$400,000 Lawsuit Filed Against City, 2 Police Officers

Friday, October 19, 2012

A man who said he was accosted by a police officer while trying to take pictures of damage to his home from a wreck has sued the city and Officers Brian Blumenberg and Casey Cleveland for $400,000 in Federal Court.

Thomas Gregory Luther said he was advised last Dec. 4 that a vehicle had run into his home. He said he arrived to find crime tape around his property. He said he was allowed to go to his house after explaining he lived there.

He said he was taking pictures of the damage from his porch when Officer Blumenberg began yelling at him not to take pictures, then pulled him off the porch and to the ground, then handcuffed him. He said he was injured and his camera was damaged in the incident.

The complaint says Officer Bluemenberg was assisted by Officer Cleveland during the incident.

The suit, filed by attorney Robin Flores, says after Sgt. Toby Hewitt arrived it was decided not to arrest Mr. Luther.

It says Sgt. Hewitt told Internal Affairs investigators that Officer Blumenberg was overwhelmed working his first fatal traffic accident and exhausted from working a 24-hour shift.

The suit says the Internal Affairs investigators sustained a finding of improper procedure against Officer Blumenberg, but not use of excessive force.

The complaint asks $100,000 compensatory damages and $300,000 punitive damages.

Here is the full lawsuit:

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

CHATTANOOGA

Thomas Gregory Luther, §

Plaintiff, §

~v~ § No. __________________

City of Chattanooga, § Jury Demand

Officer Brain Blumenberg, §

In his official capacity as an §

agent for the City of Chattanooga §

and in his individual capacity, §

and §

Officer Casey Cleveland, §

In his official capacity as an §

agent for the City of Chattanooga §

and in his individual capacity, §

Defendants. §

COMPLAINT

Introduction:

1. This is an action for money damages brought pursuant to 42 U.S.C. § 1983 to redress the deprivation by the Defendants of rights secured to the plaintiff by the Fourth, and Fourteenth Amendments to the United States Constitution and the common laws of the State of Tennessee.

2. Plaintiff avers that Officer Brain Blumenberg (“Blumenberg”) and Officer Casey Cleveland (“Cleveland”) of the City of Chattanooga (“City”) made an unreasonable seizure of the plaintiff without the due process of law.

3. In addition, Plaintiff avers that Blumenberg and Cleveland assaulted, battered, and humiliated the plaintiff and damages plaintiff’s personal property.

4. Plaintiff also maintains that Blumenberg and Cleveland committed these violations and torts as a result of policies, customs, and/or procedures of the City.

Jurisdiction and venue:

5. This is an action to redress the deprivation of rights secured to the Plaintiff by the Fourth and Fourteenth Amendments to the United States Constitution. Thus, this Court is vested with original jurisdiction under 28 U.S.C. §§ 1331 and 1343.

6. The Plaintiff invokes supplemental jurisdiction of this Court pursuant to 28 U.S.C. § 1367 over the Plaintiff’s cause of action under the common laws of the State of Tennessee in that the said laws form the same case or controversy.

7. Venue is proper in this Court, Chattanooga Division, pursuant to 28 U.S.C. § 1391(B). All acts complained of occurred within Hamilton County, a political sub-division of the State of Tennessee, and physically located within the fourteen county district of this Court.

a. The Plaintiff is a resident of Hamilton County, Tennessee.

b. Blumenberg is a resident of Hamilton County, Tennessee.

c. Cleveland is a resident of Hamilton County, Tennessee.

e. The City is a political sub-division of the State of Tennessee.

The parties:

8. At all times relevant to this cause of action the City is a political sub-division of the State of Tennessee organized and existing under the laws of the State of Tennessee, and it has direct control over its police department and:

a. Establishes and provides the finances for the police department, and sets forth rules and regulations for the operation of the Department and its personnel.

b. Establishes and provides the training and certification of its law enforcement personnel.

c. Establishes and sets forth rules and regulations on the hiring, retention, supervision, wellbeing, and discipline of its law enforcement personnel.

d. Establishes and sets forth rules and regulations on training of police personnel, and specifically rules and regulations on the proper arrest and subsequent care of persons in the custody of their officers.

