Complaint. ECF (00022320) | Child Abuse | Seat Belt

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

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MICHAEL and LISA CAREY, as Administrators of the Estate of their son JONATHAN CAREY, and on their own behalf, Plaintiffs, -againstDAVID M. SLINGERLAND, Director of the Oswald D. Heck Developmental Center ("OD Heck"); KATHERINE BISHOP, Deputy Director ofOD Heck; KAREN SLEIGHT, Former Deputy Director of OD Heck; CATHY LABARGE, Director of Autism at OD Heck; ANN MARIE PETERSEN, Program Director at OD Heck; JENNIFER HOERUP, Personnel Director at OD Heck; ELOISE POTENZA, Psychologist at OD Heck; DAVE IACAVITTI, Developmental Aide I; PETRA HAMILTON, Developmental Aide II; TIM MURPHY, Treatment Team Leader at OD Heck; EDWIN TIRADO, Developmental Aide at OD Heck; NADEEM MALL, Developmental Aide Trainee at OD Heck; JOHN and JANE DOES, 1-20, Defendants. COMPLAINT

09. Civ.

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Plaintiffs Michael and Lisa Carey, as Administrators of the Estate of their son Jonathan Carey, and on their own behalf, as and for their Complaint allege as follows: NATURE OF THE CASE 1. This case is about the brutal murder of a disabled thirteen-year-old boy at the

hands of employees of New York State. 2. Jonathan Carey ("Jonathan") was born on September 12, 1993. He was an

autistic and mentally retarded boy. When Jonathan was twelve, his parents enrolled him in the

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aD Heck Developmental Center, a full-time New York State residential treatment center for the disabled. aD Heck was near the Careys' home, and was supposed to provide a safe, healthy, nurturing environment for disabled children. 3. Instead, on February 15,2007, an employee and former janitor at aD Heck,

Edwin Tirado, brutally killed Jonathan by slowly and deliberately asphyxiating him in an aD Heck van, on an aD Heck outing, in the presence of another aD Heck employee, Nadeem Mall. 4. Edwin Tirado never should have been employed by aD Heck on February 15,

2007. On no fewer than three prior occasions, Tirado had physically assaulted Jonathan, causing such serious injury that Jonathan had to go to the hospital on multiple occasions. aD Heck did nothing to redress or prevent this repeated physical abuse: no training, no discipline, no termination, no reporting to proper authorities. Instead, supervisors at aD Heck covered up Tirado's brutal attacks, which occurred as late as three days before Tirado killed Jonathan. 5. Defendants' repeated failure to take any action against Tirado was just part ofa

broad institutional failure at aD Heck that enabled and proximately caused Jonathan's death. For example, aD Heck had a reckless carte blanche overtime policy, permitting Developmental Aides to supervise vulnerable, disabled children while substantially impaired and severely underslept. With aD Heck's blessing, in the two weeks prior to the killing, Tirado worked 15 days in a row (including both Saturdays and both Sundays), and 10 double shifts (up to 20 hours at a time), for a total of 197.5 hours. aD Heck authorized this extraordinary and dangerous amount of overtime notwithstanding its own report documenting Tirado's inability to interact properly with children when he works overtime. 6. aD Heck gave no training to Tirado, or anyone, on how to safely restrain children

during transport. aD Heck also failed to provide the necessary seat belt buckle guards that

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would have prevented staff from needing to physically intervene during transport. OD Heck even hired Nadeem Mall to take care of Jonathan and other disabled children, notwithstanding that Mall had been fired for poor job performance by the Center for the Disabled, and was a mere trainee with virtually no experience ·or on-the-job training. 7. The Careys trusted OD Heck to take care of their son. OD Heck had control and

responsibility for Jonathan. Had OD Heck taken even the most minimal steps to screen, train, discipline, supervise, terminate, report, or properly staff its employees, this tragedy would never have occurred. But defendants did not screen, did not train, did not discipline, and did not fire Tirado. Instead they enabled Tirado by repeatedly covering up his abuse of Jonathan.· As a result, Michael and Lisa Carey have suffered the greatest loss any parent can suffer: the loss of their child. 8. Tirado and Mall have been criminally convicted as a result of this crime. But this

was not merely the act of two people. It was the failure of an institution. It is now time that supervisors at OD Heck also be called to account for this unspeakable and unnecessary tragedy. JURISDICTION AND VENUE ' 9. This action arises under the Fourth and Fourteenth Amendments to the United

States Constitution and the Civil Rights Act of 1871,42 U.S.C. § 1983 and state common law. 10. The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331, 1343(a),

1367(a), and 2201. 11. Venue lies in this Court pursuant to 28 U.S.C. § 1391(b). THE PARTIES 12. Jonathan Carey was born on September 12, 1993. When he was killed, he was a

thirteen-year old autistic, mentally retarded child, about 5 feet tall, weighing only 103 pounds.

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Despite his disabilities, Jonathan was a sociable, affectionate boy who loved visiting horse farms and watching movies about horses, playing with toy cars, and spending time with his family. Jonathan was brutally killed while in the custody and care of the OD Heck Developmental Center, a full-time New York State residential treatment center. All the events giving rise to the complaint, including the killing of Jonathan, occurred in or near Schenectady, New York. At the time of his death, Jonathan was a citizen of the United States and resided in Schenectady, New York. 13. Michael Carey is Jonathan's father. Mr. Carey is a citizen of the United States

and resides in Glenmont, New York. 14. Lisa Carey is Jonathan's mother. Mrs. Carey is a citizen of the United States and

resides in Glenmont, New York. 15. Michael and Lisa Carey are married and were named the Administrators of

Jonathan's estate on April 2, 2007. 16. Defendant Petra Hamilton was a Developmental Aide II at OD Heck, and a direct

supervisor of defendant Tirado, and she held those positions at all times relevant to this complaint. Both Developmental Aides I and Developmental Aides II are direct supervisors of Developmental Aides at OD Heck. 17. Defendant Dave Iacavitti was a Developmental Aide I at OD Heck, and a direct

supervisor of defendant Tirado, and he held those positions at all times relevant to this complaint. 18. Defendant Tim Murphy was a Treatment Team Leader, a direct supervisor of

Developmental Aides I & II including Hamilton and Iacavitti, and supervisor of defendants Tirado and Mall. Murphy was responsible to ensure that appropriate treatment plans were

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adopted and followed for Jonathan and other children at OD Heck. Murphy also had responsibility for the evaluations of staff including Tirado and Mall, for investigations of staff such as Tirado and Mall arising out of potential neglect or abuse of OD Heck consumers, and for the discipline of staff such as Tirado and Mall. Murphy was responsible for Jonathan's well being as well as the care and custody of other children housed at OD Heck, and he held the above-mentioned positions at all times relevant to this complaint. 19. At all times relevant hereto, defendant Ann Marie Petersen was the Program

Director at OD Heck, a direct supervisor of Tim Murphy, and a supervisor of Tirado and Mall. Petersen was responsible for the promulgation and implementation of appropriate and safe treatment plans for OD Heck children (including Jonathan), for investigations of staff misconduct (including misconduct of Tirado and Mall), and for informing parents of children at OD Heck about their children's safety and welfare, including any incidents of abuse or neglect at OD Heck. 20. Defendant Cathy LaBarge is the Director of Autism at OD Heck, and was the

leader of Jonathan's treatment team at OD Heck, and a supervisor of defendant Tirado, and she held those positions at all times relevant to this complaint. 21. Defendant Eloise Potenza, Psy.D. is a licensed psychologist and certified school

psychologist at OD Heck, wrote Jonathan's behavior plan, and was responsible for training staff concerning Jonathan's behavior plan, and she held those positions at all times relevant to this complaint. 22. At all times relevant hereto, defendant Jennifer Hoerup was the Personnel

