Case 2:12-cv-00710-EJF Document 2 Filed 07/19/12 Page 1 of 18

DAVID S. PACE (8252) REEF PACE (13088) THE PACE LAW FIRM, PLLC 6925 S UNION PARK CENTER, SUITE 480 COTTONWOOD HEIGHTS, UTAH 84047 TELEPHONE: (801) 355-9700 FACSIMILE: (801) 355-9705 david@pacelawutah.com Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION QAIYIM HILL, and RICHARD ANTHONY URIBE Plaintiffs, COMPLAINT AND JURY DEMAND

STATE OF UTAH, UTAH STATE DEPARTMENT OF CORRECTIONS, OFFICER MILLECUM, individually and in his official capacity; OFFICER NEWMAN individually and in his official capacity, and JOHN DOES I-X. Defendants.

Case No. 2:12-cv-00710-EJF

Magistrate Judge: Evelyn Furse

Plaintiff Qaiyim Hill, and Richard Anthony Uribe (Plaintiffs) complain and allege for a cause of action against Defendants as follows: JURISDICTION AND VENUE

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1.

This action arises under the United States Constitution and federal law, particularly under the provision of the Fourth and Fourteenth Amendments of the Constitution of the United States, and 42 U.S.C. 1983 and 1988.

2.

This action seeks redress for violations of the civil rights laws of the United States, and jurisdiction is therefore invoked pursuant to 28 U.S.C. 1343 and 42 U.S.C. 1983.

3.

Plaintiffs have complied with the State Notice Requirements for claims against a governmental entity or its employee in accordance with Utah Code Ann. 63-3011 et. seq., by filing a notice of claim within one year of the date this claim arose for claims against the Salt Lake City Corporation.

4.

The claims made in this Complaint occurred and arose in the State of Utah, in this District and in the Central Division. Venue is therefore proper and vests with this Court pursuant to 28 U.S.C. 1391 and 28 U.S.C. 1331.

5. 6.

All of the events alleged took place in Utah, State of Utah. Plaintiffs are seeking damages under federal law pursuant to the claim for relief below, in amounts to be proven at trial. PARTIES

7.

Plaintiff Qaiyim Hill was and is a citizen of the United States of America, and at the time this complaint was filed was a resident of Las Vegas, Clark County, State

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of Nevada. At the time the claims herein arose, Plaintiff, Qaiyim Hill (Hill) was an adult citizen of the State of Utah and, further, an inmate of the Uintah County Jail (Jail). On or about September 13, 2011, Plaintiff was released from prison and is no longer in state custody. 8. Plaintiff Richard Anthony Uribe was and is a citizen of the United States of America, and at the time this complaint was filed was a resident of Williston, Williams County, State of North Dakota. At the time the claims herein arose, Plaintiff, Richard Anthony Uribe (Uribe ) was an adult citizen of the State of Utah and, further, an inmate of the Uintah County Jail (Jail). On or about April, 2011, Plaintiff was released from prison and is no longer in state custody. 8. Defendant Millecum (Officer Millecum) was at all times relevant hereto officers or otherwise employed by the Prison, a governmental entity operating under the Department of Corrections, State of Utah. As part of its corporate powers, and at all times relevant herein, the Defendant officer was an employee of the Utah State Prison. 9. Defendant Newman (Officer Newman) was at all times relevant hereto officers or otherwise employed by the Prison, a governmental entity operating under the Department of Corrections, State of Utah. As part of its corporate powers, and at

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all times relevant herein, the Defendant officer was an employee of the Utah State Prison. 10. This action is brought against Officer Millecum and Officer Newman in their individual capacity. Their authority to act was derived from Utah State law and/or the commands and directives of his superiors. All of the acts of the individuals and entities listed herein were performed under color of laws, statutes, ordinances, regulations, policies, customs, and usages of the State of Utah, and each said individual is liable under 42 U.S.C. 1983. 11. Defendant STATE OF UTAH maintains Defendant UTAH DEPARTMENT OF CORRECTIONS as a political subdivision, duly organized and existing under the Laws of the State of Utah and, pursuant to law, is capable of being sued in this Court. The Utah Department of Corrections maintains the Utah State Prison. 12. Defendants DOES I - X are persons and entities named in both their individual and official capacities and who are yet undiscovered who acted individually or in concert with those named Defendants to deprive Mr. Hill and Mr. Uribe of those rights and privileges stated below. 13. Plaintiffs will serve notice of his pendent state claims against the Defendants pursuant to Utah law. These claims will be amended into this Complaint at a later time. However, Plaintiffs deny that notice is required of any of the current claims

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in this Complaint since all current claims deal with constitutional violations under 42 U.S.C. 1983 and other statues, and state law notice of such claims is not required.

