Case: 1:12-cv-00308-HJW Doc #: 15 Filed: 04/08/13 Page: 1 of 9 PAGEID #: 66

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION PAUL CARMACK, Administrator for the Estate of David Hebert c/o Laufman & Napolitano, LLC 4310 Hunt Road Cincinnati, Ohio 45242 Plaintiff, v. ANDREW MITCHELL c/o City of Cincinnati Police Department 310 Ezzard Charles Drive Cincinnati, Ohio 45202 and

LAWRENCE JOHNSON c/o City of Cincinnati Police Department 310 Ezzard Charles Drive Cincinnati, Ohio 45202 and BRIAN KNELLER c/o City of Cincinnati Police Department 310 Ezzard Charles Drive Cincinnati, Ohio 45202 and NICOLINO STAVALE c/o City of Cincinnati Police Department 310 Ezzard Charles Drive Cincinnati, Ohio 45202 and CITY OF CINCINNATI 801 Plum Street, Rm. 215 Cincinnati, Ohio 45202 Defendant.

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Case No. FIRST AMENDED COMPLAINT (Jury Demand Endorsed Hereon)

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I. PRELIMINARY STATEMENT

1.

This civil right case challenges the unjustified killing of David Hebert by

Cincinnati Police Officer Andrew Mitchell. David Hebert was walking home with a female companion during the early morning hours of April 18, 2011. He was stopped by officers of the Cincinnati Police Department who were investigating an incident alleged to have occurred between Mr. Hebert and a friend earlier that night. Officers believed that Mr. Hebert was in possession of a knife. Mr. Hebert complied with instructions given by an investigating officer and was shot and killed by defendant police officer Andrew Mitchell. This case claims an excessive use of force by Defendant Mitchell on the night of the incident. This amended complaint adds a claim of state created danger against various officers. Further, this amended complaint alleges the deliberate indifference of the responding officers to the sufficiently serious medical needs of Mr. Hebert. Finally, this amended complaint alleges Monnell claims against the City of Cincinnati. Pendant state law claims allege wrongful death and battery.

II. JURISDICTION 2.

Jurisdiction over § 1983 claims brought under the Civil Rights Act of 1871 is

conferred on this Court by 28 U.S.C. §§ 1331, 1343 (3) and (4). State law claims are brought pursuant to this Court’s pendant jurisdiction. III. PARTIES 3.

Plaintiff Paul Carmack was appointed Administrator of the estate of David Hebert

by the Probate Division of the Hamilton County Court of Common Pleas under case no. 2011002733. He has qualified and is acting as Administrator of that estate.

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4.

Defendant Andrew Mitchell (“Defendant Mitchell”) was during all relevant times

an officer with the Cincinnati Police Department acting under color of law. 5.

Defendant Lawrence Johnson (“Defendant Johnson”) was during all relevant

times an officer with the Cincinnati Police Department acting under color of law. 6.

Defendant Brian Kneller (“Defendant Kneller”) was during all relevant times an

officer with the Cincinnati Police Department acting under color of law. 7.

Defendant Nicolino Stavale (“Defendant Stavale”) was during all relevant times

an officer with the Cincinnati Police Department acting under color of law. 8.

Defendant City of Cincinnati is a municipal corporation organized pursuant to the

laws of the State of Ohio and located in Hamilton County, Ohio. IV. FACTS 9.

David Hebert had spent the day of April 17, 2011 socializing with friends in a

Cincinnati park. The night ended with Mr. Hebert and a female companion socializing at the home of a friend, Jason Weller. All events occurred within the City of Cincinnati, Ohio. 10.

Some type of altercation occurred at Mr. Weller’s residence and Mr. Hebert and

his female companion left to walk home to her apartment along with Mr. Hebert’s dog who was accompanying them that night. 11.

Mr. Weller called 911 and claimed that Mr. Hebert had cut him with a knife.

Officers of the Cincinnati Police Department responded to Mr. Weller’s residence and inquired as to what had occurred. 12.

A radio dispatch was issued describing Mr. Hebert and his female companion.

13.

