LAYFIELD & BARRETT, APC Telephone: (884) Case 1:16-cv-00937-JCH-KK Document 1 Filed 08/16/16 Page 1 of 18 James H. Woop 'THomas G. Woop [Law OFFIce oF James H. Woop PC 423 6" Street NW |Albuquerque, NM 87114 (505) 340-3134 [Attorneys for Plaintiffs, MARK GRANO, individually and as Personal Representative lof the Wrongful Death Estate of John Rogers, deceased; BILLIE ROGERS; JOHN ROGERS, JR.; and DANA DAVILA UNITED STATES DISTRICT COURT. DISTRICT OF NEW MEXICO, MARK GRANO; individually and as Case No. ersonal epresentative 0 the : Wrongful Death Estate of John (assigned to: Rogers, deceased: BILLIE ROGERS; |P°' JOHN ROGERS, JR.; and DANA DAVILA, Plaintiffs, COMPLAINT FOR DAMAGES (Complaint Filed Trial Date: vs. - \Jury Trial Requested CITY OF BLOOMFIELD; ANDREW IDARBY; and DOES 1 through 10, inclusive, Defendants. Plaintiffs MARK GRANO, individually and as Personal Representative of the \Wrongful Death Estate of John Rogers, deceased; BILLIE ROGERS; JOHN ROGERS, JR.; and DANA DAVILA bring this lawsuit and show this honorable court the following: JURISDICTIONAL ALLEGATIONS COMPLAINT FOR DAMAGESLAYFIELD & BARRETT, APC Case 1:16-cv-00937-JCH-KK Document 1 Filed 08/16/16 Page 3 of 18 8. MR. ROGERS died on August 27, 2014, as a direct and proximate result of conduct of the Defendants complained of in this action, 9. Defendant Officer Andrew Darby, hereinafter referred to as “DARBY,” is and at all times complained herein was a police officer with the Bloomfield Police Department. At all times complained of herein, DARBY was lacting as an individual person under the color of state law, pursuant to his status as a police officer, and was acting in the course of and within the scope of his lemployment with Defendants City of Bloomfield. 10, Defendant City of Bloomfield (“BLOOMFIELD”) is a municipal entity llocated in the State of New Mexico within the territorial jurisdiction of this court. 11. Defendants DOES 1 through 6, inclusive, are sworn peace officers land/or deputy sheriffs and/or investigators and/or Special Officers and/or a nurses land/or some other public officer and/or Supervisors (i.e. Sergeants, Lieutenants, (Captains, Commanders, etc.) and/or some other employee of Defendant BLOOMFIELD and/or the Bloomfield Police Department, who are in some substantial way liable and responsible for, or otherwise caused or participated in, and/or failed to supervise and/or intervene in and stop and/or prevent the actions complained of by the Plaintiffs in this lawsuit. DOES 1 through 6, inclusive, are Inatural persons whose identities are presently unknown to Plaintiffs, who, therefore, sue these persons by the fictitious name DOE. ‘COMPLAINT FOR DAMAGESLAYFIELD & BARRETT, APC Telephone: (844) 993-3743. Fees Cer auneene 10 u 12 1B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Case 1:16-cv-00937-JCH-KK Document1 Filed 08/16/16 Page 5 of 18 14. Atall times complained of herein, DOES 7 through 10, inclusive, were lacting pursuant to their authority as the Chief and/or Assistant Sheriffs and/or |Captains and/or Lieutenants and/or Sergeants and/or other Supervisory personnel land/or policy making and/or final policy making officials with the Bloomfield Police [Department and/or otherwise with Defendant BLOOMFIELD, and/or some other public official(s) with Defendant BLOOMFIELD, and were acting in the course of and within the scope of their employment with Defendant BLOOMFIELD, and were acting as individual persons acting under the color of state law. 15. Moreover, at all times complained of herein, Defendants DARBY and DOES | through 10, inclusive, were acting pursuant to, or otherwise contributed to the creation and maintenance of, the customs, policies, usages and practices of the [Bloomfield Department / BLOOMFIELD, for, inter alia, unlawfully and lunreasonably using excessive force and/or deadly force on persons, for unlawfully iseizing persons, for failing to promptly provide medical care for persons in police custody, and for otherwise violating the Fourth Amendment search-and-seizure ‘rights of persons in the community, in general. 