PRELIMINARY STATEMENT This is a civil action for compensatory and punitive damages brought pursuant to 42 U.S.C. 1983 and 1985 and Article I, Section 9 of the Utah Constitution to redress the deprivation under color of state law of rights, privileges and immunities guaranteed by the United States Constitutions and Federal Law. Plaintiffs contends that while they was in the custody of the Uintah County Jail the Defendants, both in their individual and official capacities, each demonstrated deliberate indifference toward the physical safety and well being of Mr. Hill and Mr. Uribe. Defendants further acted with malice, ill will, or spite towards Plaintiffs by conspiring with forethought and acting as facilitators and accomplices to the battery of the Plaintiffs. The Defendants actions resulted in the of deprivation Plaintiffs rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Utah Constitution.

FACTUAL ALLEGATIONS 14. All of the events alleged took place on or about September, 2010.

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15. 16. 16. 17.

Qaiyim Hill was incarcerated in the Utah State Prison on August 21, 2008. Richard Anthony Uribe was incarcerated in the Utah State Prison. In September, 2010, Qaiyim Hill was transferred to the Uintah County Jail. As part of Plaintiffs duties they were assigned to work detail with four fellow inmates.

18.

On the work duty detail two officers would transport and supervise the six inmates as they performed manual labor in different areas surrounding the Uintah County Jail.

19.

Three days after Qaiyim Hills transfer to Uintah County Jail, he was in the parking lot of the Uintah County Jail.

20.

The inmates were awaiting their transportation by truck to their assigned work detail.

21.

Officer Millecum and Officer Newman were the officers assigned to supervised and guard the inmates.

22.

Officer Millecum and Officer Newman advised the six inmates that before work detail could begin, the inmates would have to pass the initiation.

23.

The initiation as explained by the officers consisted of riding the lightning.

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24.

Apparently riding the lightning meant that each inmate would have to grab a metal hook in each hand, which were fashioned to look like horns, and these horns in turn were attached to what appeared to be a car battery.

25.

The result of riding the lightning was that each inmate would receive a substantial shock, which would convulse their bodies until they released the metal horns.

26. 27.

Richard Anthony Uribe was one of the six inmates on the work detail. Richard Anthony Uribe was an inmate at the Uintah County Jail from approximately July, 2010 to April 2011.

28.

During Richard Anthony Uribes incarceration at Uintah County Jail he witnessed riding the lightning many times with many different inmates.

29.

This apparently was the practice that had been performed many times before and after this day by that officers as an initiation to the work detail, the purpose of which could only have been to amuse the officers.

30.

On the day in question all six inmates of the work detail rode the lightning, among the inmates who rode the lightning were Qaiyim Hill, and Richard Anthony Uribe.

31.

When Qaiyim Hill placed his hands on the metal horns his reaction to the shock that ran through his body was more than just shocking, Qaiyim believes that the

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shock to his body caused him to have a seizure, and the seizure incapacitated him, which caused him to fall to the pavement unable to control his body. 32. 33. Riding the lightning for Qaiyim Hill was extremely painful and humiliating. Further, Qaiyim Hill was transferred to Box Elder Countys Jail in January or February of 2011, while at Box Elder County Jail Qaiyim Hill experienced another seizure, which he believes was caused by Officer Millecum and Officer Newman forcing him to ride the lightning for their enjoyment. 33.1 Richard Anthony Uribe suffered pain and suffering caused by being forced to ride the lightning. 33.2 Qaiyim Hill suffered pain and suffering caused by being forced to ride the lightning. FIRST CAUSE OF ACTION Excessive Force - Defendants Millecum and Newman In Violation Of The Fourth Amendment Cognizable Under 42 U.S.C. 1983 34. 35. Plaintiffs incorporates by reference the above allegations. The proper focus in determining the reasonableness of force used is on the events immediately confronting officers when they decide to use force. Force is not reasonable when a suspect is non-violent, not resisting, not fleeing, and poses no

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threat, as was the case with here. Furthermore, force is not permitted at all when there is no need to use force. 36. At no time had Plaintiffs ever shown any tendency toward violence or hostility, or threaten Officer Millecum or Officer Newman. 37. There was no need for Officer Millecum and Officer Newman to subdue and use force because Plaintiffs were non-violent, not threatening in anyway. Plaintiffs were totally non-violent and did not pose a threat to the safety of Officer Millecum and Officer Newman or others. Therefore, each aspect of the force used was excessive and a violation of Plaintiffs right to be free from excessive force in an arrest. 38. The violation of Plaintiffs rights are actionable under 42 U.S.C. 1983, and Plaintiffs are entitled to judgment against Officer Millecum and Officer Newman in an amount to be proved at trial, plus costs and attorneys fees pursuant to 42 U.S.C. 1988.

