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4:11-Cv-05719-YGR NOTICE of MOTION and MOTION for LEAVE

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4:11-Cv-05719-YGR NOTICE of MOTION and MOTION for LEAVE 1 RONALD CRUZ, State Bar No. 267038 Scheff, Washington & Driver, P.C. 2 1985 Linden St. Oakland, CA 94607 3 (510) 384-8859 [email protected] 4 SHANTA DRIVER, Michigan Bar No. P65007* SCHEFF, WASHINGTON & DRIVER, P.C. 5 645 Griswold St., Suite 1817 Detroit, MI 48226 6 Phone: 313-963-1921 Fax: 313-963-7587 [email protected] 7 *Admitted pro hac vice 8 Attorneys for Plaintiffs 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 10 YVETTE FELARCA, et al. CASE NO.: 4:11-cv-05719-YGR 11 Plaintiffs, NOTICE OF MOTION AND 12 MOTION FOR LEAVE TO vs. AMEND FIRST AMENDED 13 COMPLAINT ROBERT J. BIRGENEAU, et al., 14 Defendants. 15 ______________________________________ 16 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 17 PLEASE TAKE NOTICE that the plaintiffs, via the motion set forth below, move 18 this Court to grant leave to plaintiffs to amend their First Amended Complaint to add claims 19 for which leave to amend has not yet been granted. The motion is based on the Court’s order 20 of February 25, 2013 and the Court’s file on this matter, and includes a proposed Second 21 Amended Complaint and a Proposed Order. 22 MOTION 23 The plaintiffs hereby request this Court to grant leave for the plaintiffs to amend 24 their First Amended Complaint (FAC), pursuant to the attached proposed Second Amended NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT 4:11-cv-05719-YGR 1 1 Complaint (Exhibit A). First, the proposed Second Amended Complaint amends the 2 plaintiffs’ First Amendment claims and their excessive-force Fourth Amendment claims, for 3 which leave already has been granted by this Court. Second, it would add the following: 4 (1) Add as defendant University of California Police Department (UCPD) 5 Lieutenant Eric Tejada, who issued the dispersal order and immediately ordered 6 the police actions during the evening police raid that led to excessive force and 7 the false arrests against plaintiffs Francisco Alvarado-Rosas, Julie Klinger, 8 Anthony Morreale, Sachinthya Wagaarachchi and Taro Yamaguchi-Phillips on 9 November 9, 2011; 10 (2) Add as defendant Lieutenant Marc DeCoulode, whom the plaintiffs since the 11 filing of the FAC have identified as one of the officers who committed excessive 12 force against plaintiff Taro Yamaguchi-Phillips; and 13 (3) Add a Count of false arrest in violation of the Fourth Amendment. 14 This Court, in its order entered on February 25, 2013, stated that the plaintiffs may 15 file a motion for leave to amend the FAC so as to include a Count of false arrest in violation 16 of the Fourth Amendment. The plaintiffs Alvarado-Rosas, Julie Klinger, Anthony Morreale, 17 Sachinthya Wagaarachchi and Taro Yamaguchi-Phillips have requested arrest reports from 18 UCPD to identify their arresting officers on November 9, 2011, and still have not received 19 this information. The proposed Second Amended Complaint makes specific allegations 20 about the actions of Eric Tejada and Marc DeCoulode and, in the case of Mr. Tejada, 21 sufficiently state a claim of false arrest. 22 The plaintiffs hereby request this Court to grant leave to amend the FAC to include 23 the three additions above in its Second Amended Complaint. 24 NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT 4:11-cv-05719-YGR 2 1 By Plaintiffs’ Attorneys, SCHEFF, WASHINGTON & DRIVER, 2 P.C. 3 BY: _/s/ Ronald Cruz_____________________ 4 Ronald Cruz (State Bar No. 267038) Shanta Driver (Michigan P-65007)* 5 645 Griswold, Suite 1817 Detroit, Michigan 48226 6 (510) 384-8859 (Ronald Cruz) (313) 585-3637 (Monica Smith) 7 8 Dated: March 25, 2013 9 *Admitted pro hac vice 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT 4:11-cv-05719-YGR 3 EXHIBIT A 1 RONALD CRUZ, State Bar No. 267038 Scheff, Washington & Driver, P.C. 2 1985 Linden St. Oakland, CA 94607 3 (510) 384-8859 [email protected] 4 SHANTA DRIVER, Michigan Bar No. P65007* SCHEFF, WASHINGTON & DRIVER, P.C. 5 645 Griswold St., Suite 1817 Detroit, MI 48226 6 Phone: 313-963-1921 Fax: 313-963-7587 [email protected] 7 *Admitted pro hac vice 8 Attorneys for Plaintiffs 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 10 YVETTE FELARCA, FRANCISCO ALVARADO- CASE NO.: 4:11-cv-05719-YGR 11 ROSAS, CHRISTOPHER ANDERSON, JOSHUA ANDERSON, JAMES CHANG, HILLARY 12 CHESLER, HONEST CHUNG, MORGAN PROPOSED SECOND CRAWFORD, YANIA ESCOBAR, JOSEPH FINTON, AMENDED COMPLAINT FOR 13 HAYDEN HARRISON, LOUIS HELM, JACQUELYN VIOLATION OF CIVIL KINGKADE, JULIE KLINGER, BENJAMIN RIGHTS AND DAMAGES 14 LYNCH, MAXIMILIAN MCDONALD, ARIELLA MEGORY, ANTHONY MORREALE, LIANA 15 MULHOLLAND, ASHLEY PINKERTON, JESSICA JURY TRIAL DEMANDED SCHAFFER, COLLEEN MICA STUMPF, JUSTIN 16 TOMBOLESI, ERICK URIBE, SACHINTHYA WAGAARACHCHI, DAN WILBUR, TARO 17 YAMAGUCHI-PHILLIPS, COLLEEN YOUNG, MARGARET ZHOU 18 