16. In addition to the above and foregoing, Defendants to this action, acted pursuant to a conspiracy, agreement and understanding and common plan and scheme to deprive MR. ROGERS and the Plaintiffs of his/their federal constitutional land statutory rights, and New Mexico constitutional and statutory state law rights, as described above and below, and acted in joint and concerted action to so deprive MR. ‘COMPLAINT FOR DAMAGES:(200) 644.9861 LAYFIELD & BARRETT, APC Telephone: (844) 993 Case 1:16-cv-00937-JCH-KK Document 1 Filed 08/16/16 Page 7 of 18 ROGERS, near MR. ROGERS’S truck. 24. Without provocation, DARBY fatally shot MR. ROGERS twice, including once in MR. ROGERS'S back. 25. The deadly shooting of MR. ROGERS by DARBY and DOES 1 through 6, inclusive, above-referenced, also caused MR. ROGERS to suffer severe physical injury, and severe mental, emotional and physical pre-death, distress, pain, suffering and; in an amount to be proven at trial, in excess of $10,000,000.00. 26: The shooting of MR. ROGERS by DARBY and DOES | through 6, inclusive, above-referenced, was done by DARBY and DOES | through 6, inclusive, without reasonable cause to believe that MR. ROGERS was either armed or \dangerous. 27. Accordingly, the shooting of MR. ROGERS was done in violation of his ‘right to be free from the use of unreasonable force upon his person under the Fourth Amendment to the United States Constitution. 28. The shooting of MR. ROGERS by DARBY and DOES | through 6, inclusive, above-referenced, also caused MR. ROGERS and Plaintiffs to suffer substantial special damages, including but not limited to, lost wages / profits and other income that MR. ROGERS would have earned / made / acquired during his lifetime, the loss of MR. ROGERS’S home and the of other property of MR. [ROGERS, funeral and burial expenses, hospital and other medical expenses and 7 ‘COMPLAINT FOR DAMAGESLAYFIELD & BARRETT, APC Case 1:16-cv-00937-JCH-KK Document 1 Filed 08/16/16 Page 9 of 18 33. Accordingly, the Defendants’ seizure of MR. ROGERS was an unlawful land unreasonable seizure of him under the Fourth Amendment to the United States Constitution. 34. The unreasonable seizure of MR. ROGERS by DARBY and DOES 1 Ithrough 6, inclusive, above-referenced, also caused MR. ROGERS to suffer substantial general damages such as severe mental and emotional distress, pain and ‘suffering, severe physical injuries, and special damages, including but not limited to, lost wages / profits and other income that MR. ROGERS would have earned / made / lacquired during his lifetime, the loss of MR. ROGERS? funeral and burial expenses, hospital and other medical expenses and costs, and other special damages; all in an lamount to be shown at trial, in excessive of $15,000,000.00. 35. The unreasonable seizure of MR. ROGERS by the Defendants, above- referenced, was done maliciously and in reckless disregard of MR. ROGERS’S constitutional rights; sufficient for an award of punitive damages against the DOE ‘Defendants; in an amount to be shown at trial, in excessive of $10,000,000.00. THIRD CAUSE OF ACTION LOSS OF FAMILIAL RELATIONSHIP WITHOUT DUE PROCESS OF THE LAW UNDER FOURTH AND FOURTEENTH AMENDMENT [42 U.S.C. § 1983] (Against all Defendants) 36. Plaintiff’ hereby re-allege and incorporate by reference the allegations, set forth in paragraphs | through 35, inclusive, above, as though set forth in full lherein. 