Unrelated lawsuit names officer involved in Clark death

8/20/2019 Unrelated lawsuit names officer involved in Clark death

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Nataniel Hanson,

Plaintiffs,

vs.

City of Richfield, Dustin Schwarze,

Nate Kinsey and Aric Gallatin,

Defendant.

Court File No.: ___________

NOTICE OF REMOVAL

TO: The Clerk of the United States District Court, District of Minnesota, Minneapolis,

Minnesota.

PLEASE TAKE NOTICE that on November 24, 2015, undersigned counsel for

Defendants City of Richfield, Dustin Schwarze, Nate Kinsey and Aric Gallatin removed

the above-captioned action from the District Court of Hennepin County, Fourth Judicial

District, Minnesota, to the United States District Court for the District of Minnesota,

Minneapolis, Minnesota. Removal is proper on the following grounds:

1. On or about November 5, 2015, an action was commenced against

Defendants City of Richfield, Dustin Schwarze, Nate Kinsey and Aric Gallatin in the

District Court, Fourth Judicial District, County of Hennepin, State of Minnesota, by

service of a Summons and Complaint upon one of the named Defendants. This is the

only process, pleadings or orders which have been served upon Defendants to date in the

Hennepin County District Court action. A copy of the Summons and Complaint is

attached hereto as Exhibit A. Defendants City of Richfield, Dustin Schwarze, Nate

CASE 0:15-cv-04210-RHK-JSM Document 1 Filed 11/24/15 Page 1 of 2


2/28

Kinsey and Aric Gallatin are the only Defendants named in the above-entitled civil

action.

2.

The action described in Paragraph 1 above is a civil action of which this

Court has original jurisdiction under the provisions of 28 U.S.C. § 1331, in that it is a

civil action arising under the laws of the United States and involves a federal question,

as Plaintiff alleges in his complaint violations of Federal Constitution-False Arrest, 42

U.S.C. § 1983 (Count I); and Federal Constitution-Excessive Force, 42 U.S.C. § 1983

(Count II). As such, this action may be removed to this Court by Defendants pursuant

to the provisions of 28 U.S.C. §§ 1331 and 1441.

3.

This Notice of Removal is filed within 30 days after the first named

Defendant was served with the Summons and Complaint as required by 28 U.S.C.

§1446.

Date: November 24, 2015 s/ Daniel P. Kurtz

Daniel P. Kurtz (#387858)

LEAGUE OF MINNESOTA CITIES

145 University Avenue West

St. Paul, MN 55103-2044

Telephone: (651) 281-1276

Facsimile: (651) 281-1298

Email: [email protected]

Attorneys for Defendants

2

CASE 0:15-cv-04210-RHK-JSM Document 1 Filed 11/24/15 Page 2 of 2

mailto:[email protected]:[email protected]:[email protected]


3/28

STATE

OF

MNNESOTA

DISTRICT

COURT

COUNTY

OF

HENNEPN

FOURTH JUDICIAL DISTRICT

Case Type: Civil Rights

Natane

Hanson

CvilFile

No.

Pantiff,

vs.

SUMMONS IN A

CIVIL

ACTION

City

of

Richfield Dustin

Schwarze

Nate Kinsey,

and Aric

Gallatin,

Defendants.

TO:

City of

Richfield

6700 Portland Avenue

Richfield,

MN

55423

Dustin Schwarze

Addressunknown

Nate Kinsey

Address

unknown

Aric Gallatin

Address

unknown

1 Y O U

A RE

BEING

S U E D .

T h e

Plaintiff has

started a

lawsuit against

y o u . T h e P l a i n t i f f s C o m p l a i n t a g a in s t y o u is

a t t a c h e d

t o t h i s s u m m o n s . D o

n o t

thow

these

papes

away.

They

are

ofica

papes

that

afec

your

righs

You

m u s t r e s p o n d to t h i s l a w s u i t

e v e n t h o u g h

i t m a y n o t y e t b e f i l e d w i t h th e

C o u r t

and there m ay

be no court

file

n umbe r on

this s u m m o n s .

2 .

Y O U M U S T

REPLY WITH IN 2 0 D A Y S

T O

P R O T E C T

Y O U R

RGHTS

Y ou m u s t give or mail to the

person

who

s igned

this

summons

a

written response called an Answer within 20 days of the

d a t e

o n which you

r e c e i v e d this

Summons.

Y ou

must s e n d a

c o p y of your

Answer to the person

who s igned

this

s u m m o n s

to the

address

below.

3 . Y O U M U S T R E S P O N D T O E A C H CLAIM. T h e A n s w e r is your written

response

to the Plaintif fs Comp laint. In

your

A n s w er yo u m u s t state whether

y o u a g r e e

o r

d i s a g r e e with e a c h p a r a g r a p h o f t h e

C o m p l a i n t .

If y o u b e l i e v e

t h e

Pantiff

shoud

no

be

gven

everythng

asked

or

in

the

Compant,

you

ms

EXHIBIT A

CASE 0:15-cv-04210-RHK-JSM Document 1-1 Filed 11/24/15 Page 1 of 10


4/28

s ay so in your

Answer.

