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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RITA MORENO as the executrix for the estate of MARSHALL MORENO and Individually Plaintiff

Civil Action No.

v. CITY OF DALLAS & UNKNOWN JOH DOE DALLAS POLICE OFFICERS Defendants

PLAINTFF'S ORIGINAL COMPLAINT COMES NOW, the plaintiff, Rita Moreno as executrix for the estate of Marshall Moreno through undersigned counsel, who respectfully represents that:

I. Plaintiff intends to conduct discovery under Level 2. INTRODUCTORY STATEMENT 1. This action is brought by Rita Moreno as executrix for the estate of Marshall Moreno.

Marshall Moreno was killed as a result of the excessive unnecessary physical force and assault by officers of the Dallas Police Department.

JURISDICTION AND VENUE 2. Jurisdiction of this case is invoked under 28 U.S.C. 1331 because it involves an action

arising under the Constitution, laws or treaties of the United States. 3. This Court has supplemental jurisdiction over Plaintiff's state law claims pursuant to 28

U.S.C. 1367 because they fonn part of the same case or controversy under Article III of the United States Constitution as the claims over which this Court has original jurisdiction.

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4.

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

1391(b). A substantial part of the events giving rise to the Plaintiff's claims occurred in this

District in Dallas, Texas. PARTIES 5. Plaintiff, Rita Moreno as executrix for the estate of Marshall Moreno, is an adult citizen

of Dallas County, State of Texas. 6. Made Defendants herein are: A. City of Dallas a municipal government organized and existing under the laws of the State of Texas. Service of process may be delivered to Mr. Mike Rawlins, Mayor, at 1500 Marilla St. Room 5EN, Dallas, Texas 75201. B. Unknown John Doe Dallas Police Officers Plaintiff anticipates the identity and location for service of unknown Dallas Police Officers through the discovery process. FACTS 7. On or about October 9, 2012, the Rita Moreno was driving her son, Mr. Marshall

Moreno, to the Timberlawn Hospital when she pulled into the Circle K gas station and convenience store at 5527 E. R.L. Thornton Freeway Dallas, Texas 75223. After pumping gas, she went into the store and asked the cashier to please call 911for an ambulance as she was worried about getting her son to the hospital safely. The cashier told the Rita Moreno that they had an officer on duty at the store, Officer Albert Sanchez of the Dallas Police Department. Rita Moreno did not request for a police officer and instead was asking for an ambulance. Sanchez heard this exchange.

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8.

Sanchez then walked out to the Rita Morenos mini-van and demanded that Marshall

Moreno get out of the van with his arms behind his back. Marshall Moreno stated that he had done nothing wrong and asked why he was being arrested. Sanchez repeated his demand. Marshall Moreno then exited the car with his arms in the air. Sanchez then asked Marshall Moreno to put his hands behind his back and reached for his handcuffs. Sanchez continued to order Marshall Moreno to put his hands behind his back. Confused as to why he was being arrested, Marshall Moreno started backing away from Sanchez. Sanchez then tried to close the distance between himself and Marshall Moreno while holding his handcuffs in plain view. Marshall Moreno then ran from Sanchez, and Sanchez then chased Marshall Moreno from the Circle K property, across Winslow Avenue, and through the parking lot of a Shell service station across the street. Sanchez then tackled Marshall Moreno and a struggle ensued. With the assistance of an unknown onlooker Sanchez put Marhsall Moreno in handcuffs. Defendant Sanchez then called additional officers to the Shell Property who promptly arrived. Although Marshall Moreno was already handcuffed and was therefore defenseless, the unknown John Doe offices jumped on top of him, beat and kicked him, and tied his feet together. Additionally, one of the officers sprayed Marshall Moreno with pepper spray. Marshall Moreno was thereafter transported to Baylor Hospital where he was pronounced dead later that afternoon.
9.

