IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CHRIS JONES,
Plaintiff,
v. No.
JURY TRIAL REQUESTED
THE CITY OF ALBUQUERQUE;
OFFICER STEVE PICCHIONE,
OFFICER WOSICK, OFFICER MASON, OFFICER
MOCK, SGT. HEH, ALBUQUERQUE POLICE DEPARTMENT,
in their official and individual capacities;
GILBERT GALLEGOS, ALBUQUERQUE
CHIEF OF POLICE, ROBERT WHITE, ALBUQUERQUE
CITY ATTORNEY, in their official and individual capacities;
and
DONALD HARRIS, ALBUQUERQUE ASSISTANT CITY ATTORNEY,
in his official and individual capacities,
Defendants.
COMPLAINT FOR DAMAGES FOR CIVIL RIGHTS VIOLATIONS,
&
SYSTEMIC INJUNCTIVE RELIEF
Plaintiff, Chris Jones, by and through counsel, Joe M. Romero, Jr. and Jody Neal-Post, brings this Complaint for multiple violations of his civil rights, seeking compensatory and punitive damages, as well as injunctive relief for a pattern of systemic and ongoing constitutional deprivations and attorney’s fees. For his Complaint, Mr. Jones alleges as follows:
Jurisdiction and Venue
1. This is a civil action brought pursuant to 42 U.S.C. §§ 1983 & 1988 seeking monetary damages and injunctive relief for deprivations by Defendants, acting individually and in concert, through their agents and servants and under color of law, statute, ordinance, regulation, custom and usage, of rights, privileges, and immunities secured to the Plaintiff by the Fourth and Fourteenth Amendments to the United States Constitution.
2. Plaintiff also alleges that Defendants’ actions violated rights secured to him under Article II, §§ 4, 10 & 18 of the New Mexico Constitution (2001), and the laws of the State of New Mexico.
3. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1343 and venue is proper in this judicial district as the incidents complained of occurred in this district.
4. All acts complained of occurred within the applicable three year statute of limitations.
Parties
5. Plaintiff is now and has been at all material times, a resident of Bernalillo County, New Mexico.
6. Defendants Officers Steve Picchione, Officer Wosick, Officer Mason, Officer Mock, and Sgt. Paul Heh, were at all times material law enforcement officers with Albuquerque Police Department. All APD officers are being sued in their official and individual capacities.
7. Defendants Gilbert Gallegos and Robert White, were at all times material, respectively the Albuquerque Chief of Police and City Attorney of Albuquerque. Defendants Gallegos and White are being sued in their official, individual and supervisory capacities.
8. Defendant Don Harris was at all times material since on or about November 1, 2003 through February 2, 2004, the Albuquerque City Attorney assigned to Plaintiff’s request for the return of his money. Defendant Harris is being sued in his official and individual capacities.
9. At all times relevant hereto, all Defendants were acting under color of state law and were actual, apparent, or ostensible agents of all other defendants, and at all times were acting within the scope and course of their agency and employment.
10. Defendant City of Albuquerque is a municipality and a person within the meaning of 42 U.S.C. §1983.
11. Plaintiff has complied with all conditions precedent to the bringing of this action in effort to avoid litigation and is without other remedy for his constitutional violations as the City of Albuquerque has ignored state law and procedure in authorizing actions resulting in the systemic procedural deficiencies depriving Plaintiff of his constitutional rights.
12. Defendants acted outside the scope of any potential or claimed immunities.
COMMON FACTUAL ALLEGATIONS
13. On February 19, 2001, Albuquerque Police Department (APD) was dispatched in response to a domestic violence, wherein the caller alleging the brandishing of a weapon. The incident ended the following morning with the illegal search of Mr. Chris Jones’ locked bedroom at 2632 Granite, NW, Albuquerque, New Mexico and the seizure and illegal retention of $10,000.00 in cash from Mr. Jones’ locked safe, the safe having been in Mr. Jones’ locked room.
14. The alleged domestic violence suspect was Mr. Rodney Goodloe. At no time was Plaintiff Chris Jones alleged to have been involved in the domestic violence incident or in any other illegal activity.
15. APD Officers Picchione, and, upon information and belief, Mason, Mock, Wosick and Heh, located Mr. Goodloe at a residence at 2632 Granite, NW, Albuquerque, New Mexico.