4 . Y O U W I L L LOSE Y O U R C A S E IF Y O U D O N O T S E N D A WRITTEN

R E S P O N S E T O T H E COMPLAINT T O TH E P E R S O N W H O S I G N E D

THIS

SUMMONS

I f

you

d o not A n s w e r within 2 0 d a y s , you will l o s e this c a s e . Y o u

will

not

g e t

t o

tell

your

s id e o f

t h e story

a n d

the

Court

m a y

d e c i d e

against

y o u

and

awad

the

Pantiff

everythng

asked

or

in

the

coman

f you do not

want t o contest

the

claims

s t a t e d

in

t h e

complaint

you d o

not n e e d t o

r e s p o n d .

A d e f a u l t j u d g m e n t c a n t h e n b e e n t e r e d a g a in s t y o u f o r th e r e l i e f r e q u e s t e d i n

thecompant.

5.

LEGAL

ASSSTANCE.

You

may

wsh

to

get

legal

help

from

a

lawyer.

If

y o u

d o

not h a v e

a

lawyer

t h e

Court

Administrator

m a y h a v e information about

paces

whee

you

can

get

legal

asssance

Even if you cannot get legal help,

you m us t still provide

a

written

Answer

to protect your rights or you may

lose

the

case.

6.

ALTERNATVE

DSPUTE

RESOLUTION

The

parties

may

agree

to

or

b e ordered to

participate in an alternative dispu te resolution

process

under

Rule

114

o

the

Mnnesota

Genera

Rues

o

Practice.

You must

still

send

your

written response

to the

Complaint

e v e n if you expect

to

use

alternative means

of resolving this

dispute.

Dated: November 3 2015

Tim

M.

Phllips (

390907)

tphlps@rwamaw

com

Joshua

R.

Wlliams (

389118)

wam@rwamawcom

2836 Lyndale A v e n u e

S ,

Suite 160

Minneapolis,

Minnesota

55408

612) 486-5540

612)

605-

1944 Facsimile

ATTORNEYS FOR

PLAINTIFF

2



5/28

STATE

OF

MNNESOTA

DISTRICT

COURT

COUNTY

OF

HENNEPN

FOURTH

JUDICIAL

DISTRICT

Case Type: Civil Rights

Naane

Hanson

CvilFile No.

Pantiff,

COMPLANT

vs.

City

o

Rchied

Dustin

Schwarze

JURY TRIAL REQUESTED

Nate Kinsey, and Aric Gallatin,

Defendants.

THE PARTIES

1 .

Plaintiff is

an adult male

who resides

in

Minnesota.

2.

Defendants

Dustin Schwarze

Nate Kinsey, and Aric Gallatin are

adults

who at

all

times relevant to the

allegations

set forth in this Complaint

w e r e

acting under

colo r o f state law

in

their

capacities

a s law

enforcement

ofices

empoyed

by

the

City

of

Rchied

Mnnesota.

Plaintiff is suing them in

their individual capacities.

3.

Defendant City

of

Richfield

i s a political subdivision

of

the State

of

Mnnesota.

Minneapolis

employed

Defendants

Schwarze

Kinsey an d Gallatin

as

poice

ofices

a

al

tmes

reevan

to

ths

acon.

Richfield

is sued directly

and also on a ll r ele v an t

cla ims

on

the th eo rie s o f respondeat super io r

or

vcaious

liability

and

pursuan

to

Mnn.

Stat. §

466.

02 for

the

unlawful

conduc

o

Defendants

Schwarze

Kinsey,

and

Galatin.

Richfield is

the

po l itica l su bd iv is ion

charged

with

training

a nd s u p erv is in g law enforcement

ofices

Rchied

has

esabished

and

mpemented

o

deegaed

the



6/28

responsibility for establishing and implementing,

policies, practices,

procedures, and

customs

used

by law enforcement

officers

employed by

Richfield

regardng

sezures

and

the

use

of force.

Richfield

is

therefore

also

being

sued

directly

pursuan

to

Monell v.Dept.

of

Soc.

Svcs., 436

U.S.

658

1978).

JURISDICTION

AND

VENUE

4.

This

is an

action

for

monetary

and

declaratory relief under 42

U.

S. C. §§

1983

and

1988.

This Court

has

jurisdiction

over this

matter

pursuan

to

Mnn.Stat. §

484.01 et

seq.

Venue lies properly in Hennepin

County,

Mnnesota

pursuanto

Minn.

Stat. §

542.

01. et

seq.,

as

the

evens

giving rise to this action

occurred

in Hennepin

County.

GENERAL

ALLEGATIONS

5.

On

December 11,

2011, at

oaound

:

27 a.

m,

Paniffwas a

passenger in

a

vehicle stopped by

Richfield police officers.

6.

Plaintiff

identified himself

with

his driver'

s

license.

7.

Officer

Schwarze

performed one

or more

field sobriety

tests on the

driver of the

vehicle.

8.

Officer

Schwarze

informed Plaintiff and another

passenger in the

vehicle that if

they

exited the vehicle,

he

would beat the shit

out of

them.

9.

When Officer Schwarze made this comment, he was pointing his

Taser

at Paniff.

10.

Sergeant

Steen

then approached theback

seat with

Officer

Schwarze and instructed Plaintiff to

exit

thevehicle.

2



7/28

11.

Plaintiff

did not immediately exit the vehicle, however,

because

Sergeant

Steen'

s instruction

flatly

contradicted Officer Schwarze'

s

instruction;

s o Plaintiff

did

not

know whether Sergeant Steen was ordering

him

to exit or

daring him

to exit and

have

Officer Schwarze Taser or beat the

shit

out

of

him.

12.

Officer Kinsey

hit Plaintiff in

face

with a

closed

fist.

