Case 2:13-cv-00004-DN Document 1 Filed 01/03/13 Page 1 of 11

FILED U.S. DISTRICT COUR r

ZOIJ JAN -3 A 8: Sb
DISTRICT OF UTAH
Andrew R. Fackrell, #13695 Attorney for Plaintiff 1234 W. South Jordan Pkwy, #C2 South Jordan, UT 84095 Tel: (801) 446-3788 Fax:(801)365-7215 arfackrell@hotmail.com

BY:
DEPUTY CLERf\

UNITED STATES DISTRICT COURT DISTRICT OF UTAH

BEN D. MAHAFFEY, Plaintiff,

COMPLAINT FOR CIVIL RIGHTS VIOLATIONS (42 U.S.C 1983) AND INTRUSION UPON SECLUSION

CITY OF VERNAL, a municipal corporation; City Manager KEN BASSETT, Police Officers SHAWN SMITH and ROD ESKELSON; Chief of Police DYLAN ROOKS; and Assistant Chief of Police KEITH CAMPBELL, Defendants.

(JURY TRIAL DEMANDED)

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Case: 2:13cv00004 Assigned To : Sam, David Assign. Date : 1/3/2013 Description: .Mahaffey v. City of Vernal et al

COMES NOW Ben D. Mahaffey, Plaintiff in the above entitled case by through the undersigned counsel, Andrew Fackrell, and brings this action pursuant to 42 U.S.C.' 1983, seeking damages to remedy violations of his rights secured by the 4th, 5t\ and 14th Amendments to the Constitution. Mr. Mahaffey also seeks damages for intrusion upon seclusion pursuant to Utah common law.
I. JURISDICTION AND VENUE
1.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1331 and 1343, 42

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U.S.C. 1983 and 1988, and common law. Supplemental jurisdiction over the pendant state law claims is proper pursuant to 28 U.S.C. 1367(a) and common law. 2. 3. 4. 5. This Court possesses proper subject matter and personal jurisdiction over the parties. Venue is appropriate in this district. Defendants are citizens of and reside in the state of Utah. The acts complained of occurred in the state of Utah. Plaintiffs causes of action

arose in the state ofUtah.

II. PARTIES

6. 7.

Plaintiff is a citizen of the United States and is a resident of St. George, Utah. Defendant CITY OF VERNAL (hereinafter "CITY") is a municipal corporation duly

organized and existing under the laws of the State of Utah. 8. Upon information and belief, Defendant KEN BASSETT (hereinafter "City

Manager") is and was at all relevant times the city manager of the CITY. He is sued in his official capacity as city manager of the CITY. 9. Defendants SHAWN SMITH and ROD ESKELSON (hereinafter "Officers") are and

were at all relevant times employed as police officers by the CITY and committed the acts complained ofherein while acting within the scope and course of their official duties as police officers. They are sued in their official capacities. 10. KEITH CAMPBELL is and was at all relevant times the Assistant Chief of Police of

Vernal City (hereinafter "Assistant Chief ofPolice") and he committed the acts complained of herein while acting in his official capacity as Assistant Chief of Police. He is sued in his official

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capacity. 11. DYLAN ROOKS is and was at all relevant times the Chief of Police of Vernal City

(hereinafter "Chief of Police") and he committed the acts complained of herein while acting in his official capacity as Chief of Police. He is sued in his official capacity. 12. With respect to all facts and violations alleged in this complaint, Defendants acted

under color of state law.

III. ALLEGATIONS OF FACTS

13. home. 14. While awaiting the arrival of the mortician, Plaintiff remained in the room with his On or about May 21, 2012, Plaintiffs wife of 58 years passed away in Plaintiffs

deceased wife to say goodbye. 15. A short time later the Defendant Police Officers knocked on the door and entered

Plaintiffs home. 16. The Defendant Police Officers showed Plaintiff no warrant and simply stated that

they had come to confiscate any and all prescription medications belonging to Plaintiffs wife, who had just passed on. 17. Although still in shock from the passing of his wife of 58 years, and although still in

need of attending to his wife's body to ensure a dignified and respectful transfer of the body from the home, Defendant police officers nonetheless insisted that the Plaintiff abandon his attendance to his wife's body and aid them in their search for prescription drugs. 18. Although distraught, Plaintiff nonetheless complied with the orders.

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19.