16. Mr. Goodloe was arrested and the apparent lessee of the residence, Mr. David Summerville, gave written permission to search the residence.
17. Mr. Goodloe apparently gave oral permission to search his car and the guest room where Mr. Goodloe was staying.
18. APD was searching for a gun allegedly brandished in the domestic violence incident.
19. APD officers repeatedly demanded of Mr. Goodloe where the gun was, with Sgt. Heh stating “I’m looking for the f****** gun, period. ” Mr. Goodloe repeatedly denying that he had any gun.
20. Despite Mr. Goodloe’s consistent and repeated statements that there was no gun, and the fact that no gun was found in Mr. Goodloe’s car or the searched areas of the house, the APD officers continued to press Mr. Goodloe to reveal the location of the gun they believed existed.
21. The APD officers fixed upon a locked bedroom in the house and decided that it was Mr. Goodloe’s room, but the door was locked.
22. The locked room belonged to Plaintiff Jones and neither Mr. Goodloe nor Mr. Summerville had actual or implied authority to open the room or to consent to the room being opened and or searched.
23. Both Mr. Goodloe and Mr. Summerville denied that the room belonged to Mr. Goodloe, but despite both men’s denials, APD Officers forcibly entered the locked room in the presence of Mr. Goodloe and Mr. Summerville.
24. Once inside the locked room, the Officers discovered the locked safe wherein the bedroom’s resident, Plaintiff Chris Jones, had placed his $10,000.00 in cash, and, also in the room, a small, misdemeanor quantity of marijuana.
25. The Officers repeatedly told Mr. Goodloe that “the gun” was in the safe and they wanted it and that Mr. Goodloe would be better off if he simply admitted it.
26. After extensive discussion and arguing about the gun and allegations by the APD officers that the gun was in the safe and it was “hot,” Mr. Goodloe finally stated in exasperation to Officer Mason and Sgt. Heh, “I’m gonna tell you what you tellin’ me. If [] think there’s a gun in there, there’s a gun in there, there’s a gun in there. If you think if it’s hot, it’s hot.”
27. APD Sgt. Heh insisted of Goodloe and Summerville that they provide the combination to the safe, but neither man knew the combination to Chris Jones’ safe so they could not provide it to the officers.
28. APD Officers Mason, Picchione and Heh discussed whether the previously locked room was Mr. Goodloe’s after they found mail addressed to a Terry Lamont Jones in the room, with Officer Mason stating at one point regarding the room, “This is Terry Jones’ room.”
29. Despite Officers’ concerns about having searched the wrong room, Officer Wosick proceeded to seek a search warrant upon information provided by the original responding officer, Officer Picchione, and presented the judge with a warrant affidavit reflecting the false affirmations that Mr. Goodloe had represented that the room was his and that the safe contained the gun involved in the alleged domestic violence incident, as well as other information obtained by police officers after breaking into the locked room, in violation of NMSA 1978 (2001) §§ 31-27-2 & 31-27-3 .
30. Officer Wosick obtained the search warrant for the safe upon the false and illegally obtained information in the affidavit and when Plaintiff’s safe was searched, Officers found Plaintiff’s $10,000.00 in cash inside and seized it, in violation of NMSA 1978 (2001) § 31-27-4.
31. Upon information and belief, Plaintiff’s money was deposited into an account within one week after seizure, such account being other than as statutorily required by NMSA 1978 (2001) § 31-27-8.
32. Upon information and belief, Defendants Albuquerque Police Officers worked in concert and by at least tacit agreement amongst themselves to deprive Plaintiff of his constitutional rights when they broke into his locked room and safe, in an agreement the purpose and goal of which was to violate Plaintiff’s constitutional rights.
33. Plaintiff, Mr. Chris Jones, was not present during the searches of his bedroom and safe at 2632 Granite, NW, Albuquerque, New Mexico on February 19 and 20, 2001.
34. Plaintiff was never charged with any crime based on any alleged discoveries in the search of 2632 Granite, NW.
35. The City of Albuquerque failed to transmit any notices of forfeiture to Mr. Goodloe, Mr. Summerville or Mr. Jones, in violation of NMSA 1978 (2001) § 31-27-5.
