Dunklin v. Mallinger et al

Filing 25

STIPULATION AND ORDER FOR FILING OF FIRST AMENDED COMPLAINT. Signed by Judge Joseph C. Spero on 12/7/11. (klhS, COURT STAFF) (Filed on 12/8/2011)

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SCOTT LAW FIRM

1388 S UTTER S TREET , S UITE 715
S AN F RANCISCO , CA 94109

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John Houston Scott (SBN 72578)
Lizabeth N. de Vries (SBN 227215)
SCOTT LAW FIRM
1388 Sutter Street, Suite 715
San Francisco, CA 94109
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Eric Safire (SBN 98706)
LAW OFFICES OF ERIC SAFIRE
2431 Fillmore Street
San Francisco, CA 94115
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiff.
RANDAL DUNKLIN

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RANDAL DUNKLIN,

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Plaintiff,

Case No.: CV 11 1275 JCS
STIPULATION FOR FILING OF FIRST
AMENDED COMPLAINT; [PROPOSED]
ORDER GRANTING SAME

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v.

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NOAH MALLINGER, TERRANCE SAW,
CITY AND COUNTY OF SAN FRANCISCO
and DOES 1-20, inclusive.

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Defendants.

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-1STIPULATION TO FILE FIRST AMENDED COMPLAINT

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IT IS HEREBY STIPULATED by and between the parties hereto, through their attorneys
of record, that Plaintiff RANDAL DUNKLIN may file the attached First Amended Complaint
upon execution of the Proposed Order submitted herein.

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DATED: December 6, 2011

SCOTT LAW FIRM

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By:

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/s/ John H. Scott
JOHN HOUSTON SCOTT
Attorney for Plaintiff

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DATED: December 6, 2011
CITY ATTORNEY’S OFFICE
By:

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/s/
BLAKE LOEBS
Attorney for Defendants

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[PROPOSED] ORDER

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Pursuant to the stipulation of the parties, and good cause appearing therefor, the Court
GRANTS plaintiff RANDAL DUNKLIN leave to file a First Amended Complaint within ten (10)

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calendar days of the date of this Order.

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_______________________________
Spero
seph C.
HONORABLE JOSEPH C. SPERO
udge Jo
J
United States District Court Magistrate Judge
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12/7/11

NO

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DATED:

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FO

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LI

IT IS SO ORDERED.

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UNIT
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SCOTT LAW FIRM

1388 S UTTER S TREET , S UITE 715
S AN F RANCISCO , CA 94109

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-2STIPULATION TO FILE FIRST AMENDED COMPLAINT

EXHIBIT A

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SCOTT LAW FIRM

1388 S UTTER S TREET , S UITE 715
S AN F RANCISCO , CA 94109

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John Houston Scott (SBN 72578)
Lizabeth N. de Vries (SBN 227215)
SCOTT LAW FIRM
1388 Sutter Street, Suite 715
San Francisco, CA 94109
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Eric Safire (SBN 98706)
LAW OFFICES OF ERIC SAFIRE
2431 Fillmore Street
San Francisco, CA 94115
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiff.
RANDAL DUNKLIN

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Case No.: CV 11 1275 JCS

RANDAL DUNKLIN,
Plaintiff,

FIRST AMENDED COMPLAINT FOR
DAMAGES
(42 U.S.C. § 1983)

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v.

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NOAH MALLINGER, TERRANCE SAW,
CITY AND COUNTY OF SAN FRANCISCO
and DOES 1-20, inclusive.

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JURY TRIAL DEMANDED

Defendants.

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COMES NOW PLAINTIFF, RANDAL DUNKLIN, who complains of Defendants, and
each of them, and alleges as follows:
JURISDICTION AND VENUE

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1.

This action arises under 42 U.S.C. §1983. Jurisdiction is conferred by virtue of 28

U.S.C. §§ 1331 and 1343.
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The conduct alleged herein occurred in the City and County of San Francisco.