Once securing the prescription drugs, the Defendant Officers then proceeded to

inventory the prescription drugs in the same room with the body of Plaintiff's wife, and record the prescriptions that had been seized. 20. The Defendant Officer's search and seizure of the prescription drugs at this deeply

intimate setting, and during this highly distressing time, added a great amount of pain and distress to an already difficult situation. 21. Following this incident, the Plaintiff sought to obtain answers as to why this was

allowed to happen. Accordingly, the City Manager set up an appointment with the Defendant Assistant Chief of Police. 22. During this conversation, Plaintiff explained his deep concern that he was forced to

undergo what he believed to be an illegal search and seizure during an intimate time of mourning and preparing his wife's body to be taken from the home. 23. Plaintiff asked the Defendant Assistant Chief of Police where the police department

had gotten its authority to enter the home, search the home, and seize private property. Plaintiff informed the Assistant Chief of Police that he knew of no law or statute, which would authorize the police to conduct a warrantless search of this kind. 24. The Defendant Assistant Chief of Police responded indignantly that the authority had

come from the Utah Controlled Substances Act and abruptly ended the conversation. 25. After reviewing the Utah Controlled Substances Act and not finding the authorization

referred to by the Defendant Assistant Chief of Police, Plaintiff then sought to inquire of Defendant City Manager, Ken Bassett, as to the policy of the city regarding the seizure of certain

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drugs following a death. Defendant City Manager agreed to hold a meeting with Plaintiff, but insisted that the city attorney be present. 26. Accordingly, a meeting between the Plaintiff, Defendant City Manager, and the city

attorney was held on or about June 4th, 2012. This meeting lasted approximately 40 minutes, during which time Plaintiff relayed the facts of his case, and why he believed his constitutional rights had been violated when the police entered his home without a warrant and seized his deceased wife's controlled substances. 27. Upon hearing Plaintiffs concerns, Defendant City Manager dismissed Plaintiffs

concerns by relaying the fact that his own parents had recently passed away, and that although their prescription drugs had not been seized by the police, he would not have cared had the police done so. It was his opinion that the Plaintiff was overly sensitive to the actions by the police, and that the police were only acting to protect the public from the illegal use of the prescription drugs. 28. The city attorney's response to Plaintiffs concerns was that regardless of Plaintiffs

concerns with the conduct of the police, Plaintiff had no recourse because his contract with Good Shepard Hospice waived his rights to be protected from police intrusion into his home. 29. However, Plaintiffs contract with Good Shepard Hospice does not address the issue

of prescription drug seizure, nor does it provide for a waiver of any rights to privacy or property following a death by the patient.

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COUNT 1 VIOLATIONS OF RIGHTS SECURED BY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION (42 U.S.C.' 1983 B DEFENDANT CITY OF VERNAL)
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30.

Plaintiffhereby incorporates by reference each of the allegations set forth in the

preceding paragraphs as if realleged fully herein.

31.

Plaintiffhas a right under the 4th and 14th amendments of the United States

Constitution that he be secure in his person, and his home, papers, and effects be protected against unreasonable searches and seizures without a warrant based upon probable cause issued by a neutral and detached magistrate, which particularly describes the place to be searched and the persons or things to be seized. 32. Defendant City ofVemal violated Plaintiffs 4th amendment right, as it applies to the

states through the 14th amendment, by promulgating and overseeing an unwritten policy, which was not duly enacted by legislative action, allowing warrantless search and seizure of homes for the procuring of prescription drugs following a death.
33.

Defendant City Manager violated Plaintiffs 4th amendment right, as it applies to the

states through the 14th amendment, when he participated in the promulgation of an unwritten policy, which was not duly enacted by legislative action, allowing warrantless search and seizure of homes for the procuring of prescription drugs following a death.
34.

Defendant Officers Shawn Smith and Erik Eskelson violated Plaintiffs 4th

amendment right, as it applies to the states through the 14th amendment, when the Officers entered Plaintiffs home without a warrant based upon probable cause, or the plaintiffs consent,

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and searched Plaintiffs home and seized prescription drugs found in the home. 35. Defendant Chief of Police Dylan R. Rooks violated Plaintiffs 4th amendment, as it

applies to the states through the 14th amendment, by systematically implementing and overseeing an unwritten policy allowing warrantless search and seizures to take place in order to search homes and seize prescription drugs following a death. 36. Defendant Assistant Chief of Police Keith G. Campbell violated Plaintiffs 4th

amendment right, as it applies to the states through the 14th amendment, by systematically implementing and overseeing a policy allowing warrantless search and seizures to take place in order to search homes and seize prescription drugs following a death.

COUNT2 VIOLATIONS OF RIGHTS SECURED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION (42 U.S.C.' 1983 B)

37.

Plaintiffhereby incorporates by reference each of the allegations set forth in the

preceding paragraphs as if realleged fully herein. 38. Plaintiff has a right under the 14th Amendment to the .United States Constitution that

he be afforded equal protection under the law. 39. Defendant City of Vernal violated Plaintiffs 14th Amendment right when it denied

Plaintiff equal protection under the law by enforcing its unwritten city policy of warrantless search and seizures for prescription drugs against the Plaintiff, but failing to apply this same unwritten policy equally against other similarly situated citizens.
40.

Defendant City Manager violated Plaintiffs 14th Amendment right when it denied

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Plaintiff equal protection under the law by enforcing its unwritten city policy of warrantless search and seizures for prescription drugs against the Plaintiff, but failing to apply this same unwritten policy equally against other similarly situated citizens.
41.