36. The City of Albuquerque never forfeited Mr. Jones’ $ 10,000.00, nor could it have been forfeited as it was not found in connection to any forfeitable offense under NMSA 1978 (2001) § 31-27-3.
37. The City of Albuquerque never took any other actions to obtain legal title to the seized property.
38. Plaintiff called the City of Albuquerque trying to locate the money but could not figure out how to get his $10,000.00 returned.
39. Plaintiff hired counsel to gain return of his money.
40. Plaintiff’s counsel sought return of Plaintiff’s $10,000.00 by contacting the City Attorney’s office.
41. The City Attorney’s Office advised that the seizing officers could sign off on return of the money, and that counsel should call them, but Officer Picchione refused and Wosick never returned any calls.
42. Defendant City Attorney requested Plaintiff’s provision to the City of the source of the money and Plaintiff provided a copy of a check for a car accident settlement in the amount of $9,000.00 which Plaintiff had cashed approximately 6 weeks prior to the seizure, and a utility bill requested by Defendant City Attorney, but the City still failed to return Plaintiff’s money.
43. Plaintiff’s counsel located the City “forfeiture” counsel, Defendant Harris, and sought return of Plaintiff’s $10,000.00 through Mr. Harris, but instead of returning the money to Plaintiff, the only person claiming the money, the City of Albuquerque, through City Attorney Donald Harris, filed an interpleader action, City of Albuquerque v. Rodney Goodloe, Chris Jones and David Summerville, CV 2003-7887 in the Second Judicial District without probable cause or a good faith belief that there existed competing claimants for Plaintiff’s money.
44. Defendant City of Albuquerque’s interpleader suit failed to name Terry Jones, the individual whose mail was found in the searched room as reflected on the Defendants’ Police Officers’ belt tape of the search, and so failed in good faith to be a proper suit to settle claims to Plaintiff’s $10,000.00, despite Defendant City of Albuquerque’s knowledge of Terry Jones as a person known or reasonably believed by the state to claim an interest in the property.
45. Defendant Harris called Mr. Goodloe on or before November 14, 2003, and without clearly identifying himself as a City Attorney, attempted to talk Mr. Goodloe into asserting a claim to Plaintiff’s money so that the City interpleader action would show the necessary competing claims to the money required for good faith in an interpleader action.
46. Defendant City Attorney, on November 14, 2003 revealed “no settlement policy” of the Defendant City of Albuquerque, the central purpose of which was to deny claimants the return of their property if a claimant requests attorneys fees, without regard to the individual merits of an individual citizen’s claims, and without regard for the harms of improper seizures or the violations of citizen’s rights to property.
47. When all defendants in the interpleader suit except Plaintiff had disclaimed interest in Plaintiff’s $ 10,000.00, the Defendant City of Albuquerque through Defendant Harris still failed to offer return of the money to Plaintiff, the only claimant for the money, causing continuing and unnecessary litigation of an uncontested claim.
48. Defendant City Attorney Donald Harris called Mr. Goodloe again on or about January 16, 2004 and surreptitiously taped his conversation with Mr. Goodloe, a party to the interpleader.
49. Defendant Harris’ taped call was an apparent effort to substantiate Defendant Harris’ allegation in the already filed interpleader suit that Mr. Goodloe was asserting a claim to Plaintiff’s $10,000.00.
50. Mr. Goodloe was not asked for his consent to have his telephone conversation with Defendant Harris taped, and Defendant Harris only informed Mr. Goodloe of the surreptitious taping at the end of the conversation.
51. Defendant City Attorney Donald Harris developed a personal or professional interest in the interpleader suit which caused Defendant Harris to have an actual conflict of interest, preventing him from acting in the City’s best interests.
52. Mr. Goodloe would not have consented to the taping of his conversation had he been asked for his consent by Mr. Harris at the outset of the conversation.
53. Defendant City of Albuquerque, through the City Attorney’s office, knew of the interpleader suit and approved of it, despite Plaintiff Jones’ factual and legal assertions as to the City’s lack of basis and good faith in bringing the interpleader.
54. Defendants City of Albuquerque, Defendant City Attorney Robert White and Defendant City Police Chief Gallegos denied Plaintiff his due process rights by the acts of following an official or actual policy to deny statutory post-deprivation notice and hearing to Plaintiff in violation of New Mexico law.