As a result of John Doe Defendant excessive use of force, Marshall Moreno was killed. Plaintiff would show that Defendants have deprived Moreno of his constitutionally

10.

protected rights, in violation of 42 U.S.C. 1983. In this regard, Marshall Moreno was subjected to assault and an excessive use of force as a result of Defendants abuse of power 11. Pleading further, Plaintiff would show that the Defendants City of Dallas and the

unknown John Doe Officers have among other things, violated the Fourth and Fourteenth

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Amendment of the United States Constitution respectively, rendering Defendants City of Dallas and the John Doe Officers liable to Plaintiff for the injuries and damages proximately caused by said violations and egregious conduct. 12. The above and foregoing acts and omissions, whether taken singularly or in any

combination, were a proximate cause of Plaintiff's injuries and damages. FIRST CLAIM FOR RELIEF Violating the 4th and 14th Amendments (42 U.S.C. 14141) 13. herein.
14.

Plaintiff incorporates all allegations set forth in previous paragraphs as fully set forth

Through the actions described below, the City of Dallas, has engaged in and continues to

engage in a pattern or practice of conduct by the City of Dallas' officers that deprives persons in the City of Dallas of rights, privileges, or immunities secured or protected by the Constitution or
the laws of the United States, in violation of 42 U.S.C. 14141. 15. At all times mentioned herein, each of the Unknown John Doe Officer Defendants were an

agent and/or employee of the other City of Dallas and was acting within the course and scope of said agency and/or employment. 16. The City of Dallas' officers, have engaged and continue to engage in a pattern or practice of

excessive violence and false arrest in the Dallas area. 17. The City of Dallas has tolerated the misconduct of individual officers through its acts or

omissions. These acts or omissions include, but are not limited to: a. failing to train City of Dallas' officers adequately to prevent the occurrence of misconduct; b. failing to supervise City of Dallas' officers adequately to prevent the occurrence of misconduct;

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c. failing to monitor City of Dallas' officers adequately who engage in or who may be likely to engage in misconduct; d. failing to establish a procedure whereby citizen complaints are adequately investigated;

e. failing to investigate adequately incidents in which a police officer uses lethal or non-lethal force; f. failing to fairly and adequately adjudicate or review citizen complaints, and incidents in which a police officer uses lethal or non-lethal force; and g. failing to discipline adequately City of Dallas' officers who engage in misconduct. 18. Law enforcement officers of the City of Dallas Police Department practice a pattern of

conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. Defendant the City of Dallas has engaged in a pattern or practice of subjecting individuals to false arrests and excessive violence. The City has tolerated this conduct through its failure to adequately train, supervise, and monitor police officers, and its failure to adequately accept citizen complaints of misconduct, investigate alleged misconduct, and adequately discipline officers who are guilty of misconduct. SECOND CLAIM FOR RELIEF Deprivation of Constitutional Rights ( 42 U.S.C. 1983) 19. herein.
20. As a result of the concerted unlawful and malicious detention of Marshall Moreno and the

Plaintiff incorporates all allegations set forth in previous paragraphs as fully set forth

subsequent beating death, the Defendants intentionally, and with deliberate indifference and callous disregard of Marshall Moreno's rights, deprived Marshall Moreno of his right to equal protection, in violation of the Fifth and Fourteenth Amendments, of the United States

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Constitution, and of the Texas Constitution, and 42 U.S.C. 1983, and the Texas Tort Claims Act,
and Texas common law. 21. Acting under the color of law and pursuant to official policy or custom, unknown John Doe

Defendants as police officers of the City of Dallas Police Department and Defendant City of Dallas, knowingly, recklessly or with deliberate indifference and callous disregard of Marshall Moreno's rights, failed to instruct, supervise, control, and discipline, on a continuing basis police officers of Defendant Dallas Police Department in their duties to refrain from(1) unlawfully and maliciously harassing a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities; (2) unlawfully, maliciously and falsely imprisoning a citizen who was acting in accordance with his constitutional and statutory rights, privileges and immunities; (3) conspiring to violate the rights, privileges and immunities guaranteed to citizens by the Texas and United States Constitutions; and (5) otherwise depriving a citizen of his constitutional and statutory rights, privileges and immunities. 22. The City of Dallas, had knowledge or, had they diligently exercised their duties to instruct,

supervise, control and discipline on a continuing basis, should have had knowledge that the wrongs conspired to be done, as heretofore alleged, were about to be committed. Defendants had power to prevent or aid in preventing the commission of said wrongs, could have done so by reasonable diligence, and knowingly, recklessly, or with deliberate indifference and callous disregard of Marshall Moreno's rights failed or refused to do so. 23. The City of Dallas, directly or indirectly, under color of law, approved or ratified the

unlawful, deliberate, malicious, reckless, and wanton conduct of the officers of the Dallas Police Department heretofore described. 24. The above described actions of the Defendants subjected Marshall Moreno to deprivation of

rights, privileges and immunities secured to Plaintiff by the Constitution and the laws of the United