Director at OD Heck, and was responsible for the administration of overtime to OD Heck

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employees (including Tirado and Mall), as well as the hiring and screening (or lack of screening) of OD Heck employees. 23. From about 2006 to about 2008, defendant Katherine Bishop was the Deputy

Director of OD Heck, acting under color of state law. Bishop, as Deputy Director, was responsible for the policy, practice, supervision, implementation, and conduct of all OD Heck matters and was responsible for the hiring, training, supervision, discipline, retention, reporting, staffing, and conduct of all OD Heck personnel, including the defendants referenced herein. As Deputy Director, Bishop was responsible for the care and custody of all children housed at OD Heck. On information and belief, Bishop was provided with regular reports of suspected and substantiated staff abuse of Jonathan and others at OD Heck. At all relevant times, Bishop was responsible for enforcing the rules of OD Heck, and for ensuring that OD Heck personnel obey the laws of the United States and of the State of New York. 24. In or about 2005, defendant Karen Sleight was the Deputy Director ofOD Heck,

acting under color of state law. Sleight, as Deputy Director, was responsible for the policy, practice, supervision, implementation, and conduct of all OD Heck matters and was responsible for the hiring, training, supervision, discipline, retention, reporting, staffing, and conduct of all OD Heck personnel, including the defendants referenced herein. As Deputy Director, Sleight was responsible for the care and custody of all children housed at OD Heck. On information and belief, Sleight was provided with regular reports of suspected and substantiated staff abuse of Jonathan and others at OD Heck. At all relevant times, Sleight was responsible for enforcing the rules of OD Heck, and for ensuring that OD Heck personnel obey the laws of the United States and of the State of New York.

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At all times relevant hereto, defendant David M. Slingerland was the Director of

OD Heck, acting under color of state law. Slingerland, as Director, was responsible for the policy, practice, supervision, implementation, and conduct of all OD Heck matters and was responsible for the hiring, training, supervision, discipline, retention, reporting, staffing, and conduct of all OD Heck personnel, including the defendants referenced herein. As Director, Slingerland was responsible for the care and custody of all children housed at OD Heck. On information and belief, Slingerland was provided with regular reports of suspected and substantiated staff abuse of Jonathan and others at OD Heck. At all relevant times, Slingerland was responsible for enforcing the rules of OD Heck, and for ensuring that OD Heck personnel obey the laws of the United States and of the State of New York. 26. Slingerland, Bishop, Sleight, LaBarge, Potenza, Murphy, Hoerup, Hamilton,

Iacavitti, and Petersen are referred to collectively as the "Supervisor Defendants." 27. Defendant Edwin Tirado was a janitor at OD Heck from 1991 to 2002. Starting in

2002, for about one year, he worked as a Developmental Aide Trainee at OD Heck. In or about 2003 until his termination following Jonathan's death, Tirado was a Developmental Aide at OD Heck. In this position, Tirado was responsible for providing care, treatment, and rehabilitation to individuals, including Jonathan, diagnosed with mental retardation and/or developmental disabilities. On October 10, 2007, after a full jury trial, and after testifying in his own defense, Tirado was convicted at trial of manslaughter in the second degree for killing Jonathan. 28. Defendant Nadeem Mall was a Developmental Aide Trainee at OD Heck from

November 2006 until his termination after Jonathan's death on March 2,2007. In that training position, Mall was nevertheless responsible for providing care, treatment, and rehabilitation to individuals, including Jonathan, diagnosed with mental retardation and/or developmental

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disabilities. On numerous occasions, trainee Mall was placed by the Supervisor Defendants in sole charge of Jonathan's safety and welfare. On July 30, 2007, Mall pled guilty to criminally negligent homicide for his role in Jonathan's death. 29. At all relevant times hereto, defendants John and Jane Does # 1-20 (the "Doe

Defendants"), whose actual names plaintiffs have been unable to ascertain notwithstanding reasonable efforts to do so, but who are sued herein by the fictitious designation "John Doe" and "Jane Doe," were agents, servants, and employees of OD Heck, and within the scope of their employment as such. On information and belief, the Doe defendants worked at OD Heck during the time when Jonathan resided there and participated or witnessed and failed to intervene in the neglect and abuse of Jonathan that took place in the months leading up to his death, and/or had supervisory responsibility over Tirado and/or Mall, and failed to screen, train, discipline, supervise, terminate, report, and/or properly staff employees at OD Heck, proximately causing Jonathan's death. 30. At all times relevant hereto, and in all relevant respects, defendants acted under

color of state law and within the scope of their employment at OD Heck. 31. Each and every defendant is sued in his or her individual capacity.

JURy DEMAND
32. Plaintiffs demand trial by jury in this action.
FACTS Jonathan's Childhood

33. 34.

Jonathan was born on September 12, 1993. From a young age, he had deficits and delays with cognition, motor skills, and

expressive language. At the age of two, he was diagnosed as mentally retarded. At the age of

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six, he was diagnosed as autistic. Over time, his diagnoses included Pervasive Developmental Disorder, Attention Deficit Hyperactivity Disorder, Post Traumatic Stress Disorder, Mental Retardation, and Allergic Rhinitis. 35. Despite his disabilities, Jonathan was a sociable child who enjoyed the affection

and company of others. He loved his parents, and his favorite word (indeed, one of his only words) was "daddy." 36. For nearly a decade, Mr. and Mrs. Carey cared for Jonathan in their home. But by

January 2003, the Careys realized that Jonathan needed more care than they could provide. That month, sent Jonathan to the Anderson School, a residential care facility for children with

disabilities. In October 2004, Mr. and Mrs. Carey learned that Jonathan was being abused and neglected at the Anderson School. 37. After they brought their son home from Anderson in October 2004, the Careys

resolved to do whatever they could to protect him in the future. As a result, they decided once again to care for Jonathan at home. But Jonathan's severe disabilities ultimately made that impossible. Mr. and Mrs. Carey realized that, despite their best efforts, they alone could not provide Jonathan with the daily care and treatment that he needed. 38. Once again, the Careys struggled to determine the best treatment options for

Jonathan. The single most important criterion for the Careys was that he be cared for, loved, and kept safe. After consultation with an employee at the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), Mr. and Mrs. Carey decided that the Transitional Center for Adolescents at OD Heck, operated by the Capital District Developmental Disabilities Services Office ("DDSO") within OMRDD, was the best residential treatment center available for their son. This Center, also known as the Adolescent Unit in OD Heck, served

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approximately eight disabled children. Mr. and Mrs. Carey were also attracted to OD Heck because it was close to home, which would allow them to visit Jonathan on a regular basis.