55. Defendants City of Albuquerque, City Attorney Robert White and City Attorney Defendant Don Harris denied Plaintiff his due process rights under an official “no settlement policy” whereby the City rejected- without basis- all requests for the return of the seized money, and frivolously litigated through the interpleader action to prevent returning any money.
56. Plaintiff has suffered emotional distress due to the loss of the use of his money as he has been without funds to assist his children, pay his living expenses and pursue his education such that Plaintiff is now on welfare, purposes to which Plaintiff had intended to apply the seized funds, proceeds of a car insurance settlement for a severe back injury.
57. Defendant City of Albuquerque has an official or actual policy or standard operating procedure of illegally seizing and retaining property in violation of the United States and New Mexico constitutions as well as in violation of state law.
58. Because of the unconstitutional policy of Defendant City of Albuquerque numerous citizens similarly situated to Plaintiff have had their property seized and retained without legal forfeiture proceedings and without any attempt to follow New Mexico statutory procedure for post-deprivation notice and opportunity to be heard, despite statutory requirements that the seized property be returned upon claimant’s demand and offer of strict proof of entitlement. See e.g. Gonzales v. City of Albuquerque, Burge & Fuller, City of Albuquerque Police Officers, CV 03-1150, District of New Mexico.
COUNT I
UNREASONABLE SEARCH & SEIZURE
Plaintiff incorporates and realleges the allegations of the preceding paragraphs.
59. Plaintiff Jones has Fourth Amendment and New Mexico constitutional rights to be free from unreasonable searches and seizures.
60. Plaintiff Jones had an expectation of privacy in his locked bedroom and in his locked private safe in his locked bedroom that society recognizes.
61. Defendants Albuquerque Police Officers knew or should have known that Plaintiff Jones had an expectation of privacy in his locked room and safe such that they could not constitutionally forcibly enter Plaintiff Jones’ room without his consent or a valid warrant, neither of which they had when they broke into the room.
62. Defendants Albuquerque Police Officers had evidence upon which to believe they had broken into a room belonging to someone other than Mr. Goodloe, and they knew or should have known that the statements presented in the search warrant affidavit that the room was unequivocally Mr. Goodloe’s and that Mr. Goodloe had stated there was a gun in the safe were blatant misrepresentations of the evidence known to them.
63. The acts of Defendants Albuquerque Police Officers in breaking into Plaintiff’s locked room, searching the illegally entered room, misrepresenting the evidence known to them in the search warrant affidavit and seizing property based upon a foundation of illegal conduct were unreasonable, done intentionally, wilfully, wantonly, maliciously or recklessly.
64. Upon information and belief, Defendants conspired to trespass into Plaintiff’s locked room, conspired to falsify the affidavit for the search warrant, and conspired to wrongfully seize and convert Plaintiff’s property.
65. The acts of Defendants Albuquerque Police Officers were done in utter disregard of Plaintiff’s constitutional rights, clearly violating established law of which objectively reasonable officers in the Defendants’ positions would have been aware.
66. The acts of Defendants Albuquerque Police Officers were the direct and proximate causes of Plaintiff Jones suffering the loss of the use of his money, emotional distress and his necessity to incur attorney’s fees to seek its return.
67. Defendants Albuquerque Police Officers acts and omissions violated Plaintiff’s rights against unreasonable searches and seizures and clearly established law of which reasonable officials in Defendants’ positions would have been aware.
68. By these actions, Defendants have violated 42 U.S.C. §§ 1983 and Defendants are liable for attorneys fees and costs incurred in the prosecution of this civil rights action pursuant to 42 U.S.C. § 1988, and any other applicable laws.
COUNT II
DEPRIVATION OF DUE PROCESS
Plaintiff incorporates and realleges the allegations of the preceding paragraphs.
69. Pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article II § 18 of the New Mexico Constitutions, Plaintiff has due process rights when his person property is seized which were systematically denied him in the years that followed the seizure of his cash and which denial continues to the present.
70. NMSA1978 (2001) §§ 31-27-1 et seq., specifically §§ 31-27-5 and 31-27-8, clearly established Plaintiff’s due process rights as of the date Plaintiff’s money was seized, that law enforcement had a duty to deposit the seized money with the clerk of the court and file forfeiture papers within thirty (30) days.
