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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami Division Case No. 12-24077-CIV-Cooke/McAliley JESSE CAMPODONICO, Plaintiff, vs. THE CITY OF MIAMI, JAVIER ORTIZ, NATHANIEL DAUPHIN, EDWARD LUGO, and HAROLD JAMES, : : : : : :

Defendants. : _______________________________________

FIRST AMENDED COMPLAINT

Scott A. Srebnick, Esq. Manuel A. Arteaga-Gomez, Esq. SCOTT A. SREBNICK, P.A. 201 South Biscayne Blvd. Suite 1380 Miami, Florida 33131 Telephone: 305-285-9019 Attorneys for Plaintiff Jesse Campodonico

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TABLE OF CONTENTS NATURE OF THE ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 JURISDICTION AND VENUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 GENERAL ALLEGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. B. C. D. E. F. The Incident at the Ultra Music Festival . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The False and Incomplete Arrest Affidavit . . . . . . . . . . . . . . . . . . . . . . . . 10 The Initiation of the State Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The False and Incomplete Response to Resistance Report . . . . . . . . . . . . 14 The Defendant Officers’ History of Misconduct . . . . . . . . . . . . . . . . . . . . 16 Plaintiff Campodonico’s Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

FEDERAL LAW CLAIMS (42 U.S.C. §1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Count I: Count II: Count III: Count IV: Count V: Count VI: Excessive Force (Ortiz, Dauphin, Lugo, James) . . . . . . . . . . . . . . False Arrest (Dauphin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Malicious Prosecution (Ortiz, Dauphin, Lugo, James) . . . . . . . . . Supervisory Liability (Ortiz) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Policy of Failing to Investigate/Discipline (City of Miami) . . . . . . Policy of Failing to Train on Use of Taser (City of Miami) . . . . . . 20 22 22 24 25 28

STATE LAW CLAIMS (Florida Law) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Count VII: Count VIII: Count IX: Count X: Count XI: Battery (Ortiz, Dauphin, Lugo, James) . . . . . . . . . . . . . . . . . . . . . . False Arrest (Dauphin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Malicious Prosecution (Ortiz, Dauphin, Lugo, James) . . . . . . . . . Negligent Retention and Training (City of Miami) . . . . . . . . . . . . Vicarious Liability (City of Miami) . . . . . . . . . . . . . . . . . . . . . . . . 30 31 32 33 34

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 DEMAND FOR JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

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Plaintiff Jesse Campodonico sues the City of Miami, Sergeant Javier Ortiz, and Officers Nathaniel Dauphin, Edward Lugo, and Harold James, for damages. NATURE OF THE ACTION 1. This is an action for damages arising out of a beating, tasing, and false arrest

and coverup by City of Miami police officers on the evening of March 25, 2011, at the Ultra Music Festival held at Bicentennial Park. This action alleges violations of federal civil rights laws, 42 U.S.C. §1983, and the laws of the State of Florida, and the Plaintiff seeks in excess of $75,000 exclusive of interest and costs. JURISDICTION AND VENUE 2. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§

1331, 1332(a), and 1367(a). 3. Under 28 U.S.C. § 1391(b)(2), venue lies in the United States District Court

for the Southern District of Florida, Miami Division, because it is the judicial district and division in which a substantial part of the events or omissions giving rise to the claims occurred. PARTIES 4. of New York. 5. Defendant City of Miami (“Defendant City”) is a political subdivision of the Plaintiff Jesse Campodonico (“Plaintiff Campodonico”) is a citizen of the State

State of Florida, a Florida municipal corporation, and at all relevant times had ultimate

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authority over the City of Miami Police Department and the other defendants.

The

Defendant City was responsible for the hiring, training, supervision, discipline, and conduct of the individual defendants, as all of them were employed by the City of Miami Police Department at all relevant times. 6. Defendant Javier Ortiz (“Defendant Ortiz”) is a Sergeant with the City of

Miami Police Department and a citizen of the State of Florida. At all relevant times, Defendant Ortiz was acting under color of law as the agent, servant, and employee of the City of Miami, was in uniform, and was armed. Defendant Ortiz is being sued in his individual capacity. 7. At all relevant times, Defendant Nathaniel Dauphin (“Defendant Dauphin”)

was a police officer with the City of Miami Police Department and a citizen of the State of Florida. At all relevant times, Defendant Dauphin was acting under color of law as the agent, servant, and employee of the City of Miami, was in uniform, and was armed. Defendant Dauphin is being sued in his individual capacity. 8. Defendant Edward Lugo (“Defendant Lugo”) is a police officer with the City

of Miami Police Department and a citizen of the State of Florida. At all relevant times, Defendant Lugo was acting under color of law as the agent, servant, and employee of the City of Miami, was in uniform, and was armed. Defendant Lugo is being sued in his individual capacity. 9. At all relevant times, Defendant Harold James (“Defendant James,” and

