Jack Miller Vs SAPD PDF

Case 6:20-cv-00131-H Document 1 Filed 12/11/20 Page 1 of 24 PageID 1
IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
SAN ANGELO DIVISION
JACK MILLER, individually, and §

o/b/o his minor son, D.M., §
Plaintiff, §
§
v. § CIVIL ACTION NO. 6:20-cv-131
§
MICHAEL WEBBER, §
TREY MAYBERRY, and §
RAYMOND FRANCIS, §
Defendants. §
PLAINTIFF’S ORIGINAL COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
COMES NOW, Jack Miller, individually, and o/b/o his minor son, D.M.,
complaining of Michael Webber, Trey Mayberry, and Raymond Francis, and for causes of
action will respectfully show unto the Court as follows:
SUMMARY
On October 4, 2020, Officers Michael Webber, Trey Mayberry, and Raymond
Francis of the San Angelo Police Department wrongfully and illegally arrested Jack Miller
in front of his three-year-old son, D.M., even though Mr. Miller had committed no crime.
Officers Mayberry and Francis approached Mr. Miller inside of a Walmart based on an
erroneous call that a man with a child was intoxicated. Upon making contact with Mr.
Miller, these officers concluded that Mr. Miller was not intoxicated and had committed
no crime. However, in an act taken straight from a dystopian police state, the officers
demanded that Mr. Miller identify himself before he was free to go about his day. Officer
Webber even went as far as threatening to call Child Protective Services to take Mr.
Miller’s son, if Mr. Miller did not comply with their illegal demands to identify himself.
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Mr. Miller did not become aggressive or combative, but simply asked why he
needed to identify himself if he was not under arrest for anything – which is precisely
what the law dictates. In response, Officers Webber, Mayberry, and Francis illegally
arrested Mr. Miller in front of his three-year-old son without probable cause that any
crime had been committed. D.M. immediately began crying in fear for his father, as these
officers called Mr. Miller a “dumbass” and assaulted Mr. Miller by unnecessarily pinning
his neck against the top edge of a cooler and raising his handcuffed wrists behind his back
until they injured his rotator cuff in his shoulder. Officers Mayberry and Francis then
walked Mr. Miller outside to be placed in a police car, as Mr. Miller’s frightened and
distraught three-year-old son remained with Officer Webber, one of the men he had just
watched assault his father.
Mr. Miller now files this lawsuit against Officers Webber, Mayberry, and Francis
for violating his constitutional rights under the Fourth Amendment to the United States
Constitution to be free from unreasonable seizures, falsely imprisoning him, and
assaulting him, and for inflicting needless and damaging emotional distress on his three-
year-old son, D.M., who is now scared to go to the store because he believes his father will
be taken away by the police.
I.
PARTIES
1. Plaintiff Jack Miller is a resident of Tom Green County, Texas.
2. Defendant Michael Webber, is an individual residing in San Angelo, Tom
Green County, Texas and is a police officer with the City of San Angelo Police Department
and may be served at his place of employment at the San Angelo Police Department
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located at 401 E Beauregard Ave, San Angelo, TX 76903 or wherever he may be found.
Defendant Webber is being sued in his individual capacity.
3. Defendant Trey Mayberry, is an individual residing in San Angelo, Tom
Defendant Mayberry is being sued in his individual capacity.
4. Defendant Raymond Francis, is an individual residing in San Angelo, Tom
Defendant Francis is being sued in his individual capacity.
II.
JURISDICTION AND VENUE
5. The Court has original jurisdiction over this action pursuant to 28 U.S.C.
§ 1331 and § 1343 since Plaintiff is suing for relief under 42 U.S.C. § 1983.
6. Venue is proper in the Northern District of Texas pursuant to 28 U.S.C.
§ 1391 because the Defendants reside in the Northern District of Texas and all of the
causes of action accrued in the Northern District of Texas.
III.
FACTS AND ALLEGATIONS
7. On October 4, 2020, Defendant Officers Michael Webber, Trey Mayberry,
and Raymond Francis of the San Angelo Police Department approached Jack Miller as he
was shopping at Walmart with his three-year-old son, D.M.
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8. The interaction between Mr. Miller and Defendants Webber, Mayberry, and
Francis was recorded on Defendant Mayberry’s body worn camera.1
9. Mr. Miller was about to check out with his groceries when Defendants
Mayberry and Francis first approached him.
10. Mr. Miller’s three-year-old son, D.M., was sitting in the shopping cart along
with Mr. Miller’s groceries.
11. Defendant Mayberry asked Mr. Miller if he had been drinking and explained
that there was a reported call of an intoxicated driver with a child in the parking lot.
12. Mr. Miller responded that he had not had anything to drink.
13. Defendant Mayberry asked Mr. Miller if he knew anything about the report.
14. Mr. Miller explained a woman honked at him in the parking lot as he was
trying to park and he told her that she could not drive, but that nothing more happened.
15. It was obvious to Defendants Mayberry and Francis that Mr. Miller had not
been drinking alcohol and was not intoxicated as the original report claimed – as they
told Sgt. Brian Holt later that day that Mr. Miller was not intoxicated.
16. After speaking with Mr. Miller and determining that he was not intoxicated,
Defendant Francis asked Mr. Miller for his name.
17. Mr. Miller responded, “Jack,” which is his first name.
18. Defendant Francis asked Mr. Miller if he had his ID so that Defendant
Francis could verify Mr. Miller’s identity.
19. Mr. Miller responded that he had an ID but that he did not have to give the
Defendant Officers his ID.
1
