Case 6:11-cv-06049-AA

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Larry L. Linder, OSB #010724 llinder@salememploymentlawyer.com The Law Office of Larry L. Linder, LLC 2245 Commercial St NE Salem, OR 97303 Tel: (503)585-1804 Fax: (503)585-1834 Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION JASON TERHUNE, Plaintiff, MARION COUNTY, JASON BERNARDS, and ANASTASIA REJAIAN fka ANASTASIA LUCCA, Defendants. Plaintiff alleges: JURISDICTION 1. Jurisdiction is conferred upon this Court by 28 USC §§ 1331 and 1341 and brought pursuant to claims under 42 U.S.C. 1983 for violations of Plaintiff’s rights under the Fourth and Fourteenth Amendment of the United States Constitution to be free of warrantless and unreasonable seizures of his person, from which Plaintiff is entitled relief. Plaintiff requests a jury trial in this matter. /// /// Page 1–FOURTH AMENDED COMPLAINT
Law Office of Larry L. Linder, LLC
2245 Commercial St. NE Salem, OR 97303 (T)(503)585-1804 (f)(503)585-1834 llinder@salememploymentlawyer.com

Case No. 6:11-cv-06049-AA FOURTH AMENDED COMPLAINTVIOLATION OF 42 U.S.C. 1983; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; BATTERY; and NEGLEGENCE (Jury Trial Requested)

Case 6:11-cv-06049-AA

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SUPPLEMENTAL JURISDICTION 2. This Court has supplemental jurisdiction over Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367. Plaintiff’s state law claims are so closely related to his federal law claims that they form part of the same case or controversy under Article III of the United States Constitution. VENUE 3. Venue is appropriate in this Court pursuant to 28 USC § 1391, because the events giving rise to this complaint occurred in Marion County, Oregon. PARTIES 4. At all times material, Plaintiff was a resident of Salem, Oregon. 5. Defendant Jason Bernards (“Bernards”) is a deputy sheriff being sued in his individual capacity who at all material times was acting under color of state, county, or municipal law, ordinances, and regulations and within the course and scope of his employment and duties with Marion County. 6. Defendant Anastasia Rejaian, formerly known as Anastasia Lucca (“Rejaian”), is a deputy sheriff being sued in her individual capacity who at all material times was acting under color of state, county, or municipal law, ordinances, and regulations and within the course and scope of her employment and duties with Marion County. /// /// Page 2–FOURTH AMENDED COMPLAINT
Law Office of Larry L. Linder, LLC
2245 Commercial St. NE Salem, OR 97303 (T)(503)585-1804 (f)(503)585-1834 llinder@salememploymentlawyer.com

Case 6:11-cv-06049-AA

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7.
At all material times, Defendant, Marion County, was a public body responsible under state law for the acts and omissions of its law enforcement deputies and other employees, including those whose conduct is at issue herein.

FACTUAL ALLEGATIONS 8. On or about December 13, 2009, Plaintiff arrived at Rac N Cue, located at 1970 Lancaster Drive NE, Salem, Oregon, at approximately 1:20 am. 9. Plaintiff walked in with some of his friends and saw other friends when he entered. He walked over to where they were sitting about 10 feet from the door. He started to converse with them and asked what was going on. They told him that someone had started a fight. 10. Plaintiff and his friends were watching the officers handle the situation while talking about how the night was going. In the middle of their conversation, Officer Sean Cooper (“Cooper”) approached them and said, “get to the wall or get outside.” 11. Plaintiff looked to the right toward the wall then back to Cooper who was now in his face. Plaintiff turned left towards the door and stepped towards it with his left foot in an attempt to follow Cooper’s directive. 12. Cooper put his hands on Plaintiff’s back and started to push him towards the door. Plaintiff put his hands in the air so that Cooper could see them because he did not know what /// Page 3–FOURTH AMENDED COMPLAINT
Law Office of Larry L. Linder, LLC
2245 Commercial St. NE Salem, OR 97303 (T)(503)585-1804 (f)(503)585-1834 llinder@salememploymentlawyer.com

Case 6:11-cv-06049-AA

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was going on. After being pushed outside, Plaintiff turned around thinking that Cooper was going to explain himself. 13. Plaintiff was then pushed and thrown to the ground, striking his head rendering him unconscious. Plaintiff suffered a head wound. While on the ground, Bernards hit Plaintiff three times. When Plaintiff regained consciousness, he was on the ground, there was a pool of blood on the curb, and he was being tazed by Rejaian. 14. Plaintiff was handcuffed and officers surrounded him. Plaintiff asked what was happening but his questions were answered with “no,” not answered, or ignored. Plaintiff asked if he could sit on the curb, because the ground was wet. He asked if he could look at his injury to see if he needed to go to the hospital. He asked for a cup of water to wash his mouth out with, because the blood from his injury was still running down his head and around his mouth. 15. After the deputies would not answer Plaintiff’s questions, the paramedic arrived and examined him. Plaintiff was told he had to be transported by ambulance to the hospital. He was handcuffed until he was strapped to a stretcher. Rejaian and Bernards cited Plaintiff for allegedly interfering with a peace officer, and the citation was placed on Plaintiff. Plaintiff asked if they would put it in his wallet so he would not lose it, but they said that it was fine where it was. 16. At no time during the course of Plaintiff’s contact with Cooper, Rejaian or Bernards was Plaintiff hostile or threatening towards them. /// /// Page 4–FOURTH AMENDED COMPLAINT
Law Office of Larry L. Linder, LLC
2245 Commercial St. NE Salem, OR 97303 (T)(503)585-1804 (f)(503)585-1834 llinder@salememploymentlawyer.com