Jonathan Is Enrolled at OD Heck
39. 40. 41. On October 7, 2005, Mr. and Mrs. Carey enrolled Jonathan at OD Heck. At OD Heck, Jonathan was supposed to be under intense supervision. When less than four children were present, when he was in school, or when he

was in transport, Jonathan was supposed to be under one-to-one supervision, meaning that one staff member would be assigned to care for him. 42. If more than four children were present or if Jonathan was outside on a

community outing, staff were expected to be in "close proximity" to him at all times. 43. When Jonathan was sleeping, a staff member was expected to check on him every

hour or every half hour. 44. Because of his extreme disabilities, Jonathan was the only child in the Adolescent

Unit who consistently required one-to-one supervision. 45. The clinical services Jonathan received at OD Heck included speech therapy,

occupational therapy, physical therapy, social work, psychology, psychiatry, and nursing.

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OD Heck Staff Repeatedly Physically Abuse Jonathan

46.

OD Heck, however, was anything but caring, loving, and safe. Over a period of

time, Jonathan was repeatedly physically attacked by OD Heck staff, assaults that were systematically covered up at ODHeck. Tirado Physically Abuses Jonathan on October 29, 2005 47. On October 29,2005, while in the care and custody ofOD Heck, Jonathan

received a swollen nose, which appeared bluish and red in color, and a bruised cheek. 48. When Mr. and Mrs. Carey came to visit him that day, they immediately became

concerned about his condition and worried that he had sustained a nasal fracture. 49. They took Jonathan to the hospital for an evaluation of the swelling and learned

that Jonathan had suffered a nasal contusion. 50. swollen. 51. Although Jonathan was supposed to be under one-to-one supervision, no staff Mr. and Mrs. Carey asked OD Heck staff how Jonathan's nose had become so

could explain why Jonathan's nose had become swollen. 52. Tirado was tasked with supervising Jonathan the previous night and spent time

with a staff member who supervised Jonathan that day. 53. Tirado wrote in a statement that he had only seen Jonathan's nose running earlier

in the day and that he had not seen Jonathan's swollen nose. 54. 55. Defendant LaBarge conducted an "investigation" into the incident. That investigation falsely concluded that Jonathan's swollen nose was somehow

caused by either (1) a breathing mask used to administer general anesthesia on Jonathan on

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October 28, 2005 during a dental cleaning and restoration; or (2) a self-inflicted injury that no staff member witnessed. 56. On information and belief, though, it was Tirado who assaulted Jonathan and

caused his injuries. 57. As a result of OD Heck's institutionalized cover-up and willful disregard for the

brutal physical abuse Jonathan suffered at OD Heck, no staff member, including Tirado, was disciplined as a result of this incident. Tirado Physically Abuses Jonathan Again On December 3, 2005 58. On December 3, 2005, while in the care and custody of OD Heck, Jonathan

suffered a black eye and bruised nose. His right eye and nose were swollen and blue. 59. InJunes. 60. 61.
In fact Tirado assaulted Jonathan and caused these injuries himself.

Tirado again was supervising Jonathan alone at the time Jonathan sustained these

Tirado, however, claimed that he "discovered" these injuries when he was

changing Jonathan's diaper. (Later, after he had brutally killed Jonathan in the van on February 15,2007, Tirado claimed that he "discovered" that Jonathan had stopped breathing only after they had returned to OD Heck.) 62. 63. As a result of his injuries, Jonathan was taken to the hospital. OD Heck staff, including Tirado, claimed that Jonathan had somehow poked

himself until he turned black and blue. 64. 65. But Jonathan had never caused himself such injury by poking himself before. The report of a staff member, Valerie Sayers, concluded, "there is sufficient

evidence to indicate that Jonathan is not causing injUry to himself while asleep."

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Staffwere tasked with monitoring Jonathan closely and were responsible for

preventing Jonathan from poking himself. 67. The emergency room physicians examining Jonathan shortly after his injuries

noted, it was "not clear as to how injury to face occurred." 68. Mr. and Mrs. Carey reported their suspicions of physical abuse by OD Heck staff

to the physicians examining Jonathan, who in tum reported the complaint to OD Heck supervIsors. 69. incident. 70. No supervisors or staff at OD Heck conducted a formal or thorough investigation The supervisors and staff failed to complete an incident reporting form for this

into this incident. 71. As a result of OD Heck's institutionalized cover-up and willful disregard for the

brutal physical abuse Jonathan suffered at OD Heck, no staff member, including defendant Tirado, was disciplined as a result of this incident. Staff, Including Tirado, Abuse Jonathan Yet Again On October 28, 2006 72. On October 28, 2006, while in the care and custody of OD Heck, Jonathan was

again physically abused, and again suffered multiple injuries. The backs and insides of his ears were red, purple and swollen with hematomas; his left shoulder was bruised; his mouth and lips were swollen and cut; his temples and cheek were bruised; his outer eyelids appeared slightly blue; and his chest was scratched. 73. 74. As a result of this abuse, Jonathan was taken to the hospital. The staff members supervising Jonathan, including Tirado, claimed that Jonathan

sustained these injuries because (1) Jonathan attempted to get out of a safety harness while in

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transport during an evening outing to Crossgates Mall; and (2) Jonathan fell from a rocking chair and hit his head. 75. These claims were false, and part of a cover up of physical abuse of Jonathan by .

OD Heck employees. 76.

An investigation conducted by Rebecca Brooks, R.N., concluded that Jonathan's

"injuries [are] not consistent wEith] staff members explanation of how they occurred, suggesting either staff[name redacted] failed to supervise child or caused the injuries directly." (Emphasis added.) 77. Ms. Brooks' investigation revealed that Jonathan's safety harness, required during

transport, was "not on properly." 78. The staff member assigned to Jonathan during the transport had not been trained

on when and how to use Jonathan's harness when in the vehicle, as no in-service training on the harness use and implementation had been done with staff members. 79. A physicia..l1 rejected the claim that Jonathan had sustained ear and shoulder

injuries after falling from a rocking chair.

80.

On October 31,2006, Dr. Harry Lindman, D.O., reviewed Jonathan's medical

chart from his visit to the emergency room and examined Jonathan.

81.

Dr. Lindman concluded: "It is my medical opinion that it is possible, with enough

force blunt trauma, to sustain bruising on both sides of the ear[;] however, it is not medically possible to bruise both ears and scrape your clavicle from a fall onto a table."

82.

On November 1,2006, Jonathan was named in a report of "suspected child abuse

or maltreatment" received by the New York State Child Abuse and Maltreatment Register.

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An internal investigation by DDSO revealed that OD Heck staff members

breached their duties to care for Jonathan, failed to transport him properly, and drove him with a suspended license. 84. Specifically, the DDSO investigation conCluded: "There is credible evidence that

the subj ect, [name redacted] breached [redacted] duties by failing to provide [redacted] supervision of Jonathan Carey [redacted] on 10/28/06. [Redacted] ... drove the vehicle and was not sitting next to Jonathan as is called for in his Behavior Intervention Plan. In addition, [redacted] further breached [redacted] duties by driving the DDSO vehicle while having a suspended license, which [redacted] was aware of, and after [redacted] had been informed by [redacted] supervisor that [redacted] was not allowed to drive a DDSO vehicle until [redacted] license had been reinstated." 85. The DDSO investigation also found that OD Heck staffhad "failed to 'fully and

comprehensively' document the injuries to Jonathan." 86. The DDSO investigation further found that "the allegation of neglect against

[redacted] was substantiated." 87. OD Heck supervisors involved in the DDSO investigation include. defendants

Bishop and LaBarge. 88. Nevertheless, no staff member, including defendant Tirado, was disciplined as a

result of this incident.