13. Officers pulled Plaintiff from the rear of the

vehicle.

14.

Plaintiff was prone on the ground and

his hands were

abovehis

head.

15.

Officer Kinsey hit

Plaintiff with

a

closed fist

approximately

nine

more

tmes.

16.

Officer Schwarze removed the cartridgefromhis Taser, held

the

trigger

down,

and

delivered drive stuns

to

Plaintiff.'

17.

Officer

Schwarze delivered approximately three drive stuns

to

Plaintiff

for

at least

one to

two

seconds each.

18. Officer Schwarze

also

managed

to

drivestun Officer Cook

in

the

left leg.

19.

Officer Gallatin kicked Plaintiff

approximately

three times and

stomped on him approximately twice.

20.

Officers handcuffed Plaintiff.

When the cartridge

is

removed, the Taser may b e operated in drive stun

mode

andusedasa

pan

compance

too.

In drive stun mode,

the

Taser'

s

electrical

probes are

applied

directly to the

person,

causing

incapacitating pain.

3



8/28

21.

Plaintiff

was arrested for, but not convicted of, felony

fourth

degree

assautaganst

a

poiceofficer.

22.

Plaintiff was transported to and

booked

at

the Hennepin County

Jail.

COUNT I

DEPRIVATION

OF

CVLRIGHTS IN

VIOLATION

OF

42

U.S.

C. § 1983

AND

THE

FOURTH AND

FOURTEENTH

AMENDMENTS -

FALSE

ARREST

23.

Plaintiff

restates the allegations

contained

in the preceding

paragraphs as

though

fully incorporated herein.

24.

Defendants,

acting

under

color

of state law, arrested Plaintiff

wthou

a

waran.

25. At the time Defendants arrested Paniffwthoua warran,

it

was

clearly established

that

a

warrantless

arrest

complies

with the Fourth

Amendment

only

ifitis

suppoted

by

pobabe

cause

Borgman v Kedley,

646 F.3d

518,

522 (8th Cir. 2011).

26.

Defendants did

not

have

probable

cause,

or

even

arguable

probable cause, to arrestPaniff.

27.

Defendants, by

arresting Plaintiff

without a

warrant or probable

cause, caused Plaintiff harm.

COUNT II

DEPRIVATION OF CVLRIGHTS

IN

VOLATON

OF

42

U.S.

C. § 1983

AND

THE FOURTH

AND FOURTEENTH AMENDMENTS -

EXCESSIVE

FORCE

28.

Plaintiff

restates

the

allegations contained

in

the

previous

paragraphs as if fully incorporated herein.

4



9/28

29.

Defendants, acting under color of state law, used

force

against

Paniff.

30.

This

use

of

force was excessive because it

was not reasonably

necessary

under

the circumstances.

31. Plaintiff was

harmed

as a direct result

of this

excessive useof

force.

32.

At

the time of this excessive use of force, it was clearly established

that

theFourth Amendment guarantees the

right

to be free fromunreasonable

seizures,

which includes

the right to

be free

from excessive force

by

police

ofices

33.

Even

if

Defendants

did not useexcessive forceagainst Plaintiff,

they witnessed on e or

more other officers

using excess i ve force

against

Plaintiff.

34.

At the time Defendants used force

against

Plaintiff, it

was

clearly

established that police

officers

have an affirmative duty to

intervene

on behalf

of

people

whose

Fourth Amendment rights

are

being

violated in

their

presence

by

one

or

moe

oheofices

Webb v. Hiykel, 713 F.

2d

405, 408 (8th Cir.

1983);

Putman v .

Gerloff,

639 F .

2d 415,

423 (

8th Cir.

1981).

35.

Defendants

failed to

intervene

on

Plaintiff'

s behalf.

36.

Plaintiff was harmed as a direct result of this failure

to intervene.

JURY DEMAND

37.

Plaintiff

demands

a

jury

trial.

REQUEST

FORRELIEF

WHEREFORE, Plaintiff

respectfully

requests

that

the Court:

5



10/28

1.

Enter judgment in Plaintiff's favor on hisclaims against

Defendants in

an

amoun

exceeding $

50,

000, including

litigation

expensesand attorneys fees, the exact

amount to

be proven at

tria;

2.

Declare that Defendants

conduct,

as

set forth above, violated 42

U.S.

C. §

1983;

3.

Award Plaintiff damages to compensatehimfor

theharm he

suffered

as

a result of Defendants' unlawful conduct;

4.

IfDefendants remove this caseto federal court, award Plaintiff

punitive damages with respect to

his claims

under federal

law,

the

exact

amount to be

proven at

tria;

S.

Grant Plaintiff

leave

to amend this

Complaint

to include a claimfor

punitivedamages, the exact amount to

be proven

at

trial;

6.

Award Plaintiff

reasonable

expenses incurred in this litigation,

including

attorney

and

expet

fees,

pursuan

to

42

U.

S.

C. §

1988;

7.

Grant Plaintiff all statutory relief

to which

he

is entitled;

8.

Grant

Plaintiff leave to amend this

Complaint

to supplement any

factual deficiencies or otherwise address any

pleading

deficiencies

herein;

and

9.

Grant

any

other relief

the Court deems

just

and

equitable.

6



11/28

T

Dated: November 3,

2015

Tim M.

Phillips (#

390907)

tphillip

s@j

rwilliamslaw.

com

Joshua

R.