SECOND CAUSE OF ACTION Cruel and Unusual Punishment - Defendants Millecum and Newman 39. 40. Plaintiffs repeat and incorporate the previous allegations by this reference. Each of the Defendants demonstrated deliberate indifference to Plaintiffs right to be free from bodily injury and cruel and unusual punishment. 9

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41.

The actions of the Defendants set forth above violated Plaintiffs rights secured by the Fourteenth Amendment to the United States Constitution not to be subjected to cruel and unusual punishment.

42.

As a result of the Defendants actions, Plaintiffs suffered permanent debilitating injury, disfigurement, severe pain, suffering, discomfort and emotional distress.

43.

Plaintiffs are thereby entitled to compensatory and punitive damages as well as costs and attorney fees in accordance with 42 U.S.C. 1988; and for any other relief the Court finds just and proper under the circumstances in an amount to be proved at trial. SECOND CAUSE OF ACTION Cruel and Unusual Punishment - Defendants Millecum and Newman

44. 45.

Plaintiffs repeats and incorporates the previous allegations by this reference. The Defendants actions violated Plaintiffs rights secured by Article I, Section 9 of the Utah Constitution to be free from cruel and unusual punishment.

46.

As a result of Defendants actions, Plaintiffs suffered permanent debilitating injury, disfigurement, severe pain, suffering discomfort and emotional distress.

47.

Plaintiffs are thereby entitled to compensatory and punitive damage as well as his costs and attorney fees in accordance with 42 U.S.C. 1988; and for any other

10

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relief the Court finds just and proper under the circumstances in an amount to be proved at trial.

THIRD CAUSE OF ACTION Unnecessary Rigor- Defendants Millecum and Newman 48. 49. Plaintiffs repeat and incorporate the previous allegations by this reference. The Defendants actions violated Plaintiffs rights secured under Article I, Section 9 of the Utah Constitution to be free from unnecessary rigor. 50. As a result of the Defendants actions, Plaintiffs suffered permanent debilitating injury, disfigurement, severe pain, suffering, discomfort and emotional distress. 51. Plaintiffs are thereby entitled to compensatory and punitive damages as well as costs and attorney fees in accordance with 42 U.S.C. 1988; and for any other relief the Court finds just and proper under the circumstances in an amount to be proved at trial. FOURTH CAUSE OF ACTION Freedom from Bodily Injury - Defendants Millecum and Newman 52. 53. Plaintiffs repeat and incorporate the previous allegations by this reference. The Defendants actions violated Plaintiffs rights secured under the Fourteenth Amendment of the United States Constitution to be free from bodily injury.

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54.

As a result of the Defendants actions, Plaintiffs suffered permanent debilitating injury, disfigurement, severe pain, suffering, discomfort and emotional distress.

55.

Plaintiffs are thereby entitled to compensatory and punitive damages as well as costs and attorney fees in accordance with 42 U.S.C. 1988; and for any other relief the Court finds just and proper under the circumstances in an amount to be proved at trial. FIFTH CAUSE OF ACTION Due Process- Defendants Millecum and Newman

56. 57.

Plaintiffs repeat and incorporate the previous allegations by this reference. The Defendants actions violated Plaintiffs rights secured under the Fifth Amendment of the United States Constitution not to be deprived of Life, Liberty, or Property without Due Process of Law.

58.

As a result of the Defendants actions, Plaintiffs suffered permanent debilitating injury, disfigurement, severe pain, suffering, discomfort and emotional distress.

59.

Plaintiffs are thereby entitled to compensatory and punitive damages as well as costs and attorney fees in accordance with 42 U.S.C. 1988; and for any other relief the Court finds just and proper under the circumstances in an amount to be proved at trial. SIXTH CAUSE OF ACTION

12

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Intentional Infliction Of Emotional Distress - Defendants Millecum and Newman 60. 61. Plaintiffs repeat and incorporate the previous allegations by this reference. Defendants Officer Millecum and / or Officer Newman were at all times relevant times hereto prison officials and law enforcement officers of the United States and Utah State Government, empowered as agents to execute the law. 62. 63. Defendants engaged in outrageous conduct. Defendants intended to cause emotional distress or acted with reckless disregard of the probability of causing emotional distress. 64. Plaintiffs suffered severe or extreme emotional distress which was proximately caused by the Defendants outrageous conduct. 65. Defendants acts or omissions were the result of willful and malicious conduct, or conduct that manifested a knowing and reckless indifference and disregard toward the rights of others. 66. As a direct and proximate result of Defendants outrageous conduct, Plaintiff suffered permanent debilitating injury, disfigurement, severe pain, suffering, discomfort and emotional distress. 67. Plaintiffs are thereby entitled to compensatory and punitive damages, and for any other relief the Court finds just and proper under the circumstances in an amount to be proved at trial.