Defendant Mayberry’s body worn camera video is attached as Exhibit A and fully incorporated herein.
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20. Defendant Mayberry then told Mr. Miller, “I don’t think you understand
what this is – this is not you get to tell us what is what.”
21. Defendant Mayberry told Mr. Miller, “we are trying to identify who you are
and you are making that difficult.”
22. Actually, what Mr. Miller was doing was attempting to go shopping with his
son without having government agents force him to produce identification to verify his
identity.
23. Mr. Miller calmly stated that he did not have to turn over his identification,
which is exactly what the law states.
24. Defendant Mayberry again asked Mr. Miller for his ID, stating “just to verify
who you are.”
25. Defendant Francis told Mr. Miller, “I want to verify who you are so you can
go about your day and we can go about our day and we will be done.”
26. Defendant Webber then approached and asked if Mr. Miller was failing to
ID.
27. Defendant Francis told Defendant Webber that Mr. Miller was failing to ID.
28. Defendant Webber then told Mr. Miller, “unless you identify yourself with
this legal investigation you are going to be arrested for failure to ID.”
29. Mr. Miller attempted to respond, but Defendant Webber raised his voice at
Mr. Miller stating, “listen to me!”
30. Defendant Webber then told Mr. Miller, “and then, we’re going to call CPS
[Child Protective Services] to come pick up your kid.”
31. Defendant Webber was threatening to have Mr. Miller’s three-year-old son,
who was sitting within earshot in the grocery cart directly next to Mr. Miller, taken away
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from him if he did not identify who he was, despite the fact that Mr. Miller had not
committed any crime and was not under arrest.
32. Mr. Miller asked Defendant Webber if he was threatening to take his son.
33. Defendant Webber again interrupted Mr. Miller.
34. Mr. Miller asked if he was allowed to talk.
35. Defendant Webber told Mr. Miller, “you have one thing to respond with
right now and that’s to identify yourself.”
36. Again, Mr. Miller had not violated any laws and the Defendants had no
probable cause that he had committed any crime – as Defendants Francis and Mayberry
told Sgt. Holt later that day that they did not have probable cause that Mr. Miller had
committed any crimes.
37. Mr. Miller tried explaining to Defendant Webber that, “failure to identify is
when you have been lawfully arrested.”
38. Defendant Webber then stated that Mr. Miller was being arrested.
39. The handcuffing and use of force that is about to be outlined occurred within
feet of Mr. Miller’s three-year-old son, D.M.
40. D.M. watched in horror as the Defendants grabbed, pushed, and shoved his
father.
41. Defendants Webber, Mayberry, and Francis all grabbed Mr. Miller.
42. Defendants Webber, Mayberry, and Francis turned Mr. Miller around so
that they had access to his hands to handcuff him behind his back.
43. Mr. Miller did not resist the officers and complied with their instructions.
44. Mr. Miller stated, “My kid is right there.”
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45. Defendant Webber told Mr. Miller, “turn around and put your hands behind
your back,” even though Mr. Miller had already turned around and his hands were behind
his back.
46. Mr. Miller stated that his hands were behind his back.
47. D.M., began to cry as the Defendants appeared to be hurting his father.
48. Mr. Miller calmly stated, “look what you’re doing man” as his son was crying
next to them.
49. Mr. Miller tried to calm his son down by stating, “baby it’s ok.”
50. Defendant Francis used his forearm to push Mr. Miller’s face and neck up
against shelving next to them, which was unnecessary as Mr. Miller was not resisting and
Defendant Webber was placing the handcuffs onto Mr. Miller’s hands, which were both
behind his back.
51. When Defendant Francis pushed Mr. Miller’s face and neck against the
shelving unit it caused Mr. Miller pain and he can be heard groaning in pain.
52. D.M. watched this happen.
53. Mr. Miller calmly asked, “what are you doing?”
54. Defendant Webber stated, “you’ve been placed under arrest for failure to
ID.”
55. Defendant Webber then stated over his radio, “we have one resisting” even
though Mr. Miller was clearly not resisting arrest as he was standing against the shelving
unit with his hands behind his back as handcuffs were being put on him.
56. Mr. Miller continued trying to calm down his son.
57. After securing Mr. Miller in handcuffs, Defendant Webber called Mr. Miller
a “dumbass.”
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58. Mr. Miller responded, “dumbass? Are you kidding me?”
59. Defendants Webber, Mayberry, and Francis then pushed the handcuffed
and non-resistant Mr. Miller into a large drink cooler.
60. Defendant Webber told Mr. Miller to “calm down” even though Mr. Miller
had been calm the entire time the Defendants had been assaulting and falsely arresting
him directly in front of his three-year-old son.
61. Defendant Mayberry was holding Mr. Miller’s handcuffed wrists behind his
back and forcing him against the drink cooler.
62. Defendant Webber had ahold of the back of Mr. Miller’s head and was
forcing his neck against the top edge of the drink cooler.
63. Defendant Francis had ahold of Mr. Miller’s right shoulder and the top of
Mr. Miller’s head and was helping force Mr. Miller against the drink cooler.
64. Mr. Miller could be heard groaning in pain as the Defendants had him
pressed up against the cooler and Defendant Webber was forcing his neck against the top
edge of the cooler.
65. Defendant Webber was choking Mr. Miller by forcing his neck against the
top edge of the cooler.
66. Mr. Miller was not resisting, was handcuffed with his hands behind his back,
had been calm the entire time, and was not attempting to escape or evade arrest as his