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States of America, including the due process clause of the Fourteenth Amendment to the US Constitution within the meaning of 42 U.S.C. 1983, and an absolute right to be free from unreasonable seizure/arrest without probable cause provided by the Fourth Amendment, as incorporated to the states by the Fourteenth Amendment.

25.

By their conduct alleged herein, Marshall Moreno died as a result.

THIRD CLAIM FOR RELIEF Intention Infliction of Emotional Distress 26. herein. 27. This action is brought to recover those damages as provided by law for injuries and Plaintiff incorporates all allegations set forth in previous paragraphs as fully set forth

damages suffered by the Plaintiff under the tort of intentional infliction of emotional distress. In this case, unknown John Doe Officers beat and kicked Marshall Moreno, tied Marshall Morenos hands and feet together, and sprayed Marshall Moreno with pepper spray. Their conduct was extreme and outrageous in this case because at the time of the incident, even though Marshall Moreno committed no crime, the Defendants jumped on, beat, kicked, tied Marshall Morenos feet together, and sprayed Mr. Moreno with pepper spray. The later acts were committed while Marshall Moreno was incapacitated with his limbs bound. 28. Defendants actions caused the Plaintiff emotional distress because she witnessed the

entire incident. The Plaintiff had a clear and unobstructed view of the entire series of events culminating in the death of her son. The emotional distress suffered by the Plaintiff was severe because she witnessed the beating and death of her son, an event so horrific that no reasonable person could be expected to endure it. FOURTH CLAIM FOR RELIEF Excessive Use of Force

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29. herein. 30.

Plaintiff incorporates all allegations set forth in previous paragraphs as fully set forth

Unknown John Doe Officers are liable to Plaintiff under 42 U.S.C. 1983 because they

used excessive force against Marshall Moreno. 31. The force used by the unknown John Doe Officers Ulas and Justitz was clearly excessive

because Marshall Moreno, was apprehended and completely restrained, and not armed when he was continually kicked and pepper sprayed. 32. The foregoing acts, individually and collectively, were clearly excessive and objectively

unreasonable. 33. Their actions violated clearly established constitutional rights to be free from

unreasonable and excessive force. 34. It would have been obvious to any reasonable officer that the conduct of the John Doe

Officers was unlawful in the circumstances of this case. 35. 36. At all relevant times, the unknown John Doe Officers were acting under color of state law. The unreasonable use of force proximately caused Marshall Morenos death. FIFTH CLAIM FOR RELIEF Wrongful Death 37. herein. 38. This action is brought to recover those damages as provided by law for injuries and Plaintiff incorporates all allegations set forth in previous paragraphs as fully set forth

damages suffered by the Plaintiff under the Wrongful Death Act (Tex. Civ. Prac. & Rem. Code 71.001 et seq.). In this case, unknown John Doe Officers conduct was wrongful for the following reasons:

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a. Defendants jumped on Marshall Moreno, beat and kicked Marshall Moreno, and tied Marshall Morenos feet together while he was handcuffed and therefore defenseless. b. Defendants pepper sprayed Marshall Moreno while he was bound. 39. Defendants, listed above, were the direct cause of the of Marshall Morenos injuries,

which resulted in death. Defendants owed a general duty of care to Marshall Moreno, which they breached by their actions, listed above. AGENCY, RESPONDEAT SUPERIOR, RATIFICATION AND/OR NONDELEGABLE DUTY 40. herein. 41.
Pleading further and/or in the alternative, the City of Dallas is responsible for the acts and

Plaintiff incorporates all allegations set forth in previous paragraphs as fully set forth

omissions of its employees, agents and vice principals under the doctrines of respondeat superior, agency, ratification and/or non-delegable duty.

