Suit Filed

Suit Filed Sept 23, 2013 10:11:37 GMT -5

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Post by ADMIN UPDATE on Sept 23, 2013 10:11:37 GMT -5

IN THE CIRCUIT COURT OF THE
FOURTEENTH JUDICIAL CIRCUIT, IN AND FOR BAY COUNTY, FLORIDA

RANDY MARTIN, CASE NO.: 13-
FLA BAR NO.: 073968
Plaintiff,

v.

CITY OF PANAMA CITY
BEACH, FLORIDA, and
JOHN KELLY, individually,

Defendants.
_________________________________/

COMPLAINT

Plaintiff, RANDY MARTIN, sues Defendants, CITY OF PANAMA CITY BEACH, FLORIDA and JOHN KELLY, individually, and alleges:
JURISDICTION
1. This is an action involving the violation of Plaintiff=s federal civil rights and contains state causes of action for damages in excess of $15,000.00, the jurisdictional amount required for venue in this Court.
2. The Plaintiff=s claims for relief are predicated on the common law of the State of Florida and upon 42 U.S.C. 1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges, and immunities secured to the Plaintiff by the Constitution and laws of the United States, and by 42 U.S.C. 1988 which authorizes the award of attorney=s fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. 1983.

CONDITIONS PRECEDENT
3. Written notices of intent to initiate litigation on Plaintiff’s state law claims asserted herein, were submitted to the Defendant City of Panama City, Florida on or about June 4, 2012 pursuant to 768.28(6), Florida Statutes. No response was received by Plaintiff, therefore they
are deemed denied by operation of law.
PARTIES
4. Plaintiff, RANDY MARTIN (hereinafter AMartin@), has been a resident of Bay County, Florida at all times pertinent hereto. The incidents alleged herein occurred in Bay County and he is sui juris.
5. Defendant, CITY OF PANAMA CITY BEACH, FLORIDA, (hereinafter ACity” ), at all times pertinent to this action, operated the Panama City Beach Police Department (hereinafter “PCBPD”) and was organized and existing under the laws of the State of Florida.
6. Defendant, JOHN KELLY (hereinafter AKelly@), at all times pertinent hereto was employed by the Defendant as a Police Officer with the Panama City Beach Police Department (APCBPD@). He is sued in his individual capacity.
FACTUAL ALLEGATIONS
7. On July 29, 2011, Plaintiff was involved in an altercation with Jimmy Algie Smith. Smith and Plaintiff Martin were having a verbal argument when Smith sucker punched Plaintiff. Plaintiff, in defense of himself, began to wrestle with Smith for a few minutes. When the altercation was over, Smith, who started the fight, called the police and claimed that Plaintiff Martin battered him.
8. Defendant Officer John Kelly arrived at Plaintiff’s home within ten minutes of Smith’s call. Upon his arrival, Kelly immediately ordered Plaintiff Martin outside and placed him in handcuffs. Kelly, asked Plaintiff, “Where is your gun? Plaintiff told Kelly that his gun was in his house. Plaintiff tried to explain to Kelly that he was in no shape to assault or batter anyone as he was scheduled for an Achilles tendon surgery the following week. Plaintiff was wearing a heavy black knee length air boot prescribed to him by his doctor. Without the boot, he could put no weight on his right foot and even with the boot he could only put minimal pressure on it. Plaintiff had to be careful not to further injure the tendon. Defendant Kelly was not interested in anything Plaintiff Martin had to say. Plaintiff asked Defendant Kelly for first aid because his arm was bleeding profusely. Defendant Kelly responded, “You look fine to me.” Kelly took pictures of Jimmy Smith but did not take pictures of Plaintiff’s injuries. Kelly put Plaintiff in the back of the police car without conducting any investigation whatsoever and never read Plaintiff Martin his Miranda rights before questioning him.
9. Plaintiff was processed and booked into the Bay County jail. At that time,
Plaintiff underwent a medical screening as part of the intake process. The medical screening record showed that Plaintiff had cuts and abrasions on his right arm, heavy black air boots and that he was assigned a low bunk due to the boot on his foot.
10. At Plaintiff’s criminal trial, however, Kelly claimed that Plaintiff was not injured
and that he was not wearing a boot. This is a direct contradiction to what is actually documented in the medical screening report discussed above. In addition to a complete lack of police professionalism, Kelly intentionally lied while giving deposition testimony and while on the witness stand at Plaintiff’s criminal trial.
11. Also at Plaintiff’s criminal trial, Kelly was asked why he did not obtain statements from both parties and turn the case over to the investigation division. Kelly said that he didn’t need to do that because he already knew what happened. Kelly was also asked if it was normal in the Department to charge people with crimes for which there was no corroborating evidence. Kelly replied that it was. Upon information and belief, Kelly has engaged in similar misconduct and has engaged in acts of false arrest before with impunity.
COUNT I
FALSE ARREST/IMPRISONMENT
(Against John Kelly)
12. Paragraphs 1 through 11 are hereby re-alleged and incorporated herein by reference.
13. This is an action against Kelly in his individual capacity. This Count is pled in the alternative. For the purpose of this Count alone, Kelly was acting outside the course and scope of his duties and employment with Defendant PCBPD.
14. The Plaintiff is entitled to relief against Kelly in that he intentionally and unlawfully detained and restrained Plaintiff against his will; deprived Plaintiff of his liberty without any reasonable cause or color of authority and maintained such complete restraint and deprivation for a period of time.