9 ‘COMPLAINT FOR DAMAGES644.9861 LAYFIELD & BARRETT, APC Case 1:16-cv-00937-JCH-KK Document 1 Filed 08/16/16 Page 11 of 18 FOURTH CAUSE OF ACTION DEPRIVATION OF LIFE WITHOUT DUE PROCESS OF LAW UNDER FOURTEENTH AMENDMENTS! [42 U.S.C. § 1983] (FEDERAL SURVIVALSHIP CLAIM (Against all Defendants) 41. Plaintiffs hereby re-allege and incorporate by reference the allegations set forth in paragraphs 1 through 40, inclusive, above, as if set forth in full herein. 42. As shown above, MR. ROGERS was unlawfully and unjustifiably shot to death, with malice, by DARBY and DOES | through 6, inclusive, on August 27, J2014. 43. MR. ROGERS’S unlawful killing was done without the due process of ithe laws of the United States of America and of the State of New Mexico. 44. The denial of MR. ROGERS’S right not to be deprived of his life Iwithout due process of the law caused MR. ROGERS to suffer severe physical land mental and emotional pain, suffering and injury, as well as lost wages / profits, the loss of his enjoyment of life, medical bills and expenses, funeral bills and lexpenses, and other special and general damages; all in an amount to be proven and itrial, in excess of $15,000,000.00. 45 Moreover, because the actions and omissions of the Defendants were ldone with deliberate indifference to his physical safety and to his very life, and were done intentionally, maliciously recklessly, sadistically, oppressively, outrageously, " And as otherwise provided for under the United States Constitution as those other rights retained by the People (U.S. Const. Amend. 9.) u ‘COMPLAINT FOR DAMAGES(800) 644-9861 Case 1:16-cv-00937-JCH-KK Document 1 Filed 08/16/16 Page 13 of 18 ‘mentally and emotionally injured, and incurred medical and psychological costs/bills land expenses, funeral and burial expenses, incurred the loss of society, comfort, lsolace and their parent — child relationship with MR. ROGERS, and other special and \general damages and expenses; all in an amount to be proven at trial; in excess of '$15,000,000.00 each. 50. The actions by said Defendants were done maliciously and in reckless disregard of Plaintiffs’ constitutional rights, sufficient for an award of punitive / lexemplary damages against Defendants in favor of Plaintiff in an amount to be shown at trial, in excess of $10,000,000.00 each. SIXTH CAUSE OF ACTION [42 U.S.C. § 1983] Failure to Adequately Seren, Hire, and Discipline (Against Defendants CITY and DOES 7 through 10) 51. Plaintififs hereby re-allege and incorporate by reference the allegations set forth in paragraphs | through 50, inclusive, above, as if set forth in full herein 52. In addition to the above and foregoing, Defendants BLOOMFIELD’s and DOES 7 through 10’s, inclusive, methods of screening and doing proper background checks on prospective applicants for appointments (hiring) for the position of peace officer and/or deputy sheriffs and/or investigator and/or supervisor, ‘were so inadequate, and were so recklessly deliberately indifferent to members of the public, to screen-out applicants who were violent and who had shown a propensity for violence, to screen-out applicants who were dishonest and could not be trusted to obey the laws of the State of New Mexico and of the United States of America, to ‘COMPLAINT FOR DAMAGESLAYFIELD & BARRETT, APC Case 1:16-cv-00937-JCH-KK Document 1 Filed 08/16/16 Page 15 of 18 SIXTH CAUSE OF ACTION NEW MEXICO STATE LAW VIOLATION: NEGLIGENT HIRING, SUPERVISION, TRAINING, AND RETENTION (Against BLOOMFIELD and DOES 7 through 10, INCLUSIVE.) 56. Plaintiffs hereby re-allege and incorporate by reference the allegations lset forth in paragraphs | through 55, inclusive, above, as if set forth in full herein 57. Among other things, Defendants BLOOMFIELD and DOES 7 through 10, inclusive, were negligent in the hiring, training, supervision and retention of Bloomfield Police Officer DARBY, who shot and killed MR. ROGERS. 