Venue of this action lies in the United States District Court for the Northern District of California.
-1FIRST AMENDED COMPLAINT FOR DAMAGES

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PARTIES

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3. Plaintiff RANDAL DUNKLIN resides in the City and County of San Francisco,

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California.

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4. Defendant NOAH MALLINGER was at all times mentioned herein a police officer

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employed by the San Francisco Police Department and acted within the course and scope of his

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employment.

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5. Defendant TERRANCE SAW was at all times mentioned herein a police officer

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employed by the San Francisco Police Department and acted within the course and scope of his

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employment.

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SCOTT LAW FIRM

1388 S UTTER S TREET , S UITE 715
S AN F RANCISCO , CA 94109

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6. Defendant CITY AND COUNTY OF SAN FRANCISCO is a municipal corporation
organized under the laws of the State of California.
7. The true names and capacities, whether individual, corporate, associate or otherwise,

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of Defendants Does 1 through 20 inclusive, are unknown to the Plaintiff, who therefore sues said

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Defendants by such fictitious names. Defendants DOES 1 through 20, and each of them, were

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responsible in some manner for the injuries and damages alleged herein. The true names and

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capacities of Defendants DOES 1 through 20, and each of them, are presently unknown to

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Plaintiff. Plaintiff is informed and believes and thereupon alleges upon information and belief

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that each of them is responsible, in some manner, for the injuries and damages alleged herein.

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Plaintiff therefore designates Defendants DOES 1 through 20 by such fictitious names and when

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their names have been ascertained, Plaintiff will amend this complaint to allege their true names

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and capacities.

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8. In doing the acts and/or omissions alleged herein, Defendants and each of them acted
under color of authority and/or under color of state law.
9. In doing the acts and/or omissions alleged herein, Defendants, and each of them, acted
in concert with each of said other Defendants herein.

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-2FIRST AMENDED COMPLAINT FOR DAMAGES

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SCOTT LAW FIRM

1388 S UTTER S TREET , S UITE 715
S AN F RANCISCO , CA 94109

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STATEMENT OF FACTS
10. Plaintiff Randal Dunklin is a 55 year old homeless man who was born with polio. For
the past five years Plaintiff has used a wheelchair to ambulate instead of crutches. On the morning
of January 4, 2011, he visited a facility located at 1380 Howard Street in the City and County of
San Francisco to seek medical treatment. He was told by staff that he would have to make an
appointment and return at a later time. Plaintiff became upset when he was asked to leave.
11. Plaintiff left and created a disturbance by throwing a piece of concrete at the wall of
the building and puncturing the tires of a vehicle with a knife. Police were dispatched to the
scene in response to a report of an agitated mentally disturbed person with a knife.
12. Officer Raymond Koenig was the first officer to arrive at the scene. He observed
Plaintiff in a wheelchair holding a knife. Plaintiff did not comply with his orders to drop the
knife. Plain clothes officers Terrance Saw, Benjamin Pagtanac and Raselo Pascua arrived at the
scene under the supervision of Sgt. Noah Mallinger.

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13. Officer Saw approached the Plaintiff knowing he was mentally disturbed, agitated and

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holding a knife. Dunklin was pepper sprayed by Officer Saw while sitting in his wheelchair. As a

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result Dunklin became more agitated, had difficulty seeing and started flailing his arms. While

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flailing his arms Officer Saw was injured.

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14. Officer Ernesto Linares and Courtney Smith were also dispatched to the scene. While

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en-route they were advised that an officer had been injured. On arrival at the scene Officer Smith

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announced that he had a less than lethal rifle. He positioned himself approximately 10 feet from

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the Plaintiff while the other officers surrounded and contained the Plaintiff. They pointed their

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guns at Plaintiff and ordered him to drop his knife.

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15. Plaintiff continued to sit in his wheelchair. He did not pose an imminent threat to the

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safety of the officers at the scene. Officer Smith fired a less than lethal round and struck Plaintiff

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in the leg. Plaintiff dropped his knife. After the Plaintiff dropped his knife Sgt. Mallinger and

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Officer Saw shot him. The Plaintiff suffered three gunshot wounds. It is unknown at this time

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who fired the third bullet that struck him.