Mr. Hebert and his female companion were soon located by Cincinnati Police

Officer, Defendant, Brian Kneller a short distance away in front of a residence located at 1833 Chase Avenue. 3

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14.

Mr. Hebert was sitting on the sidewalk rolling a cigarette when Defendant Kneller

arrived. Defendant Kneller began to question the two about their destination and where they had come from. 15.

Defendant, Cincinnati Police Officer Lawrence Johnson arrived a short time later

and took over questioning Mr. Hebert. Defendants Kneller and/or Johnson ordered Mr. Hebert to his feet and demanded to know whether Mr. Hebert was in possession of the knife allegedly used to commit the crime they were investigating. 16.

Defendant Mitchell arrived on the scene as the ranking officer as Mr. Hebert was

receiving commands from Defendant Kneller and/or Johnson and took up a “cover position.” 17.

Defendant, Cincinnati Police Officer Stavale, arrived on scene at around the same

18.

Mr. Hebert complied with Defendant Kneller’s and/or Johnson’s direction to

time.

stand up. Mr. Hebert was highly intoxicated and stumbled to his feet. Mr. Hebert’s extreme intoxication and lack of coordination were apparent to the trained officers. 19.

Mr. Hebert attempted to comply further with Defendant Kneller’s and/or

Johnson’s direction.

In compliance with their further direction, Mr. Hebert removed the

switchblade-style knife which was in the pocket of his pants. Before he could finish complying with Defendants instructions, Mr. Hebert was shot twice by Defendant Mitchell. 20.

Mr. Hebert fell to the ground, having been shot by Defendant Mitchell.

21.

After Mr. Hebert fell to the ground none of the Defendant officers rendered

assistance of any kind to him. Defendant Officers stood idly by until the Cincinnati Fire Department personnel arrived, several minutes later. Mr. Hebert was subsequently pronounced dead at the scene. 22.

Defendants Kneller and Johnson owed a duty to Mr. Hebert not to subject him to 4

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danger. The actions of Defendants Kneller and/or Johnson created or increased the risk that Mr. Hebert would be exposed to an act of violence by a third party. 23.

Defendant Mitchell acted intentionally, recklessly, wantonly, and with deliberate

indifference to the constitutional rights of Mr. Hebert. 24.

Defendant Officers exhibited deliberate indifference to the sufficiently serious

medical needs of Mr. Hebert. 25.

At all times relevant to this action, the City of Cincinnati enacted and pursued

policies and procedures which related to the training, supervision, and retention of Defendant Officers. These policies and procedures were enacted and pursued with full knowledge that an incident such as this was the foreseeable result. The policies and procedures of the City of Cincinnati were the proximate cause of the deprivation of Mr. Hebert’s Constitutional rights. The City of Cincinnati further ratified the actions of Defendant Officers. Defendant City of Cincinnati acted with deliberate indifference, with wanton and willful disregard, recklessly, and intentionally. V. FIRST CAUSE OF ACTION - 42 U.S.C. § 1983 (Excessive Force) 26.

Plaintiff incorporates and re-alleges each and every prior and succeeding

allegation of this Complaint as if rewritten here fully. 27.

Defendant Mitchell, under color of state law, deprived Mr. Hebert of rights,

privileges and immunities secured by the Fourth and Fourteenth Amendments to the U.S. Constitution, including but not limited to the right to be free from unreasonable seizure, excessive force, and violations of substantive due process. The actions of Defendant Mitchell reflect an unreasonable and arbitrary abuse of government power, which shocks the conscience. 28.

The incident causing the death of Mr. Hebert was proximately caused by the

willful and wanton actions of Defendant Mitchell. 5

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VI. SECOND CAUSE OF ACTION - 42 U.S.C. § 1983 (State Created Danger) 29.

Plaintiff incorporates and re-alleges each and every prior and succeeding

allegation of this Complaint as if rewritten here fully. 30.

The actions of Defendants Kneller and/or Johnson created or increased the risk

that Mr. Hebert would be exposed to an act of violence by a third party. 31.