58. Defendants’ negligence includes, but is not limited to: a, Inadequate management, training, and enforcement of policies regarding citizen encounters, proper police work, and knowledge of the law related to the use of deadly force used by DARBY; b. Placement and retention of Bloomfield Police Officer DARBY in ‘a community service and law enforcement position; c. Inadequate supervision of DARBY who used unreasonably deadly force during the subject incident; d. Inadequate C.LT. training of Bloomfield Police Department officers, resulting in the battery and death of individuals, like MR. ROGERS, suffering from mental health issues; and, e. Inadequate training of Bloomfield Police Department officers regarding the use of force against individuals suffering from mental health issues. Is COMPLAINT FOR DAMAGES(800) 645-9861 LAYFIELD & BARRETT, APC Telephone: #44) 993, Case 1:16-cv-00937-JCH-KK Document1 Filed 08/16/16 Page 17 of 18 DARBY against MR. ROGERS constitute a battery upon him pursuant to Section 41- \4-12 of the New Mexico Tort Claims Act. 65. Among other things, Defendant BLOOMFIELD’s above-described negligent practices caused the battery to MR. ROGERS. 66. Acting through its employees and/or agents or apparent agents, 'Defendants’ wrongful conduct caused Plaintiffs’ injuries and resulting damages. 67. Among other things, the Estate of MR. ROGERS is entitled to all ldamages allowed by New Mexico law, including: (A) the reasonable expense of Inecessary medical care and treatment and funeral and burial; (B) the pain and suffering experienced by the deceased between the time of injury and death; (C) the lost earnings, the lost earning capacity and the loss of household services in the past, and the present cash value of his lost earnings, lost earning capacity, and lost household services in the future; (D) lost employment benefits for his spouse in the [past, and the present cash value of those lost employment benefits in the future; and \E) the value of MR. ROGERS’S life apart from his earning capacity. 68. Among other things, Plaintiffs suffered injuries and damages in the past land in reasonable probability will suffer injuries and damages in the future. WHEREFORE, Plaintiff’ pray for judgment against Defendants as follows: 1) For an award of compensatory damages in favor of Plaintiffs an amount to be shown at trial, in excess of $15,000,000.00 against all Defendants; 7 ‘COMPLAINT FOR DAMAGESCase 1:16-cv-00937-JCH-KK Document 17 Filed 09/30/16 Page 1 of 13, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO MARK GRANG, individually and as Personal Representative of the ‘Wrongful Death Estate of John Rogers, deceased; BILLIE ROGERS; JOHN ROGERS, JR.; and DANA DAVILA, Plaintiffs, vs. No. 1:16-cv-00937 JCH/KK CITY OF BLOOMFIELD; ANDREW DARBY; and DOES | through 10, inclusive, Defendants. ANSWER OF DEFENDANTS CITY OF BLOOMFIELD AND ANDREW DARBY TO (OMPLAINT FOR DAMAGES COME NOW Defendants City of Bloomfield and Andrew Darby, by and through their attorneys of record Jarmie & Associates, and hereby answer plaintiffs’ Complaint for Damages, Doc. No. | (filed Aug. 16, 2016) (hereinafter aintiffs’ Complaint”) as follows: JURISDICTIONAL ALLEGATIONS 1. The allegations made in Paragraph I of Plaintiffs’ Complaint are legal conclusions not requiring further response. Insofar as further response is necessary, Defendants state that they do not contest the jurisdiction of this Court over the instant action, 2. The allegations made in Paragraph 2 of Plaintiffs’ Complaint are legal conclusions not requiring further response. Insofar as further response is necessary, Defendants state that they do not contest the venue of the instant action. 