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-3FIRST AMENDED COMPLAINT FOR DAMAGES

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SCOTT LAW FIRM

1388 S UTTER S TREET , S UITE 715
S AN F RANCISCO , CA 94109

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16. The shooting was video-taped by a citizen and is located on Youtube at
http://www.youtube.com/watch?v=KyUQamT33vk. This video accurately depicts the events at
or about the time of the shooting.
17. Police officers in San Francisco are more likely to come into contact with mentally
disturbed persons than officers in any other county in California. In the year before the shooting
of Plaintiff Dunklin, San Francisco police officers had shot and killed at least three other men
(Edward Smith, Michael Lee and Vinh Bui) in situations where the resort to deadly force was
avoidable had proper tactics been employed.
18. Prior to the shooting the San Francisco Police Department maintained training policies
that were not adequate to handle usual and recurring situations involving persons suffering an
apparent mental crisis.
19. Defendants Mallinger and Saw acted pursuant to a de facto official policy of the City
and County of San Francisco and deprived the Plaintiff of his rights under the Fourth Amendment

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to the United States Constitution. This policy was established and approved by the Chief of Police

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and the Police Commission.

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20. The shooting was investigated. It was determined by the Chief of Police that the

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shooting of the Plaintiff by Defendants Mallinger and Saw was within Department policy. The

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Chief of Police and the Police Commission had final policymaking authority from the City and

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County of San Francisco concerning the acts of Defendants Mallinger and Saw. The Chief of

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Police and the Police Commission knew of and specifically approved of the shooting of the

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Plaintiff, while seated in a wheelchair, by Defendants Mallinger and Saw.

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21. Plaintiff filed a six month tort claim with the City and County of San Francisco on or
about May 13, 2011. This claim was denied on June 7, 2011.
STATEMENT OF DAMAGES
22. Plaintiff suffered and will continue to suffer general damages including pain and
suffering in an amount to be determined according to proof. Plaintiff has suffered physical
injuries that impact his quality of life and daily life activities.

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-4FIRST AMENDED COMPLAINT FOR DAMAGES

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23. As a result of the acts and/or omissions of Defendants, and each of them, Plaintiff has
incurred, and is likely to continue to incur medical treatment and related expenses in amounts to
be determined according to proof.
24. The acts and/or omissions of the Defendants Mallinger and Saw were willful, wanton,
reckless, malicious, oppressive and/or done with a conscious or reckless disregard for the rights
of Plaintiff. Plaintiff therefore prays for an award of punitive and exemplary damages against
Defendants Noah Mallinger and Terrance Saw according to proof.
25. Plaintiff has retained private counsel to represent him in this matter and is entitled to
an award of attorneys’ fees.

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CAUSES OF ACTIONS

SCOTT LAW FIRM

1388 S UTTER S TREET , S UITE 715
S AN F RANCISCO , CA 94109

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FIRST CAUSE OF ACTION
[1983—Fourth Amendment
Against individuals— Mallinger, Saw and Does 1 to 20]

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26. The Plaintiff hereby re-alleges and incorporates by reference as though fully set forth
herein all prior paragraphs of this Complaint.
27. In doing the acts and/or omissions alleged herein Defendants Noah Mallinger,
Terrance Saw and Does 1 - 20, and each of them, used excessive and unreasonable force against
Randal Dunklin in violation of his rights under the Fourth Amendment to the United States
Constitution.
WHEREFORE, plaintiff prays for relief as hereinafter set forth.
SECOND CAUSE OF ACTION
[1983—Fourteenth Amendment
Against individuals—Mallinger, Saw and Does 1 to 20]
28. The Plaintiff hereby re-alleges and incorporates by reference as though fully set forth
herein all prior paragraphs of this Complaint.

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29. In doing the acts and/or omissions alleged herein, Defendants Noah Mallinger,

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Terrance Saw and Does 1 - 20, and each of them, were deliberately indifferent to Plaintiff’s

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health and safety in violation of the Fourteenth Amendment to the United States Constitution.