three-year-old child was there with him.
67. Defendant Webber then asked Mr. Miller if he was going to ID himself.
68. Mr. Miller stated he would give them his ID.
69. Defendant Webber stated, “it’s a little late for that isn’t it.”
70. Mr. Miller stated he was just now under arrest.
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71. Defendant Webber had ahold of Mr. Miller’s left arm, which was pulled
behind his back in handcuffs.
72. Defendant Francis had ahold of Mr. Miller’s right arm, which was pulled
behind his back in handcuffs.
73. Defendant Mayberry had ahold of Mr. Miller’s hands, which were behind
his back in handcuffs.
74. All three Defendants raised Mr. Miller’s arms upward and behind his back
causing his shoulders pain and injuring his rotator cuff.
75. When all three Defendants raised Mr. Miller’s arms causing him pain in his
shoulders, Mr. Miller was not resisting, attempting to flee, or a threat, as he was
handcuffed with his hands behind his back, being held by three officers who were all larger
than him, had a calm demeanor which he had the entire time, and had his three-year-old
son present and watching.
76. All three Defendants held Mr. Miller in the position with his arms
handcuffed and lifted behind his back even though it was unnecessary as he was calm,
compliant, and restrained.
77. Mr. Miller was asking the Defendants where his son was as they held him in
the painful position.
78. Defendants Mayberry and Francis walked the handcuffed Mr. Miller out of
the Walmart and to a police car outside.
79. As they passed D.M., Mr. Miller told his son that it would be okay.
80. D.M. was scared while he was forced to wait inside of the Walmart with
Defendant Webber, after just having watched Defendant Webber assault his father.
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81. Defendant Mayberry placed the handcuffed Mr. Miller into the back of a
police car.
82. Sgt. Holt arrived and Mr. Miller explained to him that he had been arrested
for failing to identify himself even though he was not under arrest at the time his
identification was requested.
83. Sgt. Holt asked Defendants Mayberry and Francis what happened.
84. Defendants Mayberry and Francis confirmed that Mr. Miller was not under
arrest when he was asked to identify himself or when he refused to do so.
85. After discussing with Sgt. Holt, Defendants Mayberry and Francis told Sgt.
Holt that they did not have probable cause that Mr. Miller had committed any crime.
86. Sgt. Holt directed Defendants Mayberry and Francis to release Mr. Miller.
87. Once Mr. Miller was released from the police car and had the handcuffs
taken off of him, he went to get his son.
88. Since this incident, D.M. has been terrified to go to the store, because he
believes the police will show up and take his father away.
89. D.M. used to enjoy playing “cops and robbers” where he would be the police
officer trying to catch the “bad guys;” however, since this incident, D.M. has not wanted
to play “cops and robbers” anymore and if he does, he now wants to be the robber as he is
scared of the police.
90. This fear and mental anguish that three-year-old D.M. was experiencing,
and continues to experience, was directly caused by being feet away and watching as the
Defendants detained his father in handcuffs, assaulted him against the shelves and cooler,
and then took him away.
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91. At all times relevant to this lawsuit, Defendants Webber, Mayberry, and
Francis were acting under color of law.
IV.
CAUSES OF ACTION
Count One
Unlawful Arrest
Violation of the Fourth Amendment Pursuant to 42 U.S.C. § 1983
Against Defendants Webber, Mayberry, and Francis
92. Mr. Miller repeats and re-alleges each and every allegation contained in the
above paragraphs as if fully repeated herein.
93. No right is held more sacred, or is more carefully guarded, by the common
law, than the right of every individual to the possession and control of his own person,
free from all restraint or interference of others, unless by clear and unquestionable
authority of law. Terry v. Ohio, 392 U.S. 1, 9 (1968).
94. Defendants Webber, Mayberry, and Francis deprived Plaintiff of his
constitutionally protected right to be free from unreasonable seizures under the Fourth
Amendment by unlawfully arresting him despite lacking probable that any crime had
been committed as he was not under arrest at the time he was asked and then refused to
identify himself and had committed crime.
95. A false arrest claim under 42 U.S.C. § 1983 requires a showing of (1) willful
detention, (2) without consent, (3) without authority of law, and (4) the deprivation of a
constitutional right.
96. There is no cause of action for false arrest under § 1983 unless the arresting
officer lacked probable cause.
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97. There can be no doubt that the right not to be arrested absent probable
cause was clearly established at the time of Mr. Miller’s arrest. Alexander v. City of Round
Rock, 854 F.3d 298, 306–07 (5th Cir. 2017).
98. Fifth Circuit case law also clearly establishes that police officers lack actual
or arguable probable cause to arrest a person for failure to identify, in violation of Texas
law, when the person has not yet been arrested at the time that he fails to provide officers
with identification, because the “failure to identify” offense is triggered only when a
person who has already been arrested fails to provide identification upon an officer's
request. Davidson v. City of Stafford, Texas, 848 F.3d 384, 392 (5th Cir. 2017).
99. To determine the presence or absence of probable cause, the totality of the
circumstances surrounding the arrest must be considered.
100. Defendants Webber, Mayberry, and Francis intentionally arrested Mr.
Miller by restraining him in handcuffs and later confining him in the back of a police car,