Wlliams ( 389118)

jwlliams@rwlliamsawcom

2836 LyndaleAvenue S, Suite

160

Minneapolis,

Minnesota

55408

612) 486-5540

612) 605- 1944

Facsimile

ATTORNEYS FORPLAINTIFF

7



12/28

ACKNOWLEDGEMENT

REQUIRED

BY

MINN.

STAT. $

549.211

Plaintiff, through

undersigned

counsel, acknowledges that

sanctions,

atoneysees,

and

wtness

ees

may

be

imposed

undeMnn.

Stat. §

549.211.

Dated: November

3,

2015

Tim

M. Phillips (#

390907)

tphllips@rwlliamsawcom

Joshua R.

Williams (#389118)

[email protected]

2836

LyndaleAvenue S,

Suite 160

Minneapolis,

Minnesota

55408

612) 486-

5540

612) 605- 1944

Facsimile

ATTORNEYS FORPLAINTIFF

8



13/28

STATE OF MINNESOTA

COUNTY

OF

HENNEPIN

DISTRICT

COURT

FOURTH JUDICIAL

DISTRICT

Case

Type: Civil Rights

VS

Court

File No.

Nataniel

Hanson,

Plaintifß, DEFENDANT

CITY

OF

RICHFIELD,

DUSTIN

SCHWARZE,

NATE KINSEY

AND

ARIC

GALLATIN'S

NOTICE

OF

FILING OF

NOTICE

OF REMOVAL

TO FEDERAL

COURT

ity of

Richfield,

Dustin Schwarze,

Nate

Kinsey

and

Aric Gallatin,

Defendant.

TO: The

Court Administrator,

County

of

Hennepin,

Fourth Judicial

District,

State of

Minnesota;

and

Tim M. Phillips and

Joshua

R. Williams,

Williams

Law,2836

Lyndale

Avenue

South,

Suite

160, Minneapolis,

Minnesota,

55408,

Attorneys

for

Plaintiff.

PLEASE

TAKE NOTICE

that

aNotice

of

Removal of the

above-entitled

action

from

the

District

Court

of Hennepin

County,

Minnesota,

Fourth

Judicial

District,

to

the

United States

District Court

for

the

District

of

Minnesota

(a

copy

of

the

Notice

is annexed

hereto)

was

duly

filed

on

November 24,2015,

with

the

Clerk of

the

United

States

District

Court for

the

District

of

Minnesota.

All

further

proceedings

with

respect

to

this

action

shall be

before said

Court.

LEAGUE

OF

MINNESOTA

CITIES

Dated:

l/

-

â9

-aat

ç

Kurtz

(

878s8)

145

University

Avenue

V/est

St. Paul,

MN 55103-2044

65r.281.1241

Attorney

for

Defendants

EXHIBIT B



14/28

LINITED STATES

DISTRICT

COURT

DISTRICT

OF

MINNESOTA

Nataniel

Hanson

Plaintiffs

VS.

City

of

Richfield Dustin

Schwarze

Nate Kinsey and Aric Gallatin

Defendant.

Court File No.:

NOTICE

OF

REMOVAL

TO The

Clerk of

the

United

States District Court

District of Minnesota Minneapolis

Minnesota.

PLEASE

TAKE NOTICE

that

on November

24 2015 undersigned

counsel

for

Defendants

City

of Richfield

Dustin Schwarze

Nate Kinsey and

Aric

Gallatin

removed

the above-captioned

action

from

the

District

Court

of

Hennepin County

Fourth Judicial

District

Minnesota

to

the United

States District

Court

for

the

District of

Minnesota

Minneapolis

Minnesota.

Removal

is

proper

on

the following

grounds:

1

.

On or

about

November 5

2015

an action

was

commenced

against

Defendants

City of Richfield

Dustin Schwarze

Nate Kinsey

and

Aric Gallatin

in

the

District Court Fourth

Judicial District County

of Hennepin

State

of

Minnesota

by

service

of a Summons

and Complaint

upon one

of

the

named

Defendants. This

is

the

only

process

pleadings

or orders

which

have been served

upon

Defendants to date

in the

Hennepin County

District

Court

action.

A

copy

of

the

Summons

and Complaint

is

attached hereto

as Exhibit

A. Defendants City

of

Richfield

Dustin

Schwarze

Nate



15/28

Kinsey

and

Aric

Gallatin

are

the only Defendants

named

in the above-entitled civil

action

2.

The

action described

in Paragraph 1

above

is

a civil action

of which

this

Court

has

original

jurisdiction

under

the

provisions

of 28

U.S.C.

$

1,331,

in that

it

is

a

civil

action

arising under

the laws of the United

States and

involves

a

federal

question,

as

Plaintiff

alleges

in his

complaint

violations of Federal Constitution-False

Anest,42

U.S.C.

$

1983

(Count

I);

and

Federal Constitution-Excessive

Force, 42 U.S.C.

S

1983

(Count

II). As

such,

this

action

may

be

removed to this

Court

by

Defendants

pursuant

to

the

provisions

of

28 U.S.C.

$$

1331

and

1441,.

3.

This Notice of Removal

is

filed

within

30

days

after the first

named

Defendant

was

served

with

the

Summons and

Complaint

as

required

by

28

U.S.C

$

l

446.

Date:

November

24,2015

s/

Daniel

P.

Kurtz

Daniel

P.

Kurtz

( 387858)

LEAGUE

OF MINNESOTA

CITIES

145

University

Avenue'West

St.