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Tirado Abuses Jonathan Yet Again On February 12,2007, Three Days before Killing Him
89. On February 12,2007, while in the care and custody of OD Heck, and again while

in the custody of defendant Edwin Tirado, Jonathan suffered a swollen lip. 90. Tirado claimed that while he changed Jonathan's diaper, Jonathan became non-

compliant and bit his lower lip. 91. Neither staffnor supervisors at OD Heck informed Mr. and Mrs. Carey of this

incident prior to Jonathan's death. 92. On information and belief, it was Tirado who again assaulted Jonathan, causing

the swollen lip. 93. Again, no staff member was disciplined as a result of this incident.

Tirado Abuses and/or Neglects Other Children
94. Unsurprisingly, Jonathan was not the only child who suffered abuse and/or

neglect at the hands of Tirado at OD Heck. OD Heck documents reveal a number of other instances when Tirado abused and/or neglected other children. 95. For example, on September 28,2003, while Tirado was supposed to be caring for

a child, she disappeared. Tirado failed to report the disappearance to his supervisor and instead lied to his supervisor about the child's whereabouts. Several days later, on October 2,2003, Tirado gave false testimony during an official investigation of the disappearance. 96. OD Heck supervisors initially recommended that Tirado be disciplined with a

suspension without pay for twelve weeks. However, the incident was settled by merely requiring Tirado to give up a number of accumulated sick days. He was not required to miss even a single day of work for losing a child, lying about it, and then providing false testimony.

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February 15,2007: Tirado And Mall Kill Jonathan
97. On February 15,2007, trainee Mall was assigned to work the 3 p.m. to 11 p.m.

shift. He was assigned one-to-one supervision of Jonathan. 98. From about 3:30 p.m. to about 5:00 p.m., Mall supervised Jonathan in his room,

where Jonathan first watched television, and then took at nap. 99. 100. At about 5:00 p.m., Mall woke Jonathan from his nap and brought him to dinner. After Jonathan ate, Mall asked other staff members whether they would be going

on a community outing that evening, because he was interested in joining such an outing. 101. 102. Tirado stated that he would go on an outing, and Mall agreed to join him. A community outing is intended to give a child at OD Heck the opportunity to

interact with individuals in the general community. 103. That, however, was not the purpose of this outing. Rather, trainee Mall wanted to

visit his own bank to dispute certain charges made against his account for a bounced check. 104. Tirado filled out a community outing form, claiming that he and Mall were taking

Jonathan and the child in Tirado's charge ("E.C.") to the Crossgates Mall. 105. The scheduled time of departure for the trip was 6:00 p.m., and the scheduled

time ofretum was 8:30 p.m. 106. 107.
An OD Heck supervisor approved that outing form.

The outing form requires those leading an outing to identify, in advance, where

each staff member and each child will sit in the transportation van. 108. According to the outing form, Tirado would drive the van, E.C. would sit in the

front passenger seat, and Mall would sit next to Jonathan in the first bench.

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When Tirado and Mall approached the van, however, Tirado told Mall that he was

too tired to drive. 110. Tirado was exhausted because, by this time, he had worked nearly 197.5 hours

during the previous, consecutive 14 days-including over a hundred of hours of overtime approved by his supervisors pursuant to OD Heck's carte blanche overtime policy (see infra). 111. Tirado asked Mall to drive the van, and Mall agreed because Tirado was the

senior staff person. 112. 113. 114. Tirado was seated in the front passenger seat of the van. E.C. was seated in the first bench. Jonathan was seated in the second bench (i.e., last seat), and Tirado buckled him

in, without a safety belt buckle guard or a safety harness. 115. 116. 117. Thus, Jonathan could easily unbuckle his safety belt while the van was driving. In fact, Tirado and Mall failed to bring either safety device on the outing. The supervisor who approved the outing likewise failed to ensure that Tirado and

Mall carried Jonathan's seat belt buckle guard or safety harness during the outing. 118. With Jonathan and E.C. in their custody, a severely underslept Tirado and trainee

Mall left OD Heck around 6:30 p.m. that evening. 119. 120. But Tirado and Mall did not go to the Crossgates Mall. Instead, they drove to the Hannaford supermarket on Wolf Road because Mall

wanted to visit the Citizens Bank branch within the store. 121. There, Mall parked, exited the van, entered the bank at 6:38 p.m., and argued with

a manager about charges the bank made against his account for a bounced check. Only after the

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bank manager waived the fees and after using an ATM machine did Mall leave the bank. Mall exited the bank at 7:02 p.m., and proceeded to the van. 122. 123. While Mall was in the bank, Tirado was left alone with the two boys. During this time, Jonathan opened his seat belt because he was not restrained by a

harness or safety belt buckle guard. 124. Tirado responded by screaming at Jonathan, moving to the second bench, pushing

Jonathan down on the seat face down, sitting against and on top of Jonathan's chest and/or head, placing his hand over Jonathan's mouth, and tightly holding him. 125. E.C. begged Tirado (in sum or substance) to "get off of Jonathan," but Tirado

continued to asphyxiate and crush Jonathan. 126. By the time Mall returned to the van, E.C. had moved to the front passenger seat,

and in the second bench, Tirado continued to asphyxiate Jonathan, who was struggling for his life. 127. declined. 128. Mall asked Tirado ifhe wanted to continue to the mall, but Tirado suggested Mall asked Tirado if Tirado needed help in restraining Jonathan, but Tirado

heading back to OD Heck. 129. 130. 131. Mall proceeded to drive the van to OD Heck. As Mall continued driving, Tirado continued to asphyxiate Jonathan. While he was slowly being crushed, Jonathan was crying, and his feet were

flailing in the air as he was trying desperately to save his own life. 132. During this time, E.C. repeated to Tirado, "Get off of him."

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But Tirado continued to push his weight against Jonathan, saying, "1 am super DA

[Developmental Aide]. 1 can be a good king or a bad king." 134. Over the next many minutes, Jonathan struggled to save his life, but he was not

strong enough to ·stop Tirado from crushing and killing him. At a certain point, the struggle was over, and Jonathan was dead. 135. Although Tirado was slowly asphyxiating Jonathan just a few feet away, and

notwithstanding that Mall was supposed to be giving one-to-one supervision to Jonathan, at no point did Mall do anything at all to stop Tirado from killing Jonathan. 136. of the van ride. 137. 138. 139. After Jonathan became still, Tirado said that he was thirsty. Mall drove the van to a Hess gas station. Between about 7:20 p.m. and 7:30 p.m., Mall entered the Hess to buy three After this slow death, Jonathan did not move at all or make any noise for the rest

140.

When Mall returned to the van, he assumed the driver's seat, E.C. sat in the front

passenger seat, and Tirado had moved to the first bench directly behind the driver. 141. 142. 143. 144. Jonathan remained lifeless in the second bench. Around this time, Tirado stated that Jonathan had stopped breathing. For several minutes, Mall, Tirado, and E.C. remained in the car at Hess. Tirado and Mall did not call 911, did not inform anyone at OD Heck, did not

attempt to administer CPR, and did not seek medical attention for Jonathan. 145. Instead, Tirado and Mall worried about returning to OD Heck earlier than the

scheduled return time of 8:30 p.m.