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together with Defendants Ortiz, Dauphin and Lugo, the “Defendant Officers”) was a police officer with the City of Miami Police Department and a citizen of the State of Florida. At all relevant times, Defendant James was acting under color of law as the agent, servant, and employee of the City of Miami, was in uniform, and was armed. Defendant James is being sued in his individual capacity. GENERAL ALLEGATIONS A. 10. The Incident at the Ultra Music Festival On the night of March 25, 2011, Defendants Ortiz, Dauphin, Lugo and James

were working in an off-duty capacity at the Ultra Music Festival (“the Festival”), located within Bicentennial Park (“the Park”), in Miami, Florida. 11. Upon information and belief, the Defendant City contracted with the private

entity putting on the Festival to provide City of Miami police officers for the event. 12. The Defendant City assigned each of the Defendant Officers to work at the

front entrance of the Festival, with Defendant Ortiz, the ranking officer, acting as their supervisor. 13. This was not the first time that the Defendant Officers had worked an off-duty

job under Defendant Ortiz’s supervision. 14. Defendant Ortiz is frequently approached by private companies to assemble

teams of police officers to work off-duty details. 15. Defendant Ortiz has previously hand-picked each of the other Defendant

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Officers to work off-duty jobs under his supervision, with Defendants Lugo and James being officers who Defendant Ortiz frequently turned to when looking to staff an off-duty detail. 16. Plaintiff Campodonico traveled from his hometown in New York to attend the

Festival and arrived at the Park at around 10:30 p.m. on March 25, 2011, accompanied by his girlfriend, Crystal Iglesias, and several other friends. 17. Private event security did not allow Ms. Iglesias inside the Festival because she

was holding a glow stick that she had purchased right outside the Festival. 18. While Ms. Iglesias was verbally expressing her discontent to private event

security, Defendant Dauphin approached her and Plaintiff Campodonico. 19. Defendant Dauphin instructed Ms. Iglesias to leave the Park and grabbed Ms.

Iglesias by the arm in an unnecessarily aggressive manner. 20. Plaintiff Campodonico told Defendant Dauphin that he, Campodonico, would

escort Ms. Iglesias out of the Park as they were asked to do. 21. 22. 23. 24. 25. 26. Plaintiff Campodonico was not armed. Plaintiff Campodonico had not acted disorderly. Plaintiff Campodonico had not disobeyed Defendant Dauphin’s instructions. Plaintiff Campodonico had not raised his voice. Plaintiff Campodonico had not committed a crime. As Plaintiff Campodonico and Ms. Iglesias began leaving the Park, Defendant

Dauphin positioned himself within one-half of an inch from Campodonico’s face in a

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threatening manner. 27. Defendant Dauphin did not tell Plaintiff Campodonico that he was under arrest

and did not seek to handcuff him at that time. 28. Without any physical provocation, Defendant Dauphin punched Plaintiff

Campodonico, grabbed Campodonico’s hair, pulled his head down by the hair, and began to repeatedly punch Campodonico in the face with wide, swinging upper cuts while Campodonico was bent over his waist. 29. At no point did Defendant Dauphin or any other officer have probable cause

to arrest Plaintiff Campodonico or Ms. Iglesias for anything. 30. Soon after Defendant Dauphin began to strike Plaintiff Campodonico, multiple

City of Miami police officers arrived on scene, including Defendants Ortiz, Lugo, and James. 31. Plaintiff Campodonico was thrown to the ground by some combination of the

police officers who had arrived. 32. Defendants Ortiz, Dauphin, and Lugo each then proceeded to repeatedly strike

Plaintiff Campodonico’s face and body with their hands, knees, and feet. The Defendant Officers knew that Plaintiff Campodonico was not armed. 33. During the incident, one or more of the Defendant Officers kicked Plaintiff

Campodonico repeatedly throughout his body, including his head; dropped their knees onto Campodonico’s back multiple times as he lay on his stomach; and threw multiple roundhouse type punches (commonly referred to as “hay-makers”) which connected hard with

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Campodonico’s face and head, all while Campodonico was down on the ground. 34. Plaintiff Campodonico attempted to get in the fetal position to deflect the

barrage of blows to his face and body from the Defendant Officers. He begged the Defendant Officers to stop hitting him. 35. After Defendants Ortiz, Dauphin, and Lugo beat Plaintiff Campodonico for

several minutes, Defendant James discharged his hand-held Electronic Control Device (“ECD” or “taser”), by shooting two probes from the taser into Campodonico. 36. The two probes were connected by wire to the taser. Immediately after the

probes latched onto Plaintiff Campodonico’s skin, Defendant James pulled the trigger to his taser which sent an electrical charge through the wires and into Campodonico. 37. As captured on video by a stranger who was also attending the Festival,

approximately nine seconds after the first taser discharge, and with the two probes still embedded in Plaintiff Campodonico’s body, and despite Campodonico’s obviously submissive position, Defendant James pulled the trigger to the taser a second time, sending a second electrical charge through Campodonico’s body. 38. Approximately fourteen seconds after the second taser discharge, Defendant

James issued a third taser charge. 39. On the third discharge, defendant James used the “drive-stun” method, which

means he applied the taser directly to Plaintiff Campodonico’s body while pressing the taser’s trigger and sending a third charge through his body.

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40.

Throughout the entire period that Plaintiff Campodonico was tased, he never

got up from the ground and was not resisting arrest. 41. Both immediately before the first taser discharge, and in between the

subsequent discharges, Plaintiff Campodonico was on the ground, and was laying on his stomach or side or on his knees with his stomach facing the ground. 42. Bystanders were horrified by the Defendant Officers’ actions. One bystander,

a school teacher who had never met Plaintiff Campodonico before, saw what was taking place, repeatedly yelled, “They’re going to kill him!,” and then attempted to rush in to stop the beating when she saw an officer kick Campodonico in the head. 43. Another bystander who also had never met Plaintiff Campodonico before

began to film the incident using his hand-held device and later posted the video of what he witnessed publicly on YouTube. The bystander’s video captured the three taser discharges

and demonstrated that Plaintiff Campodonico was on the ground and helpless both immediately before the first taser discharge, and in between each subsequent taser discharge. 44. Bystanders witnessing the incident reacted to the Defendant Officers’ conduct

by making comments such as: a. b. c. d. “Did you see them just knocking that guy out for no reason?” “They just started knocking him out.” “They just started whacking him.” “They just put him in a choke-hold and started punching.”