Paul, MN 55103-2044

Telephone:

(65

1) 281-127 6

Facsimile:

(651)

281-1298

Email: [email protected]

Attorneys

for Defendants

2



16/28

STATE

OF

MINNESOTA

COUNTY

OII

HtrNNEPIN

Nataniel

Hanson,

City

of

Richfield

67OO

Portland

Avenue

Richfietd,

MN

55423

Dustin

Schwarze

Address

unknown

Nate

KinseY

Address

unknown

Aric

Gallatin

Address

unknown

DISTRICT

COURT

FOURTH

JUDICIAL

DISTRICT

Case

TYPe:

Civil

Rights

Civil

File

No.

SUMMONS

IN

A

CIVIL

ACTION

Plaintiff,

VS

City

of

Richfield,

Dustin

Schwarze'

Naie

KinseY,

and

Aric

Gallatin,

Defendants

TO

t.'YoUAREBEINGSUED'ThePlaintiffhasstartedalawsuitagainst

you.

The

plaintiff,s

-o^pt^irt

against

you

is

attached

to

this

summons'

Do

not

throw

these

papers

away.

They

tr

otri iul

papers

that

affect

your

rights'

You

must

respond

to

this

lawsuit

even

thougrr

it

may

not

yet

be

filed

with

the

court

and

therå

may

be

no

court

file

number

on

this

summons'

2.

YOU

MUST

REPLY

WITHIN

20

DAYS

TO

PROTECT

YOUR

RIGHT*.

vu.,,

,,'rrut

give

or

mail

to

the

person

who

signed

this

summons

a

writtenfesponsecalledanAnswerwithin20daysofthedateonwhichyou

receivedthisSummons'YoumustsendacopyofyourAnswertotheperson

who

signed

this

summons

to

the

address

below'

S.YoUMUSTRESPoNDToEACHCLAIM.TheAnswerisyourwritten

responsetothePlaintiffsComplaint.InyourAnsweryoumuststatewhether

youagreeordisagreewithea hpu,ao onof-theComplaint'Ifyoubelievet}re

plaintiff

should

not

be

given

,rrty,ftlãg

äsked

for

in

the

Complaint'

you

must

EXHIBIT

A



17/28

say

so

in

Your

Answer.

4.YoUWILLLoSEYOURcAsEIFYoUDoNoTSENDAWRITTEN

REsPoNsEToTHECOMPLAINTToTHEPERSoNwHoSIGNEDTHIS

sUMMoNs'IfyoudonotAnswerwithin20days,youwilllosethiscase.You

will

not

get to

teli

your

side

of

the

story, and

the Court

may

decide against you

and

award

the

Plaintiff

everything

askld

for

in the

complaint'

If

you

do

not

want

to

contest

the

claims

*tu-t d

in

the

compiaint,

you

do

not

need

to

respond'

A default

judgment can

then

be

entered

against

you

for

the

relief

requested

in

the

comPlaint'

5.

LEGAL

ASSISTANCE.

you

may

wish

to

get

legal

help

from

a

lawyer'

If

you

do

not

have

a

lawyer,

the

court

Administrator

may

have

information

about

placeswhereyo,, ..'gerlegalassistance.Evenifyoucannotgetlegalhelp'

you

must

still

providã

a

*iittett

Answer

to

protect

your

rights

of

you may

lose

the

case'

6.ALTERNATrVEDISPUTERESoLUTION.Thepartiesmayagreetoor

be

ordered

to

participate

in an

alternative

dispute

resolution

process

under

Rule

114

of

the

Minåesota

General

Rules

of Practice'

You

must

still

send

your

writtenresponsetotheComplaintevenifyouexpecttousealternativemeans

of

resolving

this

disPute'

,1l,yå

Dated:

November

3,

2015

Tim

M.

PhilliPs

(# 390907)

tphillip

@j

rwilliam

slaw'

com

ioshua

n.

Wltti.*s

(#389118)

jwiliiam

@1

rwilliamslaw'

com

bggo

t

ynãale

Avenue

S,

suite

160

MinneåPolis,

Minnesota

55408

f6L2l

486-5540

io

rzi

6o5-L944

Facsimile

ATTORNEYS

FOR

PLAINTIFF

o



18/28

STATE

OF

MINNESOTA

COUNTY

OF

HENNtrPTN

ISTRICT

COURT

FOURTH

JUDICIAL

DISTRICT

Case

TYPe:

Civil

Rights

Nataniel

Hanson,

VS

Plaintiff,

Civil File

No.

COMPLAINT

JURY

TRIAL

REQUESTED

City

of

Richfield,

Dustin

Schwarze,

Nate

KinseY,

and

Aric

Gallatin,

Defendants.

THE

PARTIPS

l.PiaintiffisanadultmalewhoresidesinMinnesota'

2.DefendantsDustinSchwarze,NateKinsey,andAricGallatinare

adults

who

at all

times

relevant

to

the

allegations

set

forth

in

this

complaint

were

acting

under

color

of

state

law

in

their

capacities

as

law

enforcement

officers

employed

by

the

city

of

Richfield,

Minnesota'

Plaintiff

is

suing

them

in

their individual

caPacities'

3.