Case 6:11-cv-06049-AA

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17. Plaintiff was still never given an explanation of what happened. He then requested the handcuffs be taken off. They removed the handcuffs, and he put the ticket in his wallet. He was then placed in the ambulance and taken to the hospital. 18. Plaintiff remained at the hospital until he was authorized to leave. 19. Plaintiff was charged with interfering with a peace officer. The evidence clearly did not support this charge and it was dismissed on March 10, 2010. 20. Plaintiff timely filed a tort claims notice pursuant to ORS 30.275. FIRST CLAIM AGAINST JASON BERNARDS AND ANASTASIA REJAIAN— VIOLATION OF 42 U.S.C. 1983 (Count 1 Against Bernards and Rejaian—Excessive Force) 21. Plaintiff realleges paragraph 1-20. Plaintiff has a protected liberty interest under the Fourth and Fourteenth Amendment to the United States Constitution to be free from unreasonable search and seizures of his person, right of privacy, right to be free from involuntary servitude, and right to due process of law before being deprived their liberty… . 42 U.S.C. 1983 provides that a party shall be liable when it “subjects, or causes to be subjected, any person of the United States … deprivation of any rights privileges, or immunities secured by the Constitution and law of the United States.” /// /// Page 5–FOURTH AMENDED COMPLAINT
Law Office of Larry L. Linder, LLC
2245 Commercial St. NE Salem, OR 97303 (T)(503)585-1804 (f)(503)585-1834 llinder@salememploymentlawyer.com

Case 6:11-cv-06049-AA

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22. Plaintiff’s Fourth and Fourteenth Amendment rights were violated when Defendants Bernards and Rejaian used unreasonable force, including Rejaian’s use of a tazer, to effectuate Plaintiff’s arrest. Defendants Bernards and Rejaian, acting under color of law, in an individual capacity, misused their official powers with a conscious disregard for Plaintiff’s constitutional rights. In addition, or in the alternative, their conduct was wanton, reckless, and in disregard of plaintiff’s well-established constitutional rights and they knew or reasonably should have known that their conduct was below the standard prescribed by law herein. Defendants' conduct was well defined by law and each defendant knew or reasonably should have known that their conduct was below the standard prescribed by law herein. 23. As a direct and proximate cause of Defendant Bernards and Rajaian’s use and application of unreasonable force against Plaintiff, Plaintiff has suffered economic and non-economic damages in an amount to be determined at trial. Plaintiff seeks recovery of all compensatory and punitive damages provided by law, in addition to reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988. 24. Defendants Bernards and Rejaian used and applied unreasonable force intentionally and demonstrated a wanton, reckless or callous indifference to the constitutional rights of Plaintiff warranting an imposition of punitive damages in such amount as the jury may deem appropriate to punish Defendants for their wanton misconduct and to deter City of Salem police officers from callously disregarding citizens’ constitutional rights. /// /// Page 6–FOURTH AMENDED COMPLAINT
Law Office of Larry L. Linder, LLC
2245 Commercial St. NE Salem, OR 97303 (T)(503)585-1804 (f)(503)585-1834 llinder@salememploymentlawyer.com

Case 6:11-cv-06049-AA

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(Count II Against Bernards and Rejaian—Arrest and Citation) 25. Plaintiff realleges paragraph 1-24. Plaintiff has a protected liberty interest under the Fourth and Fourteenth Amendment to the United States Constitution to be free from unreasonable search and seizures of his person, right of privacy, right to be free from involuntary servitude, and right to due process of law before being deprived their liberty… 42 U.S.C. 1983 provides that a party shall be liable when it “subjects, or causes to be subjected, any person of the United States … deprivation of any rights privileges, or immunities secured by the Constitution and law of the United States.” 26. Defendants Bernards and Rejaian stopped, arrested and issued a citation to Plaintiff without probable cause to do so. Defendants Bernards and Rejaian, acting under color of law, in an individual capacity, misused their official powers with a conscious disregard for Plaintiff’s constitutional rights. In addition, or in the alternative, their conduct was wanton, reckless, and in disregard of plaintiff’s well-established constitutional rights and they knew or reasonably should have known that their conduct was below the standard prescribed by law herein. Defendants' conduct was well defined by law and each defendant knew or reasonably should have known that their conduct was below the standard prescribed by law herein. 27. As a direct and proximate cause of Defendant Bernards and Rejaian’s arrest and citation of Plaintiff without probable cause to do so, Plaintiff has suffered economic and non-economic damages in an amount to be determined at trial. Plaintiff seeks recovery of all compensatory and punitive damages provided by law, in addition to reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988. Page 7–FOURTH AMENDED COMPLAINT
Law Office of Larry L. Linder, LLC
2245 Commercial St. NE Salem, OR 97303 (T)(503)585-1804 (f)(503)585-1834 llinder@salememploymentlawyer.com