9. At all times relevant to this cause of action, the City employed Blumeberg, and Cleveland, and they acted under the color of law, statute, ordinance, regulation, custom, or usage. In addition:

a. At all times relevant to this cause of action, Blumeberg acted in his official capacity as agent, servant, and employee, as defined under Tenn. Code Ann. § 29-20-102, for the City. Plaintiff sues this defendant in his individual and official capacities.

b. At all times relevant to this cause of action, Cleveland acted in his official capacity as agent, servant, and employee, as defined under Tenn. Code Ann. § 29-20-102, for the City. Plaintiff sues this defendant in his individual and official capacities.

Factual basis of complaint:

10. On or about December 4, 2011, Blumenberg was at plaintiff’s residence as part of his duty to answer a call of a traffic collision.

a. The collision caused property damage to plaintiff’s property.

11. Plaintiff was not home.

12. Plaintiff received a call from a neighbor and learned of the collision and the damage.

13. As a result, plaintiff returned to his home.

14. Plaintiff arrived at his home to find other officers had closed the traffic-ways and set up a “crime scene” barrier directly adjacent to his home.

15. An officer of the City assisted plaintiff to park his vehicle, and allowed plaintiff to enter the crime scene area adjacent to plaintiff’s property.

16. As plaintiff a neared his home, Blumenberg detained plaintiff and demanded plaintiff state his name and his reason for his presence.

17. Plaintiff answered Blumenberg’s demands, and Blumenberg escorted plaintiff to plaintiff’s home.

18. Plaintiff entered his home, obtained a camera, and stepped onto his front porch.

19. Plaintiff’s front porch was not involved in the collision, and contained no debris or any other materials related to the collision.

20. While never venturing off the front porch, plaintiff attempted to snap photos of the damage to his property.

21. Blumenberg became angry and, while he stood on the public sidewalk in front of plaintiff’s home, told plaintiff he could not take photographs of the incident location.

22. The vehicle at issue rested on plaintiff’s property upon the collision.

23. Plaintiff asked Blumenberg why he could not take photos of the vehicle and the damage to his personal property, and Blumenberg replied because it was a “crime scene.”

24. Blumenberg had no lawful basis to prevent plaintiff from photographing damage to his own private property.

25. Blumenberg told plaintiff that if he took photos Blumeberg would confiscate the camera.

26. Blumenberg had no lawful basis to seize the camera; therefore, no lawful basis to speak to plaintiff in such a manner.

27. Plaintiff remained on his front porch with the camera still in his hands.

28. Blumenberg became angrier, removed a set of handcuffs from his duty belt, and approached plaintiff.

29. Plaintiff never gave Blumenberg permission to enter plaintiff’s property.

30. Blumenberg became angrier with plaintiff as plaintiff continued to ask why he could not take photos of the damage to his property from the front porch.

31. Cleveland was present and next to Blumenberg as Blumenberg stood directly in front of plaintiff.

32. Cleveland took no action to calm Blumenberg down.

33. Blumenberg grabbed plaintiff from his front porch and threw him face down onto the ground and handcuffed plaintiff.

a. As a direct and proximate result of the acts and omissions of Blumenberg and Cleveland, plaintiff suffered physical injuries.

b. As a direct and proximate result of the acts and omissions of Blumenberg and Cleveland plaintiff incurred damage to his camera.

34. Cleveland took no action to prevent Blumennberg’s actions or assist plaintiff with his injuries.

a. Cleveland gave a statement to Internal Affairs for the City wherein he made false claims to justify Blumenberg’s conduct and false explanations why plaintiff obtained his injuries.

b. One of Cleveland’s explanations for the injuries was that plaintiff was pulling away from Cleveland and thus plaintiff hurt himself.