71. Upon information and belief, Defendants failed to deposit the money with the clerk of the court.
72. As such, Defendants have effectively converted Plaintiff’s funds, contrary to state law and without due process.
73. Having converted such funds into an unidentified location, Defendants apparently took no further action to resolve the matter of how Defendant City of Albuquerque could legally obtain title until Plaintiff retained counsel to seek return of his money.
74. Defendants Albuquerque Police Officers and City of Albuquerque have never afforded Plaintiff his due process rights as Defendants failed to file notice of intended forfeiture, failed to serve Plaintiff with any notices regarding Defendants’ retention of Plaintiff’s money, and failing to afford Plaintiff any due process at all.
75. Defendant City of Albuquerque through it’s interpleader suit has admitted that no forfeiture action has occurred and forfeiture would now be time-barred.
76. Despite the fact that no forfeiture action could now be instituted and that Defendants have no legal basis to retain Plaintiff’s property, Defendants willfully, wantonly, maliciously and recklessly, without cause or legal right, have refused to return Plaintiff’s property.
77. Despite there being no competing claimants to Plaintiff’s money, Defendant City of Albuquerque and Defendant Don Harris instituted a groundless interpleader action rather than return Plaintiff’s money to him, in further denial of Plaintiff’s due process rights to return of his money.
78. Defendants have an official or actual policy which results in a standard operating procedure in violation of the federal and state constitutions and in violation of New Mexico law, as a planned, coordinated, authorized and systemic pattern of violation of due process rights in the illegal seizures and retention of seized property, and ignored state remedies do not satisfy due process.
79. To date, Defendant City of Albuquerque has not returned Plaintiff’s $10,000.00, despite that there are no competing claimants, Plaintiff having adequately documented the legitimate source of the funds and that Defendant has no legally cognizable right or title.
80. These acts of Defendants in seizing and retaining Plaintiff Jones’ $10,000.00 have deprived Jones of the use and value of such funds without due process of law.
81. The acts of Defendants Albuquerque City Attorneys were done in utter disregard of Plaintiff’s constitutional rights, clearly violating established law of which objectively reasonable attorneys in the Defendants’ positions would have been aware, and were done deliberately, intentionally, willfully, wantonly, maliciously, recklessly, with callous disregard or deliberate indifference toward Plaintiff’s rights and deprived Plaintiff of his property without due process of law.
82. These illegal acts and omissions of Defendants are the direct and proximate cause of Plaintiff’s loss of the use of his money and have caused Plaintiff to suffer distress, mental anguish and excessive concern.
83. These illegal acts and omissions of Defendants, all committed under color of state law, are the direct and proximate cause of Plaintiff having been caused to retain counsel and expend money for legal fees to obtain the return of his wrongly seized and retained property.
84. Defendants’ acts and omissions violated Plaintiff’s due process rights and clearly established law of which reasonable officials in Defendants’ positions would have been aware.
85. By these actions, Defendants have violated 42 U.S.C. §§ 1983 and Defendants are liable for attorneys fees and costs incurred in the prosecution of this civil rights action pursuant to 42 U.S.C. § 1988, and any other applicable laws.
COUNT III
Municipal Liability: Policy to Violate Constitutional Rights
Plaintiff incorporates and realleges the allegations of the preceding paragraphs.
86. The City of Albuquerque has an official or actual policy to violate the constitutional rights of persons in conducting searches and seizures.
87. The Defendants Albuquerque Police Officers’ actions complained of herein were representative of the unconstitutional and unlawful policies of the City of Albuquerque.
88. The City of Albuquerque has an official or unofficial policy within the City Attorney’s office to violate the constitutional rights of persons through its “no settlement policy” in relation to alleged police infractions of rights and in refusing to return property when claimants seek reimbursement for attorney fees.
89. The Defendants Albuquerque City Attorneys actions complained of herein were representative of the unconstitutional and unlawful policies of the City of Albuquerque.
90. The City of Albuquerque, specifically, Police Chief Gallegos and City Attorney White, knew of and approved of these unconstitutional policies and or ratified the unconstitutional conduct after gaining knowledge through Plaintiff and others similarly situated and failed and refused, in deliberate indifference to the rights and interests of the victims of the illegal conduct, to rectify their conduct.
91. Defendant City’s’ conduct, described above, was done deliberately, intentionally, willfully, wantonly, maliciously, recklessly, with callous disregard or deliberate indifference or intentional disregard for the constitutional rights of the public, including Plaintiff.
