim was then arrested and once at the MBPD holding facility he was kicked by

Officer Smith of MBPD in the back of his legs and groin. Oppenheim produced photographs

of injuries but the involved officers received no discipline.

f. IA 2005-014; MBPD officer Sunday Garcia filed an excessive force report

against Officer Douglas Simon. Officer Garcia reported seeing Officer Simon walk over to a


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handcuffed suspect named Angel Melendez and place his foot on the left side of Melendez’s

face and then twist his foot back and forth causing blood to emit form Melendez’s face. Then

Officer Simon had Melendez stand up and he hit Melendez in the groin area with his asp.

Officer Simon then put his asp on Melendez’s neck by the carotid area and applied pressure

to his neck by grabbing Melendez’s hair and forcing the asp on Melendez’s neck. Officer

Simon then slammed Melendez’s head on a marked police vehicle three times. The IA

investigation confirmed the injuries to Melendez as being consistent with the described

injuries. Yet, even with the other officer’s damaging eyewitness testimony the excessive

force allegation was exonerated and no discipline was received for beating Melendez.

g. IA 2009-036; Officer Anastasi was captured on MBPD video surveillance kicking

a handcuffed prisoner named Glen Deason, two times in the face/head area. The reports

written by Officer Anastasi were not consistent with the facts seen on the video. Officer

Anastasi was allowed to retire and was not disciplined for this incident.

h. IA Case No. 2008-013; While walking on Miami Beach, Michael Minian and

Ishmael Castillo noticed a bike patrol of MBPD officers passing by. Castillo yelled, “F___

the police”. The police returned, handcuffed Castillo and dared Castillo to repeat what he

had just said. Castillo was then punched in the side and back for approximately 45 seconds.

Minian stated to the officers that they did not have to do that to Castillo. Minian was then

grabbed by the neck, slammed to the ground, and handcuffed. Both Minian and Castillo were

then taken to the MBPD station. Upon arrival Castillo was taken out of the car and beaten

again inside of the parking garage. While being escorted into the station Minian was punched

in the jaw and stomach. Castillo was taken to a cell and asked to spread his legs and an

MBPD officer kicked him in the testicles. He was then hit by two officers. Each time that he

fell, the officers would stand him up and hit him again. Castillo decided to stay down to stop


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the beating from progressing further. Another officer asked him to spread his legs again and

attempted to kick him in the testicles a second time. Both men were charged with disorderly

conduct and the matters were dismissed in criminal court. Though both men showed

physical evidence of being beaten in their arrest photographs, the officers involved received

no discipline.

i. IA 2008-036; Cedel Thomassin was placed under arrest by Officer Martineau.

Officer Martineau punched Thomassin five times in the face for no reason causing

Thomassin to receive facial lacerations and a broken nose. None of the injuries were

documented on any police report. Thomassin had to be taken to Ward D at Jackson

Memorial Hospital to be accepted by the Corrections Department. The visit to Ward D was

also not documented on any police paperwork. Despite the facial abrasions and the broken

nose, the Internal Affairs investigation found the excessive force to be unsubstantiated and no

officer was disciplined for the beating of Thomassin.

j. IA 2008-029; Ian Cooley was stopped by Officer Doty for speeding. Cooley

questioned the stop and Officer Doty placed him under arrest. Two civilian witnesses

testified to Internal Affairs that they saw Officer Doty punching Cooley in the head and back

for no apparent reason. Once at the MBPD, Cooley was escorted to the holding area where

Officer Doty screamed obscenities. She, along with two officers, struck him in the head

approximately 30 to 40 times. Upon release Cooley went to Mt. Sinai where he was

diagnosed with a ruptured eardrum. No officers received discipline.

k. IA 2007-026; Keith Thompson, a Sergeant in the United States Army, observed

Miami Beach Police Officers Jose Reina and Albert Estraviz committing excessive force

against an individual. Sergeant Thompson spoke to the officers and informed them that the

subject was repeatedly saying that he could not breathe. Thompson was attempting to take


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pictures of the excessive force with his cell phone. Thompson was ordered to step back and

he complied. As he was leaving the area Detective Reina pushed him up against the wall and

began choking him. Thompson indicated to the police officer that he could not breathe.