35. Blumenberg and Cleveland placed plaintiff into a police car.

36. Plaintiff demanded to speak to a supervisor.

37. Sgt. Toby Hewitt (“Hewitt”) arrived, and plaintiff was released without criminal charges.

38. Hewitt told Internal Affairs investigators that Blumeberg was overwhelmed with his first fatal traffic investigation.

39. Hewitt told Internal Affairs investigators that Blumenberg worked a 24 hour shift that same day, and Hewitt implied Blumenberg’s actions were due to exhaustion.

40. The City did not take steps to relieve Blumenberg of duty after having worked for so many hours, and the City does not have any means to determine if its officers are overworked and exhausted while on duty, and such omissions were one of many factors that constitutes the proximate cause of plaintiff’s injuries and deprivation of civil rights.

41. The City has a duty to ensure its officers are not fatigued to the point where they become a danger to the public and themselves.

42. At all times during the events herein described, Blumenberg and Cleveland were engaged in a joint venture. The officers assisted each other in performing the various acts described and lent their physical presence and support in performing their various actions as described and lent their physical presences and support and the authority of their respective offices to each other during the said events and subsequent internal affairs investigations.

43. The City has a pattern of overlooking or providing excuses and reasons to justify the misconduct of its officers.

a. The City, through its police command officers, refused to relieve Jeanie Snyder of all duties after three much publicized events wherein [1] she appeared under the influence while armed and in a mall in Georgia; [2] was wandering about in a Marion County wood which required a large law enforcement response to find her at much costs to the Tennessee taxpayers; [3] found unconscious at her home due to prescription drug use.

b. The City refused to follow the recommendations of its own Internal Affairs unit to discipline Captain Edwin McPherson for untruthfulness after the investigators found McPherson took actions to interfere with a murder investigation that involved his niece as a suspect. Rather, the City’s command “cleared” McPherson without review by an entity outside of the police department.

c. The City routinely refuses to allow litigants to review the complete closed files of internal affairs investigations to determine what percent of complaints by citizens against officers involved use of force. In the instant matter, the City did sustain a violation of “improper procedure” against Blumeberg, but cleared Blumeberg of excessive force.

d. A finding of excessive force carries more liability under § 1983 actions than do findings of “improper procedure.”

44. The failure of the City’s highest ranking police officers to remove officers from duty when they are exhausted or, as in the case of Snyder, exhibiting odd behavior constitutes a deliberate indifference to the public at large and created the atmosphere that allowed Blumeberg and Cleveland to believe their conduct would go unpunished.

a. Such conduct by the City through its police command ranks establishes the City cares more about its officers than the public at large, even when its officers persist in conduct that reflects inability to perform duties, and malfeasance of performance.

b. Such conduct by the City through its police command ranks establishes the City cares City cares more about its officers than the public at large, despite recommendations for discipline by its own police personnel tasked with investigating police misconduct.

c. Such conduct the City through its police command ranks establishes the City allows “procedures” to clear officers charged with misconduct that are solely in the hands of the police command rank officers, and is tantamount to a sham of internal oversight of its police personnel.

45. The persistent exoneration of officers for matters that have clear § 1983, Fourth Amendment liability by the City’s highest ranking police officers through its own internal reviews and boards outside of judicial review by an independent court or a third law enforcement agency, such as TBI, places the ability to “cover-up” officer misconduct solely in the hands of these same high ranking officers, which constitutes a deliberate indifference to the welfare of the public at large, and the plaintiff in particular.

COUNT ONE: VIOLATION OF CIVIL RIGHTS UNDER COLOR OF LAW

42 U.S.C. §1983

46. Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, the Plaintiff reasserts and incorporates ¶¶ 1 through 45.

47. The force used by the officers amounted to unlawful force that carried a high risk of causing serious bodily harm in that plaintiff was on an elevated porch and thrown down to the ground below and was unnecessary and unreasonable under the circumstances and was the direct and proximate cause of Plaintiff’s injuries, needless suffering, and loss of property.