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e. f. 45.

“They tased that guy like four times.” “That’s f**ked up. That’s f**ked up.”

After the tasing, Defendant Dauphin formally placed Plaintiff Campodonico

under arrest and handcuffed him. 46. After Plaintiff Campodonico was handcuffed, one of the Defendant Officers

threw him to the ground and one or more of the Defendant Officers further beat and kicked Campodonico while he was handcuffed. 47. After the beating ended and Plaintiff Campodonico was in handcuffs and

sitting, several of the Defendant Officers mocked and ridiculed Campodonico. 48. For instance, one or more of the Defendant Officers took pictures of Plaintiff

Campodonico with his personal hand-held device while laughing, and Defendant Dauphin said to Campodonico words to the effect of, “I whooped you’re a**,” and “get a new girlfriend and upgrade,” while laughing at Campodonico as he sat bleeding and in pain. 49. B. 50. Plaintiff Campodonico was transported to the Miami-Dade County Jail. The False and Incomplete Arrest Affidavit That same evening, Defendant James signed a “Complaint/Arrest Affidavit”

under oath, attesting that he had “reasonable grounds to believe” that Plaintiff Campodonico had committed the offenses of Battery on a Law Enforcement Officer, Resisting Arrest with Violence, Disorderly Intoxication, and Trespass after Warning. 51. The “Complaint/Arrest Affidavit” included false information that was provided

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to Defendant James by Defendants Dauphin, Ortiz, and Lugo. 52. Defendants Dauphin, Ortiz, and Lugo knowingly provided this false

information to Defendant James, with the intent that the false information be included in the “Complaint/Arrest Affidavit.” For example: a. Defendant Dauphin falsely claimed that Plaintiff Campodonico had a

strong scent of alcohol, had trespassed after being warned, had taken a “fighting stance” against Dauphin and had punched Dauphin in the chest and face; b. Defendant Ortiz falsely claimed that Plaintiff Campodonico had

punched Ortiz in the throat and kicked Ortiz in the crotch; and c. Defendant Lugo falsely claimed that Plaintiff Campodonico had

“sucker-punched” Lugo in the stomach. 53. The “Complaint/Arrest Affidavit,” signed by Defendant James and prepared

with the assistance of Defendants Dauphin, Ortiz, and Lugo, also contained material omissions. For example: a. Defendant Dauphin knowingly and intentionally omitted the fact that

he had thrown the first punch and struck Plaintiff Campodonico without any physical provocation, and that he had no basis to arrest, detain, or even touch Campodonico; b. Defendant Lugo knowingly and intentionally omitted the fact that he,

and other officers, had punched, kicked and beaten Plaintiff Campodonico while Campodonico was on the ground in the fetal position;

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c.

Defendant Ortiz knowingly and intentionally omitted the fact that he,

and other officers, had punched, kicked, and beaten Plaintiff Campodonico while Campodonico was on the ground in the fetal position; d. The Defendant Officers all knowingly and intentionally omitted the fact

that Defendant James tased Plaintiff Campodonico while he was on the ground and posed no threat to the Defendant Officers or anyone else; and e. The Defendant Officers all knowingly and intentionally omitted the fact

that any resistance shown by Plaintiff Campodonico was a legitimate response and defense to the use of excessive force by the Defendant Officers. C. 54. The Initiation of the State Prosecution At the time they made these false statements and material omissions,

Defendants Dauphin, James, Ortiz, and Lugo knew that the “Complaint/Arrest Affidavit” would be forwarded to the Miami-Dade State Attorney’s Office (“Miami SAO”) for a determination of whether to initiate a prosecution against Plaintiff Campodonico. 55. In or about early April 2011, the “Complaint/Arrest Affidavit,” with the false

information and intentional omissions, was forwarded to the Miami SAO to initiate a prosecution against Plaintiff Campodonico. 56. On or about April 13, 2011, during a pre-file conference interview with a

prosecutor from the Miami SAO, Defendant James falsely stated that Plaintiff Campodonico was “kicking and swinging” while he was on the ground and that Plaintiff Campodonico was

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still fighting after three taser cycles. 57. On or about April 13, 2011, during a pre-file conference interview with a

prosecutor from the Miami SAO, Defendant Lugo falsely claimed that he was a victim of battery. Defendant Lugo falsely stated that Plaintiff Campodonico had punched Lugo in the stomach with a closed fist, punched Defendant Ortiz in the throat with a closed fist, and kept on fighting even after he had been tased. 58. On or about April 20, 2011, during a pre-file conference interview with a

prosecutor from the Miami SAO, Defendant Ortiz falsely claimed that he was a victim of battery. Defendant Ortiz falsely stated that Plaintiff Campodonico had punched Ortiz with a closed fist to the throat and had kicked Ortiz in the crotch. 59. On or about April 20, 2011, during a pre-file conference interview with a

prosecutor from the Miami SAO, Defendant Dauphin falsely claimed that he was a victim of battery. Defendant Dauphin falsely stated that Plaintiff Campodonico had punched Dauphin in the chest without physical provocation. 60. The statements made by the Defendant Officers to the prosecutor with the