Thompson identified himself as military personnel and Detective Reina applied more

pressure to his throat. Thompson displayed physical injuries consistent with him being

beaten by the police including bruising on his neck. Thompson was falsely charged with

Disorderly Intoxication and Resisting an Officer with Violence. These charges were dropped

by the State Attorney’s Office. However, Internal Affairs even with the medical

corroboration indicating Sergeant Thompson was choked found all allegations of excessive

force to be unsubstantiated and cleared the officers.

l. IA 2008-026; Santos Ordonez works as a manager at the Gallery Déjà vu on

South Beach. Ordonez entered after hours, which set off the alarm. The owner called and

Ordonez let the owner know that he was in the store and the alarm company was called and

told it was a false alarm. Police responded and saw Ordonez in the store and wanted him to

open the door. Ordonez did not open the door and MBPD entered through the rear of the

gallery. Ordonez was taken to the ground and tased five times in the back. He was also hit

in the face so hard that he was in and out of consciousness. Despite a video which shows

Ordonez being tased five times and being kicked in the groin, no officers were disciplined for

excessive force.

m. IA 04-012; John Gibson was arrested for Disorderly Intoxication. He made

comments while at the holding facility at MBPD that angered Detention Officer Booker

Abercrumbie. Officer Abercrumbie moved Gibson from a populated cell to one where no

other prisoners were present. Officer Abercrumbie then sprayed chemical agents in Gibson’s

face and also repeatedly punched him in the face. The Internal Affairs investigation


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concluded that Gibson was in fact injured in the detention facility noted the lacerations on

Gibson’s face and confirmed that he was sprayed with the chemical agent. However, no

officer was disciplined for battering Gibson.

n. IA 2009-013; Steven Gomez was on the beach and became involved in a verbal

altercation with other males. Officers responded as Gomez was walking away from the

scene. City officer Chambers grabbed Gomez’s arm. Unaware that it was an officer that

grabbed his arm, Gomez pulled away. Other officers arrived, threw Gomez in the sand and

held him down. One officer sat on Gomez’s head while he was face down in the sand and

the juvenile was unable to breathe. He struggled up and was punched in the face. He went

into a fetal position and was punched several more times and then handcuffed. The incident

was filmed by another male and the file was presented to the Internal Affairs department.

The juvenile was lacerated and was diagnosed at JMH with a fracture orbital bone. All

criminal charges were dropped by the State Attorney’s Office. Despite a number of

witnesses that testified to the beating, and the video evidence of it, no officers were

disciplined for the beating of Gomez.

o. In February 2003, MBPD officer Varon drove an SUV on the beach in a manner

sufficiently reckless to constitute vehicular homicide, causing the death of a teenaged

sunbather and permanent disfigurement of her sister; the investigation was insufficient and

no charges were ever brought against the officer.

p. In September 2003, MBPD officer Rice-Jackson was issuing a ticket to a married

couple walking their dog in a public park for an unknown reason, and when the woman asked

for Rice-Jackson’s identification, she was assaulted without cause. MBPD officer Serrano

then participated in the incident, at which time both victims were handcuffed, beaten and

arrested. The MBPD officers filed a false report claiming self-defense. On information and


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belief, neither officer has received any disciplinary measures of the offense.

q. In November 2003, MBPD officer Dominguez drove a city vehicle in a reckless

manner, causing an accident that severely injured four persons on two motorcycles; the

investigation into this matter was at best, decidedly lacking.

r. In November 2003, MBPD Lt. E. Yero disobeyed orders from a City of Miami

superior during a joint law enforcement exercise, specifically the policing of the FTAA-

related demonstrations on Biscayne Blvd. in Miami, and Lt. Yero wrongfully permitted the

discharge of tear gas to disperse a gathering of hundreds of persons involved in First

Amendment-protected activity. Lt. Yero further permitted officers under his command to

utilize other chemical agents and batons on unarmed demonstrators; on information and

belief, neither Lt. Yero nor any of the officers under his command ever faced any

disciplinary actions for their roles in the FTAA, despite sworn testimony in federal lawsuits,

from numerous Miami police officials, relating to the misconduct.