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To pass time, Tirado directed Mall to drive to a plaza called Mohawk Commons,

and Mall complied. 147. Store. 148. Tirado and E.C. spent about ten minutes inside the game store, where Tirado At Mohawk Commons, Tirado exited the van with E.C. and entered EB Game

purchased a videogame case. 149. During this time, Mall remained in the van with Jonathan, who was lying

apparently lifeless in the back seat, but Mall did not check on Jonathan. 150. Nor did Mall call 911, inform anyone at aD Heck, administer CPR, or seek

medical attention for Jonathan. 151. When Tirado and E.C. returned to the van, Tirado told Mall that he wanted to go

home to get some cash. 152. Mall did not object. Instead he drove the van to Tirado's home, while Jonathan

lay apparently lifeless in the back of the van. 153. 154. There Tirado checked Jonathan's pulse and found none. No one, however, called 911, informed anyone at aD Heck, or sought any

medical attention for Jonathan. 155. Tirado entered his home for about ten minutes, and Mall exited the van for several

minutes to have a smoke and speak with one of Tirado's neighbors. 156. When Tirado returned to the van, he told Mall to drive to

aD Heck, since they

were expected to return around 8:30 p.m. 157. 158. The van reached aD Heck around 8:30 p.m. Mall exited the van to look at Jonathan whose face had, by this time, turned blue.

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159. 160.

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Tirado stated, in sum or in substance, "I think I killed him." Mall summoned supervisors and staff to the scene, saying, "Emergency,"

"Jonathan is not getting up" and "Jonathan is on the van unresponsive." 161. 162. Mall did not tell anyone that Jonathan was not breathing and did not have a pulse. Instead, Tirado and/or Mall falsely represented to staff members that Jonathan had

suffered a seizure. 163. 164. OD Heck staffperformed CPR on Jonathan. No one at OD Heck, though, call 911 until 8:56 p.m. twenty-six minutes after the

van arrived at OD Heck. 165. Emergency responders arrived at OD Heck, performed CPR on Jonathan, and

rushed him to St. Clare's Hospital in Schenectady, New York. Jonathan reached the hospital in full arrest at 9:25 p.m., and was pronounced dead at the hospital at 9:56 p.m. 166. The autopsy concluded that the cause of death was "cardio respiratory arrest due

to compressive asphyxia," and the manner of death was "homicide." 167. In the period between the initial restraint by Tirado and death, Jonathan suffered

severe conscious pain and suffering, and pre-death terror.

and 168.

Carey Learn of Jonathan's Death On February 16,2007, while away on a trip, Mr. and Mrs. Carey placed a call

home and were inforYI1ed of Jonathan's death. 169. Upon learning of their son's death, Mr. and Mrs. Carey each collapsed and fell to

the sidewalk with grief. 170. Since their son's death, Mr. and Mrs. Carey have been overwhelmed with grief.

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171.

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On April 2, 2007, Mr. and Mrs. Carey received letters of administration and

became administrators of Jonathan's estate.

Tirado and Mall Are Convicted of Killing Jonathan 172. On July 30,2007, Mall pled guilty to criminally negligent homicide for his role in

Jonathan's death. 173. 174. Mall was sentenced to six months in the Albany County jail. On October 10, 2007, after a full jury trial, and after testifying in his own defense,

Tirado was convicted of manslaughter in the second degree for killing Jonathan. 175. Tirado was sentenced to five to fifteen years in prison.

The Supervisor Defendants' Outrageous Misconduct Was a Proximate Cause of Jonathan's Death

The Supervisor Defendants Covered Up Tirado's Prior Physical Abuse ofJonathan
176. As noted above, Jonathan was repeatedly subject to brutal physical abuse by

defendant Tirado at OD Heck. On infonnation and belief, all of the Supervisor Defendants were aware of these instances of abuse. But the Supervisor Defendants did absolutely nothing to prevent further physical abuse of Jonathan by defendant Tirado. 177. The Supervisor Defendants never disciplined Tirado in response to Tirado's prior

physical attacks on Jonathan. 178. The Supervisor Defendants never trained Tirado in response to Tirado's prior

physical attacks on Jonathan. 179. The Supervisor Defendants never reassigned Tirado in response to Tirado's prior

physical attacks on Jonathan.

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180.

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The Supervisor Defendants never fired Tirado in response to Tirado's prior

physical attacks on Jonathan. 181. The Supervisor Defendants never reported Tirado's misconduct to any agency,

district attorney's office, or responsible authority in response to Tirado's prior physical attacks on Jonathan. 182. Instead, the Supervisor Defendants either ignored Tirado's misconduct, or

actively covered it up so that persons outside OD Heck, such as Jonathan's parents, would not know the true cause of Jonathan's many physical injuries. 183. The Supervisor Defendants' failure to train, discipline, terminate, supervise, or

report Tirado after the October 29, 2005 attack, the December 3, 2005 attack, the October 28, 2006 incident/attack, or the February 12, 2007 attack, but rather to cover up Tirado's misconduct, was reckless, willful, wanton, malicious, and grossly and criminally negligent. 184. The Supervisor Defendants' failure to train, discipline, terminate, supervise, or

report Tirado after the October 29,2005 attack, the December 3,2005 attack, the October 28, 2006 incident/attack, or the February 12, 2007 attack, but rather to cover up Tirado's misconduct, was a proximate cause of Jonathan's death. 185. The Supervisor Defendants' failure to train, discipline, terminate, supervise, or

report Tirado was also part of a pattern and practice by Supervisor Defendants to ignore and/or cover up physical abuse by OD Heck employees against other consumers (including children) at OD Heck. This pattern and practice has been documented, inter alia, in multiple reports about OD Heck issued by the New York State Department of Health.

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The Supervisor Defendants Failed To Train Staffon How to Safely Restrain a Child during Transport 186. OD Heck had policies permitting, even encouraging, children to be transported in

vans on trips within the local community. The Supervisor Defendants, however, had no policy for how to safely restrain children such as Jonathan during transport. 187. The Supervisor Defendants provided no training to Tirado, Mall, or anyone at OD

Heck concerning how to safely restrain children such as Jonathan during transport. 188. When Tirado and Mall accompanied Jonathan in the van on February 15, 2007,

neither of them had received any training from anyone at OD Heck concerning how to restrain children such as Jonathan, or anyone, during transport. 189. As of February 15,2007, no staff person at OD Heck had been trained on safely

restraining a child during transport. 190. The Supervisor Defendants knew that children had behaviors in the van and

sometimes needed to be restrained. The Supervisor Defendants also had specific knowledge that
Jonathan had had behaviors in the van and sometimes needed to be restrained. Yet the

Supervisor Defendants failed to provide Tirado, Mall, or anyone at OD Heck training on how to safely restrain Jonathan during transport. 191. The Supervisor Defendants' cOlllplete failure to train either Tirado or lviall on

how to safely restrain children such as Jonathan during transport was a proximate cause of jonathan's death. 192. The Supervisor Defendants also provided little or no supervision or oversight over

staff on Community Outings with consumers. For example, on information and belief, the Supervisor Defendants did not ensU!e that staff on Community Outings have specific instructions to call 911 if there is a medical emergency; did not ensure that staffhave a fully charged cell

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phone; did not ensure that deviations from the approved outing be approved by OD Heck; and had no review or supervision system to ensure that staff actually went on the Community Outings that were approved.