Plaintiffs, 19 vs. 20 ROBERT J. BIRGENEAU, Chancellor of the University 21 of California-Berkeley, in his individual capacity; GEORGE BRESLAUER, Executive Vice Chancellor 22 and Provost of the University of California-Berkeley, in his individual capacity; MITCHELL CELAYA, Chief of 23 the University of California Police Department at Berkeley, in his individual capacity; LIEUTENANT 24 ERIC TEJADA, a police officer of the University of California Police Department at Berkeley, in his PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 1 1 individual capacity; CLAIRE HOLMES, Associate Vice Chancellor for Public Affairs and Communications for 2 the University of California-Berkeley, in her individual capacity; HARRY LEGRANDE, Vice Chancellor for 3 Student Affairs of the University of California-Berkeley, in his individual capacity; LINDA WILLIAMS, 4 Associate Chancellor of the University of California- Berkeley, in her individual capacity; JOHN WILTON, 5 Vice Chancellor for Administration and Finance for the University of California-Berkeley, in his individual 6 capacity; LIEUTENANT MARC DECOULODE, a police officer for the University of California Police 7 Department, OFFICER SAMANTHA LACHLER, a police officer for the University of California Police 8 Department, in her individual capacity; OFFICER CHAVEZ, a police officer for the Alameda County 9 Sheriff’s Office, in his individual capacity; OFFICER GARCIA, a police officer for the Alameda County 10 Sheriff’s Office, in his individual capacity; OFFICER KING, a police officer for the Alameda County Sheriff’s 11 Office, in his individual capacity; OFFICER OBICHERE, a police officer for the Alameda County 12 Sheriff’s Office, in his individual capacity; OFFICER ROMA, a police officer for the University of California 13 Police Department, in his individual capacity; and DOES 1-100, inclusive, 14 Defendants. 15 ______________________________________ 16 Pursuant to the Federal Rules of Civil Procedure, the plaintiffs, by and through their 17 attorneys, Scheff, Washington and Driver, P.C., state as follows: 18 19 INTRODUCTION 20 1. At the University of California at Berkeley (UC Berkeley) on November 9, 2011, a mass 21 mobilization of thousands of students and community members marched, rallied and 22 peacefully set up protest tents in defense of the integrity of the University as a public 23 institution, against fee hikes and the privatization of public education, and for increasing 24 black, Latina/o, and Native American student enrollment. Entire university departments PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 2 1 cancelled classes, and dozens of professors and graduate student instructors held teach- 2 outs in solidarity with the students. 3 2. The expressed purposes of this demonstration were directly opposed to those espoused 4 by defendants Chancellor Robert Birgeneau and Executive Vice Chancellor and Provost 5 George Breslauer. Birgeneau had published a report and an opinion piece advocating 6 student tuition hikes and maintaining state and federal public funding for a “limited” 7 number of public universities on the basis of matching donations to those universities 8 made from private sources. Furthermore, Birgeneau and defendant George Breslauer had 9 brokered a ten-year $500-million-dollar deal with British Petroleum (BP) in 2007, in 10 which BP has veto power over research proposals coming out of an energy research 11 institute established at UCB and intellectual-property rights over research produced in 12 that institute until 2017. The protests opposed all of these policies. 13 3. Upon the basis of the specific facts set forth below and upon well-founded information 14 and belief, on November 9, 2011 defendant Chancellor Birgeneau, the defendant 15 Executive Vice Chancellor and Provost George Breslauer, the defendant University of 16 California Police Department (UCPD) Chief Mitchell Celaya, and the defendant UCPD 17 Lieutenant Eric Tejada, ordered the police to attack peaceful protesters without lawful 18 authority and in whole or in part because of the purposes of the protest. These 19 defendants thus directly caused the police to use the excessive force and false arrests that 20 violated the plaintiffs’ constitutional rights. 21 4. Upon the basis of the specific facts set forth below and upon well-founded information 22 and belief, the defendants Birgeneau, Breslauer, and Celaya, and the defendants Vice 23 Chancellor for Student Affairs Harry LeGrande, Associate Chancellor Linda Williams, 24 Vice Chancellor for Administration and Finance John Wilton, and Associate Vice PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 3 1 Chancellor for Public Affairs and Communications Claire Holmes were all members of 2 the members of UC Berkeley’s “Crisis Management Executive Team” (CMET) and they 3 had all met together and consulted before November 9, 2011 to plan the police actions 4 for that day.
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