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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
JANET WILDENSTEIN-MALDONADO, ) ) Plaintiff, ) ) vs. ) CIVIL NO.: ) ) JURY TRIAL DEMANDED FORMER ALBUQUERQUE ) POLICE CHIEF RAY SCHULTZ, ) OFFICER JEREMY WOLFFBRANDT, ) OFFICER DUSTIN SHROUF, ) THE CITY OF ALBUQUERQUE, ) AND THE ALBUQUERQUE ) POLICE DEPARTMENT. ) ) Defendants. )
COMPLAINT FOR VIOLATIONS OF CIVIL RIGHTS, TORT CLAIMS, EXCESSIVE FORCE, AND DAMAGES
Plaintiff Janet Wildenstein-Maldonado brings this action against defendants for violation of her civil rights under 42 U.S.C. § 1983, for tort damages under the New Mexico Tort Claims Act, and for the use of excessive force and resulting damages, and alleges in support thereof:
PRELIMINARY STATEMENT
On April 10, 2014, the United States Department of Justice (“DOJ”) issued a 46 page investigative report about the Albuquerque Police Department
(“APD”) to Mayor Richard J. Berry. The report documented “longstanding deficiencies that have allowed a culture of indifference to constitutional policing and insularity to develop within the department.” DOJ found that
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Albuquerque police officers often use excessive and unreasonable physical force without regard for the subject’s safety or the level of threat encountered.
Even more alarming, DOJ found the use of excessive force by APD officers is not isolated or sporadic. DOJ concluded that the pattern of practice of excessive force stems from systemic deficiencies in oversight, training, and policy and the department’s failure to implement an objective and rigorous internal accountability system. Force incidents are not properly investigated, documented, or addressed with corrective measures.
APD routinely escalates incidents rather than use appropriate de- escalation measures, according to DOJ. These unconstitutional practices are particularly dangerous when the excessive force measures are used against persons with mental illness and in crisis. DOJ concluded:
A significant amount of the force we reviewed was used against persons with mental illness and in crisis. APD’s policies, training, and supervision are insufficient to ensure that officers encountering people with emotional problems and in distress do so in a manner that respects their rights and is safe for all involved. (p. 3)
The DOJ Report uses generous language to describe unacceptable APD hiring, training, oversight, and accountability policies and practices, all of which have led to unconstitutional policing practices in Albuquerque, including the incident that is the subject of this lawsuit.
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JURISDICTION AND VENUE
1. This Court has jurisdiction over this action pursuant to 42 U.S.C. §
1983, 42 U.S.C. § 1988 and 28 U.S.C. § 1343, with supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367.
2. Plaintiff is a resident of Bernalillo County, New Mexico. All acts complained of occurred in Bernalillo County, New Mexico. Lawful venue of this case lies in this court and this federal district.
THE PARTIES
3. Plaintiff Janet Wildenstein-Maldonado (“Ms. Maldonado”) is a citizen of the United States and a resident of Albuquerque, Bernalillo County, State of
New Mexico.
4. Defendant Ray Schultz was the Chief of the Albuquerque Police
Department (“APD”) on March 8, 2013, was on such date the public official in charge of and responsible for APD policy and practices, and was the supervisor of Defendants Jeremy Wolffbrandt and Dustin Shrouf.
5. Defendants Jeremy Wolffbrandt and Dustin Shrouf (the “Defendant
Officers”), were at all times material to this action employed by Defendants City of Albuquerque and APD and assigned as law enforcement officers within APD.
6. Defendants City of Albuquerque and the APD are New Mexico governmental agencies responsible for the hiring, retention, training, supervision, and discipline of APD officers, including Defendants Jeremy
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Wolffbrandt and Dustin Shrouf, and are the entities liable in suits for damages caused by City of Albuquerque and APD employees.
7. Defendant Schultz and the Defendant Officers were acting at all material times acting under color of state law and within the scope of their employment and duties as law enforcement officers, and are sued in their individual capacities.
FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
8. At approximately 10:00 p.m. the night of March 8, 2013, Defendants
Wolffbrandt and Shrouf were parked in APD police cruisers on Caddie Street,
N.W., near the intersections of Baxter Court and Capri Court in Albuquerque,
New Mexico.
9. Ms. Maldonado was driving to her residence from her daughter’s house shortly after 10:00 p.m. on March 8, 2013, and observed the police cars parked on Caddie Street a few hundred feet from Capri Court where she lives near the corner of Caddie and Capri Court. Because she was curious regarding the reason for police cars in her neighborhood, Ms. Maldonado drove past the parked police cars rather than turning on Capri Court, and then drove into and out of the nearby Baker Court cul de sac, returning to Caddie Street and then proceeded to Capri Court to turn and enter her driveway one house from the intersection.