3. The allegations made in Paragraph 3 of Plaintiffs’ Complaint are legal conclusions not requiring further response. Insofar as further response is necessary, Defendants state that they 4o not contest the jurisdiction of this Court over the instant action,Case 1:16-cv-00937-JCH-KK Document 17 Filed 09/30/16 Page 3 of 13, 13. Defendants deny the allegations made in Paragraph 13 of Plaintiffs’ Complaint and demand strict proof thereof, 14, Theallegations made in Paragraph 14 of Plaintiffs’ Complaint are legal conclusions not requiring further response. To the extent that any further response is required, Defendants deny the allegations made in Paragraph 14 of Plaintiff's Complaint and demand strict proof thereof. 15. Defendants deny the allegations made in Paragraph 15 of Plaintiffs’ Complaint and demand strict proof thereof, 16. Defendants deny the allegations made in Paragraph 16 of Plaintiffs" Complaint and demand strict proof thereof. 17. Defendants deny the allegations made in Paragraph 17 of Plaintiffs’ Complaint and demand strict proof thereof. 18. The allegations made in Paragraph 18 of Plaintiffs’ Complaint are legal conclusions not requiring further response. Insofar as further response is necessary, Defendants deny that there are persons fitting the descriptions of Does I-10 of Plaintiffs” Complaint. FIRST CAUSE OF ACTION ALLEGED USE OF UNREASONABLE FORCE ON PERSON UNDER FOURTH. AMENDMENT [42 U.S.C. § 1983] FEDERAL SURVIVALSHIP [sic] CLATM (Against All Defendants) 19, Defendants re-allege all of the objections, denials and defenses made in Paragraphs 1-18 of this Answer and further state as follows: 20. As to the allegations made in Paragraph 20 of Plaintiffs’ Complaint, Defendants admit that Rogers died after being shot by Officer Darby and that Rogers was shot twice; DefendantsCase 1:16-cv-00937-JCH-KK Document 17 Filed 09/30/16 Page 5 of 13 28. Defendants deny the allegations made in Paragraph 28 of Plaintiffs” Complaint and demand strict proof thereof. 29. Defendants deny the allegations made in Paragraph 29 of Plaintiffs” Complaint and demand strict proof thereof, SECOND CAUSE OF ACTION ALLEGED UNREASONABLE SEIZURE OF PERSON UNDER FOURTH AMENDMENT [42 U.S.C. § 1983] FEDERAL SURVIVALSHIP [sie] CLAIM. (Against All Defendants) 30. Defendants re-allege all of the objections, denials and defenses made in Paragraphs 1-29 of this Answer and further state as follows 31. As to the allegations made in Paragraph 31 of Plaintiffs’ Complaint, Defendants admit that Officer Darby shot and killed Rogers but deny any implication of liability associated with this limited admission, Answering further, Defendants deny the remainder of the allegations made in Paragraph 31 of Plaintiffs’ Complaint and demand strict proof thereof. 32, Defendants deny the allegations made in Paragraph 32 of Plaintiffs’ Complaint and demand strict proof thereof. 33. Defendants deny the allegations made in Paragraph 33 of Plaintiffs? Complaint and demand strict proof thereof. 34. Defendants deny the allegations made in Paragraph 34 of Plaintiffs’ Complaint and demand strict proof thereof. 35. Defendants deny the allegations made in Paragraph 35 of Plaintiffs’ Complaint and demand strict proof thereof.Case 1:16-cv-00937-JCH-KK Document 17 Filed 09/30/16 Page 7 of 13, demand strict proof thereof. 43. Defendants deny the allegations made in Paragraph 43 of Plaintiffs" Complaint and demand strict proof thereof. 44, Defendants deny the allegations made in Paragraph 44 of Plaintiffs’ Complaint and demand strict proof thereof. 45. Defendants deny the allegations made in Paragraph 45 of Plaintiffs” Complaint and demand strict proof thereof. FIFTH CAUSE OF ACTION ALLEGED FAILURE TO ADEQUATELY TRAIN OFFICERS [42 U.S.C. § 1983] (FEDERAL SURVIVALSHIP [sic] CLAIM (Against BLOOMFIELD and DOES 7 through 10, inclusive) 46. Defendants re-allege all of the objections, denials and defenses made in Paragraphs 1-45 of this Answer and further state as follows 47. Defendants deny the allegations made in Paragraph 47 of Plaintiffs” Complaint and demand strict proof thereof. 