Miami SAO omitted the material facts set forth in Paragraph 53 above. 61. Prior to the filing of charges by the Miami SAO, Defendants Ortiz, Dauphin,

Lugo, and James all requested that Plaintiff Campodonico be required to serve 364 days in jail and two years of probation, and to submit a letter of apology to Defendant Ortiz, in the event of a conviction in the case. Moreover, Defendants Ortiz and Dauphin insisted to the

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Miami SAO that they be contacted prior to the entry of a plea in the case. 62. On or about April 25, 2011, as a result of the false statements and material

omissions set forth above, the Miami SAO filed an Information falsely accusing Plaintiff Campodonico of three counts of battery on a law enforcement officer and one count of resisting arrest with violence. See Information, State v. Campodonico , F11-8033 (Fla. 11th Jud. Cir.). D. 63. The False and Incomplete Response to Resistance Report At the time of this incident, the Defendant City had in effect a written policy

regarding the use of tasers, a true and correct copy of which is attached hereto as Exhibit 1 . That policy required a supervisor to respond to the scene of a tasing incident, conduct an inquiry into the incident, and ensure that a Response to Resistance Report (“RTRR”) was submitted to the Internal Affairs division of the City of Miami Police Department. See Exhibit 1 at 18.4.8. 64. The purpose of the RTRR is to create a record of the incident sufficient for the

Defendant City’s Internal Affairs division to evaluate whether an officer’s use of force complied with departmental policy and was justified under the circumstances. See Exhibit 1 at 18.4.8.1 & 18.4.8.3. 65. The RTRR was prepared by Defendant Ortiz, who took it upon himself to

conduct the inquiry into the incident even though he was personally involved in the use of force and claimed to be a victim of battery.

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66.

Defendant Ortiz did not attempt to interview any bystanders or neutral

witnesses to the incident before preparing the RTRR. 67. The RTRR prepared by Defendant Ortiz contained numerous fabrications in

an apparent attempt to justify the arrest and use of excessive force against Plaintiff Campodonico, including a description of Campodonico as being 6'4" and 260 pounds when, in fact, Campodonico was approximately 6'0" and 200 pounds. 68. The RTRR contains “statements” purportedly taken by Defendant Ortiz

from seven police officers involved in the incident, as well as Ortiz’s own narrative of the incident. 69. In numerous respects, the RTRR prepared by Defendant Ortiz is materially

contradicted by sworn deposition testimony of the police officers who provided the purported “statements” contained within the RTRR. 70. In their depositions in the criminal case, at least five police officers

contradicted substantial portions of the “statements” attributed to them in the RTRR and, in fact, denied having told Defendant Ortiz many of the matters attributed to them. 71. For example, “statements” in the RTRR attributed to Defendants Dauphin,

Lugo, and James claim that they personally observed Plaintiff Campodonico bite Detective Rolando Garcia in the forearm between taser cycles. Those same officers testified in their depositions that they never personally observed Plaintiff Campodonico biting Detective Garcia and never told or did not recall telling Defendant Ortiz that they had.

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72.

As another example, a “statement” attributed to Detective Garcia in the RTRR

prepared by Defendant Ortiz claims that Detective Garcia observed all three taser discharges, including, specifically, the use of the “drive-stun” method. Yet, Detective Garcia testified in his deposition that he had left the scene prior to the taser discharges and had never even heard of the “drive-stun” method. 73. 74. The RTRR is also contradicted by the video taken by an innocent bystander. For example, statements attributed to various police officers in the RTRR

claimed that Plaintiff Campodonico tensed his arms, kicked his legs, bit one officer, and kicked another officer in the crotch between taser cycles. 75. The video, however, demonstrates that Plaintiff Campodonico was on the

ground and defenseless while being tased. 76. On February 14, 2012, the Miami SAO nolle prossed the charges against

Plaintiff Campodonico based on insufficient evidence and because the deposition testimony of Defendants Dauphin, Lugo, and Ortiz was materially inconsistent with the RTRR and with the video of the tasing incident. E. The Defendant Officers’ History of Misconduct 77. During the course of the Defendant City’s employment of the Defendant

Officers, it became aware, or should have become aware, of information indicating the Defendant Officers’ inability to follow orders and departmental policies and unfitness to serve in a capacity where force could be used.

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78.

Prior to March 25, 2011, Defendant Ortiz had been: a. the subject of twenty citizen complaints filed with the Defendant City

since joining the police force in March 2004; b. excessive force; c. investigated for using excessive force by the Civilian Investigative Panel investigated by the Defendant City’s Internal Affairs division for using

of the City of Miami (“CIP”), a civilian oversight agency that monitors City of Miami Police Department practices and investigates claims of City of Miami police officer misconduct; and d. placed on a “Monitoring List” maintained by the CIP for City of Miami

Police officers, which lists officers who demonstrate a pattern of misconduct. 79. Prior to March 25, 2011, Defendant Dauphin had been: a. the subject of at least fifty-five complaints filed with the Defendant City,

disciplined eleven times by the Defendant City; b. investigated by the Defendant City’s Internal Affairs division for using

excessive force, refusing to follow orders, harassment, violating a domestic violence injunction, failing to comply with subpoenas, and failing to timely prepare reports; c. d. 80. the subject of at least twelve complaints filed with the CIP; and placed on the CIP’s Monitoring List.