10. Defendant Wolffbrandt began following Ms. Maldonado at some point in time, entering the Baker Court cul de sac as she was exiting it, and then
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following her on Caddie Street and turning on his emergency lights the distance of approximately three house lots before reaching Capri Court. Ms.
Maldonado saw the emergency lights just moments before she turned onto
Capri Court to enter her driveway.
11. Defendant Wolffbrandt pulled in directly behind Ms. Maldonado’s vehicle in her driveway at 4528 Capri Court, NW, and Ms. Maldonado had already exited her car and opened her garage door. Defendant Wolffbrandt got out of his car and loudly and abusively yelled “get back in your car” at Ms.
Maldonado, frightening her. Ms. Maldonado, who is 54 years of age and of slight stature, told the officer that this was her house and reasonably asked what she had done. Defendant Wolffbrandt did not answer her question. Ms.
Maldonado then complied with Defendant Wolffbrandt’s directive and got back in her vehicle.
12. In March 2013, Ms. Maldonado had recently been receiving treatment for obsessive-compulsive disorder (OCD).1 She is emotionally fragile and was terrified by Defendant Wolffbrandt’s threatening and verbally abusive behavior, and she experienced an acute anxiety attack as a result.
13. Ms. Maldonado was frightened and wanted to get inside her garage, and after waiting some time while Defendant Wolffbrandt remained in his car without explaining why he had followed her into her driveway and yelled at her to get back in her car, Ms. Maldonado again got out of her vehicle and walked
1 Obsessive-compulsive disorder (OCD) is an anxiety disorder characterized by intrusive thoughts that produce anxiety and apprehension. 5 Case 1:15-cv-00182-KBM-SCY Document 1 Filed 03/04/15 Page 6 of 15
inside her garage, standing a few feet from the garage door facing the police car, preparing to talk to Defendant Wolffbrandt about whatever was going on.
14. Defendant Wolffbrandt then exited his vehicle and ran into Ms.
Maldonado’s garage and tackled her by the leg, causing her to fall and hit her head on the concrete floor. Defendant Wolffbrandt then dragged Ms.
Maldonado by the leg to the driveway outside the garage, picked her up and threw her to the ground again and performed an “arm bar takedown,” causing
Ms. Maldonado bruises and severe abrasions, aggravating her existing back problem, and causing her pain and suffering and severe emotional trauma.
15. In violation of APD policy, Defendant Wolffbrandt failed to turn on his lapel camera and audio recorder until well into the incident; however, the incomplete recording is shocking and very disturbing.
16. Defendant Shrouf then arrived on the scene, and one or both of the officers placed their full weight on Ms. Maldonado’s back and handcuffed her.
Ms. Maldonado’s requests that they not touch items in her vehicle were met with sarcastic comments. As she was being assaulted and handcuffed, Ms.
Maldonado repeated pleaded with the officers to “please tell me why you are doing this.” She received no answers. A third APD officer, as yet unidentified, arrived on the scene and laughed about Ms. Maldonado’s pleas and complaints about being assaulted. After being assaulted, handcuffed, and placed in the police car, Ms. Maldonado was finally informed that the offense for which she
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had been assaulted, handcuffed, and arrested (and later incarcerated) was an expired license tag.
17. Ms. Maldonado was bleeding, injured and traumatized as a result of the assault and battery by Defendants Wolffbrandt and Shrouf, and was experiencing an asthma attack. Paramedics were called to the scene. Ms.
Maldonado requested that she be given her asthma medication which was in her car, and the officers refused to respond.
18. Ms. Maldonado was taken by Albuquerque Ambulance to Lovelace
Westside Hospital for medical treatment in the emergency room. An APD officer followed the ambulance and demanded “she’s coming with me” to the hospital staff. Approximately thirty minutes later, after receiving medical treatment for the injuries caused by the Defendant Officers, Ms. Maldonado was again handcuffed and taken to a police substation, while suffering from severe back pain and acute anxiety. She was then taken downtown in a police car and held in a cell for two hours, and then transported to the Metropolitan
Detention Center (the MDC) where she was incarcerated until 2:30 p.m. the following day, March 9, 2013. She was treated with disrespect and ridicule at the MDC and subjected to a humiliating and invasive search after being ordered to take off all of her clothes.
19. The Defendant Officers’ excessive, unnecessary and unreasonable use of force upon Ms. Maldonado and her subsequent arrest were without probable cause or rational justification, and were undertaken in retaliation for
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Ms. Maldonado’s exercise of her protected right to free speech. The actions of the Defendant Officers were in violation of the constitutional rights of Ms.
Maldonado and contrary to established APD policy and acceptable law enforcement standards.