s. In early 2004, police were called to the residence of MBPD Sgt. Berrian, who had

engaged in acts of domestic violence against his wife, who had a bleeding lip and bruises on

her head; the investigation was minimal and no discipline was found to have been imposed

upon this officer, and there is no record of anger management classes or other minimal

activity to address this problem.

t. In February 2004, MBPD officers Rabelo, Garcia and McCue entered into a

private apartment without consent, assaulting the resident, thereby engaging in violations of

the Fourth Amendment protections against warrantless entry without probable cause and

against excessive force. After an inadequate investigation, the IA Unit cleared the officers of

the wrongdoing.

u. In February 2004, a young man ran from MBPD officers; when he was grabbed


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and subdued, the MBPD officers, including K. Millan, proceeded to kick the arrestee in the

body and face numerous times, in violation of the Fourth Amendment. The IA Unit ruled the

incident as “unsubstantiated.”

v. In May 2004, a woman was parking her vehicle with a valet, and was in the

vicinity of MBPD officers E. Cruz and G. Gutierrez, one of the officers asked the woman to

move, and this request led to a physical assault by the officer and numerous racial slurs,

witnessed by bystanders. After investigation, the IA Unit inappropriately dismissed the

excessive force claim and imposed minimal punishment for the racial slur.

w. In August 2004, a man was stopped by MBPD officer Nolan during a traffic stop,

and without justification the man was physically assaulted, by a punch to his face delivered

by the officer without cause. The IA Unit ruled the incident as “unfounded,” essentially

declaring that the assertion was a total fabrication.

x. In November 2004, MBPD officers E. Cruz, G. Gutierrez and J. Periera were

working off duty at a night club, at which time the victim was leaving the club, but

apparently not fast enough for the officers. The victim was knocked to the ground, brutally

beaten causing facial injuries including a fractured nose, and tasered without justification.

The officers arrested the victim and falsely charged him with felony-level crimes including

battery on a police officer. The testimony of independent witnesses caused the State

Attorney’s Office to dismiss all charges. The victim filed a complaint with the IA Unit,

which in typical fashion only sustained a portion of the charges; despite past charges, on

information and belief the officers were not discharged from the MBPD despite their

falsification of the arrest report and the savage beating of this victim.

y. In January 2005, an emotionally-disturbed person (“EDP”), entered into the

private bathroom of a public house, causing the bartender to summon police. MBPD officers


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in plainclothes, M. Muley, M. Schoenfeld and C. Pfrogner responded. Officers Muley and

Schoenfeld burst into the bathroom with guns drawn and startled the EDP, who, believing

that a robbery or such was occurring fled down the hallway, at which time officer Muley

gave chase and shot the unarmed EDP multiple times. Despite the obvious Fourth

Amendment violation(s), on information and belief the officers have never been disciplined.

z. Case No. 1:11CV23195: On January 5, 2008, MBPD officers E. Figueroa and R.

Azicri beat two plaintiffs repeatedly, while said individuals were in restraints and in police

custody, for refusing to hand over video taken of a traffic stop. The physical abuse included

repeated kicks to the groin and stomach area of one plaintiff and beating one plaintiff in the

head with a book. Upon information and belief, the officers involved were never disciplined

for their conduct.

aa. In April 2005, a woman was involved in an altercation, and sought assistance

from MBPD officers L. Corps and D. Gotsis. The officers decided to arrest this woman, and

they handcuffed her and used excessive force in dealing with her. The victim filed an IA

complaint, and the findings of the IA Unit were that the officers did not engage in excessive

force, but did have inaccuracies in their report; the more serious charge was deemed as

“unfounded” while the less serious charge was upheld, despite the evidence supporting all

charges against the officers.

bb. In June 2005, a young man had a brief encounter with MBPD officer R.

Lawrence, which resulted in the victim being grabbed by the throat without justification.