Prior to March 25, 2011, Defendant Lugo had been:

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a.

the subject of sixteen citizen complaints filed with the Defendant City

and at least eight complaints filed with the CIP since joining the police force in June 2001; b. counseled and/or disciplined by the Defendant City at least eleven times

for committing at least fifteen violations of departmental policies; c. investigated by the Defendant City’s Internal Affairs division for using

excessive force, failing to report another officer’s criminal activity, and improper use of restraints; d. the subject of two separate recommendations by City of Miami Police

disciplinary personnel, arising out of separate incidents, that he be terminated from the police department; and e. 81. placed on the CIP’s Monitoring List.

Prior to March 25, 2011, Defendant James had been: a. the subject of twenty citizen complaints filed with the Defendant City

since joining the police force in March 2004; b. investigated by the Defendant City’s Internal Affairs division and the

CIP for using excessive force and failing to document an arrestee’s resulting injury; and c. also investigated by the Defendant City’s Internal Affairs division for

failing to comply with subpoenas. 82. The Defendant City knew, or should have known, about the Defendant

Officers’ history of misconduct, but nevertheless permitted the Defendant Officers to serve

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in a capacity on March 25, 2011, where force could be used. F. 83. Plaintiff Campodonico’s Damages As a direct and proximate result of the acts of the Defendants City, Ortiz,

Dauphin, Lugo, and James, Plaintiff Campodonico suffered damages, including the following: a. emotional distress; b. prosecution; c. financial loss for having to retain counsel to defend him in connection harm to reputation as a result of the false arrest and malicious injuries to his face and body, causing severe pain and suffering and

with a false arrest and malicious prosecution; d. inconvenience, loss of time and money, and other hardships in

defending against the criminal charges, exacerbated by the fact that he was at all relevant times living in the northeastern United States; e. Music Festival; and f. violation of his constitutional rights under the Fourth and Fourteenth loss of the value of his trip from the northeast to Miami for the Ultra

Amendments to the United States Constitution to be free from an unreasonable search and seizure of his person, and common law rights to be free from battery, malicious prosecution, false arrest, and negligence by the police.

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84. 85.

The Defendants are subject to punitive damages for their conduct. Plaintiff Campodonico is obligated to pay undersigned counsel a reasonable

fee for their services in the event of recovery. 86. All conditions precedent to the maintenance of this action have occurred, been

performed, or been waived. Plaintiff Campodonico complied with the pre-suit notice requirement of Fla. Stat. § 768.28(6)(a) by giving the Defendant City written notice of his claim on or about February 15, 2012. The Defendant City did not dispose of Plaintiff Campodonico’s claim within 6 months of such notice, and therefore denied the claim. See Fla. Stat. § 768.28(6)(d).

FEDERAL LAW CLAIMS COUNT I Excessive Force – §1983 (Ortiz, Dauphin, Lugo, James) 87. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count. 88. color of law. 89. All relevant times, all of the Defendant Officers were in the vicinity of the use At all relevant times, Defendants Ortiz, Dauphin, Lugo and James acted under

of excessive force and were capable of intervening to prevent the use of excessive force. 90. Defendants Ortiz, Dauphin, Lugo and James deprived Plaintiff Campodonico

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of his Fourth Amendment right against unreasonable searches and seizures when: a. Defendant Dauphin, unprovoked and without probable cause or

provocation, struck a blow against Plaintiff Campodonico that took him to the ground; b. Defendants Ortiz, Dauphin and Lugo repeatedly struck Plaintiff

Campodonico in his face and body with their hands, knees and feet; c. Campodonico; d. the Defendant Officers continued to beat Plaintiff Campodonico after Defendant James discharged his taser multiple times against Plaintiff

handcuffing him; and e. The Defendant Officers failed to intervene while other officers were

using excessive force on Plaintiff Campodonico, even though all of the Defendant Officers were in a position to intervene. 91. At all relevant times, the law was clearly established that the force used by the

Defendant Officers was excessive and violated the Fourth Amendment. 92. At all relevant times, the law was clearly established that the failure to

intervene under circumstances where intervention was possible and could have prevented the use of excessive force violated the Fourth Amendment. 93. As a direct and proximate result of the wrongful acts of Defendants Ortiz,

Dauphin, Lugo and James, Plaintiff Campodonico has suffered damages.

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COUNT II False Arrest – §1983 (Dauphin) 94. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count. 95. 96. At all relevant times, Defendant Dauphin acted under color of law. Defendant Dauphin deprived Plaintiff Campodonico of his Fourth Amendment

right against unreasonable searches and seizures when he, without probable cause and based on false information and material omissions, caused Plaintiff Campodonico to be arrested. 97 At all relevant times, the law was clearly established that causing the arrest of

an individual on the basis of false information and material omissions, and without probable cause, violates the individual’s Fourth Amendment right against unreasonable searches and seizures. 98. As a direct and proximate result of the wrongful acts of Defendant Dauphin,

Plaintiff Campodonico has suffered damages.

COUNT III Malicious Prosecution – §1983 (Ortiz, Dauphin, Lugo, James) 99. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count. 100. color of law. 22 At all relevant times, Defendants Ortiz, Dauphin, Lugo, and James acted under

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101.