without a warrant, without his consent, and without any legal justification.
101. Mr. Miller did not consent to his restraint or confinement and was conscious
of both.
102. Defendants Webber, Mayberry, and Francis willfully arrested Plaintiff by
telling Plaintiff he was being arrested and by restraining Plaintiff in handcuffs and later
in a patrol vehicle.
103. Mr. Miller did not consent to being restrained in handcuffs or to being
restrained in the patrol vehicle.
104. Defendants Webber, Mayberry, and Francis did not have probable cause to
support arresting Mr. Miller as they did not see Mr. Miller commit a crime, and he was
not under arrest at the time he refused to identify himself; thus, the “failure to identify”
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offense under § 38.02 was not triggered since it applies only when an officer “has lawfully
arrested the person and requested the information.” TEX. PENAL CODE § 38.02(a);
Davidson, 848 F.3d at 392.
105. Additionally, Defendants Mayberry and Francis admitted to Sgt. Brian Holt
that they did not have probable cause to arrest Mr. Miller for any other crime.
106. Defendants Webber, Mayberry, and Francis did not have authority of law to
arrest Mr. Miller as they did not have a warrant or probable cause to arrest him, and no
other exigent circumstances existed justifying his arrest.
107. By knowingly and intentionally arresting Mr. Miller without consent,
without probable cause, and without legal justification, Defendants Webber, Mayberry,
and Francis deprived Mr. Miller of his Fourth Amendment right to be free from
unreasonable seizures.
108. As a result of the illegal arrest, Mr. Miller suffered injuries.
109. As a result of the illegal arrest, Defendants Webber, Mayberry, and Francis
deprived Mr. Miller of his civil, constitutional and statutory rights and are liable to Mr.
Miller pursuant to 42 U.S.C. § 1983.
110. Mr. Miller was damaged as a result of Defendants Webber, Mayberry, and
Francis’ wrongful acts as his liberty was deprived and he suffered the emotional distress
and mental anguish of seeing his son cry out in fear.
111. Additionally, when making the illegal arrest, Defendants Webber,
Mayberry, and Francis injured Mr. Miller’s rotator cuff, causing him physical pain and
suffering.
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Count Two
Excessive Force
Violation of the Fourth Amendment Pursuant to 42 U.S.C. § 1983
above paragraphs as if fully repeated herein.
113. Acting under the color of law, Defendants Webber, Mayberry, and Francis
deprived Mr. Miller of the rights and privileges secured to him by the Fourth and
Fourteenth Amendments to the United States Constitution and by other laws of the
United States to be free from illegal and unreasonable seizures by the use of force.
114. Mr. Miller brings this cause of action pursuant to 42 U.S.C. § 1983.
115. The amount of force used by Defendants Webber, Mayberry, and Francis
against Mr. Miller as described above, specifically but not limited to, when Defendants
Webber, Mayberry, and Francis slammed the already handcuffed Mr. Miller against the
drink cooler, Defendants Webber and Francis pressed his head and neck against the top
edge of the cooler, and then Defendants Webber, Mayberry, and Francis raised his arms
up behind his back and held him in that position until his rotator cuff was injured, was
objectively unreasonable under the circumstances and inflicted unnecessary injury, pain,
and suffering upon Plaintiff.
116. A seizure is unreasonable if it results in (a) an injury, (b) that resulted
directly and only from a use of force that was clearly excessive, and (c) the excessiveness
was clearly unreasonable.
117. Although officers may need to use “physical force ... to effectuate [a]
suspect's compliance” when he refuses to comply with commands during a traffic stop,
the officers still must assess “the relationship between the need and the amount of force
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used.” Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012); quoting Deville v.
Marcantel, 567 F.3d 156, 167 (5th Cir. 2009).
118. Where an individual’s conduct amounts to mere “passive resistance,” use of
force is not justified. Trammell v. Fruge, 868 F.3d 332, 341 (5th Cir. 2017).
119. A constitutional violation occurs when an officer tases, strikes, or violently
slams an arrestee who is not actively resisting arrest. Darden v. City of Fort Worth, Texas,
880 F.3d 722, 731 (5th Cir.), cert. denied sub nom. City of Fort Worth, Tex. v. Darden,
139 S. Ct. 69, 202 L. Ed. 2d 23 (2018).
120. Fifth Circuit case law makes clear that when an arrestee is not actively
resisting arrest the degree of force an officer can employ is reduced. Id.
121. Mr. Miller was not suspected of committing a felony offense when
Defendants Webber, Mayberry, and Francis slammed him against the drink cooler, when
Defendants Webber and Francis pressed Mr. Miller’s head and neck against the top edge
of the cooler, or when Defendants Webber, Mayberry, and Francis injured his rotator cuff
by raising his arms up behind his back and holding him in that position.
122. Mr. Miller was only suspected of committing a minor offense for failure to
identify, which he had not even committed.
123. Mr. Miller was not attempting to flee, as his three-year-old son was with
him, he was in handcuffs being held by three officers, and he was calm and compliant the
entire time.
124. Mr. Miller was not threatening any officer or other person immediately
prior to when Defendants Webber, Mayberry, and Francis slammed him against the drink
cooler, when Defendants Webber and Francis pressed Mr. Miller’s head and neck against
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the top edge of the cooler, or when Defendants Webber, Mayberry, and Francis injured
his rotator cuff by raising his arms up behind his back and holding him in that position.