Following a complaint to the IA Unit, the complaint was deemed as “unsubstantiated.”

cc. Case No. 1:02CV20800: On January 29, 2001, Davis was subjected to a traffic

stop by the MBPD. Davis was approached by officer Acosta who had his gun drawn and

placed the barrel of the gun to the side of Davis’s head. Thereafter, Davis was violently


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thrown to the ground, physically abused, and handcuffed. All actions taken by the officers

were done without reasonable cause that Davis posed a threat or danger to the officers or the

public. Davis believes these actions were done to him because of his race.

dd. In February 2006, an off-duty City of Miami police officer was picking up his

children when he was assaulted. The officer held the assailants at bay until the MBPD

arrived, at which time the Miami officer was struck in the neck, had a gun placed to his head,

and MBPD officer D. Bates applied a taser for good measure. Following the complaint, the

IA Unit exonerated the MBPD officers of excessive force, while agreeing that Officer Bates

failed to file a “use of force report.”

ee. In July 2006, a person encountered several officers, and after a brief verbal

exchange, MBPD officer E. Perez threw a punch into the victim’s face. Following an IA

complaint, the IA Unit declared the charge to be “unsubstantiated.”

ff. Case No. 1:10-cv-24155: On or about August 23, 2007, Casey was arrested by

Police Officer Macias and another officer at approximately 3:00 a.m. at the 2100 block of

Washington Avenue, Miami Beach without probable cause. Defendant Macias used

unreasonable force in handcuffing Casey and placing her into his police car. Then, Officer

Macias drove Casey to a dark alley and dragged her out of his car. Officer Macias proceeded

to fondle Casey’s breasts and put his hands down her pants. Further, Macias again used

unreasonable force to put Casey back into the patrol car and force his tongue down her throat

as he rubbed her thighs with his hands. The charges against Casey were dropped and she

brought an action against Macias and the City.

gg. Case No. 1:10-cv-23139: Feliciano was at her home in Miami Beach on the

evening of September 2, 2006 with her three minor children and her domestic partner. She

heard a knock around 9 p.m., and her eldest son answered the door. Officers Acosta, Dohler,


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and Dozier were at the door and informed Feliciano that they had received an anonymous tip

that persons inside the house were selling drugs. After refuting the allegation and refusing

consent for the officers to come into the residence, the Officers informed Feliciano that they

did not need a search warrant and warned that her children can be taken from her because she

had a religious candle lit by the window. When her boyfriend came out of a room the

Officers pushed Feliciano aside and rushed him. Then, one of the Officers held Feliciano’s

arms behind her back and repeatedly slammed her abdomen violently into the wooden side

arm of a couch. Feliciano begged the Officer to stop because she was 3 months pregnant but

the Officer ignored her and continued to violently slam her abdomen and face into the

wooden side arm of the couch. The next day, Feliciano checked into the emergency room at

a hospital, where an examination confirmed she was having a miscarriage. An obstetrical

medical procedure was performed to remove the remainder of her unborn child.

hh. Case No. 1:12-cv-20575: On or about February 16, 2008, while Duquesne was

handcuffed in the backseat of a MBPD car he was punched in the face by MBPD officers

Muley, Archer, and Maher. Officer Maher then drove Duquesne to the MBPD where he was

beaten again on multiple occasions by Muley and Archer. Although, he reported the beatings

to a Spanish-speaking officer, the officer did nothing and once the Spanish-speaking officer

left Duquesne’s presence, the beatings continued. Duquesne was taken to Jackson Memorial

Hospital with multiple injuries including a swollen eye, busted lip, and blood on multiple

spots of his face. He was charged with Battery on Law Enforcement, Possession of Cocaine,

Resisting without Violence, and Drinking in Public and jailed for 340 days. Upon the second

day of his trial, the MBPD officers failed to appear and testify against Duquesne and all

charges were dropped.

ii. Case No. 1:11CV22051: On June 14, 2009, Samer Shehada and Husien Shehada


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(“Decedent”) walked down Washington Avenue and purchased cigarettes. As they walked

they heard a loud voice yell commands. Shehada and Decedent turned towards the

commands and saw MBPD officer Tavss pointing a firearm towards them. They raised their

arms in supplication to the officer demonstrating to him and any other officers present that

they were unarmed and posed no threat to the officers. Within two seconds of hearing the

command, Tavss shot at Decedent three times, and one of those shots were fatal. Thereafter,