Defendants Ortiz, Dauphin, Lugo and James instigated and caused to be

commenced a criminal proceeding against Plaintiff Campodonico styled State v. Campodonico , F11-8033 (Fla. 11th Jud. Cir. filed April 25, 2011), by making false statements and material omissions to the Miami SAO in the “Complaint/Arrest Affidavit” and during pre-file conferences with a Miami SAO prosecutor, and by requesting of the Miami SAO that Plaintiff Campodonico be required to serve 364 days in jail. 102. The criminal case against Plaintiff Campodonico ended in Campodonico’s

favor because the Miami SAO nolle prossed the case for insufficient evidence. 103. Defendants Ortiz, Dauphin, Lugo, and James instigated and caused to be

commenced the criminal case with malice, by intentionally making false statements and material omissions. 104. There was no probable cause to support the criminal charges against Plaintiff

Campodonico. At all relevant times, the law was clearly established that causing the prosecution of an individual on the basis of false information and material omissions, and without probable cause, violates the individual’s rights under the Fourth Amendment. 105. When the Defendant Officers committed such wrongful acts, they acted within

the scope of their employment, and acted in bad faith, with malicious purpose, and/or in a manner exhibiting wanton and wilful disregard of human rights, safety and/or property, and in violation of Plaintiff Campodonico’s Fourth Amendment right to be free from unreasonable seizures.

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106. As a direct and proximate result of the wrongful acts of Defendants Ortiz, Dauphin, Lugo and James, Plaintiff Campodonico has suffered damages.

COUNT IV Supervisory Liability – §1983 (Ortiz) 107. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count. 108. At all relevant times at the Festival, Defendant Ortiz was the supervisor of

Defendants Dauphin, Lugo, and James. 109. Supervisory officials are liable for the unconstitutional acts of their

subordinates when the supervisor personally participates in the alleged constitutional violation. 110. Defendant Ortiz participated in the constitutional violations against Plaintiff

Campodonico, including the use of excessive force, and was deliberately indifferent to the use of excessive force by his subordinates. 111. Defendant Ortiz had the ability to prevent or stop the known constitutional

violations by his subordinates by exercising his supervisory authority. 112. At all relevant times, the law was clearly established that the force used by the

Defendant Officers was excessive. 113. At all relevant times, the law was clearly established that a supervisor has the

responsibility to prevent constitutional violations by his/her subordinates. 24

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114.

Defendant Ortiz failed to exercise his authority to prevent the constitutional

violations by his subordinates, and is therefore liable for the actions of his subordinates. 115. As a direct and proximate result of Defendant Ortiz’s actions, Plaintiff

Campodonico has suffered damages.

COUNT V Policy of Failing to Investigate/Discipline – §1983 (City of Miami) 116. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count. 117. Plaintiff Campodonico possessed a constitutional right secured by the United

States Constitution to be free from an unreasonable searches and seizure, false arrest, excessive force, and malicious prosecution. 118. Plaintiff Campodonico was deprived of his constitutional rights on or about

March 25, 2011, when he was excessively beaten and falsely arrested by the Defendant Officers. 119. Plaintiff Campodonico was deprived of his constitutional rights from March

25, 2011, and continuing through February 14, 2012, during which time he was being prosecuted by the Miami SAO, without probable cause, as a result of false statements and material omissions by the Defendant Officers. 120. Prior to March 25, 2011, the Defendant City had become aware of numerous

complaints and allegations of misconduct initiated by citizens and other agencies against the 25

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Defendant Officers, as set forth above. 121. Given the position of authority of police officers, which permits them to,

among other things, effectuate arrests with probable cause, display their firearms, and use a firearm or taser, the Defendant City had a legal duty to: a. police officers; b. appropriately discipline police officers who are unable or unwilling to thoroughly and impartially investigate allegations of misconduct against

respect the constitutional rights of individuals or who violate department policy, including termination for repeat violators; and c. prevent police officers who are unable or unwilling to respect the

constitutional rights of individuals from working at events that require crowd control. 122. The Defendant City’s police department has an Internal Affairs division

responsible for investigating allegations of misconduct, including excessive force, against police officers and for administering appropriate discipline. 123. The Defendant City, through the Internal Affairs division of its police

department, had an unwritten custom or policy of failing to properly and impartially investigate allegations of misconduct against, or to administer appropriate discipline to, offending police officers. 124. It was the unwritten custom or policy of the Defendant City to accept a police

officer’s version of events surrounding an allegation of misconduct and thereby find the

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allegation of misconduct to be “inconclusive.” 125. It was the unwritten custom or policy of the Defendant City to make

disciplinary decisions based on factors other than an objective and impartial assessment of the facts underlying allegations of misconduct against police officers. 126. It was the unwritten custom or policy of the Defendant City to allow police

officers with a history of complaints of excessive force to continue to serve in positions where the use of force was likely, such as where large crowds congregate. 127. The defendant City’s unwritten policy and custom of failing to impartially

investigate allegations of police misconduct, and failing to discipline officers involved in such conduct, amounts to deliberate indifference to the constitutional rights of persons with whom its officers come into contact. 128. A police officer’s violation of the constitutional rights of individuals is a

known and obvious consequence of a municipal policy and custom that routinely allows such violations to go unpunished. 129. The Defendant City’s policy-makers disregarded that known or obvious

consequence by permitting officers such as the Defendant Officers to work at the Festival on March 25, 2011, despite a history of alleged violations of individuals’ civil rights. 130. The Defendant City’s unwritten policy and custom of failing to impartially

investigate and discipline its police officers resulted in the violation of Plaintiff Campodonico’s constitutional rights against an unreasonable seizure, false arrest, false

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imprisonment, excessive force, and malicious prosecution. 131. As a direct and proximate result of the wrongful acts of the Defendant City,

Plaintiff Campodonico has suffered damages.