15. This unlawful restraint of the Plaintiff=s liberty was also accomplished by Defendant confining Plaintiff to an area in which the Plaintiff did not wish to be confined.
16. Plaintiff was further restrained by Defendant=s use of coercive words and threats of force as well as actual force and immediate means of coercion against Plaintiff, so that the Plaintiff was restrained and deprived of liberty. Defendant restrained Plaintiff without any justification and in the absence of probable cause. Defendant conducted no independent investigation into whether any criminal conduct had occurred.
17. At all times material to this action, and at all times during which Plaintiff was being unlawfully restrained, the Plaintiff was restrained against his will, and without consent, so that Plaintiff was not free to leave his place of confinement. Defendant Kelly acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights or safety.
18. As a direct and proximate cause of Defendant=s actions, Plaintiff has been damaged, which damages include: mental anguish, pain and suffering, bodily injury, loss of capacity for the enjoyment of life, embarrassment, humiliation, loss of reputation, lost employment opportunities, lost wages, and the loss of other emoluments. These damages have occurred at present, in the past and will most likely occur in the future.

COUNT II
FALSE ARREST/IMPRISONMENT
(Against City of Panama City Beach)
19. Paragraphs 1 through 11 are hereby re-alleged and incorporated herein by reference.

20. This is an action against Defendant City of Panama City Beach for false imprisonment/false arrest. This Count is pled in the alternative.
21. The Plaintiff is entitled to relief against Defendant PCBPD in that Defendant Kelly, intentionally and unlawfully detained and restrained Plaintiff against his will, deprived Plaintiff of his liberty without any reasonable cause, and maintained such complete restraint and deprivation for a period of time. The actions by the employee and agent of Defendant were committed within the course and scope of his employment with Defendant.
22. This unlawful restraint of the Plaintiff=s liberty was also accomplished by Defendant confining Plaintiff to an area in which the Plaintiff did not wish to be confined and by compelling the Plaintiff to go where he did not wish to go.
23. Plaintiff was further restrained by Defendant, through its agent and employee’s use of coercive words, threats of force as well as actual force, and immediate means of coercion against Plaintiff so that the Plaintiff was restrained and deprived of liberty. Defendant restrained Plaintiff without any justification and in the absence of probable cause. Defendant conducted no independent investigation into whether any criminal conduct had occurred.
24. At all times material to this action, and at all times during which the Plaintiff was being unlawfully restrained, the Plaintiff was restrained against his will, and without consent, so that the Plaintiff was not free to leave his place of confinement.

25. As a direct and proximate cause of Defendant=s actions, Plaintiff has been damaged, which damages include: mental anguish, pain and suffering, bodily injury, loss of capacity for the enjoyment of life, embarrassment, humiliation, loss of reputation, lost employment opportunities, lost wages, and the loss of other emoluments. These damages have occurred at present, in the past and will most likely occur in the future.

COUNT III
FOURTH AMENDMENT VIOLATION - FALSE ARREST
(Against John Kelly)

26. Plaintiff re-alleges paragraphs 1 through 11 above and incorporates those allegations in this Count. This Count is pled in the alternative.
27. The Defendant operated to violate Plaintiff’s rights under the Fourth Amendment to the United States Constitution. These violations were of the type and character as to which any reasonable person would be aware.
28. Defendant further operated to violate Plaintiff s civil rights as protected by The Civil Rights Act, 42 U.S.C. 1983. This Count is pled in the alternative and for the purposes of this count alone, the individually named Defendant was acting outside the course and scope of his employment with Defendant PCBPD.
29. Defendant is a person under applicable law.
30. Defendant Kelly acted in bad faith, with malicious purpose and in a manner exhibiting wanton and willful disregard of human rights, safety, and property.