92. These policies and practices of the City of Albuquerque, done under color of law and in violation of clearly established law, proximately and actually caused the deprivations of Plaintiff’s constitutional rights complained of herein.
93. Plaintiff has suffered the actual deprivation of his property without due process of law, the loss of the use of his money for three years, the expense of hiring counsel and companion costs of litigation, and extreme emotional distress due to the economic and constitutional deprivations he has suffered due to Defendants’ acts.
94. By these actions, Defendants have violated 42 U.S.C. § 1983 and Defendants are liable for attorneys fees and costs incurred in the prosecution of this civil rights action pursuant to 42 U.S.C. § 1988, and any other applicable laws.
95. Plaintiff requests all damages allowable in law and equity for these deprivations.
COUNT IV
Municipal Liability: Failure to Train & Supervise Police
Plaintiff incorporates and realleges the allegations of the preceding paragraphs.
96. Defendant City of Albuquerque had a duty to exercise reasonable and ordinary care in the supervising and training of its police officers, including defendants Albuquerque Police officers named herein, in the proper, lawful and constitutional execution of duties in relation to searches, applications for search warrants and seizures of property.
97. Defendant City of Albuquerque failed to exercise reasonable and ordinary care in the supervising and training of its police officers, including Defendants Albuquerque Police officers named herein, in the proper, lawful and constitutional execution of duties in relation to searches, applications for search warrants and seizures and retentions of property.
98. Defendant City of Albuquerque’s failure to properly supervise and train its officers, including Defendants named herein, made it foreseeable that the constitutional rights of citizens, including Plaintiff, would be violated by unlawful searches, seizures and retention of unforfeited properties.
99. Plaintiff’s rights to be free from unconstitutional searches, seizures and retentions of his property were, in fact, violated by Defendants Albuquerque Police Officers when they broke into Plaintiff’s locked room, obtained a search warrant upon false affirmations in the warrant and refused to return the seized cash to Plaintiff upon his demand and showing of entitlement, and the City’s failure to properly train and supervise its Officers was the proximate cause of Plaintiff’s injuries.
100. Defendant City’s’ conduct, described above, was done deliberately, intentionally, wilfully, wantonly, maliciously, recklessly, with callous disregard or deliberate indifference or intentional disregard for the constitutional rights of the public, including Plaintiff, at the hands of its law enforcement officers.
101. These illegal acts and omissions of Defendants are the direct and proximate cause of Plaintiff’s loss of the use of his money and have caused Plaintiff to suffer distress, mental anguish and excessive concern.
102. These illegal acts and omissions of Defendants, all committed under color of state law and in violation of clearly established law, are the direct and proximate cause of Plaintiff having been caused to retain counsel and expend money for legal fees to obtain the return of his wrongly seized and retained property.
103. By these actions, Defendants have violated 42 U.S.C. § 1983 and Defendants are liable for attorneys fees and costs incurred in the prosecution of this civil rights action pursuant to 42 U.S.C. § 1988, and any other applicable laws.
104. Plaintiff requests all damages allowable in law and equity for these deprivations.
COUNT V
Municipal Liability: Failures in Hiring, Training & Supervision of City Attorneys
Plaintiff incorporates and realleges the allegations of the preceding paragraphs.
105. Defendant City of Albuquerque had a duty to exercise reasonable and ordinary care in the supervising and training of its city attorneys, including Defendant Albuquerque City Attorney Donald Harris, in the proper, lawful and constitutional execution of duties in relation to retentions of property, forfeitures and filing of civil suits.
106. Defendant City of Albuquerque’s failure to properly hire, supervise and train its city attorneys, including Defendant Harris, made it foreseeable that the constitutional rights of citizens, including Plaintiff, would be violated by unlawful seizures, retentions of unforfeited properties, the filing of civil suits without probable cause and Defendant Harris’ unlawful interference with Mr. Goodloe as a witness in effort to intimidate him into claiming an interest in an otherwise undisputed property claim, including Defendant Harris’ unlawful and surreptitious taping of at least one telephone conversation with Mr. Goodloe, a party to the City’s interpleader suit.