Samer was arrested and detained. The estate of the Decedent and his brother Samer Shehada

brought an action against the MBPD and the officer individually.

jj. Melissa Plata v. City of Miami Beach, et al: In November 2003, Plata was on

her way to Miami International University (“MIU”) in order to register for classes. She

approached MBPD officer Ortivero to ask him if he could contact her former boyfriend who

also was a MBPD officer. Officer Ortivero ignored her inquiry so she left while muttering

her dissatisfaction under her breath. MBPD officer Ortivero then rushed and slashed toward

her left forearm with handcuffs. Plata wears a prosthetic device as a result from a car

accident and the twisting motion of her prosthetic by the officer caused Plata a great deal of

pain and she released the device. Then, Plata was taken to the ground by officer Ortivero

causing her jaw to hit the cement and drove his knee and forearm into Plata’s back and neck

area. Thereafter, she was arrested and brought to the MBPD where she was slapped in the

face by officer Ortivero, strip searched in the view of other the officers, and thrown naked

into a jail cell for twenty to thirty minute. During her 24 hour detention, she was never fed

nor given any water. Her case was dismissed against her and she was given back all her

personal items except for her prosthetic device which she was told was “lost.”

32. Upon information and belief, the discovery phase of this litigation will further

reveal many other instances where Defendant City, by and through the MBPD and its officers


20

and employees, has allowed, condoned, encouraged, and otherwise engaged in excessive force

only to fail to discipline for such actions, much less properly supervise and train to prevent

further abuses.

33. As a result of Defendants’ conduct, as described above, Plaintiff has suffered

serious physical injuries, mental anguish, shame, humiliation, and other damages as set forth

below.

COUNT I – 42 U.S.C. § 1983 – EXCESSIVE FORCE

(AGAINST DEFENDANT PHILIP ELMORE)

34. Plaintiff, Dario D. Vasquez, re-alleges and re-avers each and every allegation set

forth in Paragraphs 1 through 33 as if set forth fully herein, and further states as follows:

35. This cause of action is brought by Plaintiff against Defendant Elmore for his use

of excessive force under color of law which deprived Plaintiff of his constitutionally protected

rights under the Fourth Amendment to the United States Constitution.

36. At all times material, Plaintiff had the constitutional right to be free from the use

of excessive force against his person and to be free from unlawful searches and seizures.

37. Defendant Elmore violated 42 U.S.C. § 1983 by inflicting serious personal injury

upon Plaintiff that was grossly disproportionate to the force necessary to arrest Plaintiff in

violation of his rights under the Fourth Amendment to the United States Constitution.

38. Defendant Elmore, while acting in his capacity as a police officer for Defendant

City and under the color of law, did intentionally use excessive force by repeatedly striking

Plaintiff during his detention, and while Plaintiff was in restraints and not resisting his arrest.

39. Defendant Elmore, while acting in his capacity as a police officer for Defendant

City and under the color of law, did intentionally engage in an unlawful search and seizure by his

conduct toward the Plaintiff.


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40. The force utilized by Defendant Elmore was sadistically and maliciously applied

for the very purpose of causing harm to the Plaintiff, and more than a de minimis injury resulted

therefrom.

41. As a direct and proximate result of the illegal acts of Defendant Elmore, Plaintiff

has been damaged, including but not limited to loss of income and future earning capacity, as

well as permanent physical injuries which were caused, activated or otherwise aggravated by the

subject incident, and Plaintiff shall further incur medical losses and impairments in the future.


has in the past and will in the future undergo painful and extensive medical care and treatment,

including but not limited to right shoulder arthroscopic rotator cuff repair, and has in the past

incurred and will in the future incur medical bills and expenses attendant to his aforesaid injuries.


has in the past and will in the future suffer great pain and suffering, both physical and mental

anguish, as well as shame, humiliation, and the loss of capacity for the enjoyment of life.

WHEREFORE, Plaintiff demands the following relief against Defendant Elmore:

a. An award of compensatory damages;

b. An award of punitive damages;

c. An award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and

d. An award of such other and further relief the Court deems just and

appropriate.