The Supervisor Defendants Gave Developmental Aides Carte Blanche to Work a Dangerous Amount of Overtime
193. Developmental Aides and Trainees at OD Heck, such as Tirado and Mall, had a

sensitive and powerful position taking care of an extremely vulnerable population of disabled children. That sensitive position required that Developmental Aides not be impaired or severely underslept on the job. 194. The Supervisor Defendants, however, willfully and recklessly permitted

Developmental Aides/Trainees to work on the job while substantially impaired. 195. The Supervisor Defendants, for example, had a policy of permitting

Developmental Aides/Trainees, including Tirado and Mall, to work as many overtime hours as they wanted, with no restrictions whatsoever. 196. Tirado worked a stunning and dangerous number of overtime hours, all approved

and encouraged by his supervisors. 197. The Supervisor Defendants approved Tirado's overtime requests even though

they knevi that the overtime v/orked by Tirado hin.dered r..is performance. 198. For example, Tirado's trainee evaluation dated March 22,2003 and written by

supervisor Scott Comley stated: "Edwin continues to have problerI1s in h.is interactions with consumers of our program. From what I've seen and the gist of what feedback I've gotten, it seems Edwin is having problems getting consumers to do what they're supposed to do and not do something they shouldn't do. We've gotten complaints regarding this, from other supervisors on other shifts, when Edwin does overtime. Since then I've spoken to Edwin, as has Terence,

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another midnight supervisor, about this problem. At the time of this evaluation there is a meeting being set up between two of our Day Program supervisors to discuss this problem with Edwin and what is expected of him." (Emphasis added.) 199. Although supervisors knew Tirado performed poorly when he worked overtime,

the Supervisor Defendants permitted him to work a dangerous amount of overtime each year. 200. 201. In 2006, for example, he logged 1,647 hours of overtime. In the two weeks before he killed Jonathan, from February 1,2007 to February

15,2007, Tirado worked 15 consecutive days, including both Saturdays and both Sundays, for a total of 197.5 hours. 202. 203. Of the 197.5 hours, Tirado worked 112 of those hours at night. Specifically, Tirado worked 8 hours on Feb. 1; 15.5 hours on Feb. 2; 16 hours on

Feb. 3; 11.75 hours on Feb. 4; 20 hours on Feb. 5; 16 hours on Feb. 6; 15 hours on Feb. 7; 13 hours on Feb. 8; 17 hours on Feb. 9; 9.25 hours on Feb. 10; 16 hours on Feb. 11; 8 hours on Feb. 12; 8 hours on Feb. 13; 16 hours on Feb. 14; and 8 hours on Feb. 15. 204. Thus, in the two weeks prior to February 15, Tirado worked no fewer than 10

double shifts, in a sensitive position ofpower over a vulnerable population of disabled children. 205. In conformance with the Supervisor Defendants' carte blanche overtime policy,

Tirado's supervisors approved and even encouraged each and every request Tirado made for overtime in the two weeks prior to Tirado's killing of Jonathan. 206. The Supervisor Defendants knew that working these overtime hours resulted in

Tirado's maltreatment of children, but they approved the overtime hours anyway. 207. Only after Jonathan's death did OD Heck supervisors enact any restrictions on

overtime hours.

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On February 28, 2007, almost two weeks after Jonathan's death, Slingerland

issued a directive stating "staff cannot work in excess of 24 hours of overtime per work week without Director of the Consaul Road Program or Regional Director's approval." 209. The Slingerland directive explained that the overtime restriction was being

implemented "to assure that staff s efforts are not compromised due to extended hours." 210. Tirado, however, worked an average of over 58 hours of overtime/week during

the two weeks before he killed Jonathan. 211. As a result of the extraordinary and dangerous number of hours that the

Supervisor Defendants authorized him to work during the weeks prior to February 15,2007, Tirado was severely underslept and substantially impaired when he reported to work on February 15,2007. 212. The Supervisor Defendants' carte blanche overtime policy was a proximate cause

of Jonathan's death. Had the Supervisor Defendants taken even the most minimal efforts to ensure that employees who worked directly with disabled children did not come to work substantially impaired, it is considerably less likely that Jonathan would have been killed on February 15,2007.

The Supervisor Defendants Failed To Ensure That Staff Used A Safety Belt Buckle Guard Or A Safety Harness On Jonathan During Transport Pllien lVeeded
213. Throughout Jonathan's time at aD Heck, the Supervisor Defendants were aware

that Jonathan sOlnetirI1es atterI1pted to remove his seatbelt when he was transported in a van. 214. Jonathan's Behavior Intervention Plan dated November 8, 2006, authored by

defendant Potenza, specifically referred to Jonathan's past "non-compliance" and "attempts to remove his seatbelt" during transport.

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The Behavior Intervention Plan provided: "A protocol has been developed to use

when Jonathan is noncompliant during transport, which includes the use of a safety harness or buckle guard on a pm [as needed] basis." 216. However, the Behavior Intervention Plan (i) did not actually require the use of a

safety harness or buckle guard, and (ii) did not even advise the use of a safety harness or buckle guard until after Jonathan had already unbuckled his seat belt, at which point it would likely be too late to use the safety harness or buckle guard. 217. In short, the Behavior Intervention Plan did nothing to ensure that Jonathan was

actually restrained by a safety belt buckle guard or a safety harness during transport. 218. Although the Supervisor Defendants knew that Jonathan sometimes needed a

safety harness or a safety belt buckle guard, they failed to ensure that staff used those safety devices appropriately or at all. 219. The Supervisor Defendants also failed to train any aD Heck staff, including

Tirado and Mall, on the use of the safety haTness or the safety belt buckle gUaTd. 220. A memorandum dated October 31,2006, and authored by defendant Potenza,

noted that "staff cannot always find Jonathan's harness." 221. The Supervisor Defendants were also aware that Tirado, in particular, failed to

use appropriate adaptive gear when supervising children and failed to familiarize himself with behavior intervention plans. 222. On multiple occasions after Jonathan's November 8, 2006 Behavior Intervention

Plan was authored, including on December 1,2006 and February 1,2007, Jonathan moved around during transport, and staff members did not have or use a safety harness or safety belt buckle guard.

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Following each of these occasions, the Supervisor Defendants failed to take

appropriate corrective action to ensure that staff used the safety harness or the safety belt buckle guard on Jonathan during transport. 224. In the wake of Jonathan's death, staff did not even know where Jonathan's safety

harness or the safety belt buckle guard was stored. 225. Had OD Heck used safety belt buckle guards or a safety harness during

Jonathan's transport, and had OD Heck trained persons such as Tirado and Mall how to use safety belt buckle guards or a safety harness, Jonathan would not have required physical intervention in the van and would not have been killed. 226. The Supervisor Defendants' complete failure to ensure that safety belt buckle

guards or a safety harness were actually used for Jonathan, and their failure to train Tirado, Mall, or apparently any staff members on how to use safety belt buckle guards or a safety harness, was a proximate cause of Jonathan's death.

The Supervisor Defendants _Allowed Tirado To Work With Vllinerable Children] Even Though They Knew OfHis Volatile and Violent Personality
227. The Supervisor Defendants knew, or should have known, that Tirado had a

volatile and violent personality. 228. On multiple occasions, Tirado threatened the children in his care by sayi.i·lg, "I can

be a good king or a bad king." 229. Despite his psychological abuse of children, which was overheard by and/or

reported to the Supervisor Defendants, the Supervisor Defendants did not discipline Tirado or take any corrective action to modify his behavior. 230. Tirado also regularly had heated disagreements with staff members at OD Heck.