20. As a proximate result of the APD incident, Ms. Maldonado sustained physical injuries to her back, knees, shoulders, and head. As a further proximate result of the APD incident, Ms. Maldonado sustained severe post- traumatic stress disorder, and psychological and emotional trauma, including exacerbation of her depression, anxiety, and OCD. Ms. Maldonado is now frightened by Albuquerque police officers, rather than feeling protected by them.
21. As a proximate result of the APD incident, Ms. Maldonado was forced to discontinue her education at the Central Community College of New
Mexico (CNM) where she was studying to earn credentials to start a career in phlebotomy, and she has lost employment and career opportunities and future income and other benefits in an amount to be proven at trial.
22. Defendant Schultz knew or should have known of, and intentionally countenanced and condoned, the wrongful and unconstitutional acts of the
Defendant Officers, knowingly and intentionally failed to investigate the incident to learn the true facts, and authorized the prosecution of Ms.
Maldonado based on “stacked” charges against her founded on false complaints filed by the Defendant Officers who acted pursuant to “contempt of
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cop,” which is law enforcement jargon associated with arbitrary arrest and detention. Contempt of cop is discussed in connection with police misconduct such as the use of excessive force and police brutality as a reaction to what officers perceive as conduct insufficiently deferential to their authority, rather than for any legitimate law enforcement purpose.
23. The Defendant Officers’ acts in violation of Plaintiff’s rights were the proximate result of deliberate indifference and a failure to provide adequate hiring, training, oversight, and supervision of APD officers, and to investigate law enforcement misconduct and enforce reasonable accountability procedures within APD, all of which Defendant Schultz was responsible for on March 8,
2013, as the APD Chief of Police until his retirement on July 29, 2013.
24. As a proximate result of the individual and conspiratorial acts of the defendants described above, Ms. Maldonado has suffered and will continue to suffer damages which include, but are not limited to, physical injuries and aggravations of pre-existing injuries requiring medical care, treatment, and future medical treatment; pain and suffering; post-traumatic stress disorder; mental anguish; loss of income resulting from the loss of educational opportunities and future income; loss of enjoyment of life; humiliation as a result of her cruel treatment at the MDC; damage to her reputation; the official report of a criminal record for which there was no factual or legal justification, fingerprinting, mug shots, and other arrest and prosecution records after a
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lifetime with no criminal record whatsoever; and legal fees and expenses in defending against unfounded criminal charges.
25. On March 8, 2013, Defendant Schultz was the final policymaker for
APD, and his acts are attributable to the Defendants City of Albuquerque and
APD. Defendants City of Albuquerque and APD are liable for acts and omissions of their agents and employees committed while in the course and scope of their duties and employment, and are therefore liable for the actions of individual Defendants Schultz, Wolffbrandt and Shrouf.
26. The conduct of the defendants as herein alleged was malicious, reckless, wanton, and oppressive, and justifies an award of punitive damages in favor of Plaintiff Janet Wildenstein-Maldonado and against the Defendants.
27. Defendants City of Albuquerque, APD, and Schultz failed to properly train, supervise, and discipline subordinate officers who engaged in unreasonable seizures, including seizures involving excess, unnecessary and unreasonable force and those involving arrests without probable cause.
Moreover, these Defendants maintained an unwritten custom and practice which permitted or condoned such misconduct. These customs and practices included the failure of these Defendants to adequately investigate complaints of police misconduct that they received prior to March 8, 2013, and their failure to adequately investigate the allegations in this lawsuit after receiving notice of the wrongful conduct of the Defendant Officers named herein and to take adequate remedial action regarding officer misconduct. Defendants’ failure to
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adequately investigate the allegations of misconduct in this case constituted a ratification of the unlawful conduct to which Ms. Maldonado was subjected.
These failures were a direct cause of the injuries complained of by Ms.
Maldonado herein.
COUNT I: CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. § 1983; USE OF UNNECESSARY, UNREASONABLE AND EXCESSSIVE FORCE IN VIOLATION OF THE FOURTH AMENDMENT
28. The allegations set forth in paragraphs 1 through 27 above are hereby reincorporated as though fully set forth herein.
29. On March 8, 2013, Defendants APD Chief Ray Schultz and
Defendant Officers were acting under color of state law, were “persons” within the meaning of 42 U.S.C. §1983, and were acting in their official capacity as law enforcement officials employed by defendant City of Albuquerque and APD.
30. The Defendant Officers used unnecessary, unreasonable and excessive force in arresting Ms. Maldonado, in violation of her rights under the
Fourth and Fourteenth Amendments to the Constitution of the United States of
America and in violation of 42 U.S.C. §1983, and they failed to act reasonably under the circumstances.