48. Cleveland’s failure to prevent the infliction of harm by Blumenberg and Cleveland’s subsequent explanations to protect Blumenberg were acts and omissions that demonstrated indifference to the life, safety, and property of plaintiff.

49. Cleveland and Blumenberg acted under color of law and their negligence and intentional acts deprived the plaintiff his rights secured to him under the United States Constitution to be free from:

a. Unreasonable seizures or persons, property, and effects, without due process of law.

50. The City had a duty of care to the Plaintiff to ensure that is agents were properly trained in the use of force and to train its sworn officers to report officer abuse of suspects. This failure constitutes deliberate indifference.

51. The City has a duty to properly supervise its officers, to ensure officers do not perform their duties while under the influence of exhaustion or mental incapacity due to exhaustion, mental disorder, or substance abuse.

52. The averments set forth in ¶¶ 43-45 constitute a policy, practice, or custom to tolerate the abuse of suspects by their officers.

53. Consequently, the actions stated in ¶¶ 43-45 created an environment that allowed the defendant officers to believe that their abusive behavior would not be properly monitored, investigated, nor punished.

54. Plaintiff avers that such actions and omissions on the part of all the defendants constitute a violation of § 1983 and were done to deprive the Plaintiff of the following rights established under the United States Constitution:

a. The right to be free from unreasonable seizures secured to him by the Fourth and Fourteenth Amendments;

b. The right not to be deprived of liberty or property without Due Process as secured to him by the Fourteenth Amendment

55. The actions of the officers were done with actual malice toward the Plaintiff and with willful and wanton indifference to and with deliberate disregard for the constitutional rights and statutory civil rights of the Plaintiff. Thus the Plaintiff is entitled to punitive damages, actual damages, and attorney fees pursuant to 42. U.S.C. §1988.

56. The omissions of the City constitute deliberate indifference toward the Plaintiff and with willful and wanton indifference to and with deliberate disregard for the constitutional rights and statutory civil rights of the Plaintiff. Thus the Plaintiff is entitled to punitive damages, actual damages, and attorney fees pursuant to 42. U.S.C. §1988.

COUNT TWO – NEGLIGENT SUPERVISION

57. Plaintiff incorporates fully ¶¶ 1 through 56 as if fully set out herein and avers that such actions and omissions on the part of the Blumeberg and Cleveland and the City constitutes a violation of this common law of Tennessee.

COUNT THREE– COMMON LAW ASSAULT AND BATTERY

58. Plaintiff incorporates fully ¶¶ 1 through 56 as if fully set out herein and avers that such actions and omissions on the part of Blumeberg and Cleveland and the City constitutes a violation of this common law of Tennessee.

COUNT FOUR– COMMON LAW CONVERSION

59. Plaintiff incorporates fully ¶¶ 1 through 56 as if fully set out herein and avers that such actions and omissions on the part of Blumeberg and Cleveland and the City constitutes a violation of this common law of Tennessee. Specifically, the defendants rendered plaintiff’s camera unusable.

Wherefore, the plaintiff demands judgment against the defendants and requests the following relief:

A. That the Defendants be served a copy of this Complaint and be required to answer as required by the Federal Rules of Civil Procedure;

B. That the Court award compensatory damages in the amount of ONE HUNDRED THOUSAND DOLLARS ($100,000) and punitive damages in the amount of THREE HUNDRED THOUSAND DOLLARS ($300,000);

C. That the Court award attorney’s fees;

D. That the Court award costs, and discretionary costs;

E. Any other relief the Court may deem fit and proper;

F. Any other relief the Court may deem fit and proper pursuant to 42 U.S.C. §1988, and

G. Allow a jury trial on all issues.

Respectfully submitted,

By /s/ Robin Ruben Flores

ROBIN RUBEN FLORES

TENN. BPR #20751

GA. STATE BAR #200745

Counsel for Plaintiff

4110-A Brainerd Road