31. Defendant Kelly misused his power, possessed by virtue of state law and made possible only because he was clothed with the authority of state law. The violation of Plaintiff’s rights, as described above, occurred under color of state law and is actionable under 42 U.S.C. 1983.
32. The foregoing actions of Defendant was willful, wanton and in reckless
disregard of Plaintiff s rights, and were taken without any lawful justification and/or in the absence of probable cause. Defendant knew or should have known that there was no probable cause to arrest Plaintiff given the circumstances present and the clearly established law on the proof needed to establish probable cause.
33. Based upon the facts presented to Defendant and the applicable law, no
reasonable law enforcement officer could have concluded that there existed any probable cause to arrest Plaintiff. The law was well settled and clearly established that the actions of this Defendant constituted false arrest under the Fourth Amendment to the United States Constitution at the time the actions by these Defendants were committed.
34. The actions or inactions of this Defendant as set forth in part above constituted a deliberate indifference or reckless disregard for the safety of Plaintiff when he knew of and disregarded a risk to Plaintiff s health and safety.

COUNT IV
FOURTH AMENDMENT VIOLATION - FALSE ARREST
(Against City of Panama City Beach)

35. Plaintiff re-alleges paragraphs 1 through 10 above and incorporates those allegations in this Count. This Count is pled in the alternative.
36. Defendant Kelly, an agent of the Defendant PCBPD, operated to violate Plaintiff’s rights under the Fourth Amendment to the United States Constitution. These violations were of the type and character as to which any reasonable person would be aware.
37. The Defendant Kelly misused his power, possessed by virtue of state law and made possible only because he was clothed with the authority of state law. The violation of Plaintiff’s rights, as described above, occurred under color of state law and is actionable under 42 U.S.C. 1983.
38. The foregoing actions of Defendant was willful, wanton and in reckless
disregard of Plaintiff’s rights, and were taken without any lawful justification and/or in the absence of probable cause. Defendant knew or should have known that there was no probable cause to arrest Plaintiff given the circumstances present and the clearly established law on the proof needed to establish probable cause.
39. Based upon the facts presented to Defendant and the applicable law, no reasonable law enforcement officer could have concluded that there existed any probable cause to arrest Plaintiff. The law was well settled and clearly established that the actions of Defendant Kelly constituted false arrest under the Fourth Amendment to the United States Constitution at the time the actions by these Defendants were committed.
40. The actions or inactions of Defendant Kelly as set forth in part above constituted a deliberate indifference or reckless disregard for the safety of Plaintiff when he knew of and disregarded a risk to Plaintiff s health and safety.
41. PCBPD acted with deliberate indifference in the failure to implement adequate hiring and supervisory procedures to properly identify suspects of crimes, to identify deputies who falsified facts to support probable cause to arrest a person like Plaintiff, and to prevent deputies from falsifying facts to support probable cause affidavits, the direct result of which Plaintiff was falsely arrested and imprisoned.
42. The Chief of Police for PCBPD is an official with final policy-making authority for PCBPD. He is responsible for hiring and supervising the law enforcement officers who work under him and, when necessary, for investigating alleged wrongdoing by his employees and disciplining those employees. At all times referred to herein, the Chief acted under color of state law and failed to train, supervise, investigate and discipline the individual Defendants as alleged herein. The Chief=s failure to, supervise, investigate and discipline the individual Defendant constitutes either an improper policy or the absence of a policy of the Defendant PCBPD which resulted in the deliberate indifference to the constitutional rights of the Plaintiff. The Chief also, after notice of the constitutional violations alleged herein, officially sanctioned these actions and refused to properly discipline Defendant Kelly named herein which established a policy, by a final policy-maker, that directly or indirectly resulted in the violation of Plaintiff=s constitutional rights.
43. As a direct and proximate cause of Defendant=s actions, Plaintiff has been
damaged, which damages include: grave mental anguish, pain and suffering, loss of capacity for the enjoyment of life, embarrassment, humiliation, bodily injury, loss of reputation, lost employment opportunities, lost wages, and the loss of other emoluments. These damages have occurred at present, in the past and will most likely occur in the future.
44. Plaintiff has been forced to retain counsel to represent him to vindicate his
rights. Pursuant to the provisions of 42 U.S.C. 1988, Plaintiff is entitled to an award of

reasonable attorney’s fees and costs.