COUNT II – 42 U.S.C. § 1983 – EXCESSIVE FORCE

(AGAINST DEFENDANT CITY)


forth in Paragraphs 1 through 33 as if set forth fully herein, and further states as follows:


22

45. This cause of action is brought by Plaintiff against Defendant City for deprivation

by its agent, servant, and employee, namely Defendant Elmore, of constitutional rights within the

meaning of 42 U.S.C. § 1983 in violation of the Fourth Amendment to the United States

Constitution.

46. Defendant Elmore was acting under the color of law, as authorized agent of

Defendant City, while arresting Plaintiff in the furtherance of his duties.

47. The unidentified MBPD was acting under color of law, as authorized agent of

Defendant City, when he had a reasonable opportunity to intervene, yet failed to intervene and

protect the Plaintiff from Defendant Elmore’s illegal acts which were committed in his presence.

48. The constitutional deprivation was caused by Defendant City’s numerous areas of

deliberate indifference as outlined in Paragraphs 1 through 33 above, including:

a. Custom of condoning, allowing, and encouraging numerous instances of

illegal excessive force and police brutality without punishing its police

officers, including Defendant Elmore. The above-mentioned actions were not

isolated incidents. Defendant City has a history of exonerating officers for

allegedly using excessive force against its citizens, including Defendant

Elmore. Officers within the MBPD are secure in knowing that a reported

incident (if the incident gets reported by and MBPD officers at all as many

incidents are intentionally covered up with the assistance and acquiescence of

multiple MBPD officers) will not result in an meaningful disciplinary

proceeding or punishment, even when presented with video evidence, the

testimony of independent witnesses, or even the testimony of fellow MBPD

officers. Defendant City condones an officer’s action even when other non-

police witnesses have complained that force used was excessive. Prior to


23

February 4, 2008, Defendant City permitted and tolerated the practice of

unjustified and unreasonable uses of excessive force by its officers under the

color of law. Subsequent to February 4, 2008, Defendant City continued to

permit and tolerate incidents of excessive force establishing excessive force as

an unwritten custom and practice of MBPD. This established MBPD custom

and practice caused injury to the Plaintiff herein when he became a victim of

excessive force on February 4, 2008.

49. Moreover, at all times material hereto, Defendant City was responsible for

implementing the rules and regulations in regard to hiring, retaining, screening, training,

supervising, controlling, disciplining and assigning MBPD police officers to their duties in the

City of Miami Beach.

50. Defendant City was deliberately indifferent in that it either expressly or impliedly

acknowledged and assented to the failure to hire, retain, screen, train, supervise, control,

discipline, and otherwise assign employees of Defendant working as MBPD officers, including

but not limited to Defendant Elmore, for dangerous propensities, lack of training and skill, and

other identifiable characteristics making said MBPD officers unfit to perform their lawful duties.

51. Defendant City was deliberately indifferent to the rights of the public, including

the Plaintiff, in that it failed to determine whether members of the MBPD, including Defendant

Elmore, posed a threat to the public as a result of their propensity to commit unlawful acts and to

engage in violent activity, including acts of excessive force.

52. Defendant City, through its deliberate indifference, failed to ensure that MBPD

officers, including Defendant Elmore, did not violate the constitutional and statutory rights of

citizens of the State of Florida, including the Plaintiff, while said MBPD officers were acting

under color of state law for Defendant City.


24

53. The deliberate indifference of Defendant City exhibited a reckless, wanton, and

callous disregard for the rights of persons, including the Plaintiff, who might be brutally

assaulted, injured, battered or otherwise maimed for life by MBPD officers, including Defendant

Elmore, who were inadequately trained, supervised, and disciplined.