Defendants Johnson and Kneller, under color of state law, deprived Mr. Hebert of

rights, privileges and immunities secured by the Fourth and Fourteenth Amendments to the U.S. Constitution, including but not limited to the right to be free from unreasonable seizure, excessive force, and violations of substantive due process. The actions of Defendants Johnson and Kneller reflect an arbitrary abuse of government power, deliberately indifferent to the rights of Mr. Hebert, or, in the alternative, which shocks the conscience. 32.

The incident causing the death of Mr. Hebert was proximately caused by the

willful and wanton actions of Defendants Johnson and Kneller. VII. THIRD CAUSE OF ACTION - 42 U.S.C. § 1983 (Denial of Medical Care) 33.

Plaintiff incorporates and re-alleges each and every prior and succeeding

allegation of this Complaint as if rewritten here fully. 34.

Defendant Officers exhibited deliberate indifference to the sufficiently serious

medical needs of Mr. Hebert. 35.

Defendant Officers, under color of state law, deprived Mr. Hebert of rights,

privileges and immunities secured by the Fourth and Fourteenth Amendments to the U.S. Constitution, including but not limited to the right to be free from violations of substantive due process. Defendant Officers were deliberately indifferent to the rights of Mr. Hebert, or, in the alternative, their actions shock the conscience. 6

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36.

The Defendant Officers denial of medical care to Mr. Hebert proximately caused

his death, substantial injury, and/or prolonged suffering. VIII. FOURTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Monell Claim) 37.

Plaintiff incorporates and re-alleges each and every prior and succeeding

allegation of this Complaint as if rewritten here fully. 38.

During all times relevant to this action, the City of Cincinnati enacted and pursued

policies and procedures which related to the training, supervision, and retention of Defendant Officers. These policies and procedures were enacted and pursued with full knowledge that the Constitutional violations plead herein were a foreseeable result. The City of Cincinnati further ratified the actions of Defendant Officers. Defendant City of Cincinnati acted with deliberate indifference, with wanton and willful disregard, recklessly, and intentionally. 39.

The policies and procedures of the City of Cincinnati were the proximate cause of

the deprivation of Mr. Hebert’s Constitutional rights.

IX. FIFTH CAUSE OF ACTION – STATE LAW WRONGFUL DEATH 40.

Plaintiff incorporates and re-alleges each and every prior and succeeding

allegation of this Complaint as if rewritten here fully. 41.

The incident causing the death of Mr. Hebert was proximately caused by the

willful and wanton actions of Defendants. 42.

Mr. Hebert is survived by his adult parents and other next of kin, all of whom are

beneficiaries of this action. 43.

Mr. Hebert’s beneficiaries have suffered the following damages as a result of his

death: loss of support from the reasonably expected earning capacity of the decedent, loss of services, loss of society, including loss of companionship, consortium, care, assistance, attention, 7

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protection, advice, guidance, counsel, instruction, training, and education, loss of prospective inheritance to the decedent's heirs at law at the time of his death, mental anguish, and funeral and burial expenses. X. SIXTH CLAIM –STATE LAW BATTERY 44.

Plaintiff incorporates and re-alleges each and every prior and succeeding

allegation of this Complaint as if rewritten here fully. 45.

Defendant Mitchell intended to cause harm to Mr. Hebert and, in fact, caused

substantial physical harm resulting in his death. XI. PRAYER FOR RELIEF WHEREFORE, plaintiff prays that this Court: A. Award plaintiff compensatory and punitive damages in an amount to be shown at trial; B. Award punitive damages against the defendants in an amount to be shown at trial; C. Award plaintiff reasonable attorney’s fees, costs, and disbursements; D. Grant to plaintiff such additional relief as the Court deems just and proper.

Respectfully submitted,

\S\ Paul M. Laufman Paul M. Laufman (0066667) Gregory A. Napolitano (0068671) Attorneys for Plaintiff LAUFMAN & NAPOLITANO, LLC 4310 Hunt Road Cincinnati, Ohio 45242 (513) 621-4556 (513) 621-5563 (fax) [email protected] [email protected] 8

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JURY DEMAND Plaintiff hereby demands a trial by jury of all issues triable by a jury.

\S\ Paul M. Laufman Paul M. Laufman (0066667) Gregory A. Napolitano (0068671)

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