COUNT V
MALICIOUS PROSECUTION
(Against John Kelly)

45. Paragraphs 1through 11 are incorporated herein by reference.
46. This is an action against Defendant John Kelly for malicious prosecution.

47. Defendant Kelly caused the commencement or continuation of a
criminal proceeding against Plaintiff; the criminal proceedings had a bona fide termination in
Plaintiff=s favor in that Plaintiff was found not guilty of all charges by a jury of his peers at the conclusion of a criminal trial.
48. There was no probable cause or reasonable basis in fact or in law for causing the
commencement and the continuation of the criminal proceedings and Defendant acted with malice. Plaintiff suffered damage as a result of Defendant=s actions.
49. As a direct and proximate result of the actions taken by Defendants, Plaintiff has
suffered injury, including but not limited to loss of benefits, and other tangible and intangible
damages. These damages have occurred in the past, are occurring at present and will occur in the
future.

COUNT VI
NEGLIGENT RETNTION/SUPERVISION

50. Plaintiff re-alleges paragraphs 1 through 11 above and incorporates those allegations in this Count. This Count is pled in the alternative.
51. This is an action against Defendant City for negligent retention and supervision.
52. Defendant breached its duty to independently investigate Defendant Kelly’s
fitness for employment as a law enforcement officer. Had they conducted independent investigations into the many acts of misconduct subsequent to his hiring, the Defendant City would have known that Defendant Kelly, upon information and belief, had committed similar acts of misconduct and dishonesty in the past while employed with the Panama City Beach Police Department.
53. Defendant City had a legal duty and responsibility to learn the pertinent facts
concerning Defendant Kelly’s character and fitness for duty. A cursory investigation would have revealed his checkered employment record. The Defendant City would have known that he engaged in acts of misconduct and dishonesty in the past and obtaining the necessary information would not have created an undue hardship on the Defendant City.
54. Defendant City breached its duty to hire employees who were fit for the duties they performed and to supervise and train its employees and agents.
55. While employed within the Defendant City, Defendant Kelly committed several acts of misconduct which served as indicia to the Defendant City that Kelly was unfit to remain employed. Yet the Defendant City failed to investigate, reassign, discharge or take any action against Kelly.
56. Defendant City also breached its duty ensure Defendant Kelly was properly trained
to identify suspects like Plaintiff before depriving him of his liberty through arrest. The breach of this duty to properly supervise resulted in damages and injury to Plaintiff. Defendant City knew or should have known that the actions, omissions, and derelictions of its agent and employee could cause injury to Plaintiff. This knowledge was particularly apparent given Defendant Kelly’s history of misconduct and false arrests, as described, in part, above.
57. As a direct and proximate result of the above unlawful acts and omissions, Plaintiff sustained economic damages, including lost income, grave and serious bodily injury and disfigurement, emotional pain, anguish, humiliation, insult, indignity, loss of self-esteem, inconvenience and hurt, medical care and expense, because of Defendant’s actions, and is therefore entitled to compensatory damages pursuant to the above provisions.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for the following relief:
(a) That process issue and this Court take jurisdiction over this case;
(b) Judgment against the Defendants and for the Plaintiff awarding damages against Defendants and punitive damages against Wilson for the violations of law enumerated herein;
(c) Prejudgment interest on monetary recovery obtained pursuant to law; and
(d) Such further relief as is equitable and just.
DEMAND FOR TRIAL BY JURY
Plaintiff hereby demands a trial by jury on all issues set forth herein which are so triable.

DATED this _____ day of September 2013.
Respectfully submitted,

_____________________________
Marie A. Mattox [FBN 0739685]
MARIE A. MATTOX, P.A.
310 East Bradford Road
Tallahassee, FL 32303
Telephone: (850) 383-4800
Facsimile: (850) 383-4801

ATTORNEYS FOR PLAINTIFF

Bid-A-Wee, Panama City Beach

Post by Z on Sept 22, 2013 22:50:51 GMT -5

Post by ADMIN UPDATE on Sept 23, 2013 10:11:37 GMT -5

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