COUNT VI Policy of Failing to Train on Use of Taser – §1983 (City of Miami) 132. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count. 133. Plaintiff Campodonico possessed a constitutional right secured by the Fourth

Amendment to be free from unreasonable searches and seizures. 134. Plaintiff Campodonico was deprived of his Fourth Amendment rights on March

25, 2011, when he was falsely arrested and excessively beaten and tased by the Defendant Officers. 135. At the time of this incident, police officers employed by the Defendant City

were obligated to follow a written policy issued by the Defendant City regarding the use of tasers. See Exhibit 1. 136. The written policy required officers with tasers to receive mandatory in-service

training at least annually. See Exhibit 1 at 18.4.1.1. 137. Upon information and belief, and notwithstanding its written policy, the

Defendant City has an unwritten policy and custom not to actually enforce the requirement

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of regular in-service training on the use of a taser, such as training on: a. a taser; b. conducting discharge-to-discharge assessments on the need for further determining the circumstances under which it is appropriate to discharge

tasing, including training on how to discern whether a subject’s actions after a taser discharge are voluntary efforts to resist or involuntary reactions to the taser’s electrical current; and c. drive-stun method. 138. The Defendant City’s unwritten policy and custom of failing to regularly train determining the circumstances under which it is appropriate to use the

its officers to whom tasers are issued amounts to deliberate indifference to the constitutional rights of persons with whom its officers come into contact. 139. A police officer’s excessive and unconstitutional use of a taser is a known or

obvious consequence of a municipal policy and custom where officers are not provided with regular in-service training on the appropriate use of a taser. 140. The Defendant City’s policy-makers disregarded that known or obvious

consequence by permitting officers such as Defendant James to continue carrying a taser without receiving regular in-service training. 141. At the time of the incident, Defendant James, the officer who discharged the

taser, had not received regular in-service training on the use of a taser. 142. As a result of his lack of training, Defendant James discharged his taser three

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times against Plaintiff Campodonico’s body when it was unnecessary to issue even a single taser discharge, did not issue any verbal warnings to Campodonico before discharging his taser, did not conduct any assessment between taser discharges of whether it was necessary to continue tasing Campodonico, and utilized the drive-stun method when it was unnecessary to do so. 143. The Defendant City’s unwritten policy and custom of failing to regularly train

its officers in the use of tasers caused its employee, Defendant James, to violate Plaintiff Campodonico’s Fourth Amendment rights against unreasonable searches and seizures. 144. As a direct and proximate result of the wrongful acts of the Defendant City,

Plaintiff Campodonico has suffered damages.

STATE LAW CLAIMS COUNT VII Battery – Florida Law (Ortiz, Dauphin, Lugo, James) 145. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count. 146. Defendants Ortiz, Dauphin, Lugo and James intentionally inflicted harmful or

offensive contact upon Plaintiff Campodonico when: a. Defendant Dauphin, unprovoked and without probable cause, struck a

blow against Plaintiff Campodonico;

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b.

Defendants Ortiz, Dauphin and Lugo repeatedly struck Plaintiff

Campodonico in his face and body with their hands, knees and feet; c. Campodonico; and d. one or more of the Defendant Officers continued to beat Plaintiff Defendant James discharged his taser multiple times against Plaintiff

Campodonico after handcuffing him. 147. The force used by the Defendant Officers was excessive and unreasonable

under the circumstances. 148. When the Defendant Officers committed such wrongful acts, they acted within

the scope of their employment, and acted in bad faith, with malicious purpose, and/or in a manner exhibiting wanton and wilful disregard of human rights, safety and/or property. 149. As a direct and proximate result of the wrongful acts of Defendants Ortiz,

Dauphin, Lugo and James, Plaintiff Campodonico has suffered damages.

COUNT VIII False Arrest – Florida Law (Dauphin) 150. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count. 151. Defendant Dauphin restrained Plaintiff Campodonico against his will and

caused him to be arrested. 152. Plaintiff Campodonico was aware at all relevant times that Defendant Dauphin 31

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had restrained him. 153. Defendant Dauphin acted without legal authority in restraining Plaintiff

Campodonico because the arrest was not supported by probable cause or a warrant. 154. Defendants Dauphin’s arrest of Plaintiff Campodonico was unreasonable and

unwarranted under the circumstances. 155. When Defendant Dauphin committed such wrongful act, he acted within the

scope of his employment, and acted in bad faith, with malicious purpose, and/or in a manner exhibiting wanton and wilful disregard of human rights, safety and/or property. 156. As a direct and proximate result of the wrongful acts of Defendant Dauphin,

Plaintiff Campodonico has suffered damages.

COUNT IX Malicious Prosecution – Florida Law (Ortiz, Dauphin, Lugo, James) 157. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count. 158. Defendants Ortiz, Dauphin, Lugo and James instigated and caused to be

commenced a criminal proceeding against Plaintiff Campodonico styled State v. Campodonico , F11-8033 (Fla. 11th Jud. Cir. filed April 25, 2011), by making false statements and material omissions to the Miami SAO in the “Complaint/Arrest Affidavit” and in pre-file conferences, and by requesting of the Miami SAO that Plaintiff Campodonico be required to serve 364 days in jail. 32

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159.