54. Defendant City was deliberately indifferent in the selection, retaining, training,

and supervising of Defendant Elmore, as a MBPD officer in that Defendant City: (a) hired and

retained Defendant Elmore when Defendant City knew, or in the exercise of reasonable care

should have known, of the disposition of Defendant Elmore to engage in such unlawful conduct

including excessive force and the unlawful conduct complained of herein; (b) failed to remove

Defendant Elmore from his position of authority as MBPD officer despite the fact it knew or

should have known of the disposition of Defendant Elmore to engage in such unlawful conduct

including excessive force and the unlawful conduct complained of herein; (c) failed to take any

meaningful disciplinary action against Defendant Elmore despite the fact it knew or should have

known of the disposition of Defendant Elmore to engage in such unlawful conduct including

excessive force and the unlawful conduct complained of herein; and (d) failed to protect

members of the general public, including the Plaintiff, despite the fact it knew or should have

known of the disposition of Defendant Elmore to engage in such unlawful conduct including

excessive force and the unlawful conduct complained of herein.

55. Additionally, the cited misconduct represents a pattern, custom and practice in

which members of the public were savagely beaten, injured, and otherwise endangered by the

intentional and reckless misconduct of MBPD officers, and that deliberate indifference was

widespread as to the use of excessive force, illegal behavior, and widespread incompetence

throughout Defendant City including the MBPD. This pattern, custom, and practice includes not

only the failure to identify and discipline the unlawful and excessive use of force and seizures by


25

MBPD personnel, but additionally, the failure to re-train, supervise, or otherwise remove MBPD

officers who engage in such unlawful conduct as the de facto policy and custom of Defendant

City to tolerate, encourage, and even protect such acts by MBPD officers.

56. There existed a strong likelihood, rather than a mere possibility, that the

Defendant City’s customs, policies, and procedures would result in a constitutional violation like

the violation suffered by the Plaintiff.

57. Defendant City and its city policy makers were aware or should have been aware

of the need for different policy and training.

58. Further, Defendant City’s training program was clearly inadequate and likely to

give rise to constitutional violations, such as a clearly inadequate training for MPBD police

officers in the constitutional limits on the use of excessive force.

59. Moreover, Defendant City’s policy and training program as to use of excessive

force has so often led to violations of constitutional rights similar to those suffered by the

Plaintiff that the need for further training must have been (and should have been) plainly

obvious to the Defendant City’s policy makers.

60. The deliberate indifference of the Defendant City violated the constitutional rights

of its citizenry, including the Plaintiff, for which 42 U.S.C. § 1983 provides the appropriate

remedies as requested herein.

61. As a direct and proximate result of the illegal acts of Defendant Elmore, while

Defendant Elmore was an agent, servant, and employee of Defendant City, and the

unconstitutional policies, customs and practices of Defendant City, Plaintiff has been damaged,

including but not limited to loss of income and future earning capacity, as well as permanent

physical injuries which were caused, activated or otherwise aggravated by the subject incident,

and Plaintiff shall further incur medical losses and impairments in the future.


26



unconstitutional policies, customs and practices of Defendant City, Plaintiff has in the past and

will in the future undergo painful and extensive medical care and treatment, including but not

limited to right shoulder arthroscopic rotator cuff repair, and has in the past incurred and will in

the future incur medical bills and expenses attendant to his aforesaid injuries.



unconstitutional policies, customs and practices of Defendant City, Plaintiff has in the past and

will in the future suffer great pain and suffering, both physical and mental anguish, as well as

shame, humiliation, and the loss of capacity for the enjoyment of life.

WHEREFORE, Plaintiff demands the following relief against Defendant City:

a. An award of compensatory damages;

b. An award of punitive damages;

c. An award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and

d. An award of such other and further relief the Court deems just and

appropriate.

COUNT III – STATE TORT OF BATTERY

(AGAINST DEFENDANT PHILIP ELMORE)


forth in Paragraphs 1 through 33 as if set forth fully herein, and further states as follows

65. On February 4, 2008, Plaintiff was arrested by Defendant Elmore who did

unlawfully batter, touch, and strike Plaintiff without his consent and against his will.


27

66. As a direct and proximate result of said acts of Defendant Elmore, Plaintiff has

been damaged, including but not limited to loss of income and future earning capacity, as well as

permanent physical injuries which were caused, activated or otherwise aggravated by the subject

incident, and Plaintiff shall further incur medical losses and impairments in the future.

67. As a direct and proximate result of said acts of Defendant Elmore, Plaintiff has in

the past and will in the future undergo painful and extensive medical care and treatment,

including but not limited to right shoulder arthroscopic rotator cuff repair, and has in the past

incurred and will in the future incur medical bills and expenses attendant to his aforesaid injuries.