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SEVENTH CAUSE OF ACTION Battery / Unlawful Use of Force - Defendants Millecum and Newman 68. 69. Plaintiffs repeat and incorporate the previous allegations by this reference. The Defendants intentionally caused severe injury and unlawfully used force against Plaintiffs. 70. As a result of the Defendants actions, Plaintiffs suffered permanent debilitating injury, disfigurement, severe pain, suffering, discomfort and emotional distress. 71. Plaintiffs are thereby entitled to compensatory and punitive damages; and for any other relief the Court finds just and proper under the circumstances in an amount to be proved at trial. SIXTH CAUSE OF ACTION Conspiracy To Deprive Plaintiff Of His Civil Rights 72. 73. Plaintiffs repeats and incorporates the previous allegations by this reference. The acts of these Defendants were done in agreement and in concert with one another all with an aim toward depriving Plaintiffs of this constitutional rights secured by both the State and Federal Constitutions and for the purpose of hindering, impeding, obstructing, defeating or otherwise depriving Plaintiffs of the due course of justice all in violation of 42. U.S.C. 1983 and 1985.

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74.

As a result of Defendants actions, Plaintiffs suffered permanent debilitating injury, disfigurement, severe pain, suffering discomfort and emotional distress.

75.

Plaintiffs are thereby entitled to compensatory and punitive damage as well as his costs and attorney fees in accordance with 42 U.S.C. 1988; and for any other relief the Court finds just and proper under the circumstances in an amount to be proved at trial.

FIFTH CAUSE OF ACTION Inadequate Training, Supervision, Discipline, Remedial Action and Hiring 76. 77. Plaintiffs repeats and incorporates the previous allegations by this reference. Each of these Defendants failure to provide adequate training, supervision, discipline and/or remedial action to their subordinates demonstrates deliberate indifference to Plaintiffs State and Federally protected rights. 78. Furthermore, each of these Defendants demonstrated deliberate indifference to Plaintiffs State and Federally protected rights by hiring, and thereafter retaining, incompetent and unqualified individuals. 79. As a direct and proximate result of Defendants deliberate indifference, Plaintiffs was denied his rights protected by the Constitutions of the United States and State of Utah.

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80.

As a result of Defendants actions, Plaintiffs suffered permanent debilitating injury, disfigurement, severe pain, suffering discomfort and emotional distress.

81.

Plaintiffs are thereby entitled to compensatory and punitive damage as well as his costs and attorney fees in accordance with 42 U.S.C. 1988; and for any other relief the Court finds just and proper under the circumstances in an amount to be proved at trial.

TENTH CAUSE OF ACTION Negligence 82. 83. Plaintiffs repeats and incorporates the previous allegations by this reference. Defendants had a duty to take reasonable care to prevent inmates from injuring inmates, particularly when they had reasonable notice that such harm would occur. 84. Defendants breached their duty to Plaintiffs by, among other things, intentionally shocking the Plaintiffs with a car battery. 85. As a result of the Defendants negligence, Plaintiffs suffered permanent debilitating injury, disfigurement, severe pain, suffering discomfort and emotional distress.

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86.

Plaintiffs are thereby entitled to compensatory damages as well as any other relief the Court finds just and proper under the circumstances in an amount to be proved at trial. JURY DEMAND

Plaintiffs hereby requests a jury on all claims and issues that may be tried before a jury. NO ELECTION OR WAIVER The facts and circumstances set forth above are pled cumulatively and alternatively, with no election or waiver of remedies until such time as the trier of fact has decided disputed issues of fact.

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REQUEST FOR RELIEF WHEREFORE, Plaintiffs pray for the entry of judgment against Defendants jointly and severally both individually and in their official capacity for compensatory damages; for an award of punitive damages; for costs, expenses, and attorney fees for this action in accordance with 42 U.S.C. 1988; and for any other relief the Court finds just and proper under the circumstances in an amount to be proved at trial. Plaintiffs pray for damages in an amount to be determined by the Court. 1. 2. 3. 4. For general compensatory damages in an amount to be determined at trial; For special damages as are shown at trial; For punitive damages against named individuals as may be allowed by law; For pre-judgment interest on the damages assessed by the verdict of the jury, as allowed by law; 5. For Plaintiffs costs and reasonable attorney fees incurred herein, pursuant to 42 U.S.C. 1988; and 6. For such other and further relief as the Court deems just and proper.

DATED this July 9, 2012.

/s/ David S. Pace David Pace Attorney for the Plaintiffs 18