48. Defendants deny the allegations made in Paragraph 48 of Plaintiffs’ Complaint and demand strict proof thereof. 49. Defendants deny the allegations made in Paragraph 49 of Plaintiffs’ Complaint and demand strict proof thereof. 50, Defendants deny the allegations made in Paragraph 50 of Plaintiffs’ Complaint and demand strict proof thereof.Case 1:16-cv-00937-JCH-KK Document 17 Filed 09/30/16 Page 9 of 13, 58. Defendants deny the allegations made in Paragraph 58 of Plaintiffs’ Complaint, inchiding all lettered subparts thereof, and demand strict proof thereof. 59. Defendants deny the allegations made in Paragraph 59 of Plaintiffs’ Complaint and demand strict proof thereof. 60. Defendants deny the allegations made in Paragraph 60 of Plaintiffs’ Complaint and demand striet proof thereof. 61. Defendants deny the allegations made in Paragraph 61 of Plaintiffs’ Complaint and demand strict proof thereof. 62. Defendants deny the allegations made in Paragraph 62 of Plaintiffs’ Complaint and demand strict proof thereof. Hi [sic] CAUSE OF ACTION’ ALLEGED NEW MEXICO STATE LAW VIOLATION: NEGLIGENT BATTERY (Against BLOOMFIELD and DOES 7 through 10, INCLUSIVE) (AGAINST ALL DEFENDANTSS [sie]) 63. Defendants re-allege all of the objections, denials and defenses made in Paragraphs 1-62 of this Answer and further state as follows: 64. Defendants deny the allegations made in Paragraph 64 of Plaintiffs’ Complaint and demand strict proof thereof, 65. Defendants deny the allegations made in Paragraph 65 of Plaintiffs’ Complaint and demand strict proof thereof, 66. Defendants deny the allegations made in Paragraph 66 of Plaintiffs’ Complaint and demand strict proof thereof, » See footnote 2 above.Case 1:16-cv-00937-JCH-KK Document 17 Filed 09/30/16 Page 11 of 13 7. Plaintifis claims are barred by the doctrine of unclean hands. 8 Plaintiffs" ims for damages under the New Mexico Tort Claims Act are subject to the statutorily prescribed caps on maximum recovery of damages set forth in NMSA 1978, § 41-4- 19, 9. Immunity for one or more of the tort claims made by plaintiffs is not waived under the New Mexico Tort Claims Act. 10. Plaintiffs have failed to mitigate their asserted damages. 11, The individually named Defendants are entitled to qualified immunity, 12, Plaintiffs failed to give proper notice of their claims under the New Mexico Tort Claims Act, NMSA 1978, § 41-4-16. 13, Pursuant to NMSA § 41-4-19(D), Plaintiffs are barred from pursuing claims for punitive damages on any cause of action brought under the New Mexico Tort Claims Act against Defendants in this case. 14, Plaintiffs are barred from pursuing claims for punitive damages because Defendants engaged in no acts or omissions which would eto a level required to sustain an award for punitive damages. The alleged conduct of Defendants, which is denied in its entirety, never approached reckless, wanton or wilful conduct or callous disregard so as to support liability and/or punitive damages. 15. Asaseparate and alternative affirmative defense, Defendants state that any award of punitive damages will violate the procedural safeguards guaranteed by the Fifth and Sixth Amendments of the Constitution of the United States in that such damages are penal in nature. Consequently, Defendants are entitled to procedural safeguards afforded to a criminal defendant, uCase 1:16-cv-00937-JCH-KK Document 17 Filed 09/30/16 Page 13 of 13 hereby certify that on September 30, 2016, I filed the foregoing through this Court’s CMECF filing system, causing a true and correct copy of the same to be served electronically upon all counsel of record as more fully reflected in the Notice of Electronic Filing. /s/ Mark D. Jarmie Mark D. Jarmie Jarmie & Associates 13