Case5:15-cv-02562-NC Document1 Filed06/09/15 Page1 of 12

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JOHN L. BURRIS, Esq. SBN 69888

ADANTE D. POINTER, Esq. SBN 236229
THE LAW OFFICES OF JOHN L. BURRIS
Airport Corporate Centre
7677 Oakport Street, Suite 1120
Oakland, California 94621
Telephone: (510) 839-5200
Facsimile: (510) 839-3882
john.burris@johnburrislaw.com
adante.pointer@johnburrisla.com
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ANTHONY ANGEL ALVARADO, individually, CASE NO.:

and as successor-in-interest to Decedent FRANK
MIGUEL ALVARADO; and JOSE FRANK
PLAINTIFFS COMPLAINT FOR DAMAGES:
ALVARADO,
AND INJUNCTIVE RELIEF
Plaintiffs,
v.
JURY TRIAL DEMANDED

CITY OF SALINAS, a municipal corporation,

CHIEF KELLY McMILLIN, in his official
capacity as Chief of Police for Salinas Police
Department; Officer SCOTT SUTTON, Sergeant
BRIAN JOHNSON for the Salinas Police
Department, and DOES 1-25, inclusive,

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Defendants.

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PLAINTIIFFS COMPLAINT FOR DAMAGES:
AND INJUNCTIVE RELIEF
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INTRODUCTION

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1.

This case arises out of the wrongful death and civil rights violation of FRANK

MIGUEL ALVARADO, an unarmed 39-year old man who was shot to death after being surrounded

by six police officers from the Salinas Police Department, and shot by at least two of those officers

including Defendants officer SCOTT SUTTON, Sergeant BRIAN JOHNSON, and DOES 1-25.

JURISDICTION

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2.

This action arises under Title 42 of the United States Code, Section 1983. Title 42 of

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the United States Code, Section 1331 and 1343 confers jurisdiction upon this Court. The unlawful

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acts and practices alleged herein occurred in the City of Salinas, Monterey County. Plaintiffs further

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invoke the supplemental jurisdiction of this Court pursuant to 28 USC Section 2367 to hear and

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decide claims arising under state law.

PARTIES

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3.

Plaintiffs herein, ANTHONY ANGEL ALVARADO individually, and as the

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successor-in-interest for his father FRANK MIGUEL ALVARADO (Decedent); JOSE FRANK

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ALVARADO as the biological father of the Decedent, are citizens of the United States and entitled to

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bring these claims.

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4.

Defendant CITY OF SALINAS is a Public Entity established by the laws and

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Constitution of the State of California, and owns, operates, manages, directs and controls the Salinas

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Police Department (SPD), which employs the other Defendants in this action.

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5.

Defendant, KELLY McMILLIN, at all times relevant was employed as the Chief of

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Police by Defendant CITY OF SALINAS and was acting in the course and scope of that

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employment. As Chief of Police, KELLY McMILLIN was a policymaking official of the City of

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Salinas Police Department with the power to make official and final policy for the Salinas Police

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Department. He had the overall responsibility of hiring, supervising, and disciplining the individual
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employees, agents of the Salinas Police Department, as well as serving as the final authority for the

operations, management, direction and control of the department. Defendant KELLY McMILLIN is

being sued in his official capacity.

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At all times herein mentioned defendant, SCOTT SUTTON hereafter as SUTTON

is a police officer with the Salinas Police Department. He is being sued individually and in his

official capacity as an officer for the Salinas Police Department.

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At all times herein mentioned defendant, BRIAN JOHNSON hereafter as

JOHNSON is a police officer with the Salinas Police Department. He is being sued individually and

in his official capacity as an officer for the Salinas Police Department.

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8.

Plaintiffs are ignorant of the true names and capacities of Defendants DOES 1 through

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25, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs are informed

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and believe and thereon allege that each defendant so named is responsible in some manner for the

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injuries and damages sustained by Plaintiffs as set forth herein. Plaintiffs will amend their complaint

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to state the names and capacities of DOES 1-25, inclusive, when they have been ascertained.