EXEMPLARY AND/OR PUNITIVE DAMAGES

42. 43. Plaintiff incorporates all allegations set forth in previous paragraphs as fully set forth herein. The conduct of Defendants and its agents, employees and representatives has been done

willfully, recklessly, wantonly, maliciously and/or intentionally. Accordingly, Plaintiff is entitled to recover exemplary and punitive damages in an amount determined by the jury that is sufficient to punish Defendant and to serve as an example to others and as a deterrent to such future conduct. 44. In addition, Plaintiff would show that the foregoing acts and/or omissions of Defendants,

whether taken singularly, collectively, or in any combination, amount to such willful wanton and malicious misconduct as to evidence a conscious indifference to the rights, safety and welfare of Marshall Moreno. Further, Defendants acted with intent to abuse, intimidate and harass the Marshall

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Moreno causing him injuries. Additionally, Plaintiff would show as well, that Defendants acts and/or omissions amount to malice, as that term is defined in law. As a proximate result of Defendants acts and/or omissions, Plaintiff is therefore entitled to recover exemplary or punitive damages from the Defendant.

45.

The amount of damages will be according to the proof at trial, and, ultimately, it will be up to

the jury or the Court to decide damages.

46.

In summary, the acts of the Defendants which culminated in the multiple injuries of

Marshall Moreno resulted from the willful, wanton, reckless, grossly negligent and total disregard of Plaintiff's Constitutional rights such that exemplary damages should be recovered against them in this action. The acts of the Defendants, were so flagrant as to offend a public's sense of justice and propriety. Such conduct should be justly punished to deter future misconduct. ACTUAL AND COMPENSATORY DAMAGES 47. 48. Plaintiff incorporates by reference the allegations of the preceding paragraphs. As a direct and proximate result of the Defendants actions and conduct described herein,

Marshall Moreno has died and suffered injury as a result. 49. Plaintiff has suffered out-of-pocket expenses, which include travel expenses, attorneys'

fees, and other expenses. Accordingly, Plaintiff seeks all general, special, incidental and consequential damages as shall be proven at the time of trial, including exemplary, and enhanced damages, pre-judgment interest, and post-judgment interest.
50.

The amount of total damages suffered by Plaintiff is significant and continuing in nature.

Such amounts exceed the minimum jurisdictional limits of this Honorable Court. Plaintiff reserves
the right to amend and state further with respect to their damages. PRE-JUDGMENT AND POST-JUDGMENT INTEREST 51. Plaintiff incorporates by reference the allegations of the preceding paragraphs.

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52.

Plaintiff seeks pre-judgment interest at a rate commensurate with the actual rate of interest in

the marketplace or, alternatively, a statutory rate of interest because of the delay in receiving the damages and also to avoid unjust enrichment to Defendants. Plaintiff also seeks post-judgment interest at the maximum rate allowed by law. DEMAND FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be cited to appear and answer and that upon final hearing, Plaintiff has judgment of and from the Defendants,

jointly and severally for: declaratory judgment; equitable relief; past physical pain and mental suffering; past and future mental anguish; actual, incidental and consequential damages; reasonable attorney fees; costs of court; punitive and exemplary damages in an amount above the minimum jurisdictional limits of this court; (i) pre-judgment interest at the maximum legal rate for all damages suffered; (j) post-judgment interest at the maximum legal rate for all damages suffered; and (k) for such other and further relief, at law or in equity, to which Plaintiffs may show themselves justly entitled. DEMAND FOR JURY TRIAL Plaintiff demands a trial by jury for all the issues so triable. Respectfully submitted, Law Office of William Chu (a) (b) (c) (d) (e) (f) (g) (h)

/s/ William Chu William Chu SBN: 04241000 4455 LBJ Freeway, Suite 909 Dallas, TX 75244 Telephone: (972) 392-9888 Fax: (972) 392-9889 Attorney for Plaintiff

By:

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PLEASE SERVE: CITY OF DALLAS Through: Mayor Mike Rawlins 1500 Marilla Street, Room SEN Dallas, Texas 75201