Defendant

city

of

Richfield

is a

political

subdivision

of

the

state

of

Minnesota,

Minneapolis

empioyed

Defendants

schwarze,

Kinsey,

and

Gallatin

as

police ofticers

at

all

times

relevant

to

this

action'

Richfield

is

sued

directly

and

also,

on

a1Ì

relevant

claims,

On

the

theories

of

respondeat

superior

or

vicariousliabilityandpursuanttoMinn'Stat' 466'O2fortheunlawful

conductofDefendantsSchwarze,Kinsey,andGallatin'Richfietdisthe

political

subdivision

charged

with

training

and

supervising

1aw

enforcement

officers.Richfieldhasestablishedandimplemented,ordelegatedthe



19/28

responsibiiity

for

establishing

and

implementing,

policies,

practices,

procedures,

and

customs used by

law

enforcement

officers

employed

by

Richfield

regarding seizures and the

use

of force.

Richfield

is

therefore

also

being

sued

directly

pursuant ta

Monell u.

Dept. o/ Soc,

Sucs',

436 U.S.

658

(1e78),

JURISDICTIO

N

AND

VENUE

4.

This

is an

action

for monetary

and

declaratory

relief

under

42

U.S.C,

SS

i983

and

1988.

This

Court

has

jurisdiction

over

this

matter

pursuant

to

Minn.

Stat.

$

4B4.OI

et

seq.

Venue

lies

properly in Hennepin

County,

Minnesota

pursuant to

Minn.

Stat.

S

542.01

et

seq.,

as

the

events

giving

rise to

this

action

occurred

in Hennepin

County.

GENERI\L

ê.,LLEGAIrONS

5.

On December

1 I

,

zOL

1

,

at or around

2:27

a.m.,

Plaintiff

was a

passenger

in

a

vehicle

stopped

by

Richfield

police

officers.

6.

Piaintiff

identified

himself

with

his

driver's

license'

Z.

Officer

Schwarze

performed

one

or

more field

sobriety

tests

on

the

driver

of the

vehicle.

8. Officer

Schwarze

informed

Plaintiff

and

another

passenger

in

the

vehicle

that

if

they

exited

the

vehicie,

he

would

beat

the

shit

out

of'

them'

L

When

officer

schwarze

made

this

comment,

he

was

pointing

his

Taser

at Plaintiff.

10.

sergeant

steen then

approached

the

back

seat

with

officer

Schwarze

and

instructed

Plaintiff

to

exit the

vehicle'

c



20/28

1

1.

Plaintiff did not immediately

exit the vehicle,

however, because

Sergeant Steen's

instruction flatly

contradicted Officer Schwarze's

instruction;

so

Plaintiff did

not know whether Sergeant

Steen

was

ordering him to exit

or

daring

him

to

exit

and have Officer Schwarze

Taser

or

beat

the shit out

of'

him.

72.

Officer

Kinsey

hit Plaintiff

in

face

with

a

closed

fist,

13, Officers

pulled

Piaintiff

frclm

the

rear of

the vehicle,

14.

Piaintiff

was

prone

on

the

ground

and

his

hands

were above

his

head,

15. Officer Kinsey

hit

Plaintiff

with

a closed

fist approximately

nine

more times.

76.

Officer

Schwarze

removed

the cartridge

from

his

Taser,

held

the

trigger

down,

and

delivered

drive stuns

to Plaintiff.l

17,

Officer

Schwarze

delivered

approximately

three

drive

stuns

to

Plaintiff

for

at

least one

to

two

seconds each.

18.

Officer

Schwarze

also

managed

to drive

stun

Officer

Cook

in the

left

leg.

1g.

Officer

Gallatin

kicked

Plaintiff

approximately

three

times

and

stomped

on

him

approximately

twice.

20.

Officers

handcuffed

Plaintiff'

1

When

the cartridge

is

removed,

the

Taser

may

be

operated

in

drive

stun

mode

and

used

as

ä

pain

compliance

tool.

In

drive

stun

mode,

the

Taser's

electrical

probes

are

ãpplied

directly

to the

person, causing

incapacitating

pain

.)



21/28

2I. Plaintiff

was arrested

for,

but

not

convicted of, felony

fourth

degree

assault against

a

police

officer.

22.

Plaintiff

was transportecl to and booked

at the

Hennepin County

Jail,

CO-UNT

I

DEPRTVATION

OF

CrvIL

RIGHTS IN VTOLATION

Oî

42 U.S.C.

S

1983

AND

THÐ FOURTH AND FOURTEENTH

AI/IENDMENTS.

FALSE

ARREST

23.

Plaintiff

restates the allegations contained

in

the

preceding

paragraphs

as

though fully incorporated

herein.

24. Defendants,

acting under color

of

state law, arrested

Plaintiff

without

a

warrant.

25.

At

the

time

Defendants arrested Plaintiff

without

a

warrant,

it

was

clearly

established

that

a

warrantless arrest

complies with the

Fourth

Amendment

only if

it

is

supported

by

probable

cause.

Borgman

u.

Kedley,

646 F.3d 578,522

(Bth Cir. 2011).

26. Defendants

did not

have

probable

cause)

or

even arguable

probable

cause,

to arrest

Plaintiff.

27

.

Defendants,

by arresting

Plaintiff

without

a

warrant

or

probable

cause,

caused

Plaintiff

harm,

couNLII

DþpRrvATroN

oF cIVru RIGHTS

IN VIOLATION

OF

42

U.S.C.

S

1983

AND

THE FOURTH

AND FOURTEENTH

AMENDMENTS

-

EXCESSIVE

FORCE

28. Plaintiff

restates

the

allegations contained

in

the

previous

paragraphs

as

if

fully incorporated herein.