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9.

Plaintiffs are required to comply with an administrative tort claim requirement under

California law. Plaintiffs have complied with all such requirements.

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STATEMENT OF FACTS

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The claim emanates from an incident that took place July 10, 2014 at approximately

5:00 a.m. on Beverly Drive at Fairview Avenue, in Salinas, California.

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At approximately 5:00 a.m. the Decedent FRANK MIGUEL ALVARADO was

leaving his grandfathers house located on Beverly Drive, in Salinas California.

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A call was reportedly made to the Salinas Police Department by one of the Decedents

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family members because the Decedent was acting erratically, and was seemingly having emotional

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problems.

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Sergeant BRIAN JOHNSON and Officer SUTTON responded to the call for service.

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When SUTTON and JOHNSON arrived at the Decedents grandparents house the

Decedent was no longer at the residence.

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Shortly after SUTTON and JOHNSON arrived, and DOES 1-25 pulled up to the

intersection at Fairview Avenue and Beverly Drive.

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The officers on the scene set up a perimeter around the location where they believed

the Decedent was located.

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Not long after setting up the perimeter, the officers encountered the Decedent and all

of the officers on the scene pulled their weapons and pointed them at the Decedent.
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The officers on the scene did not see the Decedent holding a weapon, nor has it been

reported that they had any reason to believe that he was carrying a weapon.
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Yet-to-be-identified officers yelled at the Decedent, Get your hands up, get your

hands up, get your [expletive] hands up!

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The Decedent began to comply with the directions and raise his hands, and the officers

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then began to open fire on the unarmed Decedent, firing at least 20 shots total in rapid succession

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despite the Decedent being unarmed, and posing no imminent threat to the safety of the officers.

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The officers on the scene failed to issue a warning to the Decedent that they would use

deadly force unless the Decedent complied with a specific direction.

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At the time of the Decedents death, any and all officer-involved shooting by the

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Salinas Police Department were investigated by the Salinas Police Department as determined by

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Defendant Chief of Police, KELLY McMILLIN. This policy assigns a police officer to investigate

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the alleged misconduct of another police officer. Such policy or procedure does not provide for

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meaningful objective internal review of the police officer misconductand thus, a failure to

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recommend objective disciplinary action or recourse.

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As a consequence of Defendants violation of Plaintiffs federal civil rights under 42

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U.S.C. 1983 and the Fourteenth Amendment, Plaintiffs ANTHONY ANGEL ALVARADO, and

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JOSE FRANK ALVARADO were mentally and emotionally injured and damaged as a proximate

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result of Decedents wrongful death, including but not limited to: Plaintiffs loss of familial relations,

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decedents society, comfort, companionship, love, affection, solace, and moral support.
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24.

Plaintiff ANTHONY ANGEL ALVARADO the successor-in-interest of Decedents

estate is entitled to recover wrongful death damages pursuant to C.C.P. 377.60 and 377.61 and

Probate Code 6402(b). Additionally, Plaintiffs are entitled to the reasonable value of funeral and

burial expenses pursuant to C.C.P. 377.60 and 377.61.

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Plaintiffs found it necessary to engage the services of private counsel to vindicate the

rights of Decedent and Plaintiffs rights under the law. Plaintiffs are therefore entitled to an award of

attorneys fees and/or costs pursuant to statute(s) in the event that they are the prevailing parties in

this action under 42 U.S.C. 1983, 1985-86 and 1988.

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FIRST CAUSE OF ACTION

Violation of Fourth Amendment of the United States Constitution
(42 U.S.C. 1983)
(Against Defendants SCOTT SUTTON, BRIAN JOHNSON and DOES 1-25, inclusive)

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Complaint.