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Alternatively, Defendants acted with a purpose to harm unrelated to a legitimate police purpose.
-5FIRST AMENDED COMPLAINT FOR DAMAGES

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WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

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THIRD CAUSE OF ACTION
[42 U.S.C. §1983 – MUNICIPAL LIABILITY]
30. The Plaintiff hereby re-alleges and incorporates by reference as though fully set forth
herein all prior paragraphs of this Complaint.
31. The training policies of the Defendant City and County of San Francisco were not

must deal. The Defendant City and County of San Francisco was deliberately indifferent to the

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obvious consequences of its failure to train its police officers adequately. The failure of the City

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and County of San Francisco to provide adequate training caused the deprivation of the Plaintiff’s

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SCOTT LAW FIRM

adequate to train its police officers to handle the usual and recurring situations with which they

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1388 S UTTER S TREET , S UITE 715
S AN F RANCISCO , CA 94109

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rights by Defendants Mallinger and Saw; that is, the failure to train is so closely related to the

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deprivation of the Plaintiff’s rights as to be the moving force that caused the ultimate injury.

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WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
FOURTH CAUSE OF ACTION
[42 U.S.C. §1983 – MUNICIPAL LIABILITY]
32. The Plaintiff hereby re-alleges and incorporates by reference as though fully set forth
herein all prior paragraphs of this Complaint.
33. The acts of Defendants Mallinger and Saw deprived the plaintiff of his rights under

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the United States Constitution. Defendants Mallinger and Saw acted pursuant to a de facto official

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policy or a longstanding practice or custom of the City and County of San Francisco.

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WHEREFORE, plaintiff prays for relief as hereinafter set forth.
FIFTH CAUSE OF ACTION
[42 U.S.C. §1983 – MUNICIPAL LIABILITY]
34. The Plaintiff hereby re-alleges and incorporates by reference as though fully set forth
herein all prior paragraphs of this Complaint.
35. The acts of Defendants Mallinger and Saw deprived the Plaintiff of his rights under
the United States Constitution. The Chief of Police and the Police Commission had final policy
making authority from Defendant City and County of San Francisco concerning the acts of

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-6FIRST AMENDED COMPLAINT FOR DAMAGES

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Defendants Mallinger and Saw. The Chief of Police and the Police Commission ratified the acts
of Defendants Mallinger and Saw and the basis for it, that is, the Chief of Police and the Police
Commission knew of and specifically approved of their act of shooting the Plaintiff while sitting
in a wheelchair.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

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SIXTH CAUSE OF ACTION
[CA Civil Code Section 51.7]

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SCOTT LAW FIRM

1388 S UTTER S TREET , S UITE 715
S AN F RANCISCO , CA 94109

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36. The Plaintiff hereby re-alleges and incorporates by reference as though fully set forth
herein all prior paragraphs of this Complaint.
37. Plaintiff was deprived of his right under California Civil Code Section 51.7 to be free
from violence against his person because of a disability and medical condition.
38. Defendant City and County of San Francisco is vicariously liable for the acts and

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omissions of Defendants Mallinger and Saw under the doctrine of respondent superior and by

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virtue of Government Code Section 825.

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WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

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PRAYER FOR RELIEF

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WHEREFORE, Plaintiff prays for judgment against defendants, as follows.

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For compensatory and economic damages according to proof;

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2.

For general damages according to proof;

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3.

For an award of punitive and exemplary damages against defendants Noah
Mallinger and Terrance Saw according to proof;

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4.

For an award of attorneys’ fees and costs; and

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5.

For other and further relief as the Court may deem just, necessary and appropriate.
JURY TRIAL DEMAND

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Plaintiff hereby requests a jury trial on all issues so triable.

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Dated: December 1, 2011

By____/s/ John H. Scott__________
John Houston Scott
Attorney for Plaintiff

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FIRST AMENDED COMPLAINT FOR DAMAGES