125. Mr. Miller was not resisting arrest prior to when Defendants Webber,
Mayberry, and Francis slammed him against the drink cooler, when Defendants Webber
and Francis pressed Mr. Miller’s head and neck against the top edge of the cooler, or when
Defendants Webber, Mayberry, and Francis injured his rotator cuff by raising his arms
up behind his back and holding him in that position – as he had complied with the
Defendants by turning around and putting his hands behind his back to be handcuffed
and then took a couple of steps with the Defendants before they slammed him against the
cooler for no reason.
126. A reasonable officer would know that the use of force is clearly excessive
when engaging with citizens such as Mr. Miller, who was not threatening any officer or
other person, was only suspected of committing the misdemeanor crime of failing to
identify himself (which he had clearly not committed), was not attempting to flee, was not
resisting arrest, and who the use of force was not warranted.
127. A reasonable officer would know that the use of force is clearly unreasonable
when engaging with citizens such as Mr. Miller, who was not threatening any officer or
other person, was only suspected of committing the misdemeanor crime of failing to
identify himself (which he had clearly not committed), was not attempting to flee, was not
resisting arrest, and who the use of force was not warranted.
128. A reasonable officer in Defendants Webber, Mayberry, or Francis’ shoes
would know that slammed a person against a drink cooler, pressing their neck against the
top edge of the cooler, and then raising their arms up behind their back and holding them
in that position until their rotator cuff was injured, when that person was not threatening
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any officer or other person, was only suspected of committing the misdemeanor crime of
failing to identify, was not attempting to flee, was not actively resisting arrest is clearly
unreasonable and excessive.
129. As a direct result of the force used against him by Defendants Webber,
Mayberry, and Francis, Mr. Miller has suffered physical injury, pain and mental anguish
for which he sues herein.
130. These injuries were not caused by any other means.
Count Three
False Imprisonment
Texas State Law Cause of Action
above paragraph, incorporates those allegations in this Count, and further alleges as
follows:
132. The elements of false imprisonment under Texas state law are: (1) willful
detention by the Defendant; (2) without consent; and (3) without authority of law.
133. Defendants Webber, Mayberry, and Francis willfully detained Mr. Miller by
imprisoning him when they restrained him in handcuffs and placed him in a patrol car.
134. Mr. Miller did not consent to being imprisoned, being restrained in
handcuffs, or being placed in the patrol car.
135. Defendants Webber, Mayberry, and Francis did not have authority of law to
imprison Mr. Miller as they did not have a warrant or probable cause to arrest him, and
no other exigent circumstances existed justifying his arrest.
136. Defendants Webber, Mayberry, and Francis did not have probable cause to
support arresting Mr. Miller as they did not see Mr. Miller commit a crime, and he was
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not under arrest at the time he refused to identify himself; thus, the “failure to identify”
offense under § 38.02 was not triggered since it applies only when an officer “has lawfully
arrested the person and requested the information.” TEX. PENAL CODE § 38.02(a);
Davidson, 848 F.3d at 392.
137. Additionally, Defendants Mayberry and Francis admitted to Sgt. Brian Holt
that they did not have probable cause to arrest Mr. Miller for any other crime.
138. There was no justification for Defendants Webber, Mayberry, or Francis’
actions.
139. These actions constitute the tort of false imprisonment under the laws of
the state of Texas.
Count Four
Assault
above paragraph, incorporates those allegations in this Count, and further alleges as
follows:
Slamming and Pressing Mr. Miller Against the Cooler
141. Defendants Webber, Mayberry, and Francis, as described above, slammed
and pressed Mr. Miller into a cooler, and in doing so, intentionally, knowingly, or
recklessly caused bodily injury to Mr. Miller.
and pressed Mr. Miller into a cooler, and in doing so, intentionally or knowingly
threatened Mr. Miller with imminent bodily injury.
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and pressed Mr. Miller into a cooler, and in doing so, intentionally or knowingly caused
physical contact with Mr. Miller when Defendants Webber, Mayberry, and Francis knew
or should reasonably have believed that Mr. Miller would regard the contact as offensive
or provocative.
Choking Mr. Miller
144. Defendants Webber and Francis, as described above, pressed Mr. Miller’s
head and neck against the top edge of the cooler choking him, and in doing so,
intentionally, knowingly, or recklessly caused bodily injury to Mr. Miller.
intentionally or knowingly threatened Mr. Miller with imminent bodily injury.
intentionally or knowingly caused physical contact with Mr. Miller when Defendants
Webber and Francis knew or should reasonably have believed that Mr. Miller would
regard the contact as offensive or provocative.
Raising Mr. Miller’s Arms to Injure His Shoulder
147. Defendants Webber, Mayberry, and Francis, as described above, injured
Mr. Miller’s rotator cuff by raising Mr. Miller’s arms up behind his back and holding him
in that position, and in doing so, intentionally, knowingly, or recklessly caused bodily
injury to Mr. Miller.
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in that position, and in doing so, intentionally or knowingly threatened Mr. Miller with
imminent bodily injury.
in that position, and in doing so, intentionally or knowingly caused physical contact with