Case 6:11-cv-06049-AA

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28. Defendants Bernards and Rejaian stopped, arrested, and cited Plaintiff without probable cause to do so and demonstrated a wanton, reckless or callous indifference to the constitutional rights of Plaintiff warranting an imposition of punitive damages in such amount as the jury may deem appropriate to punish Defendants for their wanton misconduct and to deter City of Salem police officers from callously disregarding citizens’ constitutional rights. SECOND CLAIM AGAINST MARION COUNTY—BATTERY 29. Plaintiff realleges paragraphs 1-28. Marion County’s employees employed excessive and unreasonable force prior to and during the effectuation of Plaintiff’s arrest. 30. As a direct result of Marion County’s employees’ use of excessive and unreasonable force, Plaintiff was deprived of his right under state law to be free of unwarranted, unlawful, unconsented, and unreasonable violations of his physical integrity, thereby causing the physical and emotional injuries as alleged above. Plaintiff has suffered economic and non-economic damages in an amount to be determined at trial. Plaintiff requests his costs incurred in bringing this matter. THIRD CLAIM AGAINST MARION COUNTY—NEGLIGENCE 31. Plaintiff realleges paragraph 1-30. Defendant Marion County owed a duty to Plaintiff to prevent its officers and deputies from using excessive force against Plaintiff and from arresting him without probable cause. /// /// Page 8–FOURTH AMENDED COMPLAINT
Law Office of Larry L. Linder, LLC
2245 Commercial St. NE Salem, OR 97303 (T)(503)585-1804 (f)(503)585-1834 llinder@salememploymentlawyer.com

Case 6:11-cv-06049-AA

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32. Marion County breached its duty by allowing its officers and deputies to use excessive force against Plaintiff and arrest him without probable cause. 33. As a result of Marion County’s negligence, Plaintiff has suffered non-economic damages in an amount to be determined at trial. Plaintiff requests his costs incurred in bringing this matter. FOURTH CLAIM AGAINST MARION COUNTY–INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS (Special Relationship) 34. Plaintiff realleges paragraphs 1-33. Marion County has a special relationship with Plaintiff by providing police services to Plaintiff as a citizen. Marion County’s employees knew that the aforementioned conduct would cause severe mental or emotional distress or acted despite a high degree of probability that the mental or emotional distress would result. 35. Marion County’s employees’ conduct caused Plaintiff severe mental or emotional distress from the foreseeable highly unpleasant emotional reactions including fright, grief, shame, humiliation, embarrassment, anger, disappointment, and worry. 36. The aforementioned continuing actions of Marion County’s employees consisted of an extraordinary transgression of contemporary standards of civilized conduct toward a citizen. 37. As a result of Marion County’s employees’ intentional actions, Plaintiff has suffered noneconomic damages in an amount to be determined at trial. Plaintiff requests his costs incurred in bringing this matter. Page 9–FOURTH AMENDED COMPLAINT
Law Office of Larry L. Linder, LLC
2245 Commercial St. NE Salem, OR 97303 (T)(503)585-1804 (f)(503)585-1834 llinder@salememploymentlawyer.com

Case 6:11-cv-06049-AA

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WHEREFORE, Plaintiff prays for judgment against Defendants in the following manner: 1. For Plaintiff’s First Claim For Relief Against Bernards and Rejaian: A. Count I: Economic and non-economic damages in an amount to be determined at trial. Plaintiff seeks recovery of all compensatory and punitive damages provided by law, in addition to reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988; and B. Count II: Economic and non-economic damages in an amount to be determined at trial. Plaintiff seeks recovery of all compensatory and punitive damages provided by law, in addition to reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988. 2. For Plaintiff’s Second Claim For Relief Against Marion County: Economic and non-

economic damages in an amount to be determined at trial in addition to his costs incurred in bringing this matter. 3. For Plaintiff’s Third Claim For Relief Against Marion County: Non-economic damages

in an amount to be determined at trial in addition to his costs incurred in bringing this matter. 4. For Plaintiff’s Fourth Claim For Relief Against Marion County: Non-economic damages

in an amount to be determined at trial in addition to his costs incurred in bringing this matter. DATED this 21st day of December, 2012. _/s/Larry L. Linder Larry L. Linder OSB#010724 Attorney for Plaintiff Law Office of Larry L. Linder, LLC 2245 Commercial St. NE Salem, Oregon 97303 503-585-1804 llinder@salememploymentlawyer.com
Law Office of Larry L. Linder, LLC
2245 Commercial St. NE Salem, OR 97303 (T)(503)585-1804 (f)(503)585-1834 llinder@salememploymentlawyer.com

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