31. The Defendant Officers’ unlawful use of force upon Ms. Maldonado was objectively unreasonable, in violation of Ms. Maldonado’s right under the
Fourth Amendment to be free from unreasonable seizures.
32. No competent law enforcement officer faced with the circumstances presented by the events of March 8, 2013, involving Ms. Maldonado, could
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reasonably have believed that the amount of force used by Defendant Officers was justified, sensible or necessary. Defendant Officers are not entitled to a defense based on qualified immunity because their acts were obviously wrongful in light of preexisting law, and only demonstrably incompetent officers, or officers who were knowingly violating the law would have conducted themselves as did the Defendant Officers in their use of force upon Ms.
Maldonado.
33. The Defendant Officers directly participated in the acts which caused harm to Plaintiff Maldonado as detailed in this Complaint, and they are individually liable for the harm and damages resulting to Plaintiff as a direct result of such unconstitutional policy pursuant to 42 U.S.C. §1983 and the
Fourth and Fourteenth Amendments to the Constitution of the United States.
COUNT II: CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. § 1983; THE ARREST OF PLAINTIFF WITHOUT PROBABLE CAUSE IN VIOLATION OF THE FOURTH AMENDMENT
34. The allegations set forth in paragraphs 1 through 33 above are hereby reincorporated as though fully set forth herein.
35. The Defendant Officers had no probable cause to arrest Ms.
Maldonado.
36. The unlawful arrest by the Defendant Officers was in violation of
Plaintiff’s rights to be free from unreasonable seizures as guaranteed to her by the Fourth and Fourteenth Amendments and 42 U.S.C. §1983.
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COUNT III: CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. § 1983; MALICIOUS PROSECUTION IN VIOLATION OF FOURTH AMENDMENT
37. The allegations set forth in paragraphs 1 through 36 above are hereby reincorporated as though fully set forth herein.
38. The defendants knowingly conspired to pursue prosecution of Ms.
Maldonado for improper motives on charges that were unsupported by probable cause.
39. Defendants’ malicious prosecution of Ms. Maldonado violated her
Fourth Amendment right to be free from unreasonable seizures.
COUNT IV: CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. § 1983; FIRST AMENDMENT RETALIATION
40. The allegations set forth in paragraphs 1 through 39 above are hereby reincorporated as though fully set forth herein.
41. The Defendant Officers’ use of excessive, unnecessary and unreasonable force upon Ms. Maldonado, their arrest of her and prosecution of her not based on probable cause or justification but in retaliation for her asking Defendant Officers what she had done and why she was being assaulted, handcuffed and arrested violated Ms. Maldonado’s First Amendment right to free speech.
COUNT IV: FAILURE TO TRAIN EMPLOYEES AND DELIBERATE INDIFFERENCE TO OBVIOUS NEED FOR SUCH TRAINING
42. The allegations set forth in paragraphs 1 through 41 above are hereby reincorporated as though fully set forth herein.
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43. The policy of Defendants City of Albuquerque, APD, and Defendant
Schultz with reference to the training, supervision, and oversight of APD employees, was and is unconstitutional within the meaning of 42 U.S.C. §1983 because such policy and failure amounts to deliberate indifference to an obvious need for such training, supervision and oversight.
COUNT IV: NEW MEXICO STATE TORT CLAIMS: FALSE ARREST AND FALSE IMPRISONMENT, ASSAULT AND BATTERY, DEFAMATION AND MALICIOUS ABUSE OF PROCESS
44. The allegations set forth in paragraphs 1 through 43 above are hereby reincorporated as though fully set forth herein.
45. Pursuant to the New Mexico Tort Claims Act, §§ 41-4-1 -30, NMSA
(the “Act”), the defendants are liable for damages for enumerated torts, including assault, battery, false arrest, defamation and malicious abuse of process for their wrongful actions as described in this Complaint.
46. Plaintiff provided timely written notice of the claims herein as required by the Act, and the Act waives immunity on the part of the defendants for the torts alleged herein.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Janet Wildenstein-Maldonado respectfully requests that the Court enter judgment as follows:
1. Against all defendants jointly and severally for all lawful compensatory in an amount to be determined by the jury;
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2. Against the individually named Defendants Schultz, Wolffbrandt and
Shrouf, severally, for all lawful punitive damages in amounts to be determined by the jury;
3. Against all defendants for costs, expenses and attorney’s fees; and
4. For such other and further relief as the Court deems just and proper.
JURY DEMAND
Plaintiff requests a trial by jury on all counts set forth in this action.
Respectfully Submitted,
Electronically signed ROBERT P. McNEILL Sycamore Square; Suite 2000 1400 Central Avenue, SE Albuquerque, NM 87106 (505) 247-4440; fax 998-6628 Email: [email protected] Attorney for Plaintiff Janet Wildenstein-Maldonado
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