Mr. Miller when Defendants Webber, Mayberry, and Francis knew or should reasonably
have believed that Mr. Miller would regard the contact as offensive or provocative.
150. There was no justification for Defendants Webber, Mayberry, or Francis’
actions.
151. These actions constitute the tort of assault under the laws of the state of
Texas.
Count Five
Bystander Recovery
152. Mr. Miller, on behalf of D.M., repeats and re-alleges each and every
allegation contained in the above paragraphs, incorporates those allegations in this
Count, and further alleges as follows:
153. To recover as a bystander, a plaintiff is required to establish that: (1) the
plaintiff was located near the scene of the accident, as contrasted with one who was a
distance away from it; (2) the plaintiff suffered shock as a result of a direct emotional
impact upon the plaintiff from a sensory and contemporaneous observance of the
accident, as contrasted with learning of the accident from others after its occurrence; and
(3) the plaintiff and the victim were closely related, as contrasted with an absence of any
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relationship or the presence of only a distant relationship. United Servs. Auto. Ass'n v.
Keith, 970 S.W.2d 540, 541–42 (Tex. 1998).
154. D.M. was located at the scene where the Defendants falsely imprisoned and
assaulted his father, as D.M. was only feet away in the shopping cart and watched the
entire incident transpire before his three-year-old eyes.
155. D.M. suffered a direct emotional impact from his sensory and
contemporaneous observance, as he watched the Defendants assault and falsely imprison
his father from only feet away and he started to cry immediately upon witnessing the
Defendants’ actions as they occurred.
156. D.M. continues to suffer severe mental anguish as he is now scared to go
shopping due to his fear, which was caused by this incident, that the police will take his
father away and hurt him.
157. D.M. is closely related to the victim of the false arrest and assaults, Mr.
Miller, as D.M. is Mr. Miller’s son.
V.
PUNITIVE DAMAGES
158. Mr. Miller, individually and on behalf of D.M., repeats and re-alleges each
and every allegation contained in the above paragraphs as if fully repeated herein.
159. When viewed objectively from the standpoint of Defendants Webber,
Mayberry, and Francis, at the time of the occurrence, said Defendants’ conduct involved
an extreme degree of risk, considering the probability and magnitude of the potential
harm to others.
160. As a direct, proximate, and producing cause and the intentional, egregious,
malicious conduct by Defendants Webber, Mayberry, and Francis, which was recklessly
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or callously indifferent to Mr. Miller’s and D.M.’s protected rights, Mr. Miller, individually
and on behalf of D.M., is entitled to recover punitive damages in an amount within the
jurisdictional limits of this Court.
VI.
Damages
161. Mr. Miller, individually and on behalf of D.M., repeats and re-alleges each
and every allegation contained in the above paragraphs as if fully repeated herein.
162. Victims of unreasonable searches and seizures may recover damages
directly related to the invasion of their privacy. Townes v. City of New York, 176 F.3d 138,
148 (2d Cir. 1999).
163. Mr. Miller’s injuries were a foreseeable event. Those injuries were directly
and proximately caused by the illegal arrest and false imprisonment of Mr. Miller and the
assault and excessive force used against Mr. Miller, which occurred in the presence of
D.M.
164. D.M.’s injuries were a foreseeable event as they were directly and
proximately caused by the direct emotional impact from his sensory and
contemporaneous observance of the Defendants assaulting and falsely imprisoning his
father only feet away from him and the obvious sensitivity he would have to such a violent
situation given his age and relationship to Mr. Miller.
165. As a result, Mr. Miller and D.M. are entitled to recover all actual damages
allowed by law. Mr. Miller, individually and on behalf of D.M., contends each of the
Defendants’ conduct constitutes malice, evil intent, or reckless or callous indifference to
Mr. Miller’s and D.M.’s legally protected rights. Thus, Mr. Miller, individually and on
Page 22 of 24
behalf of D.M., is entitled to punitive damages against Defendants Webber, Mayberry,
and Francis.
166. As a direct and proximate result of the occurrence which made the basis of
this lawsuit, Mr. Miller was forced to suffer:
a. Emotional distress, torment, and mental anguish in the past and future;
b. Physical injuries;
c. Physical pain and suffering; and
d. Deprivations of his liberty.
167. As a direct and proximate result of the occurrence which made the basis of
this lawsuit, D.M. was forced to suffer:
a. Emotional distress, torment, and mental anguish in the past and future;
168. Pursuant to 42 U.S.C. § 1983 and § 1988, and Texas Civil Practice &
Remedies Code section 41.003(a), Plaintiff seeks to recover, and hereby requests the
award of exemplary and punitive damages, reasonable attorney’s fees, and costs of court.
VII.
ATTORNEY’S FEES
169. If Mr. Miller prevails in this action on his claims pursuant to 42 U.S.C.
§ 1983, by settlement or otherwise, Mr. Miller is entitled to and hereby demands
attorney’s fees under 42 U.S.C. § 1988.
VIII.
JURY REQUEST
170. Mr. Miller, individually and on behalf of D.M., respectfully requests a jury
trial.
Page 23 of 24
PRAYER
WHEREFORE, PREMISES CONSIDERED, Mr. Miller, individually and on behalf
of D.M., prays that judgment be rendered against Defendants, for an amount in excess of
the jurisdictional minimum of this Court. Mr. Miller, individually and on behalf of D.M.,
further prays for all other relief, both legal and equitable, to which he may show himself
justly entitled.
Respectfully submitted,
/s/ Scott H. Palmer