107. Defendant City’s failure to properly hire, train and supervise its City Attorneys was the proximate cause of Plaintiff’s extended deprivation of his property and Plaintiff’s need to hire counsel to seek return of his property and to defend a groundless interpleader suit, an the damages suffered by Plaintiff.
108. Defendant City’s conduct, described above, was done deliberately, intentionally, wilfully, wantonly, maliciously, recklessly, with callous disregard or deliberate indifference or intentional disregard for the constitutional rights of the public, including Plaintiff, at the hands of its city attorneys.
109. These illegal acts and omissions of Defendants are the direct and proximate cause of Plaintiff’s loss of the use of his money and have caused Plaintiff to suffer distress, mental anguish and excessive concern.
110. These illegal acts and omissions of Defendants, all committed under color of state law and in violation of clearly established law, are the direct and proximate cause of Plaintiff having been caused to retain counsel and expend money for legal fees to obtain the return of his wrongly seized and retained property.
111. By these actions, Defendants have violated 42 U.S.C. §§ 1983 and Defendants are liable for attorneys fees and costs incurred in the prosecution of this civil rights action pursuant to 42 U.S.C. § 1988, and any other applicable laws.
112. Plaintiff requests all damages allowable in law and equity for these deprivations.
COUNT VI
Request for Systemic Injunctive Relief
Plaintiff incorporates and realleges the allegations of the preceding paragraphs.
113. The City’s actions in unconstitutionally breaking into and searching Plaintiff’s room, and in obtaining a search warrant upon false or grossly misleading affirmations in the search warrant affidavit violated the City’s obligations imposed by the incorporation of the Fourth Amendments to the United States Constitution into the obligations imposed upon the City by the Fourteenth Amendment to the United States Constitution. These obligations are enforceable pursuant to 42 U.S.C. § 1983.
114. The City’s actions in unconstitutionally depriving Plaintiff of his property in violation of New Mexico statutory law, without written notice and a prompt post-seizure hearing to determine probable cause and by filing the baseless interpleader suit in the absence of competing claimants for Plaintiff’s money, violated the due process obligation imposed upon the City by the Fourteenth Amendment of the United States Constitution. These obligations are enforceable pursuant to 42 U.S.C. § 1983.
115. These unconstitutional acts and omissions suffered by Plaintiff are capable of repetition as part of official or actual policies of systemic procedural deficiencies of constitutional deprivation perpetrated by the City of Albuquerque against its own citizens under color of law and in violation of existing constitutional and statutory law.
116. Plaintiff seeks systemic injunctive relief preventing Defendants from perpetrating further and like constitutional deprivations.
117. By these actions, Defendants have violated 42 U.S.C. §§ 1983 and Defendants are liable for attorneys fees and costs incurred in the prosecution of this civil rights action pursuant to 42 U.S.C. § 1988, and any other applicable laws.
Requested Relief
WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief:
A. Award compensatory damages jointly and severally against all of the Defendants in an amount to be determined by the jury at trial;
B. Award punitive and exemplary damages against all Defendants sued in their individual capacities in separate amounts to be determined by the jury at trial;
C. Award pre- and post-judgment interest on all monetary damages in an amount to be fixed by the Court;
D. Award Plaintiff his costs in bringing this action, including reasonable attorneys fees pursuant to 42 U.S.C. § 1988;
E. Award systemic injunctive relief enjoining the City of Albuquerque from its unconstitutional search and seizure practices, from its unconstitutional violations of due process in the retentions of citizens’ properties without forfeiture or other lawful transfer of title, requiring the City of Albuquerque to strictly adhere to New Mexico statutory law regarding the handling of seized property and requiring post-seizure notice and post-deprivation due process, and against Defendant City’s blanket “no settlement” policy regardless of the individualized facts in property seizure and retention cases;
F. Award such other and further relief as the Court deems proper under the circumstances.
Respectfully submitted:
Joe M. Romero, Jr.
Romero & Assoc. PA
Co-Counsel for Defendant Jones
1905 Lomas NW
Albuquerque, NM 87104
505.843.9776
Jody Neal-Post
Co-Counsel for Defendant Jones
317 Amherst SE
Albuquerque, NM 87106
505.268.7263
I hereby certify that a true and correct
copy of this Complaint
was provided the City of Albuquerque
on behalf of all Defendants
this day of February, 2004.
Joe M. Romero, Jr., Esq.