Plaintiffs re-allege and incorporate by reference paragraphs 1 through 25 of this

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The conduct of Defendants SUTTON, JOHNSON, and DOES 1-25 violated the

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Decedents right as provided for under the Fourth Amendment to the United States Constitution to be

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free from unreasonable seizures.

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SECOND CAUSE OF ACTION

Violation of Fourth Amendment of the United States Constitution
(42 U.S.C. 1983)

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(Against Defendants SCOTT SUTTON, BRIAN JOHNSON, and DOES 1-25, inclusive)

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28.

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Plaintiffs re-allege and incorporate by reference paragraphs 1 through 27 of this

Complaint.
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Defendants above-described conduct violated Decedents right as provided for under

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the Fourth Amendment to the United States Constitution to be free from excessive force and/or the

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arbitrary and/or unreasonable use of deadly force against him.

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THIRD CAUSE OF ACTION

Municipal Liability for Unconstitutional Custom or Policy (Monell)
(42 U.S.C. 1983)
(Against Defendants CITY OF SALINAS)

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30.

Plaintiffs re-allege and incorporate by reference paragraphs 1-29 of this Complaint.

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The unconstitutional actions and/or omissions of the Salinas Police Department acting

on behalf of Defendant CITY OF SALINAS, on information and belief, were pursuant to the

following customs, policies, practices and/or procedures of the Salinas Police Department, which

were directed, encouraged, allowed, and/or ratified by policy making officers for the Defendant

CITY OF SALINAS and the Salinas Police Department, including but not limited to:
i. To use or tolerate the use of excessive and/or unjustified force;

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ii. To use or tolerate the use of unlawful deadly force;

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iii. To cover up violations of constitutional rights by and/or all of the following:

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1. Ignoring and/or failing to properly and adequately investigate and

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discipline unconstitutional or unlawful police activity; and

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2. Allowing, tolerating and/or encouraging police officers not to file complete

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and accurate police reports, file false police reports, make false statements,

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intimidate, bias and/or coach witnesses to give false information and/ or

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attempt to bolster officers stories, and/or construct or interfere with

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investigations of unconstitutional or unlawful police conduction, by

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withholding and concealing and/or concealing material information.

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To allow, tolerate, and/or encourage a code of silence among law enforcement

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officers and police department personnel, whereby an officer or member of the department does not

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provide adverse information against a fellow officer or member of the department.

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33.

Defendant CITY OF SALINAS through the Salinas Police Department created and

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had in effect, unreasonable policies or customs that were a direct and proximate cause of the

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unconstitutional use of illegal, negligent and/or improper police conduct. The improper policies, or

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customs resulted in the police department engaging in systematic procedures which denied citizens,

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34.

Including the Decedent FRANK MIGUEL ALVARADO, including:

i. The failure to properly train and supervise police officers, including officers

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SUTTON, JOHNSON, and DOES 1-25 in the appropriate and lawful methods of

law enforcement, including but not limited to proper use of force; the proper

method of investigation; the proper use of tasers; and the proper use of firearms.

ii. The failure to properly supervise its police officers, including officer SUTTON,

sergeant JOHNSON, and DOES 1-25 which resulted in officers using excessive

force;
iii. The failure to provide proper psychological and/or psychiatric testing and/or

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treatment for its police officers, including SUTTON, JOHNSON, and DOES 1-25

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in order to determine which employees were prone to use illegal and/or excessive

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force so that employees representing significant risk of harm could be retrained,

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dismissed, or transferred to positions which would not subject citizens to illegal

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and/or excessive conduct;

iv. The failure to maintain policies or customs that assure the protection of the public

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from improper negligent and/or illegal police conduct.

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v. The failure to take proper and necessary remedial action after improper police

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conduct occurred so as to assure that such would not occur in the future.

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vi. The failure to hire and train police officers and police and supervisors to carry out

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their duties without illegal force, threats, physical abuse or other harassment tactics

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in violation of normal police standards and constitutional rights guaranteed to

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citizens such as the Decedent FRANK MIGUEL ALVARADO.