The criminal case against Plaintiff Campodonico ended in Campodonico’s

favor because the Miami SAO nolle prossed the case for insufficient evidence. 160. The Defendant Officers instigated and caused to be commenced the criminal

case with malice, by intentionally making false statements and material omissions. 161. There was no probable cause to support the criminal charges against Plaintiff

Campodonico. 162. When the Defendant Officers committed such wrongful acts, they acted within

the scope of their employment, and acted in bad faith, with malicious purpose, and/or in a manner exhibiting wanton and wilful disregard of human rights, safety and/or property. 163. As a direct and proximate result of the wrongful acts of Defendants Ortiz, Dauphin, Lugo and James, Plaintiff Campodonico has suffered damages.

COUNT X Negligent Retention and Training – Florida Law (City of Miami) 164. Plaintiff Campodonico re-alleges paragraphs 1 through 86 above, and

incorporates them into this Count. 165. The Defendant City has a duty to protect individuals from acts of false arrest,

excessive force, battery, malicious prosecution and negligence by the officers it employs. 166. During the course of the Defendant City’s employment of the Defendant

Officers, the Defendant City knew or should have known that: a. each of the Defendant Officers had histories of misconduct indicating 33

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their unfitness to serve as police officers; b. each of the Defendant Officers had histories of misconduct indicating

their unfitness to serve in a capacity where force, including force by way of a taser, could be used; and c. Defendant James carried a taser without receiving mandatory in-service

training, at least annually, regarding the use of a taser. 167. The Defendant City breached its duty of reasonable care by: a. b. retaining the Defendant Officers as police officers; permitting the Defendant Officers to serve in a capacity where force,

including force by way of a taser, could be used; c. allowing Defendant James to carry a taser while failing to regularly train

him regarding its use; and d. failing to set forth a clear policy that would have prohibited Defendant

Ortiz from serving as the supervisor responsible for the post-incident investigation in this case. 168. As a direct and proximate result of the wrongful acts of Defendant City,

Plaintiff Campodonico has suffered damages. COUNT XI Vicarious Liability – Florida Law (City of Miami) 169. Plaintiff Campodonico re-alleges paragraphs 1 through 49 above, and

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incorporates them into this Count. 170. Subject to certain statutory limitations, the Defendant City is liable for the

negligent or wrongful acts of its employees while acting within the scope of their office or employment to the same extent as a private employer. See Fla. Stat. § 768.28(1)(a), (5). 171. At all relevant times, as set forth above, Defendant Dauphin committed the

torts of battery and false arrest while acting within the course and scope of his employment as an employee of the Defendant City. 172. At all relevant times, as set forth above, Defendant Ortiz committed the tort of

battery while acting within the course and scope of his employment as an employee of the Defendant City. 173. At all relevant times, as set forth above, Defendant Lugo committed the tort

of battery while acting within the course and scope of his employment as an employee of the Defendant City. 174. At all relevant times, Defendant James committed the tort of negligence while

acting within the course and scope of his employment as an employee of the Defendant City by breaching his duty of care to Plaintiff Campodonico when Defendant James: a. deployed the taser against Campodonico even though Campodonico was

not actively or aggressively resisting any of the officers, lacked the ability to physically threaten or hurt the officers, and was not attempting or preparing to flee or escape; b. failed to verbally warn Campodonico before using the taser on him; and

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c.

failed to assess in between taser discharges whether it was necessary to

continue tasing Campodonico in order to subdue him. 175. One statutory limitation on imposing vicarious liability on the Defendant City

is that it “shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wilful and wanton disregard of human rights, safety, or property.” Fla. Stat. § 768.28(9)(a). 176. As permitted by Fed. R. Civ. P. 8(d), in the alternative to the contrary

allegations set forth in this Complaint, Plaintiff Campodonico alleges that the Defendant Officers committed the above-mentioned torts of battery, false arrest, or negligence, but not in bad faith or with malicious purpose, nor in a manner exhibiting wilful and wanton disregard of human rights, safety, or property. 177. Vicarious liability ought to be imposed on the Defendant City for the

Defendant Officers’ acts of battery, false arrest, and negligence to the extent allowed by law. PRAYER FOR RELIEF WHEREFORE Plaintiff Jesse Campodonico demands the following relief against Defendants City, Ortiz, Dauphin, Lugo, and James: a. judgment in favor of Plaintiff Campodonico and against each of the

Defendants on the above-mentioned counts; b. an award of damages, including any and all actual, compensatory,

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consequential, and nominal damages; c. d. an award of punitive damages; reasonable attorney’s fees and costs under 42 U.S.C. § 1988 and any

other applicable law; e. f. g. joint and several liability; interest; and such other relief as this Court may deem just and appropriate. DEMAND FOR JURY TRIAL Plaintiff Campodonico demands a jury trial on all issues so triable. Respectfully submitted, s/ Scott A. Srebnick________________ Scott A. Srebnick, Esq. Florida Bar No. 872910 scott@srebnicklaw.com Manuel A. Arteaga-Gomez, Esq. alex@srebnicklaw.com Florida Bar No. 18122 SCOTT A. SREBNICK, P.A. 201 South Biscayne Blvd., #1380 Miami, Florida 33131 Telephone: 305-285-9019 Facsimile: 305-377-9937 Attorneys for Plaintiff Jesse Campodonico

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing First Amended Complaint was filed and served on all parties through CM/ECF this 20th day of February, 2013. /s/ Scott A. Srebnick SCOTT A. SREBNICK

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