68. As a direct and proximate result of said acts of Defendant Elmore, Plaintiff has in

the past and will in the future suffer great pain and suffering, both physical and mental anguish,

as well as shame, humiliation, and the loss of capacity for the enjoyment of life.

WHEREFORE, Plaintiff demands compensatory damages against Defendant Elmore; for

his personal injuries; pain and suffering; past, present, and future medical expenses; mental

anguish; loss of earning capacity; and loss of capacity to enjoy life; as well as his costs, and all

other relief the Court deems just and proper.

COUNT IV – STATE TORT OF BATTERY

(AGAINST DEFENDANT CITY)


forth in Paragraphs 1 through 33 as if set forth fully herein, and further states as follows

70. On February 4, 2008, Plaintiff was arrested by Defendant Elmore who did

unlawfully batter, touch, and strike Plaintiff without his consent and against his will.

71. Defendant Elmore was acting in the course and scope of his duties as an agent,

servant, and employee of Defendant City.


28

72. As a direct and proximate result of said acts of Defendant Elmore, for which

Defendant City is responsible, Plaintiff has been damaged, including but not limited to loss of

income and future earning capacity, as well as permanent physical injuries which were caused,

activated or otherwise aggravated by the subject incident, and Plaintiff shall further incur

medical losses and impairments in the future.


Defendant City is responsible, Plaintiff has in the past and will in the future undergo painful and

extensive medical care and treatment, including but not limited to right shoulder arthroscopic

rotator cuff repair, and has in the past incurred and will in the future incur medical bills and

expenses attendant to his aforesaid injuries.


Defendant City is responsible, Plaintiff has in the past and will in the future suffer great pain and

suffering, both physical and mental anguish, as well as shame, humiliation, and the loss of

capacity for the enjoyment of life.

WHEREFORE, Plaintiff demands compensatory damages against Defendant City; for his

personal injuries; pain and suffering; past, present, and future medical expenses; mental anguish;

loss of earning capacity; and loss of capacity to enjoy life; as well as his costs, and all other relief

the Court deems just and proper.

DEMAND FOR JURY TRIAL

Plaintiff demands a trial by jury of all issues so triable under the law.


29

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on May 29, 2012, we electronically filed the foregoing

document with the Clerk of the Court using CM/ECF. We also certify that the foregoing

document is being served this day on all counsel of record identified on the attached Service List

in the manner specified, either via transmission of Notices of Electronic Filing generated by

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized

to receive electronically Notices of Electronic Filing.

Respectfully submitted,

LAW OFFICES OF DOUGLAS J. JEFFREY, P.A.

Attorneys for Plaintiff

6625 Miami Lakes Drive East, Suite 379

Miami Lakes, Florida 33014

Tel: 305.828.4744

Fax: 305.828.4718

Email: [email protected]

By: s/ Douglas J. Jeffrey, Esq.

DOUGLAS J. JEFFREY

Fla. Bar No. 149527


mailto:[email protected]

30

SERVICE LIST

Dario D. Vasquez v. CITY OF MIAMI BEACH, et al.

Case No: 12-21024-CIV-MARTINEZ-MCALILEY

Jose Smith, City Attorney

City of Miami Beach

1700 Convention Center Drive

4th

Floor – Legal Department

Miami Beach, Florida 33139


Telephone: (305) 673-7470

Facsimile: (305) 673-7002

Counsel for City, Gonzalez, Bower, and Noriega

Joshua M. Entin, Esq.

ROSEN, SWITKES & ENTIN, P.L.

407 Lincoln Road, PH SE

Miami Beach, FL 33139


Telephone: (305) 534-4757

Facsimile: (305) 538-5504

Counsel for Phillip Elmore

Jose A. Fuentes, Esq.

Fuentes & Berrio, LLP

709 East Hillsboro Boulevard

Deerfield Beach, Florida 33441


Telephone: (954) 752-1110

Facsimile: (954) 794-1212

Co-Counsel for Plaintiff


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Plaintiff's Amended Complaint against City of Miami Beach

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