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34.

Defendant CITY OF SALINAS, with deliberate indifference, has failed to take

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reasonable measures to protect the public, including the Decedent FRANK MIGUEL ALVARADO

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and Plaintiffs herein, breaching their duty to properly hire, train, instruct, monitor, supervise,

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evaluate, investigate, and discipline Defendants officer SCOTT SUTTON, sergeant BRIAN

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JOHNSON, and DOES 1-25 as well as other SPD personnel.

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35.

The conduct alleged herein constituted an officially adopted policy or custom which

had the effect of minimizing the consequences of police misconduct and, as a result caused the

deprivation of Decedent FRANK MIGUEL ALVARADOS rights and life, thereby causing real and

substantial damages to his survivors.

FOURTH CAUSE OF ACTION

(Wrongful Death)
(42 U.S.C. 1983)

(Against Defendants SCOTT SUTTON, BRIAN JOHNSON, and DOES 1-25, inclusive)

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36.

Plaintiffs hereby re-allege and incorporate by reference paragraphs 1 through 35 of

this Complaint.
37.

Defendants SCOTT SUTTON, BRIAN JOHNSON, and DOES 1-25 acted under color

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of law by shooting and killing Decedent without lawful justification and subjecting Decedent to

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excessive force thereby depriving Plaintiff ANTHONY ANGEL ALAVARADO as successor in

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interest and the Decedent of certain constitutionally protected rights, including, but not limited to:

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i. The right to be free from unreasonable searches and seizures, as guaranteed by the
Fourth and Fourteenth Amendments to the United States Constitution;
ii. The right not to be deprived of life or liberty without due process of law, as
guaranteed by the Fourteenth Amendments to the United States Constitution;
iii. The right to be free from the use of excessive force by police officers, which is

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guaranteed by the Fourth, and Fourteenth Amendments to the United States

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Constitution;

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WHEREFORE, Plaintiffs prays for relief as hereinafter set forth.

FIFTH CAUSE OF ACTION
(Violations of Plaintiffs Civil Rights to Familial Relationship)
(42 U.S.C. 1983)
(Against Defendants SCOTT SUTTON, BRIAN JOHNSON, and DOES 1-25, inclusive)

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38.

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Plaintiffs hereby re-allege and incorporate by reference herein paragraphs 1 through

37 of this Complaint as though fully set forth;

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Defendants SCOTT SUTTON, BRIAN JOHNSON, and DOES 1-25 acting under

color of state law, and without due process of law, deprived Plaintiffs of their right to a familial

relationship by seizing Decedent by use of unreasonable, unjustified and deadly force and violence,

causing injuries which resulted in Decedents death, all without provocation and all in violation of

rights, privileges, and immunities secured by the First, Fourth, and Fourteenth Amendments to the

United States Constitution.

WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

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SIXTH CAUSE OF ACTION

(Survival action: Violation of Decedents civil rights)
(42 U.S.C. 1983)

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(Against Defendants SCOTT SUTTON, BRIAN JOHNSON, and DOES 1-25, inclusive)

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40.

39 of this Complaint.

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41.

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Decedent was forced to endure great conscious pain and suffering because of the

Defendants conduct before his death;

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Plaintiffs hereby re-allege and incorporate by reference herein paragraphs 1 through

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Decedent did not file a legal action before his death;

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Plaintiff ANTHONY ANGEL ALVARADO successor-in-interest of Decedents claim

damages for the conscious pain and suffering incurred by Decedent, as provided for under 42 U.S.C.
1983.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

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SEVENTH CAUSE OF ACTION

(Wrongful Death - Negligence)
(C.C.P. 377.60 and 377.61)
(Against Defendants CITY OF SALINAS, KELLY McMILLIN in his official capacities, SCOTT
SUTTON, BRIAN JOHNSON, and DOES 1-25, inclusive, individually, jointly and severally)

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44.