4



22/28

29.

f)efendants, acting

under

color

of

state

law,

used

force

against

Plaintiff.

30.

This

use

of

force

was excessive because

it was

not

reasonably

necessary

under

the

circumstances,

31,

Plaintiff

was

harmed

as

a direct result

of this

excessive

use of

force,

32.

At the time

of

this

excessive

use

of

force,

it was clearly established

that

the Fourth Amendment

ggarantees

the

right to be

free from unreasonable

seizures,

which includes

the right to

be

free

from

excessive

force by

police

officers,

33,

Even

if

Defendants did

not use

excessive

force against

Plaintiff,

they

witnessed

one

or

more

other officers

using

excessive

force

against

Plaintiff

94.

At the

time

Defendants

used

force against

Plaintiff,

it was

clearly

established

that

police

officers

have

an

affirmative

duty

to

intervene

on

behalf

of

people whose

Fourth Amendment

rights

are being

violated

in

their

presence

by

one

or

more

other

officers,

Webb

u.

Higkel,

T13

F.2d

405,

408

(8th Cir.

1983);

Putman

u. Gerloff,639

F,2d

4I5,423

(Bth

Cir

1981).

35.

Defendants

failed to

intervene on

Plaintiff s

behalf.

36,

Plaintiff

was

harmed as a

direct

result

of

this

failure

to intervene.

JURY

DEMAND-

37. Plaintiff

demands

a

jury

trial

REQUEST

T OR

RELIEF

WHEREFORtr,

Plaintiff

respectfuily

requests

that

the

Court:

5



23/28

1

Enter

judgment

in

Plaintiff's favor

on his claims

against

Defendants

in an

amount

exceeding

50,000,

including

litigation

expenses

and attorneys'fees,

the exact

amount

to

be

proven

at

trial;

Declare

that

Defendants'

conduct,

as

set

forth

above,

violated

42

u.s,c.

s

i9B3;

Award

Plaintiff

damages

to

compensate

him for the harm

he

suffered as a

resuit

of

Defendants'unlawful

conduct;

If

Defendants remove

this case

to

federal

court,

award Plaintiff

punitive

damages with

respect

to his

claims

under

federal

law,

the

exact amount

to

be

proven

at

trial;

Grant

Plaintiff leave to amend

this Complaint to

include a claim

for

punitive

damages,

the

exact

amount

to

be

proven

at trial;

Award

Plaintiff

reasonable expenses

incurred

in

this

litigation,

including

attorney

and expert

fees,

pursuant

lo

42

U.S.C.

S

1988;

Grant

Plaintiff

al1

statutory

relief to

which

he is entitled;

Grant

Plaintiff leave

to

amend this

Complaint

to

supplement

any

factuai

deficiencies or otherwise address

any

pleading

deficiencies

herein;

and

Grant

any

other

relief

the Court

deems

just

and equitable.

2

.)

4

5

6

7

B

I

6



24/28

Dated:

November

3, 2015

;l\*

Tim M. Phillips

( 390907)

tphillip

@j

rwilliam

slaw,

com

Joshua

R.

\Milliams

{ 389118)

jwilliam

@j

rwilliam

slaw.

com

2836

Lyndale

Avenue S,

Suite

160

Minneapolis,

Minnesota

55408

(612)

486-5540

(6 12)

605-

1944

Facsimile

ATTORNDYS

FOR

PLAINTIFF

\

7



25/28

4.CKNOTVLEDqEI4pNT

REQUTRED

By

MrNN.

STAT.

S

549.211

Plaintiff,

through

undersigned counsel, acknowledges

that

sanctions,

attorneys'fees,

and

witness

fees

may

be

imposed

under

Minn.

Stat.

S

54g.21I

I

'F

Dated:

November

3, 2015

Tim M.

Phillips

( 390907)

tphillip

@j

rwilliam slaw.

com

Joshua

R.

Williams

( 389118)

jwiliiam

@jrwilliam

slaw,

com

2836

Lyndale

Avenue S,

Suite

160

Minneapolis, Minnesota 55408'

(61.2)

486-5s40

(6

12) 605- 7944 Facsimíle

ATTORNEYS

FOR

PLAINTIF'F

B



26/28

AFFIDAVIT

OF

SERVICE

BY

MAIL

Hanson

v.Richfield

STATE

OF

MNNESOTA

ss.

COUNTY

OF

RAMSEY

Linda J . Durrence being first duly

sworn o n o ath

deposes

an d says that

on November

24 2015 she served

th e

following:

1.

Notice ofFiling of Notice ofRemoval

by

depositing

a

copy

of said documents in

an envelope postage prepaid at S t.

Paul

Minnesota

addressed as follows:

Tim

M

Phillips

Joshua R.

Wlliams

LawOffice of Joshua

R.

Wlliams,PLLC

2836

Lyndale

Avenue South Suite 160

Mnneapolis,MN

55408

K_

da

J Durre ce

N,

Subscribed and

sworn

to

before

me

this

h

day

of

November

2015.

Notary

Publ.

ESLEY R. BROWN

r Notary

Public-

Minnesota

M

My

Commission

Expires

Jen

91. 2020



27/28

ΟJS 44 (Rev. 11/04) CIVIL COVER SHEET The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other paperrequired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 197required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FOR

I. (a) PLAINTIFFS DEFENDANTS

Nataniel Hanson City of Richfield, Dustin Schwarze, Nate Kinsey and Aric Gallatin

(b) County of Residence of First Listed Plaintiff HennepinCounty of Residence of First ListedDefendant Hennepin

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THETRACT OF LAND INVOLVED.