Defendant Officers Shawn Smith and Erik Eskelson violated Plaintiff's 14th

Amendment right when it denied Plaintiff equal protection under the law by enforcing its unwritten city policy of warrantless search and seizures for prescription drugs against the Plaintiff, but failing to apply this same unwritten policy equally against other similarly situated citizens.
42.

Defendant Chief of Police Dylan R. Rooks and violated Plaintiff's 14th Amendment

right when it denied Plaintiff equal protection under the law by enforcing its unwritten city policy of warrantless search and seizures for prescription drugs against the Plaintiff, but failing to apply this same unwritten policy equally against other similarly situated citizens.
43.

Defendant Assistant Chief of Police Keith G. Campbell violated Plaintiff's 141h

Amendment right when it denied Plaintiff equal protection under the law by enforcing its unwritten city policy of warrantless search and seizures for prescription drugs against the Plaintiff, but failing to apply this same unwritten policy equally against other similarly situated citizens.

COUNT3 VIOLATIONS OF RIGHTS SECURED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION (42 U.S.C.' 1983 B)

44.

Plaintiff hereby incorporates by reference each of the allegations set forth in the

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preceding paragraphs as if realleged fully herein.

45.

Plaintiff has a right under the 5th and 14th amendments of the United States

Constitution to be free from the deprivation of his private property without due process oflaw.
46.

Defendant City of Vernal violated Plaintiffs 5th amendment right to Due Process, as

it applies to the states through the 14th amendment, by promulgating and overseeing an unwritten policy, which was not duly enacted by legislative action, allowing the deprivation of private property without due process of law.
47.

Defendant City Manager violated Plaintiffs 5th amendment right to Due Process, as

it applies to the states through the 14th amendment, when he participated in the promulgation of an unwritten policy not duly enacted by legislative action, allowing the deprivation of private property without due process of law.
48.

Defendant Officers Shawn Smith and Erik Eskelson violated Plaintiffs 5th

Amendment right to Due Process, as it applies to the states through the 14th amendment, when they deprived Plaintiff of his private property without due process of law.
49.

Defendant Chief of Police Dylan R. Rooks violated Plaintiffs 5th Amendment to Due

Process, as it applies to the states through the 14th amendment, by systematically implementing and overseeing a policy allowing the deprivation of private property without due process of law.
50.

Defendant Assistant Chief of Police Keith G. Campbell violated Plaintiffs 5th

amendment right to Due Process, as it applies to the states through the 14th amendment, by systematically implementing and overseeing a policy allowing the deprivation of private property without due process of law.

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COUNT4 INTRUSION UPON SECLUSION (Utah Common Law)

51.

Plaintiff hereby incorporates by reference each of the allegations set forth in the

preceding paragraphs as if realleged fully herein. 52. A cause of action lies for intrusion upon seclusion where: (1) there is an intentional

substantial intrusion, physically or otherwise, upon the solitude or seclusion of the complaining party; and (2) the intrusion would be highly offensive to the reasonable person. 53. Defendant City of Vernal committed the common law tort oflntrusion Upon

Seclusion, while acting through its agents, when it committed an intentional and substantial intrusion upon the solitude or seclusion of the Plaintiff, which intrusion would be highly offensive to a reasonable person. 54. Defendant City Manager committed the common law tort oflntrusion Upon

Seclusion, while acting through his agents, when he committed an intentional and substantial intrusion upon the solitude or seclusion of the Plaintiff, which intrusion would be highly offensive to a reasonable person. 55. Defendant Officers Shawn Smith and Erik Eskelson committed the common law tort

of Intrusion Upon Seclusion when they committed an intentional and substantial intrusion upon the solitude or seclusion of the Plaintiff, which intrusion would be highly offensive to a reasonable person .. 56. Defendant Chief of Police Dylan R. Rooks committed the common law tort of

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Intrusion Upon Seclusion, whilst acting through his agents, when he committed an intentional and substantial intrusion upon the solitude or seclusion of the Plaintiff, which intrusion would be highly offensive to a reasonable person. 57. Defendant Assistant Chief of Police Keith G. Campbell committed the common law

tort of Intrusion Upon Seclusion, while acting through his agent, when he committed an intentional and substantial intrusion upon the solitude or seclusion of the Plaintiff, which intrusion would be highly offensive to a reasonable person.

IV. RELIEF REQUESTED

WHEREFORE, Plaintiffs pray for judgment as follows: 1. General and Compensatory damages against all Defendants jointly and severally, and

punitive damages against the Defendants herein. 2. 3. 4. Pre and post-judgment interest as allowed by law; Reasonable costs and attorneys fees incurred in bringing this action; and Such other relief as the Court deems just and proper.
V. JURY TRIAL DEMAND

Plaintiffs hereby demand a trial by jury on all counts so triable. DATED this

day of January, 2013.

Attorney for Plaintiff

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