Plaintiffs re-allege and incorporate by reference herein paragraphs 1 through 43 of this

Complaint, except for any and all allegations of intentional, malicious, extreme, outrageous, wanton,

and oppressive conduct by Defendants, and any and all allegations requesting punitive damages.

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Defendants and DOES 1-25 inclusive, by and through their respective agents and

employees, proximately caused the death of Decedent on July 10, 2014 as a result of their negligent

conduct and/or negligent failure to act as set-forth herein.

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As an actual and proximate result of said Defendants negligence, and the death of

Decedent, Plaintiff ANTHONY ANGEL ALVARADO as successor in interest, has sustained

pecuniary loss resulting from the loss of comfort, society, attention, services, and support of his

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father, the Decedent, in an amount according to proof at trial.

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As a further actual and proximate result of said Defendants negligence, Plaintiffs

incurred funeral and burial expenses, in an amount according to proof at trial.

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Pursuant to California C.C.P. Sections 377.60 and 377.61, Plaintiffs have brought this

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action, and claims damages from said Defendants for the wrongful death of Decedent, and the

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resulting injuries and damages.

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WHEREFORE, Plaintiffs prays for relief as hereinafter set forth.

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EIGHTH CAUSE OF ACTION

(Violation of Decedents Right To Enjoy Civil Rights)
(Violation of CALIFORNIA CIVIL CODE 52.1)
(Against Defendants SCOTT SUTTON, BRIAN JOHNSON, and DOES 1-25, inclusive)

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49.

Plaintiffs re-allege and incorporate by reference paragraphs 1 through 48 of this

Complaint.
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Defendants above-described conduct constituted interference, and attempted

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interference, by threats, intimidation and coercion, with Decedents peaceable exercise and

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enjoyment of rights secured by the Constitution and laws of the United States and the State of

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California, in violation of California Civil Code 52.1.

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WHEREFORE, Plaintiffs prays for relief as hereinafter set forth.

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NINTH CAUSE OF ACTION

(Assault And Battery)
(Against Defendants SCOTT SUTTON, BRIAN JOHNSON, and DOES 1-25, inclusive)

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Complaint.
52.

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Plaintiffs re-allege and incorporate by reference paragraphs 1 through 50 of this

Defendants SCOTT SUTTON, BRIAN JOHNSON, and DOES 1-25 above-described

conduct constituted assault and battery.

WHEREFORE, Plaintiffs prays for relief as hereinafter set forth.

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JURY DEMAND

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53.

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Plaintiffs hereby demand a jury trial in this action.

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PRAYER

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WHEREFORE, Plaintiffs prays for relief, as follows:

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For general damages in a sum to be determined according to proof;

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2.

For special damages, including but not limited to, past, present and/or future wage

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loss, income and support, medical expenses and other special damages in a sum to be determined

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according to proof;

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3.

For funeral and burial expenses according to proof;

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4.

For punitive damages and exemplary damages in amounts to be determined according

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to proof as to Defendants , City of Salinas, Chief McMILLIN, SUTTON, JOHNSON, and DOES 1-

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25;

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5.

For reasonable attorneys fees pursuant to 42 U.S.C. 1988;

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For cost of suit herein incurred; and

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7.

Injunctive Relief:

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a. An order prohibiting Defendants and their police officers from unlawfully

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interfering with the rights of the Decedent and Plaintiffs and others to be free

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unreasonable searches and seizures and excessive and unreasonable force;

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b. An order prohibit Defendants and their police officers from engaging in a code of
silence may be supported by the evidence in this case;
c. An order requiring Defendants to train all Salinas Police Department law

enforcement officers concerning generally accepted and proper tactics and

procedures for the use of deadly force.

Law Offices of John L. Burris

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Dated: June 9, 2015

/s/ John L. Burris

JOHN L. BURRIS, Esq.
Attorney for Plaintiff

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PLAINTIIFFS COMPLAINT FOR DAMAGES:
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