(c) Attorney’s (Firm Name, Address, and Telephone Number) Attorneys (If Known) Tim M. Phillips and Joshua R. Williams Daniel P. Kurtz (387858)Williams Law League of Minnesota Cities2836 Lyndale Avenue South, Suite 160 145 University Avenue WestMinneapolis, Minnesota 55408 St. Paul, MN 55103-2044612-486-5540 651-281-1276

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One BPlaintiff

(For Diversity Cases Only) and One Box for Defendant

PTF DEF PTF

1 U.S. Government X 3 Federal Question Citizen of This State 1 1 Incorporated or Principal Place 4 Plaintiff (U.S. Government Not a Party) of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 Defendant (Indicate Citizenship of Parties of Business In Another State

in Item III)Citizen or Subject of a 3 3 Foreign Nation 6

Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTE

110 Insurance PERSONAL INJURY PERSONAL INJURY 610 Agriculture 422 Appeal 28 USC 158 400 State Reapportionme120 Marine 310 Airplane 362 Personal Injury— 620 Other Food & Drug 410 Antitrust130 Miller Act 315 Airplane Product Med. Malpractice 625 Drug Related Seizure 423 Withdrawal 430 Banks and Banking

140 Negotiable Instrument Liability 365 Personal Injury —of Property 21 USC

88128 USC 157 450 Commerce/ICC Rate

150 Recovery of Overpayment 320 Assault, Libel & Product Liability 630 Liquor Laws 460 Deportation

PROPERTY RIGHTS & Enforcement ofJudgment

Slander 368 Asbestos Personal 640 R.R. & Truck 470 Racketeer Influenced

151 Medicare Act 330 Federal Employers’ Injury Product 650 Airline Regs. Corrupt Organization820 Copyrights

152 Recovery of Defaulted Liability Liability 660 Occupational 480 Consumer Credit830 Patent

Student Loans 340 Marine PERSONAL PROPERTY Safety/Health 490 Cable/Sat TV840 Trademark

(Excl. Veterans) 345 Marine Product 370 Other Fraud 690 Other 810 Selective Service

153 Recovery of Overpayment Liability 371 Truth in Lending 850 Securities/Commodit

LABOR SOCIAL SECURITY of Veteran’s Benefits 350 Motor Vehicle380 Other Personal

Exchange

160 Stockholders’ Suits 355 Motor Vehicle Property Damage 875 Customer Challenge710 Fair Labor Standards 861 HIA (1395ff)

190 Other Contract Product Liability 385 Property Damage 12 USC 3410

Act 862 Black Lung (923)195 Contract Product Liability 360 Other Personal Product Liability 890 Other Statutory Actio720 Labor/Mgmt Relations 863 DIWC/DIWW (405(g))891 Agricultural Acts

REAL PROPERTY CIVIL RIGHTS PRISONERPETITIONS 864 SSID Title XVI

892 Economic Stabilization 730 Labor/Mgmt Reporting 865 RSI (405(g))

210 Land Condemnation 441 Voting 510 Motions to Vacate & Disclosure ActFEDERAL TAX SUITS 893 Environmental Matte220 Foreclosure 442 Employment Sentence 740 Railway Labor Act

230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus: 870 Taxes (U.S. Plaintiff 894 Energy Allocation A240 Torts to Land Accommodations 530 General 790 Other Labor Litigation

895 Freedom of Information245 Tort Product Liability 444 Welfare 535 Death Penalty

900 Appeal of Fee Determin290 All Other Real Property 445 Amer. w/

Disabilities Employment540 Mandamus & Other 791 Empl. Ret. Inc.

871 IRS—Third Party Under Equal Access to J

446 Amer. w/Disabilities - Other

550 Civil Rights Security Act 26 USC 7609 950 Constitutionality ofStatues

X 440 Other Civil Rights

555 Prison Condition

V. ORIGIN (PLACE AN “X” IN ONE BOX ONLY)

Transferred fromanother district(specify)

Appeal to D

Judge fromMagistrateJudgment

1OriginalProceeding

X2

Removed fromState Court

3Remanded fromAppellate Court

4Reinstated orReopened

MultidistrictLitigation

VI. CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 42 U.S.C.§1983

Brief description of cause: Violation of Federal Constitution-False Arrest, 42 U.S.C. § 1983, violation of Federal Constitution-Excessive Force, 42 U.S.C

1983, and Civil Rights Violations under Monell v. Dept of Social Services.

VII. REQUESTED INCOMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint:

JURY DEMAND: X Yes No

VIII. RELATED CASE(S)IF ANY

(See

instructions):

JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

November 24, 2015 x/Daniel P. Kurtz

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

EXHIBIT C



28/28

JS 44 Reverse (Rev. 11/04

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-44

Authority For Civil Cover SheetThe JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law,except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of

Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney

filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the fulname or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name antitle.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of

filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the countyof residence of the “defendant” is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this

section “(see attachment)”.

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in one ofthe boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an

act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the differen parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section foeach principal party.

IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient toenable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the mostdefinitive.

V. Origin. Place an “X” in one of the seven boxes.Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition forremoval is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation

transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is

checked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutesunless diversity. Example: U.S. Civil Statute: 47 USC 553

Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and thecorresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


Documents

Unrelated lawsuit names officer involved in Clark death