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231.

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Tirado's trainee evaluation dated March 22, 2003 and written by supervisor Scott

Comley states that Tirado "needs improvement" in working well with other staff. 232. A subsequent annual evaluation by Nicole Caisse, Developmental Aide I,

similarly notes, "Ed has had personal conflicts with his peers." 233. Among the staff members with whom Tirado had conflicts was Eric Schwartz,

who was frequently the only other staff member on duty during the night shift with Tirado. 234. Eric Schwartz was known to be an alcoholic who frequently arrived at aD Heck

intoxicated and remained intoxicated during his shift. 235. On many nights, therefore, the Supervisor Defendants placed Jonathan and

approximately seven other disabled children in the sole care of two people: a physically and emotionally abusive, highly sleep-deprived man (Tirado) and an alcoholic who drank on the job (Schwartz). 236. Tirado's arguments with Schwartz frequently had the potential to escalate into

physical fights and required the intervention of a supenrisor, such as the Head of Shift, so that Tirado would not physically assault Schwartz. 237. Although staff complained about Tirado's fighting with Schwartz to the

Supervisor Defendants, they took no corrective action against Tirado and they failed to discipline him. 238. Had the Supervisor Defendants terminated Tirado for his volatility and violence,

Jonathan would not have been killed. 239. The Supervisor Defendants' utter failure to monitor Tirado's potential for

violence was a proximate cause of Jonathan's death.

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The Supervisor Defendants Recklessly Hired Mall After He Was Fired From His Previous Employer

240. 241.

Before he was hired at aD Heck, Mall worked at the Center for the Disabled. At the Center for the Disabled, Mall worked in a residential setting, and was

responsible for caring for the disabled by, for example, helping individuals with the activities of daily living, such as brushing their teeth and showering. 242. performance. 243. On information and belief, the Supervisor Defendants at aD Heck hired Mall Mall, however, was fired from the Center for the Disabled for poor job

without investigating whether or not he was fired from the Center for the Disabled. 244. On information and belief, had the Supervisor Defendants at aD Heck

investigated Mall's background, they would have discovered that he was fired from the Center for the Disabled, and that he had lied about being fired from there. 245. When he was hired, Mall was unfit to work with disabled children in a residential

facility such as OD Heck. 246. On information and belief, had the Supervisor Defendants at aD Heck

investigated Mall's background, they would (or at least should) have realized that he was unfit to work with disabled children in a residential facility such as OD Heck. 247. The Supervisor Defendants' decision to hire and retain Mall was a proximate

cause of Jonathan's death. Another developmental aide would not likely have permitted Tirado to supervise Jonathan, or to kill Jonathan, on February 15,2007.

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The Supervisor Defendants' "Screening" ofNew Staff Was Abysmal
248. There was a reason the Supervisor Defendants failed to screen Mall: OD Heck

had an abysmal screening process for its employees, even though those employees had a sensitive position of power over extremely vulnerable children.. 249. On information and belief, OD Heck did not require prospective employees,

including Developmental Aides, to submit a resume prior to hiring. 250. On information and belief, OD Heck did not require an interview of

Developmental Aides prior to hiring. 251. OD Heck did not require prospective employees, including Developmental Aides,

to provide references prior to hiring. 252. OD Heck did not generally contact prior employers of Developmental Aides

before hiring them. 253. In short, OD Heck did less screening of Developmental Aides prior to hiring than

McDonald's generally does of its restaura..f1t staff.

254.

The Supervisor Defendants were responsible for this failed screening process, a

process that put Edwin Tirado and Nadeem Mall in a position of trust, responsibility, and power over Jonathan Carey, and that was a proximate cause of Jonathan's death.

The Supervisor Defendants Recklessly Placed the Least Experienced Staffin Charge of the Most Vulnerable Children With the Greatest Needs
255. The Supervisor Defendants knew that the staff at OD Heck were required to

provide intense care and treatment to about 80 individuals with special needs. 256. Caring for these individuals with special needs was very stressful for many staff

members at OD Heck.

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257.

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The difficulties of this work were exacerbated by inadequate training and

supervision of staff, for which the Supervisor Defendants were responsible. 258. 259. The difficult working conditions caused high staff turnover rates at OD Heck. The difficult'working conditions also resulted in OD Heck's having supervisors

who were relatively inexperienced. 260. Notwithstanding these serious problems, OMRDD and the Supervisor Defendants

routinely staffed OD Heck with Developmental Aide Trainees, putting the Trainees in charge of a vulnerable population of individuals with special needs. 261. These Trainees were the least experienced employees of the New York State

Office of Mental Retardation and Developmental Disabilities directly charged with caring for and supervising people with special needs. 262. The Supervisor Defendants' decision to put Trainees into OD Heck, instead of

any number of other institutions in OMRDD serving much less challenging populations, was recldess and irresponsible. Only more experienced staff (and at a mipimum, staff \Xlho \Xlere not still in training) should have been placed in charge of the most vulnerable and challenged population served by OMRDD. 263. The Supervisor Defendants not only placed Trainees in OD Heck, they placed

them in the Adolescent Unit, the unit within OD Heck that served the most vulnerable, challenged population. This decision was also reckless and irresponsible. 264. The most difficult caretaking job within the Adolescent Unit of OD Heck was

providing one-to-one supervision of a child with special needs. 265. The Supervisor Defendants not only placed Trainees in the Adolescent Unit in

OD Heck, they placed a trainee (Nadeem Mall) in charge of Jonathan, the only child among

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approximately eight children who consistently required one-to-one supervision in the Adolescent Unit. 266. When defendant Trainee Mall was entrusted with one-to-one supervision of

Jonathan, Supervisor Defendants did not require that another non-trainee also be present to supervise trainee Mall. Instead, Supervisor Defendants let Trainee Mall be in charge of Jonathan, unsupervised. 267. OMRDD and the Supervisor Defendants thus put trainee Nadeem Mall, a man

with virtually no experience or on-the-job training, who had been fired by the Center for the
I

Disabled, in a position of trust and power over the most challenging child, in the most challenging unit, in the most challenging institution. This extraordinarily reckless decision was a proximate cause of Jonathan's death.

DAMAGES
268. As a direct and proximate result of defendants' actions, Jonathan suffered severe

physical and emotional injury;; pre-death terror, pain and suffering, al1d was deprived ofbis life, and the lost enjoyment of life. 269. As a direct and proximate result of defendants' actions, Mr. and Mrs. Carey, each

in his and her own right have been deprived forever of their son's love, comfort, attention, and society. The Careys also incurred other expenses as a result of Jonathan's death. 270. As a direct and proximate result of defendants' actions, Mr. and Mrs. Carey, each

in his and her own right, have suffered devastating emotional injury, and will continue to suffer emotional injury for the rest of their lives. 271. Defendants' acts were reckless, willful, wanton, malicious, and grossly and

criminally negligent, thus entitling plaintiffs to an award of punitive dmnages.