SCOTT H. PALMER
Texas Bar No. 00797196
JAMES P. ROBERTS
Texas Bar No. 24105721
Colorado Bar No. 46582
SCOTT H. PALMER, P.C.

15455 Dallas Parkway,
Suite 540, LB 32
Dallas, Texas 75001
Tel: (214) 987-4100
Fax: (214) 922-9900
scott@scottpalmerlaw.com
james@scottpalmerlaw.com
ATTORNEYS FOR PLAINTIFF
Page 24 of 24
JS 44 (Rev. 0) CIVIL COVER
Case 6:20-cv-00131-H Document SHEET
1-1 Filed 12/11/20 Page 1 of 1 PageID 25
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

Michael Webber, Trey Mayberry, Raymond Francis
Jack Miller Individually and o/b/o his minor
son D.M. Tom Green County, Texas Tom Green County, Texas
County of Residence of First Listed Defendant
(b) County of Residence(EXCEPT IN U.S. PLAINTIFF CASES)
of First Listed Plaintiff
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Scott H. Palmer, James Roberts- Scott H. Palmer , P.C., 15455 Dallas

Parkway Suite 540, Addison, Texas 75001
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State
u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated and Principal Place u 5 u 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a u 3 u 3 Foreign Nation u 6 u 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
u 110 Insurance PERSONAL INJURY PERSONAL INJURY u 625 Drug Related Seizure u 422 Appeal 28 USC 158 u 375 False Claims Act
u 120 Marine u 310 Airplane u 365 Personal Injury - of Property 21 USC 881 u 423 Withdrawal u 376 Qui Tam (31 USC
u 130 Miller Act u 315 Airplane Product Product Liability u 690 Other 28 USC 157 3729(a))
u 140 Negotiable Instrument Liability u 367 Health Care/ u 400 State Reapportionment
u 150 Recovery of Overpayment u 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS u 410 Antitrust
& Enforcement of Judgment Slander Personal Injury u 820 Copyrights u 430 Banks and Banking
u 151 Medicare Act u 330 Federal Employers’ Product Liability u 830 Patent u 450 Commerce
u 152 Recovery of Defaulted Liability u 368 Asbestos Personal u 835 Patent - Abbreviated u 460 Deportation
Student Loans u 340 Marine Injury Product New Drug Application u 470 Racketeer Influenced and
(Excludes Veterans) u 345 Marine Product Liability u 840 Trademark Corrupt Organizations
u 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY u 480 Consumer Credit
of Veteran’s Benefits u 350 Motor Vehicle u 370 Other Fraud u 710 Fair Labor Standards u 861 HIA (1395ff) u 485 Telephone Consumer
u 160 Stockholders’ Suits u 355 Motor Vehicle u 371 Truth in Lending Act u 862 Black Lung (923) Protection Act
u 190 Other Contract Product Liability u 380 Other Personal u 720 Labor/Management u 863 DIWC/DIWW (405(g)) u 490 Cable/Sat TV
u 195 Contract Product Liability u 360 Other Personal Property Damage Relations u 864 SSID Title XVI u 850 Securities/Commodities/
u 196 Franchise Injury u 385 Property Damage u 740 Railway Labor Act u 865 RSI (405(g)) Exchange
u 362 Personal Injury - Product Liability u 751 Family and Medical u 890 Other Statutory Actions
Medical Malpractice Leave Act u 891 Agricultural Acts
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS u 790 Other Labor Litigation FEDERAL TAX SUITS u 893 Environmental Matters
u 210 Land Condemnation u 440 Other Civil Rights Habeas Corpus: u 791 Employee Retirement u 870 Taxes (U.S. Plaintiff u 895 Freedom of Information
u 220 Foreclosure u 441 Voting u 463 Alien Detainee Income Security Act or Defendant) Act
u 230 Rent Lease & Ejectment u 442 Employment u 510 Motions to Vacate u 871 IRS—Third Party u 896 Arbitration
u 240 Torts to Land u 443 Housing/ Sentence 26 USC 7609 u 899 Administrative Procedure
u 245 Tort Product Liability Accommodations u 530 General Act/Review or Appeal of
u 290 All Other Real Property u 445 Amer. w/Disabilities - u 535 Death Penalty IMMIGRATION Agency Decision
Employment Other: u 462 Naturalization Application u 950 Constitutionality of
u 446 Amer. w/Disabilities - u 540 Mandamus & Other u 465 Other Immigration State Statutes
Other u 550 Civil Rights Actions
u 448 Education u 555 Prison Condition
u 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
u 1 Original u 2 Removed from u 3 Remanded from u 4 Reinstated or u 5 Transferred from u 6 Multidistrict u 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42. U.S.C. Sec. 1983
VI. CAUSE OF ACTION Brief description of cause:
Violation of rights and privileges secured by the Fourteenth Amendment of the United States Constitution
VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: u Yes u No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
12/11/2020 /s/ Scott H. Palmer, P.C.
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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Case 6:20-cv-00131-H Document 1 Filed 12/11/20 Page 1 of 24 PageID 1

IN THE UNITED STATES DISTRICT COURT

JACK MILLER, individually, and §

PLAINTIFF’S ORIGINAL COMPLAINT

TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

action will respectfully show unto the Court as follows:

On October 4, 2020, Officers Michael Webber, Trey Mayberry, and Raymond

watched assault his father.

Constitution to be free from unreasonable seizures, falsely imprisoning him, and

be taken away by the police.

1. Plaintiff Jack Miller is a resident of Tom Green County, Texas.

2. Defendant Michael Webber, is an individual residing in San Angelo, Tom

Defendant Webber is being sued in his individual capacity.

3. Defendant Trey Mayberry, is an individual residing in San Angelo, Tom

Defendant Mayberry is being sued in his individual capacity.

4. Defendant Raymond Francis, is an individual residing in San Angelo, Tom

Defendant Francis is being sued in his individual capacity.

6. Venue is proper in the Northern District of Texas pursuant to 28 U.S.C.

causes of action accrued in the Northern District of Texas.

7. On October 4, 2020, Defendant Officers Michael Webber, Trey Mayberry,

was shopping at Walmart with his three-year-old son, D.M.

Francis was recorded on Defendant Mayberry’s body worn camera.1

Mayberry and Francis first approached him.

with Mr. Miller’s groceries.

Defendant Francis asked Mr. Miller for his name.

17. Mr. Miller responded, “Jack,” which is his first name.

Francis could verify Mr. Miller’s identity.

Defendant Officers his ID.

what this is – this is not you get to tell us what is what.”

and you are making that difficult.”

which is exactly what the law states.

who you are.”

Mr. Miller stating, “listen to me!”

[Child Protective Services] to come pick up your kid.”

committed any crime and was not under arrest.

33. Defendant Webber again interrupted Mr. Miller.

34. Mr. Miller asked if he was allowed to talk.

right now and that’s to identify yourself.”

committed any crimes.

when you have been lawfully arrested.”

feet of Mr. Miller’s three-year-old son, D.M.

44. Mr. Miller stated, “My kid is right there.”

behind his back.

52. D.M. watched this happen.

53. Mr. Miller calmly asked, “what are you doing?”

56. Mr. Miller continued trying to calm down his son.

58. Mr. Miller responded, “dumbass? Are you kidding me?”

and non-resistant Mr. Miller into a large drink cooler.

him directly in front of his three-year-old son.

back and forcing him against the drink cooler.

edge of the cooler.

top edge of the cooler.

three-year-old child was there with him.

68. Mr. Miller stated he would give them his ID.

70. Mr. Miller stated he was just now under arrest.

behind his back in handcuffs.

behind his back in handcuffs.

his back in handcuffs.

causing his shoulders pain and injuring his rotator cuff.

son present and watching.

compliant, and restrained.

the painful position.

the Walmart and to a police car outside.