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AS AND FOR A FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983, Fourth and Fourteenth Amendments (TiradolMall)
272. length herein. 273. By reason of the foregoing, using excessive force, assaulting him, seizing him, Plaintiffs repeat and reallege the foregoing as if the same were fully set forth at

and killing him, defendant Tirado deprived Jonathan of rights, remedies, privileges, and immunities guaranteed to every citizen of the United States, in violation of 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution. 274. By reason of the foregoing, and by failing to intervene in any way to prevent

Tirado from using excessive force, assaulting, seizing, and killing Jonathan, defendant Mall deprived Jonathan of rights, remedies, privileges, and immunities guaranteed to every citizen of the United States, in violation of 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution. 275. In addition, Tirado and Mall conspired among themselves to deprive Jonathan of

his constitutional rights secured by 42 U.S.C. § 1983, and by the Fourth and Fourteenth Amendments to the United States Constitution, and took numerous overt steps in furtherance of such conspiracy, as set forth above. 276. Tirado and Mall acted under pretense and color of state law and in their individual

and official capacities and within the scope of their respective ernplo)'Inents as state officers. Said acts by Tirado and Mall were beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers, and said defendants acted willfully, knowingly, and with the specific intent to deprive Jonathan of his clearly established constitutional rights secured by 42 U.S.C. § 1983, and by the Fourth and Fourteenth Amendments of the United States Constitution.

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277.

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As a direct and proximate result of the misconduct and abuse of authority detailed

above, plaintiffs sustained the damages hereinbefore alleged.
AS AND FOR A SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983, Substantive Due Process (All Defendants)

278. length herein. 279.

Plaintiffs repeat and reallege the foregoing as if the same were fully set forth at

As custodians of Jonathan responsible for his safety and well-being, the

defendants had an affirmative duty to care for and protect Jonathan under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. 280. Defendants breached that duty. Defendants' actions and omissions were a

substantial departure from the exercise of reasonable professional judgment, practice, and standards, were grossly negligent, and amounted to deliberate indifference to Jonathan's health, welfare, and life. 281. Defendants acted with deliberate indifference to and callous disregard for prior,

repeated physical abuse of Jonathan by defendant Tirado, a violent man who posed an imminent threat to Jonathan's health, welfare, and life. 282. Defendants' complete failure to train Tirado, Mall, or anyone on how to restrain overtime policy, the failure to provide

children safely during transport, the reckless carte

harnesses or safety belt buckle guards, the failure to train, discipline, fire, or report Tirado or IYlall, the hiring of rYlall, the incompetent screening process, the reckless staffing decisions and decision to place a trainee in charge of Jonathan, and the other conduct set forth above exhibited deliberate indifference to and callous disregard for the safety and well-being of Jonathan, proximately causing him substantial and unnecessary physical and emotional harm, pre-death terror, and ultimately, his death.

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By virtue of the foregoing, defendants deprived Jonathan of clearly established

rights protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and plaintiffs sustained the damages hereinbefore alleged.
AS AND FOR A THIRD CLAIM FOR RELIEF 42 U.S.C. § 1983/Due ProcesslMr. and Mrs. Carey's Individual Capacity (All Defendants)

284. length herein. 285.

Plaintiffs repeat and reallege the foregoing as if the same were fully set forth at

Mr. and Mrs. Carey, in their individual capacities and as Jonathan's father and

mother, had a liberty interest in his familial companionship and society. 286. Defendants had physical control over Jonathan and were responsible for his care,

safety, and well-being. Defendants were aware of the close bond between Jonathan and his parents, but repeatedly and deliberately prevented Jonathan's parents from knowing about the various instances of abuse and neglect by OD Heck staff against Jonathan. 287. By reason of the foregoing and by killing Jonathan, defendants are liable to Mr.

and Mrs. Carey in their individual capacities for depriving them of this liberty interest without due process of law. 288.
Q.1J.d

By reason of the foregoing and by killing Jonathan, defendants are liable to Mr.

Carey for the emotional pain and suffering they have experienced and V/ill for the rest

of their lives experience as a result of Jonathan's death. 289. As a consequence, lvfr. and lV-liS. Carey have suffered darnages in an arnount to be

determined at trial.

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AS AND FOR A FOURTH CLAIM FOR RELIEF Wrongful Death (All Defendants)

290. length herein. 291.

Plaintiffs repeat and· reallege the foregoing as if the same were fully set forth at

By reason of the foregoing, the statutory distributees of Jonathan's estate lost

Jonathan's love, comfort, society, attention, services, support, and life. 292. 293. Defendants are liable to plaintiffs for the wrongful death of Jonathan. As a direct and proximate result of Jonathan's wrongful death, plaintiffs sustained

the damages hereinbefore alleged.
AS AND FOR A FIFTH CLAIM FOR RELIEF Assault and Battery (Tirado)

294. length herein. 295.

Plaintiffs repeat and reallege the foregoing as if the same were fully set forth at

In physically assaulting and killing Jonathan, defendant Tirado, acting in his

capacity as a Developmental Aide, and within the scope of his employment, committed a willful, unlawful, unwarranted, and intentional assault and battery upon Jonathan. 296. The assault and battery by Tirado was unnecessary and unwarranted in the

performance of his duties and constituted an unreasonable and excessive use of force. 297. As a direct and proximate result of the assault and battery, plaintiffs sustained the

damages hereinbefore alleged.
AS AND FOR A SIXTH CLAIM FOR RELIEF Negligent Hiring, Training, Supervision, Discipline, Stafimg and Retention (Supervisor Defendants)

298. length herein.

Plaintiffs repeat and reallege the foregoing as if the same were fully set forth at

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As custodians of Jonathan responsible for his safety and well-being, the

Supervisor Defendants entered into a special relationship with Jonathan that imposed upon them an affirmative duty to care for and protect Jonathan. 300. Jonathan and his parents reasonably and justifiably relied on Supervisor

Defendants' affirmative undertaking of their duty and responsibility to care for Jonathan and ensure his well being. 301. The Supervisor Defendants' misconduct set forth above was grossly negligent and

deliberately indifferent to Jonathan's health, well being, and life. 302. But for the Supervisor Defendants' grossly negligent and deliberately indifferent

acts and omissions, Jonathan would not have been attacked and killed by defendant Tirado. 303.
It was reasonably foreseeable that the Supervisor Defendants' grossly negligent

and deliberately indifferent acts and omissions would proximately cause Jonathan serious bodily harm and death. 304. Supervisor Defendants' grossly negligent and deliberately indifferent acts and

omissions proximately caused Jonathan to suffer grievous and fatal injuries and to endure severe conscious pain and suffering, and death. 305. As a direct and proximate result of defendants' misconduct, plaintiffs

the damages hereinbefore alleged.

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WHEREFORE, plaintiffs respectfully request judgment against defendants as follows: (A) an order awarding compensatory damages in an amount to be determined

at trial, including without limitation, damages for Jonathan's conscious pain and suffering and pre-death terror; loss of life damages; and the emotional damages Michael and Lisa Carey have suffered and will for the rest of their lives suffer as a result of Jonathan's death; (B) trial; (C) (D) reasonable attorneys' fees and costs under 42 U.S.C. § 1988; and directing such other and further relief as the Court may deem just and an order awarding punitive damages in an amount to be determined at

proper, together with attorneys' fees, interest, costs and disbursements of this action. Dated: February 12, 2009 New York, New York EMERY CELLI BRINCKERHOFF &ABADYLLP

fljl
75 Rockefeller Plaza, 20 Floor New York, New York 10019 (212) 763-5000
th

Counsellor Plaintiffs

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